We have filed our final brief in the case. It responds to various arguments the State and others have made until now. Here is the summary:
“The main argument of the State and the intervenors is that the Education Tax Credit Program should be upheld because its funding is obtained through a tax credit and passes through several hands before reaching religious schools. The New Hampshire Supreme Court’s decisions have rejected such reasoning, however, striking down school-aid programs with exactly these features. No matter what route the money follows, the Education Tax Credit Program will ultimately result in the diversion of tax payments from the state treasury to religious educational institutions, in violation of the plain text and intent of the New Hampshire Constitution’s church-state clauses.
The remaining arguments advanced by the Program’s defenders are equally unavailing. For example, the arguments about standing ignore the plain text of New Hampshire’s amended declaratory-judgment statute. The plaintiffs challenge the Program both facially and as applied, and they satisfy the standards for both kinds of challenges. The New Hampshire Supreme Court has not tied its interpretation of the State Constitution’s church-state clauses to federal case law, but has instead interpreted the clauses based on their unique language and history. And the proposition that the U.S. Constitution prohibits application of the New Hampshire Constitution to strike down the Program is based on arguments that have been rejected by the U.S. Supreme Court and the First Circuit.
See the whole brief here.