There is lots of commentary around the State on the voucher tax credit decisions but this editorial from the Telegraph is particularly calm, grounded and thoughtful:
It now likely will be up to the state Supreme Court to decide the fate of the controversial law passed last year awarding tax credits to businesses that donate scholarship money to send students to private schools, including those that are religious-based.
Strafford County Superior Court Judge John M. Lewis ruled a portion of the law unconstitutional Monday because it uses tax revenue to benefit religious education providers. While parents have the right to send their children to religious schools, “the government is under no obligation to fund” these institutions, the court said.
Underpinning the ruling is the portion of the New Hampshire Constitution that states that “no money raised by taxation shall ever be granted or applied for the use of schools or institutions of any religious sect or denomination.”
The law attempted to skirt this constitutional restriction by laundering the money through third-party “scholarship organizations.” But the court wisely saw through this charade. It ruled that no matter how you cut it, tax dollars that would have been used to fund normal government operations were being used to support religious schools.
The New Hampshire tax code is the avenue used for producing and directing money into the program. Contrary to the state’s assertion “that the government has not set aside revenue for a specific purpose … it appears to the court that is indeed exactly what the legislature has done. Money that would be otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.”
The law was careful to allow scholarships to be awarded to students attending any nonpublic schools, not just religious ones. But the court wasn’t fooled by that ruse either. It found “these features are inadequate to enable the program to totally survive scrutiny under the New Hampshire Constitution. The program has been shown to have ‘money raised by taxation’ inevitably go toward educational expenses at ‘nonpublic’ religious schools without restrictions regarding how the money may be used.”
The decision, while ruling scholarships to religious schools unconstitutional, did not dismantle the tax credit program entirely. Scholarships still can be used at nonreligious private schools, out-of-district public schools and home-school programs.
Proponents of the law derided the ruling, saying it amounted to religious discrimination, a ludicrous statement when its original intent was to circumvent the state constitution so that public funds could be diverted to boost religious education.
The strangest argument in favor of the law came from an attorney for the Virginia-based Institute for Justice, which represented the New Hampshire organization managing donations for the private school scholarships.
“All private schools are attended by private families,” Dick Komer said. “They get to exercise their religious liberty without interference by the state.”
Interference? What interference? There is nothing in the ruling that prevents families from exercising their religious liberties. There is nothing in the ruling that prevents parents from sending their children to religious schools. The ruling simply says if you want to send your children to religious schools, don’t expect the rest of New Hampshire taxpayers to subsidize your personal expenses.
Supporters of the law promise an appeal to the Supreme Court. Charlie Arlinghaus, president of the Josiah Bartlett Center for Public Policy, observes that no education tax credit has ever been struck down by a Supreme Court in any state.
There’s a first time for everything.