Editor’s note: Alex J. Luchenitser is associate legal director of Americans United for Separation of Church and State, and lead counsel for the plaintiffs challenging New Hampshire’s tuition tax-credit program.
In a June 24 blog entry, Charles Glenn attacks a recent New Hampshire state-court decision declaring the state’s tuition tax-credit program to be unconstitutional to the extent that it funds religious schools. Dr. Glenn argues that this ruling amounts to “religious discrimination” that should be struck down by the U.S. Supreme Court. His arguments, however, reflect a misreading of history, and they have already – and rightly – been rejected by the Supreme Court.
The New Hampshire Constitution strictly prohibits the diversion of tax funds to religious education. Well aware of this, the New Hampshire legislature passed the tax-credit program in an effort to circumvent the constitutional prohibition. The state court saw through this scheme, correctly concluding that there is no practical difference between using direct appropriations to fund private-school scholarships and using tax credits to do so.
Dr. Glenn contends the 1877 constitutional provision on which the state court relied was motivated by anti-Catholic animus. But the historical record belies this claim. The same constitutional convention that approved the constitutional provision in question also approved the removal from the state constitution of two clauses that had discriminated in favor of Protestants and against Catholics.
Regardless of what may have happened a century and a quarter ago, the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect. The state constitution was amended in 1968 to make clear that discrimination among religious groups is prohibited. And only 15 percent of scholarship applicants under New Hampshire’s tax-credit program wanted to use their scholarships at Catholic schools.
Dr. Glenn attempts to bootstrap his unsuccessful allegation of anti-Catholicism to support a significantly different argument – that allowing public funding of secular but not religious education “discriminates” against religion. This argument has been soundly and repeatedly rejected by the U.S. Supreme Court, however. In a 2004 decision, Locke v. Davey, a quite conservative Supreme Court ruled by a 7–2 vote that a state can constitutionally prohibit the use of university scholarships for theological study, while allowing them to be used for secular education. The high court issued four similar rulings between 1972 and 1974.
What Dr. Glenn seeks is nothing other than a complete reversal of one of our most fundamental constitutional traditions.
From the time of the founding of our republic, one of our basic constitutional principles has been that no taxpayer should be forced to contribute to the support of a religious faith to which he or she does not subscribe. Far from “discriminating” against religion, this principle protects religious freedom by ensuring that religion does not become dependent upon or compromised by the government.
To be sure, U.S. Supreme Court decisions have weakened this tradition in recent decades, first giving government bodies more leeway to fund religiously affiliated universities than religious primary and secondary schools, and then upholding school voucher programs. At the same time, free to interpret their own state constitutions differently from the U.S. Constitution, many state courts – such as New Hampshire’s – have continued to strictly prohibit tax aid to religious education.
Displeased with these states’ commitment to America’s tradition of church-state separation, Dr. Glenn apparently seeks to force states to fund religious schools. He points out that a good number of other countries do so. But many of these countries have a history of established churches, and a concomitant history of religious strife. As Justice Sandra Day O’Connor once wrote, “Why would we trade a system that has served us so well for one that has served others so poorly?”
Indeed, widespread public funding of religious education could ultimately have the effect of harming educational freedom. In New Hampshire, as in the rest of the country, most private schools are religious; religious schools are much cheaper than secular private schools; and scholarship amounts are limited – meaning that the scholarships can help poorer parents afford religious but not secular private schools. Moreover, New Hampshire’s program, like many similar plans, would obtain state funding for private schools by taking it away from public schools, harming the quality of public education. As a result of such programs, in order to obtain a quality education, poorer parents may have no reasonable choice but to subject their children to religious indoctrination in a faith different from their own.
In the end, the goals of school-choice advocates may be undermined in another way if the U.S. Supreme Court ever takes up Dr. Glenn’s argument again. The Court is deeply respectful of states’ rights, and therefore it is very unlikely the Court will strike down the dozens of state constitutional provisions that prohibit public funding of religious schools. Rather, if the Court holds that funding secular but not religious private schools poses a federal constitutional problem, the result may be that states whose constitutions ban tax funding of religious schools will be barred from funding secular private schools too.