By Michael G. McDonough, Esq. and Isabella V. Balise
Last month, the Supreme Judicial Court of Massachusetts effectively struck down a petition that would repeal a statewide ban on rent control and instead institute a cap on rent increases for residential properties.
The stated purpose of the petition, Initiative Petition 25-21, was to address housing availability and affordability in Massachusetts by limiting annual rent increases to the annual increase listed in the Consumer Price Index (CPI) or 5 percent, whichever is lower, over a 12-month period. The petition, if enacted, would end the statewide prohibition on rent control by striking Massachusetts General Laws, Chapter 40P, § 2, which has broadly prohibited local governments from adopting rent-control measures since Massachusetts voters approved the statewide ban in 1994. The petition applied to dwelling units leased for residential, but not commercial use. Notably, it exempted dwelling units “in facilities operated solely for educational, religious, or non-profit purposes,” among others.
Previously, the Attorney General certified, first, that the petition contained only subjects that are not excluded from the initiative process, and second, that it complied with the requirements of Article 48, The Initiative, II, § 2.
However, in February of 2026, four registered voters residing in the Commonwealth commenced an action against the Attorney General and the Secretary of the Commonwealth on the grounds that the petition was not in compliance with Article 48, because it exempted religious facilities and therefore related to religion, a subject that is excluded from and impermissible within popular initiatives under Article 48 of the Amendments to the Massachusetts Constitution. See Cella v. Attorney General, 497 Mass. 706 (2026).
The Supreme Judicial Court hears oral argument at the historic John Adams Courthouse in Boston, Massachusetts, featured above.
In response, the Attorney General’s Office maintained that the initiative’s secular purpose was housing policy and rent stabilization, as opposed to religion. The Attorney General’s Office also highlighted other exempt categories unrelated to religion.
Nonetheless, on June 23, 2026, the Supreme Judicial Court held that“[t]he petition contains matters “relat[ing] to religion, religious practices or religious institutions ”in violation of art. 48.” Cella, 497 Mass. at 714 (citing Art. 48, The Initiative, II, § 2).
The Court relied upon prior decisions interpreting Article 48 and the inclusion of religious issues within proposed ballot initiatives. Those precedential cases included Opinion of the Justices, 309 Mass. 555 (1941); Collins v. Secretary of the Commonwealth, 407 Mass. 837 (1990); Bowe v. Secretary of the Commonwealth, 320 Mass. 230 (1946), and others.
The holdings in the earlier cases reinforce the point advanced by the registered voters who brought the action that the “Excluded Matters” section of Article 48 provides that “[n]o measure that relates to religion, religious practices or religious institutions … shall be proposed by an initiative petition.” Art. 48, The Initiative, II, § 2.
Justice Gaziano wrote the holding for the Court, which was unanimous. The holding acknowledged that the petition, “like the law subject to a referendum in Collins, 407 Mass. 837, concerns a generally secular subject matter — rent control.” Cella, 497 Mass. at 713. However, he noted, “by including an express exemption for facilities operated solely for religious purposes, the petition impermissibly makes religion ‘a factor in [the petition’s] application,’” and “in order to enforce the proposed law, the exemption would require the government to determine if a facility is ‘operated solely for … religious … purposes,’ and then make an enforcement decision based on the facility’s religious purpose (or lack thereof).” Id. The Cella holding provided that it would not be tolerable to place the civil government in a position of auditing the “religious nature” of a religious facility.
Also of concern, the holding noted that “the petition would confer preferential treatment on religious institutions by allowing them to increase rent prices, while limiting rent increases for secular facilities.” Id. (citing Collins, 407 Mass. at 848).
In a concurring opinion decided upon “narrower grounds,” Justice Kafker expressed parallel concerns for undue governmental intrusion into in religious issues, noting that the petition would create a “fraught inquiry” that “invites an analysis into the internal affairs of religious organizations and their motivations for providing the dwelling units, and the costs they charge for them.” Cella, 497 Mass. at 721.
The holding and concurring opinions held that allowing such an initiative would not only contravene the language of Article 48, but also the intent of its framers with respect to the separation of church and state. “The convention delegates intended to strictly maintain ‘the entire separation of church and State’ by ‘mak{ing] it as difficult as possible to bring religious questions into the politics of this State.’” Id., at 714 (citing Debates in the Massachusetts Constitutional Convention 1917-1918, at 769 (1918)).
Accordingly, the Court remanded the matter to the lower court “for entry of a judgment declaring that Initiative Petition 25-21 is not in compliance with the excluded matters section of art. 48, and enjoining the Secretary from taking steps to place the measure on the 2026 Statewide election ballot.” Id., at 714-715.
About the Authors:
Michael G. McDonough, Esq. is the Managing Partner of Egan, Flanagan and Cohen, P.C. His practice areas include business litigation and corporate law. He has argued before the Supreme Judicial Court on issues relating to religious autonomy and the separation of church and state, and he serves as General Counsel to the Roman Catholic Bishop of Springfield, A Corporation Sole, among other prominent Western Massachusetts non-profit and business clients.
Isabella V. Balise is a student at Rice University in Houston, Texas, where she studies Political Science and Finance and is a member of the Pre-Law Program. For the second consecutive summer, Balise has worked as a Summer Law Clerk at Egan, Flanagan and Cohen within the firm’s Litigation Department, where she has been a valued and impactful contributor.
Disclaimer:
This blog post is for informational and educational purposes only. It does not contain legal advice or in any way create an attorney-client relationship between Egan, Flanagan and Cohen and the reader. Every legal situation is unique and requires careful review and deliberation by an attorney. To request to consult with an attorney on this or any legal topic, please contact Michael G. McDonough, Esq., at mgm@efclaw.com.
