Here is coverage of the appeals in today’s Portsmouth Herald:
CONCORD — Multiple parties have filed appeals of a Superior Court decision that blocked a portion of a private school scholarship law allowing students to use the funds to attend religious schools.
The state attorney general’s office and scholarship organization Network for Educational Opportunity have filed appeals of Strafford County Superior Court Justice John Lewis’ June 17 order, which states that the law providing businesses with tax credits for contributing to private school scholarship organizations violates the state Constitution.
Lewis agreed with plaintiffs who filed a lawsuit objecting to the law, arguing it would divert taxpayer money to religious schools, therefore, violating the Constitution. However, his ruling did not entirely kill the law; he instead determined the scholarship program and business tax credits could continue as long as none of the money supports scholarships to attend religious schools.
The state’s appeal simply lists the specific questions it plans to raise before the Supreme Court: whether the trial court erred by finding that all the plaintiffs have standing; whether the court erred by finding that the tax credit constitutes “public funds” or “money raised by taxation”; and whether the court erred by finding the tax credit program unconstitutional.
In its appeal, NEO, represented by the Institute for Justice, provides additional insight into the questions that will be raised. Among its concerns is whether the portion of the Constitution that Lewis determined makes the law unconstitutional was originally crafted to discriminate against Catholics.
They also ask whether the Superior Court decision violates the Free Speech, Free Exercise, Establishment and Equal Protection clauses of the U.S. Constitution by prohibiting families from using scholarships for religious schools.
Eight plaintiffs, including New Castle’s Bill Duncan and state Rep. Rebecca Emerson-Brown, D-Portsmouth, have also filed a cross-appeal, seeking to expand Lewis’ decision and strike down the law entirely. They are represented by lawyers from the Americans United for the Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union.
Lewis’ ruling suggests the law can still function without the religious school component, but in their cross-appeal, the plaintiffs say they will ask the Supreme Court to determine whether the religious schools can be “severed” while the rest of the law remains in place.
They will also ask the Supreme Court to rule on two matters that the Superior Court did not: whether the law violates other aspects of the state Constitution, one protecting taxpayers from being compelled to support religious schools and another requiring taxation be uniform, equal, proportional and non-discriminatory, and prohibiting tax exemptions and benefits that do not serve a public purpose.
A fourth group is also seeking to get involved in the case. It includes the Concord Christian Academy, Grace Christian School of Bedford and the Concord Christian Academy Giving and Going Alliance, a scholarship organization approved by the N.H. Department of Revenue for this program.
The other parties have objected to them being granted status as interveners in the case.
The Christian schools’ petition states their constitutional interests are “directly impacted” by the order’s exclusion of religious schools.
“Intervention by petitioners is necessary and vital to ensure that the constitutional interests of schools with religious affiliations or commitments are adequately represented,” that filing states.
It describes any “policing” of the religiosity of private schools by scholarship organizations as “onerous” and discriminatory.
“The Alliance cannot carry out this government-sanctioned discrimination against ‘religious’ school students without severely transgressing its broad charitable mission and fundamentally restructuring its organization,” the petitioners wrote. “Nor can the state conduct such an intrusive inquiry without violating the First Amendment to the United States Constitution.”
No dates have been set for the Supreme Court to hear the case.