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 pro *275 cess 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 “[njeither 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,
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,
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,
*277
Plaintiffs argue that we should apply a similar two-step analysis here. However, plaintiffs’ suggested analysis makes an end-run around the most difficult part of their case. The district court in this ease found that speech was only incidentally affected by the Massachusetts subject matter exclusions.
Boyette v. Galvin,
We believe that the present case calls for a lower level of scrutiny. We know of no general principle that, in addition to constitutional amendment or lawmaking via a process instituted by the state legislature, a state must provide an opportunity for its residents to propose constitutional amendments or laws on all subjects by means of an initiative process. While we accept that use of the initiative process can facilitate dissemination of initiative proponents’ views, the next step in a free speech analysis is to determine whether or not the regulation in question aims at regulating speech, or whether it has some other primary end, such that any effect on speech is purely incidental. As we alluded to at the outset of this analysis, the First Amendment generally provides greater protection against laws that are “aimed at communicative impact” of the conduct they regulate than from laws “aimed at non-communicative impact, but nonetheless having adverse effects on communicative opportunity.” Tribe, American Constitutional Law § 12-2, at 790. The primary goal of state initiative procedures is to create an avenue of direct democracy whereby citizens can participate in the generation of legislation' — -that is, the act of creating law. Laws such as those considered in Meyer and its progeny were aimed at directly regulating the means that initiative proponents could use to reach their audience of potential petition signers. In contrast, we find that subject matter exclusions like those regulating the Massachusetts initiative process aim at preventing the act of generating laws and constitutional amendments about certain subjects by initiative. While they eliminate a valuable avenue of expression about those subjects, the speech restriction is no more than an unintended side-effect of the exclusions. It is because of this sometimes overlooked, but nevertheless fundamental principle in constitutional free speech doctrine that we must reject appellants’ proposed analysis. We turn now to Massachusetts’ proposed alternative analysis.
2. Massachusetts’ Need to Regulate the Lawmaking Act
The communicative power of an initiative stems precisely from the fact that it is not just speech; it is a process that can lead to the creation of new laws or constitutional amendments. Massachusetts urges us to hold that its restrictions on the amendment process do not regulate speech qua speech, and thus do not trigger strict scrutiny under the First Amendment.
*278
Government actions that are aimed at some goal other than restricting the conveyance of ideas are generally permissible, even if they incidentally inhibit free speech.
See, e.g., Arcara v. Cloud Books, Inc.,
Plaintiffs do not cite to any precedent for the proposition that, under the Free Speech Clause of the First Amendment, a state may not restrict the subjects that can be addressed through its initiative process. The D.C. Circuit addressed a similar free speech challenge to a restriction on an initiative process in the case of
Marijuana Policy Project v. United States,
3. Regulating Conduct with Speech and Nonspeech Elements
We cannot agree with the D.C. Circuit’s finding that subject-matter exclusions from the initiative process “restrict[ ] no speech,”
id.
at 85, nor with its conclusion that this type of selective carve-out “implicates no First Amendment concerns,”
id.
at 83. For the same reasons, we also reject Massachusetts’ argument that we should apply only rational basis review to the Anti-Aid and Religious Exclusions. This case is not like
Arcara,
where the Supreme Court criticized the New York Court of Appeals for having applied the analysis established in
United States v. O’Brien,
The standard enunciated in
O’Brien
governs “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct.”
O’Brien,
4. Applying O’Brien Scrutiny
Under the
O’Brien
standard, conduct combining “speech” and “non-speech” elements can be regulated if four requirements are met: (1) the regulation “is within the constitutional power of the Government;” (2) “it furthers an important or substantial governmental interest;” (3) “the governmental interest is unrelated to the suppression of free expression;” and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”
O’Brien,
As for the first requirement, that the regulation be within the constitutional power of the government, we find that the only serious, non-speech-related constitutional challenges to Massachusetts’ power to regulate the subjects that may be reached by its initiative process are the Free Exercise and Equal Protection arguments, which we reject in this opinion. Having now concluded that Massachusetts’ interest in protecting the fundamental free exercise and freedom from state-established religion is substantial and its method otherwise constitutionally permissible, we finally consider the fourth O’Brien requirement: whether the incidental restrictions on would-be initiative proponents’ First Amendment freedoms are greater than essential to the furtherance of that interest. Since we see no other way in which Massachusetts could achieve its interest in safeguarding these fundamental freedoms in its Constitution from popular initiative, we recognize that the restriction on speech is no more than is essential. Thus, we conclude that Massachusetts’ Anti-Aid and Religious Exclusions do not violate the First Amendment free speech guarantee.
B. Free Exercise Claim
We now consider whether the Religious Exclusion violates the Free Exercise
*280
Clause of the First Amendment.
3
The Free Exercise Clause guarantees that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof,”
U.S. Const, amend. I (emphasis added), and it has been applied to the States through the Fourteenth Amendment.
See Cantwell v. Connecticut,
The protections provided by the Free Exercise Clause may be broken down into a number of conceptual categories, none of which are implicated by the Religious Exclusion. First and foremost, the Free Exercise Clause entails an absolute prohibition on government infringement on the “freedom to believe.”
Torcaso v. Watkins,
In
McDaniel v. Paty,
the Supreme Court examined a state law preventing a minister from serving as a constitutional convention delegate under strict scrutiny, because although it did not directly burden his religious beliefs, it directly burdened his religious “status, acts, and conduct.”
McDaniel,
Moreover, the Religious Exclusion we are asked to scrutinize does not distinguish based on religious status.
4
Like the scholarship program at issue in
Locke v. Davey,
*281
the Religious Exclusion does not deny plaintiffs “the right to participate in the political affairs of the community,”
Having concluded that the Religious Exclusion does not discriminate on the basis of religious belief or status, we also briefly note that plaintiffs make no colorable argument that the exclusion prohibits any religious act or conduct. It does not, for example, preclude performing rites required by their religion,
see Church of the Lukumi Babalu Aye v. City of Hialeah,
Finally, plaintiffs ask us to consider whether the passage of the Religious Exclusion was motivated by animus toward religion. The Supreme Court has considered the existence' of animus motivating a law’s proponents when determining whether the law violates the Free Exercise Clause of the First Amendment.
See, e.g., Locke,
Furthermore, plaintiffs cite to no case in which evidence of animus toward religion was itself sufficient to invalidate a government action, without the animus being tied to some resulting infringement on freedom of belief or on religious status, acts or conduct. While we must apply strict scrutiny when “the object of a law is to infringe upon or restrict
practices
because of their religious motivation,” plaintiffs here have not shown that the Religious Exclusion results in any restriction of their religious practices.
Id.
at 583,
C. Equal Protection
Plaintiffs also argue that the Massachusetts Exclusions violate the protections afforded by the Equal Protection Clause. U.S. Const, amend. XIV. Plaintiffs argue that the Religious Exclusion violates equal protection guarantees because it infringes on the fundamental right to religious free exercise, disadvantages a suspect class, and fails the more searching rational basis review required in
Romer v. Evans,
1. Alleged Violation of the Equal Protection Fundamental Right to Free Exercise of Religion
Before moving to what we see as the substance of plaintiffs’ equal protection claims, we first address their argument that the Massachusetts Exclusions restricts their fundamental right to free exercise of religion. Where a plaintiffs First Amendment Free Exercise claim has failed, the Supreme Court has applied only rational basis scrutiny in its subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts.
Locke,
2. Plaintiffs’ Claim that the Religious and Anti-Aid Exclusions Implicate a Suspect Classification
The central equal protection issue presented is whether the Massachusetts Religious Exclusion and Anti-Aid Exclusion impermissibly distort the political process to the disadvantage of religious individuals. Because we find that the Religious Exclusion does not draw distinctions based on a suspect classification, we hold that it does not violate the Equal Protection Clause.
Plaintiffs claim that the Religious Exclusion and Anti-Aid Exclusion draw distinctions on the basis of religion, which they argue is a suspect classification for purposes of equal protection analysis.
6
However, even assuming that religious classification should be treated as suspect, we do not see how the Religious Exclusion and Anti-Aid Exclusion draw distinctions among Massachusetts citizens based on a suspect classification. The Religious Exclusion prohibits initiative petitions that concern “religion, religious practices or religious institutions.” The Anti-Aid Exclusion precludes amendment by initiative of the Anti-Aid Amendment, which, in addition to containing Massachusetts’ free exercise clause, prevents state funding for private institutions. On their face, the Exclusions simply carve out particular subject matters from the initiative process. They do not require different treatment of any class of people because of their religious beliefs. They do not give preferential treatment to any particular religion.
See Larson v. Valente,
The Supreme Court has, nevertheless, sometimes struck down facially neutral laws, which it recognized were crafted to avoid facial discrimination.
See, e.g., Hunter v. Erickson,
Certainly any form of invidious discrimination because of religion is forbidden. But “the Establishment Clause and the Free Exercise Clause[ ] are frequently in tension.”
Locke,
3. Plaintiffs Have Not Shown Discriminatory Intent
Plaintiffs further argue that the Anti-Aid Exclusion violates the Equal Protection Clause on a disparate impact theory. However, this argument fails because plaintiffs have not shown a discriminatory purpose behind the exclusion. “[A] law, neutral on its face and serving ends otherwise within the power of government to pursue,” is not invalid under the Equal Protection Clause simply because it may disproportionately affect a suspect class.
Washington v. Davis,
4. Rational Basis Review Under Romer v. Evans
Having rejected plaintiffs’ arguments that the Massachusetts Exclusions should be subjected to strict scrutiny, we conclude by considering whether the exclusions survive rational basis review. “[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”
Romer v. Evans,
III. Conclusion
For the foregoing reasons, the decision of the district court is affirmed.
Affirmed.
Notes
. In sum, because we recognize the communicative aspect of the initiative process, we apply intermediate scrutiny to Massachusetts' initiative exclusions, whereas the district court applied rational basis review. We find that the exclusions nevertheless survive this heightened review. Our Free Exercise and Equal Protection Clause analyses elaborate on file district court’s similar grounds for decision.
. The district court found that Plaintiffs lacked standing to challenge the constitutionality of the Anti-Aid Amendment directly, but that issue has not been raised on appeal.
. Appellants do not challenge the Anti-Aid Exclusion under the Free Exercise Clause.
. Plaintiffs claim that
McDaniel
stands for the proposition that opponents of a law need not show that the law imposes a particular burden on religious belief or practice. Although this may be true as a general proposition, this leaves plaintiffs to argue that they are being discriminated against on the basis of religious "status,” as was the case in
McDaniel.
. In
Locke,
the Court quickly dismissed Da-vey’s equal protection claims. The Court explained that "[bjecause we hold ... that the program is not a violation of the Free Exercise Clause, ... we apply rational-basis scrutiny to his equal protection claims.”
Locke,
.
But see
Tribe, American Constitutional Law § 16-13 at 1465 (2d ed. 1988) ("Thus far, the cases have limited such strict scrutiny to instances of prejudice operating to the detriment of racial or ancestral groups.”);
see also San Antonio Indep. Sch. Dist. v. Rodríguez,
- Moreover, in both
Hunter
and
Washington,
the Supreme Court found that the laws were purposely aimed solely at unlawful goals.
Washington,