On June 23, 2026, the Massachusetts Supreme Judicial Court (SJC or the Court) held that a proposed initiative petition, No. 25-21, to adopt statewide rent control in Massachusetts, cannot appear on the November 2026 ballot. In Cella v. Attorney General, the Court found that the Massachusetts attorney general improperly certified the proposed initiative petition, since the proposed measure contained an “excluded matter” under Article 48 of the Amendments to the Massachusetts Constitution, the amendment governing the initiative petition process.
Under Article 48, voters may approve changes in law at the biennial statewide election. At the 1994 election, voters approved the adoption of Chapter 40P of the Massachusetts General Laws, the Rent Control Prohibition Act, which prohibits rent control unless, inter alia, cities and towns compensate property owners for the difference between the market rent and the below-market rent imposed under rent control. As a result, no city or town in Massachusetts has imposed rent control since 1994.
The Cella decision, like the SJC’s decision the previous week on an income tax rate reduction ballot question, illustrates the technical nature of Massachusetts’ ballot question process under Article 48. It is important for stakeholders to understand the differences in the rules that govern the Article 48 process and the rules that govern the normal passage of legislation in Massachusetts.
What Did the Rent-Control Initiative Seek to Do?
The initiative petition sought to limit rent increases statewide to “the annual increase in Consumer Price Index or [5%], whichever is lower.” The petition also enumerated five exemptions from the rent increase limits for residential properties, including one for “dwelling units in facilities operated solely for educational, religious, or non-profit purposes.”
Article 48’s Impact on Proposed Petitions
Article 48 imposes a number of procedural requirements on initiative petitions and prohibits certain matters as “excluded matters” from being the subject of an initiative petition. The Massachusetts attorney general is required to certify proposed initiative petitions as being eligible for the ballot, in part by determining that they contain no “excluded matter.”1
One of the “excluded matters” under Article 48 is a “measure that relates to religion, religious practices or religious institutions.” Because of the proposed petition’s exemption of property used for “religious” purposes, the SJC concluded that the measure “relates to religion.”
Citing two cases in which the SJC previously construed the “religion” clause as an excluded matter, the Court used a prior formulation that “an initiative petition relates to religion if religion is ‘a factor in [the initiative petition’s] application.’” This statement proved dispositive.
The Court acknowledged that religion was not the “main purpose” of the initiative petition but nevertheless refused to require that religion be the “main purpose” of a petition in order for it to be disqualified as a ballot question. Prior decisions involving such a “main purpose” test involved a different “excluded matter” — the powers of the courts. In those cases, the SJC used the test to distinguish between petitions with only an incidental effect on the courts and petitions in which the effects on courts were the “main purpose.”
Unlike the exclusion relating to the powers of the courts, which could otherwise be implicated by virtually any petition proposing a judicially enforceable law, applying the religion exclusion according to its plain language — to exclude all petitions proposing laws that “relate[] to religion, religious practices or religious institutions” — does not threaten to swallow the entirety of art. 48.
The SJC’s decision does not mean that the ballot question, if adopted through the Article 48 process, would be unconstitutional. In fact, such legislation would be fully constitutional if it had been enacted by the state legislature and signed by the governor. Massachusetts has many statutes that affect, advantage, and disadvantage religion and religious institutions.2 However, the Court ruled that an initiative petition under Article 48 cannot propose such a measure, even if the effect on religion is not the “main purpose” of the initiative petition.
The Court’s conclusion highlights a consequential difference in enacting laws via initiative petition and legislating through the ordinary process involving the House of Representatives and Senate. The House and Senate are not prohibited from considering specified subjects of legislation. They are able to enact unconstitutional legislation, but they may face the prospect of adverse gubernatorial action, the prospect of adverse rulings in court, and the prospect of no enforcement of an unconstitutional statutes. The state legislature can also seek opinions of the justices in advance of enacting potentially controversial legislation. No similar safeguard exists for initiative petitions under Article 48, however. The Massachusetts attorney general’s certification is the only review mechanism before a petition goes to voters, and that review does not require evaluation of a measure’s constitutionality. In fact, a pending case before the SJC involves the possibility that voters passed an unconstitutional initiative petition at the 2024 election that authorized the state auditor to audit the state legislature, potentially in violation of Article 30 of the Massachusetts Constitution.
Religion as an excluded matter is an acknowledgement of the unusual power of the initiative petition in Massachusetts. Advocates seeking to “go to the ballot” may wish to pay especially careful attention to the substantive and procedural governing rules.
Click here to read a related GT Alert on Massachusetts’ Article 48.
1 Section 3 of Article 48 of the Amendments to the Massachusetts Constitution, as amended by Article 74.
2 See, e.g., Mass. Gen. Laws c. 40A, s. 3 (“No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes”); c. 64H, s. 6(e) (sales tax exemption).