On Friday, in Wirzburger v. Galvin, the US 1st Circuit Court of Appeals rejected a series of constitutional challenges, including a Free Exercise challenge, to provisions in the Massachusetts state constitution relating to initiatives. Plaintiffs wished to use the initiative process to repeal Massachusetts' prohibition on state aid to religious schools (the state's version of the Blaine Amendment, Art. 46). While Art. 48 of the Massachusetts Constitution permits amendment by initiative, it excludes from that process any amendment to the prohibition on aid to religious schools and any amendment that relates to religion, religious practices, or religious institutions. The court found that those exclusions did not violate plaintiffs' freedom of expression or free exercise of religion nor did the exclusions deny plaintiffs equal protection of the laws.
Part of plaintiffs' argument turned on whether the challenged provisions were motivated by anti-religious animus. The court found there was widespread anti-Catholic prejudice behind the original Anti-Aid Amendment in 1855; but it was revised in 1917 with the support of most of the Catholic delegates to the Constitutional Convention. Then the prohibition on amending the Anti-Aid clause through initiative was passed with similar broad support. Nothing showed that this was motivated by Anti-Catholic animus.
