Wirzburger v. Galvin

• Decision Date: 24 June 2005
• Docket Number: No. 04-1625.,04-1625.
• Citation: 412 F.3d 271
• Parties: Michael WIRZBURGER, et al., Plaintiffs, Appellants, v. William F. GALVIN, Secretary of State, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 271

412 F.3d 271

Michael WIRZBURGER, et al., Plaintiffs, Appellants, v. William F. GALVIN, Secretary of State, et al., Defendants, Appellees.

No. 04-1625.

United States Court of Appeals, First Circuit.

Heard October 5, 2004.

Decided June 24, 2005.

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Derek L. Gaubatz, with whom Anthony R. Picarello, Jr., Roman P. Storzer, Burns & Levinson LLP, Michael J. Meagher and Robert J. O'Regan were on brief, for appellants.

William W. Porter, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and Peter Sacks, Assistant Attorney General, were on brief, for appellees.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

Plaintiffs-appellants would like to amend the Massachusetts Constitution to allow public financial support to be directed toward private, religiously affiliated schools. Plaintiffs attempted to propose their amendment through the Massachusetts initiative procedure, but two distinct provisions of the Massachusetts Constitution prevented initiatives on this subject. They now challenge these subject-matter exclusions from the initiative process on federal Free Speech, Free Exercise, and Equal Protection grounds. In the end, plaintiffs' arguments fail, and although our analysis diverges at points, we affirm the district court's grant of summary judgment.¹

I. Facts

Plaintiffs are parents of children enrolled in religiously affiliated schools who sought to amend Amendment Article 18 of the Massachusetts Constitution (the "Anti-Aid Amendment"), which prohibits public financial support for private primary or secondary schools.² Mass. Const. amend. art. 18. Article 48 of the Massachusetts Constitution provides that, in addition to the amendment procedure available to the state legislature, the Constitution may also be amended by popular initiative. Mass. Const. amend. art. 48, pt. 1. Following the required procedure, plaintiffs submitted an initiative petition, for certification, to the Massachusetts Attorney General to modify the Anti-Aid Amendment by adding a sentence stating that nothing in the Anti-Aid Amendment shall prevent the Commonwealth from providing loans, grants, or tax benefits to students attending private schools, regardless of the schools' religious affiliation. The Attorney General, however, denied certification of the proposed initiative, because Article 48 prohibits amendment of the Anti-Aid Amendment by initiative (the "Anti-Aid Exclusion") and because the petition explicitly relates to "religious institutions," another matter expressly excluded from the initiative process by Article 48 (the "Religious Exclusion").

Section Two of Article 48 limits Massachusetts' initiative process by listing the "Excluded Matters," which are not subject to popular action by initiative, including, inter alia, appointment or compensation of judges; the powers, creation or abolition of the courts; and specific appropriation of state money. Mass. Const. amend. art. 48, pt. 2, § 2. The pertinent provision of Article 48, referred to as the Anti-Aid Exclusion, states that "[n]either the eighteenth [Anti-Aid] amendment of the constitution... nor this provision for its protection, shall be the subject of an initiative amendment," while the Religious Exclusion mandates that "[n]o measure that relates to religion, religious practices or religious institutions... shall be proposed by an initiative petition." Id. Plaintiffs challenge the validity of both of these exclusions under the U.S. Constitution.

II. Analysis

A. Free Speech Claim

The first issue before us is whether the Massachusetts Constitution's limitations on the initiative process violate the First Amendment free speech rights of prospective initiative proponents. Appellants argue that the exclusions to the state initiative process, which prevent them from pursuing amendments regarding religion or state aid to private institutions, should be considered content-based restrictions on core political speech subject to strict scrutiny.

The difficulty with the appellants' argument is that a state initiative procedure, although it may involve speech, is also a procedure for generating law, and is thus a process that the state has an interest in regulating, apart from any regulation of the speech involved in the initiative process. In other words, the challenged exclusions constitute regulations "aimed at non-communicative impact, but nonetheless having adverse effects on communicative opportunity." Laurence H. Tribe, American Constitutional Law § 12-2 at 790 (2d ed.1988). See, e.g., United States v. O'Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (rejecting draft card burner's claim that a statute prohibiting the destruction of draft cards violated his First Amendment rights, reasoning that the law punished him for the "noncommunicative impact of his conduct," although the court recognized the symbolic value of burning a draft card). Unlike regulations that are "aimed at communicative impact," regulations that aim at preventing some harm independent of speech—in this case, the use of the initiative process for the passage of certain types of laws believed to be unsuited to that process—are not presumed unconstitutional, and are not subjected to strict scrutiny. Tribe, American Constitutional Law § 12-2, at 790. See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277, 291, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (upholding a ban on nude dancing, because "the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare," which are unrelated to expression). Regulations of this type are, at most, subject to intermediate scrutiny, under which they will be upheld if the "harmful consequences of this particular form of expressive behavior, quite apart from any ideas it might convey, outweigh the good." Tribe, American Constitutional Law § 12-2, 791. See, e.g., Grayned v. Rockford, 408 U.S. 104, 115-16, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (upholding ordinance barring noisy demonstrations near schools, because the government has sufficiently "weighty reasons" to restrict this type of expressive activity). Applying this balancing, we uphold Massachusetts' exclusions to its initiative process for the reasons explained below.

Before arriving at this explanation, we will first examine the arguments of the parties—a task that is particularly difficult in this case, because the parties have planted themselves firmly at opposite poles, with plaintiffs arguing for strict scrutiny and Massachusetts arguing that only minimal rationality review is appropriate. In the end, we find that the law requires our analysis to proceed by a middle path in this apparent battle of absolutes. We hold that Massachusetts' exclusions to its initiative process are narrowly drawn to further a significant state interest, and thus survive intermediate scrutiny.

1. The Communicative Value of the Initiative Process

The first step in our free speech analysis must be to determine whether citizens' use of the initiative process constitutes expressive conduct, permitting appellants to invoke the First Amendment to challenge the Massachusetts initiative exclusions. See, e.g., Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citing Spence v. Washington, 418 U.S. 405, 409-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)). We do not find that there is any serious debate as to this point. A state initiative process provides a uniquely provocative and effective method of spurring public debate on an issue of importance to the proponents of the proposed initiative. The Supreme Court has made clear that the process involved in proposing legislation by means of initiative involves core political speech. See Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (overturning state's prohibition on using paid petition circulators); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (overturning various registration requirements for petition circulators). In Meyer, the Supreme Court recognized that "the solicitation of signatures for a petition involves protected speech." 486 U.S. at 422, n. 5, 108 S.Ct. 1886. Furthermore, the mere fact that plaintiffs "remain free to employ other means to disseminate their ideas does not take their [preferred means of] speech through [the initiative process] outside the bounds of First Amendment protection." Id. at 424, 108 S.Ct. 1886. Clearly, plaintiffs have been prevented from engaging in the sort of activity that implicates the First Amendment. This conclusion, however, in no way ends our analysis; it only opens the door for us to apply constitutional freedom of speech principles to the limitations Massachusetts places on its initiative process.

We have recognized that "a fine line separates permissible regulation of state election processes from impermissible abridgement of First Amendment rights," Pérez-Guzmán v. Gracia, 346 F.3d 229, 239 (1st Cir.2003), and the same is true of regulation of state initiative procedures. In Pérez-Guzmán, 346 F.3d at 239-47, we invalidated Puerto Rico's requirement that petition signatures needed for registering a new political party to appear on the general election ballot be notarized, holding that it violated the First Amendment of the federal Constitution. In so doing, we stated that "we afford exacting scrutiny to severe restrictions on ballot access." Id. at 239. We began our analysis "with an assessment of the severity of the restriction," id., and having found it to be severe, we applied strict scrutiny, id. at 243-44.

Plaintiffs argue that we should apply a similar two-step analysis here. However, plaintiffs'...