Glenn

Editor’s note: This piece is in response to Friday’s guest post from Alex J. Luchenitser of Americans United for Separation of Church and State.

It seems simplest, though scarcely elegant, to reply to attorney Luchenitser’s statements one by one, though I will leave to the lawyers how a school choice tax credit is a state expenditure while tax deductions and tax exemptions are not.

First, it is not true that I assert that states should be forced to fund religious schools; my point is that, if a state chooses to fund private schools through parental school choice, it should not discriminate against those with a religious character. The recent ruling in Duncan v. New Hampshire does precisely that, allowing scholarships derived from tax credits to go to private schools on condition that those schools not be “of any religious sect or denomination,” citing the language of an 1877 amendment to the N.H. Constitution.

By the way, it also does not prevent those scholarships from going to homeschooling families no matter how religious their efforts may be, suggesting religious education is excluded only if you do it with other people. How sensible is that?

I compare this discrimination, in my previous post, with the racial discrimination laws adopted in the South during the same historical period, and I urge that it is similarly unjust and should be challenged by anyone concerned with fairness. Equal treatment is my only claim.

Second, he challenges my conclusion (based on a careful review of the historical evidence detailed in my 24,000-word “expert report”) that the anti-aid (or “Blaine”) provision added to the New Hampshire Constitution in 1877 was the result of anti-Catholic bias. To respond to this I can only offer to provide a copy of my report to anyone who would like to review the evidence with an open mind.

Third, he claims, “the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect.” It is true that today the effect of that particular provision, as applied in the recent ruling, is even-handedly discriminatory against all organized religious groups in favor of groups, no matter how strong their ideological flavor, that claim a secular basis. Is this progress? (more…)

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.

Luchenitser

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. (more…)