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Supreme Judicial Court justices on Wednesday morning pitched questions at attorneys on either side of a challenge to an initiative petition that would cap annual rent increases statewide at 5 percent or the Consumer Price index, whichever is lower.

Much of the back-and-forth focused on one of the plaintiffs’ four arguments against the initiative petition, which claimed it should be disqualified because “religion is a factor in the application of the law.”

Attorney General Andrea Campbell’s summary of the petition states it “would not apply to units in owner-occupied buildings with four or fewer units; units that are subject to regulation by a public authority; units rented to transient guests for periods of less than 14 days; units operated for educational, religious, or non-profit purposes; and units that received their residential certificate of occupancy within the last 10 years.”

Does State Constitution Disqualify Measure?

Discussion revolved around whether the petition abides by Article 48 of the state Constitution, which says “No measure that relates to religion, religious practices or religious institutions…shall be proposed by an initiative petition.”

Assistant Attorney General Phoebe Fischer-Groban countered that the petition is just a rent control matter.

“It’s not about religious matters or religious subjects in the ways that mattered to the delegates at the Convention, or the ways that this court has discussed in its cases,” she said.

Plaintiff attorney Ed Daley argued that “the only and most narrow grounds that the court need to examine” why Campbell erred in certifying the petition is the religion aspect.

“Religious institutions or religious units used solely for religious purposes are given a benefit under this proposed law that other secular uses would not be,” Daley said.

Fischer-Groban later pushed back on that claim, arguing “it’s not quite clear on the face of this how this actually impacts property owners.”

What Counts as Religiously-Related?

Rent control proponents argue the petition would provide housing stability in an expensive market, while opponents say it would discourage housing production and worsen the housing crisis. Groups including the California Apartment Association, MassLandlords Inc. and the Chamber of Commerce of the United States filed amicus briefs opposing the petition. Groups including the Massachusetts Teachers Association and ballot campaign Homes for All filed in favor.

Daley referred to a 1941 Opinion of the Justices to the Senate and House of Representatives, which addressed a petition related to medical contraceptive care. Daley said the court found that the petition did not relate to religion “because religion was not mentioned in the text of the petition, and religion was not a factor in its application. So that sets out the limit of a test where– ”

Justice Scott Kafker interrupted: “So any time you use the word religion, and any reference to religion whatsoever, immediately knocks you off the ballot?”

The proposal doesn’t just reference religion, Daley countered, but “religion is the operative factor in determining whether rent control applies to a particular unit or not.”

Kafker noted that the proposal exempts a number of entities that are not “classic landlords making money on rent.” Wolohojian said the section in question “was designed to delineate between the profit or commercial-owned and operated properties, and those that are not commercial.”

Daley maintained that the religious inclusion “could give rise to public political debate about whether religious institutions are being advantaged.”

“I actually don’t even think they might have needed ‘educational’ or ‘religious.’ They may have just been able to say ‘nonprofit,'” Wolohojian said of the petition writers. “I’m not sure that in this context, the word ‘religious’ carries much weight at all. And I think this is really the nub of the question, which is, if it doesn’t really carry that much weight, then how does this initiative petition fall into an excluded matter?”

To Fischer-Groban, Justice Elizabeth Dewar questioned the petition’s explicit mention of religion. Justice Dalila Wendlant said the petition “doesn’t just list nonprofits. It could have done that.”

Fischer-Groban called it “a question of degree,” and referred to a case, Collins v. Secretary of Commonwealth, which dealt with a referendum related to discrimination on the basis of sexual orientation.

“If the test were simply, ‘Does the law on its face use the word religion? Does it say religious institutions? Does it use those words? Is that enough?’ Collins would have been an incredibly simple case, but it was not,” Fischer-Groban said. “Instead, the court assessed, kind of, the nature of the law.”

The purpose of the rent control law is secular, she added, and the religious exemption is a small piece of it, “one of a whole host of exemptions.”

Justice Serge Georges questioned why there wouldn’t be similar concern about public debate over whether religious institutions should be preferentially treated; Dewar suggested that in its operation, the proposal could require courts to determine what it means for a unit to be used “solely for religious purposes”; and Kafker added, “I don’t see how we avoid some line-drawing here. We can’t just simplistically say, ‘The word religion appears, so we’re out,’ right?”

Opponents’ Other Arguments

Daley also argued that the petition doesn’t enable landlords to adjust rent based on the costs they incur, though Kafker noted that it still builds in a structure that allows landlords to make money.

The rent in place for a unit as of Jan. 31, 2026, would be the base rent for the annual rent increase limit under the proposal.

“What it doesn’t build in, which is constitutionally significant and required in every other rent control law that’s either been before this court or that’s been approved in any other jurisdiction, is the ability for a landlord to be able to get an exemption from the rent control limit to deal with costs, to deal with hardship,” Daley said. “If the roof needs to be rebuilt, that’s a cost that the rise in inflation does not cover.”

Kafker said that in “those exceptional circumstances, they may still be able to sue and bring a claim down the road, right?”

Plaintiffs also argued that the petition violates the “relatedness requirement” because while the it’s focused on long-term rent stability, it unrelatedly targets and “bifurcates” short-term vacation rentals by exempting only those under 14 days from the law.

Fischer-Groban argued that the scope of the law is clear, and that every provision of the measure is “controlling the increase or limiting the increase in rentals.”

“It’s clearly on the face of this summary. It’s not hidden, it’s not confusing,” Fischer-Groban said.

Daley also argued that the petition is “invalid on its face” because it proposes to repeal an existing prohibition on rent control passed in 1994. The fact that the summary doesn’t tell voters about that change makes it “unfair to voters and does not equip a voter with enough information to make an informed decision,” he said.