Court Strikes Down New Hampshire’s Tax-Money-For-Religious-Schools Law

On Monday, New Hampshire was the scene of a state court verdict (PDF) that struck down a recent law allowing tax dollars to flow into religious schools:

The program provided a large tax credit to businesses that contributed to scholarship organizations that paid for tuition at private schools. Though the program was purportedly designed to expand educational opportunities, Justice John M. Lewis held that the program violated the state’s constitution because it had the effect of diverting public funds to religious schools.

“New Hampshire students, and their parents, certainly have the right to choose a religious education,” the Stafford County Superior Court judge wrote in the ruling. “However, the government is under no obligation to fund religious education. Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution.”

With that phrase, Lewis was referring to the Blaine Amendment that is enshrined in the Constitution of no fewer than 39 states, including his.

The amendment has a pretty fascinating genesis.

In the 1870s, Ulysses S. Grant, the 18th President of the United States, frequently expressed his commitment to keeping tax money out of religious education. In fulsome tones, Grant praised the separation of church and state, and attacked the idea of government support for “sectarian schools” run by religious organizations.

Can you imagine a current candidate, much less a President, loudly and passionately pursuing such a policy? Mike Huckabee and Sean Hannity would be leading the angry wolf (fox?) pack against any politician brave enough to try. They’d use labels such as radical-left, elitist, and un-American.

Yet far from being some pinko atheist troublemaker, Grant was a Republican — and a staunch Methodist.

Just as surprising is that Grant’s vision was shared by majorities in the House and Senate. In 1875, when Congress voted on the proposed Blaine Amendment (a Grant-inspired change to the Constitution forbidding the allocation of education tax dollars to “religious sects and denominations”), the House approved it overwhelmingly. In the Senate, the amendment fell just four votes short of the needed two-thirds majority.

Still, the Blaine Amendment is very much with us today, at the state rather than the federal level (unless you live in Arkansas, Connecticut, Louisiana, Maine, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee, Vermont, or West Virginia). Everywhere the law is in effect, it effectively nails down the door to the treasury when proponents of religious schools come a-knocking.

So these folks found themselves rebuffed on Monday:

Defenders of the [New Hampshire] program argued the state was not directly funding private religious schools — only providing a tax write-off — and therefore the program was not unconstitutional. However, Justice Lewis disagreed, writing that “[m]oney that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.

The challengers — Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union, and the American Civil Liberties Union — were pleased with the ruling:

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said, “This decision is a great victory for public schools and for anyone who doesn’t want tax dollars to pay for religious indoctrination and discrimination. I am delighted that this convoluted scheme has been struck down.”

Meanwhile, the Network for Educational Opportunity, a group fighting for the (non-existent) right to use public funds for religious curricula, has said it will appeal the ruling. Kate Baker, NEO’s Executive Director, intoned that

“The state has no business taking religious schools off the table as a legitimate educational option. NEO will not rest until parents can freely choose any school of their choice, including religious schools.”

In truth, the government already accommodates all those who wish to educate their children in religious schools. Thanks to Ulysses S. Grant, the rest of us just aren’t obligated to pay for it.

About Terry Firma

Terry Firma, though born and Journalism-school-educated in Europe, has lived in the U.S. for the past 20-odd years. Stateside, his feature articles have been published in the New York Times, Reason, Rolling Stone, Playboy, and Wired. Terry is the founder and Main Mischief Maker of Moral Compass, a site that pokes fun at the delusional claim by people of faith that a belief in God equips them with superior moral standards.

  • jdm8

    “NEO will not rest until parents can freely choose any school of their choice, including religious schools.”

    Parents can already send their children to any school of their choice. What tripped you up is demanding that government help you fund religious education.

  • fsm

    Of course Grant was in favor of separation of church and state. He was intelligent and knew that if the government was involved in churches in any way, the government would begin to dictate how to worship. I am still dumbfounded that the Republican party and American Xtians want a theocracy. I don’t think that anyone is thinking this through.

  • islandbrewer

    Yet far from being some pinko atheist troublemaker, Grant was a Republican

    Actually, at the time, the Republicans included many who would be categorized as pinko troublemakers (Grant wasn’t one, however). But the Republican party at the time was almost completely unlike the Republican party today.

  • Miss_Beara

    I wish the Republican of the past can take a time machine, arrive in the current time, so they can see what a mockery the current Republicans make of themselves, the party and the country.

  • PsiCop

    Re: “In the 1870s, Ulysses S. Grant, the 18th President of the United States, frequently expressed his commitment to keeping tax money out of religious education.”

    Hmm. I’d bet this is news to Bill O’Reilly. For years now he’s been saying that, because Grant had declared Christmas a secular holiday, therefore, every American — Christian or otherwise — is required to celebrate it.

  • ortcutt

    It’s sometimes claimed that the Blaine Amendments were “anti-Catholic”. It’s more accurate to say that they were pro-common-schools. Public education was in its infancy in the US in 1838 when Horace Mann put forward the six principles for the “common schools” that Grant referenced in his speech calling for the Federal Blaine Amendment. These were:

    (1) the public should no longer remain ignorant;

    (2) that such education should be paid for, controlled, and sustained by an interested public;

    (3) that this education will be best provided in schools that embrace
    children from a variety of backgrounds;

    (4) that this education must be non-sectarian;

    (5) that this education must be taught by the spirit, methods, and discipline of a free society; and

    (6) that education should be provided by well-trained, professional teachers.

    All six of these should still be fundamental principles of our public school system. The Blaine Amendments were enacted in order to preserve the common school system and prevent the adoption of a balkanized school system. We’re having the same struggle today that the Common Schools advocates had in the 19th Century.

  • BD623

    The program provides a tax credit to people who donate to the NEO scholarship fund. NEO wants to be able to include religious schools on the list of schools that parents can make their kids attend using NEO scholarship funds. In that sense, this is no different from tax breaks for donations to any religious groups, right? And then shouldn’t it be constitutional (even though it’s immoral and bad policy, like making donations to churches tax exempt)?

  • Craig

    > The state has no business taking religious schools off the table as a legitimate educational option.

    It’s statements like this that really bring it home for me. How are “religious schools off the table”?

  • Gus Snarp

    Interesting. I wish the Blaine Amendment had passed nationally, since by this court’s interpretation it would seem to make portions of No Child Left Behind unconstitutional. You’ll have to forgive me if I’m incorrect here and it’s not No Child Left Behind but rather some state law that does this, but in my state, where there is no Blaine Amendment remnant in the Constitution, twenty percent of tax dollars that go to the public school district are then pumped right back out in vouchers for private schools. I know of no secular private schools in this area. Most are Catholic and a few are other Christian schools. So twenty percent of tax dollars are being siphoned off from struggling public schools and pumped into religious schools. If I’m correct that that’s from No Child Left Behind, then I wonder how that plays out in states whose constitution forbids that? In my view, the First Amendment already forbids it, but apparently others disagree.

  • C Peterson

    That wouldn’t change anything. It’s the current Republicans who need to go back 50 years and see how their party operated then.

    Actually, all they need is a decent education and the ability to think a little- a technical challenge that is probably greater than building a working time machine.

  • frankbellamy

    When Grant was against spending government money on private religious schools, the public schools were NOT the secular institutions welcoming of people of all beliefs that we know today. This was a century before the supreme court removed school sponsored religious exercises from public schools. The public schools at that time were unabashedly protestant institutions, hostile to the largely immigrant catholic population. In that historical context, wanting to keep all the money flowing to the protestant schools and none to the catholic schools looks a bit more like bigotry.

    Even in the current context, the idea of vouchers for secular private schools but not religious private schools seems discriminatory to me. Personally I’m opposed to all vouchers as a matter of education policy, I believe in the public schools. But if vouchers are to be provided for private schools, for the government to then tell people that they can’t pick private schools that are religious strikes me as very problematic itself.

  • Houndentenor

    They also want a school that is almost entirely white as is slanted heavily towards their political and social views. It’s not just about religion. A lot of it is about their own distorted views of history and science.

  • SirReal

    Exactly… the parents DO have the choice to send their kids to a religious school. Just like they can still pray in school, that right is still there. They are confusing having the education paid for by the state and being able to attend the school. If I pull my child out of public school to attend some anti-religion or pro-science private school, I’d have to pay for it. Would I bitch about the state not paying? Probably… but I know that wouldn’t be possible.

  • Randay

    If the government allows public money vouchers to students to go to private schools, it should also have a say in the curriculum of those schools and be able to impose that certain subjects be taught. In a sense, it has become a shareholder.

  • Randay

    Any facts are news to Bill(the tides come in, the tides go out; the sun comes up and the sun goes down)O’Reilly.

  • frankbellamy

    Why does the government need to spend money for that? The government can and does require all children to get some kind of education, and that power must include the power to specify that students must learn a particular set of things. The government can say “attending that particular school doesn’t satisfy the requirement for children to attend school because that school doesn’t teach long division (or whatever)” whether or not it’s spending any money on the private schools. And that applies as much to religious private schools as secular ones.

    What this ruling seems to require is for the state to say “you can’t spend your voucher sending your child to that private school because that private school does teach lutheran (or whatever) theology for an hour a day and lead organized prayers and chapel in addition to teaching all of the things the state says students should learn.” Of course the state can (and hopefully does) have a list of things schools must do to qualify to receive voucher money, that may include some things that some religions find objectionable but that are perfectly good policy on secular grounds (like teaching evolution). And it should apply that list to religious private schools as well as secular private schools. As long as that list doesn’t say anything about religion one way or the other, I don’t think there should be any church/state problem. And it doesn’t look like it did before the court ruling. The court ruling seems to be requiring the state to add to the list of requirements for a schools to receive vouchers “and it can’t be religious”, and that seems to me to discriminate against religion, and that I see as problematic.

  • infidel1000

    Such a policy creates an unsolvable conundrum. A much simpler and utilitarian approach is to change the public school system to be fully federally funded and supported, and get rid of the parochialism rampant there today. This would get rid of the inequities caused by rich/poor districts and ensure that all children get the same, quality education.
    Those who want religious (or elite, or both) education for their kids can pay for it, as they should. The current system only exacerbates the problem, and is an ongoing danger to and is in constant violation of the Constitutional law that governs our nation and protects our freedoms.