Change sought in NH constitution to ban funding for religious schools


By GARRY RAYNO, InDepthNH.org

CONCORDE – The Blaine State Amendment banning state funding of religious schools is a stain on the state’s reputation, supporters of its repeal have said through a proposed constitutional amendment that could be submitted to voters in 2022.

But opponents have said that despite two recent US Supreme Court rulings, state money should not be used to promote any particular sect or denomination at a religious school.

The two-hour public hearing before the House Education Committee on Thursday included one of the leading advocates in the latest US Supreme Court case overturning the Blaine Amendment, Erica Smith of the Virginia-based Institute for Justice, initially funded by Charles Koch. The case was Espinoza v Montana,

“It is important to remove the mark of bigotry from the New Hampshire Constitution,” Smith said. “Keeping it in the New Hampshire Constitution invites frivolous litigation over school choice programs.”

She said the federal establishment clause already protects the separation between church and state,

Both Supreme Court rulings say you can’t discriminate against religion, Smith said, instead the government must be neutral towards religion and religious institutions.

“In both cases, the court said Blaine was not neutral, but discriminated against religion and religious schools,” she said.

Committee members, Representative Linda Tanner, D-Sunapee, noted that the state’s constitution includes a provision prohibiting anyone from being required to support schools of any sect or denomination.

But Smith said the state Supreme Court said the state constitution had the same protections of neutrality towards religion.

Main sponsor of CACR 3, Rep. Glenn Cordelli, R-Tuftonboro, said the two Supreme Court rulings indicate that the Blaine Amendment violates the First Amendment.

“Blaine is a relic of anti-religious bigotry,” he said, and “has no place in our constitution.”
He said Blaine was a senator from Maine who hoped to bring the anti-Catholic sentiment that was at the heart of the amendment to the chair, but he was unsuccessful.

The amendment was not passed by the US Senate, but was passed in many states, he noted. Today, 38 states, like New Hampshire, have the Blaine Amendment in their constitutions, adding that New Hampshire passed it in 1877.

Others testifying for the constitutional change agreed that the Blaine Amendment violates the First Amendment guarantee of religious freedom.

“The Blaine Amendment is a stain on our state and a stain on our state’s reputation,” said Representative Norman Silber, R-Gilford. “This is simply not true and should be removed from our constitution.”
But others said the state had no business funding religious schools or, for one person testifying, private schools.

Former House Education Committee member David Doherty of Pembroke said he spent many years working in parish schools and had nothing against them.

“I don’t think the state should fund private education,” Doherty said. “If you open this door, it will be another crack in the foundations of public education.”

He said the legislature should work to protect public education, not to its detriment.

Concord attorney Ken Barnes said the original amendment may have passed because of bigotry, but that was 150 years ago.

It’s not religious fanaticism today, he said, it doesn’t say you can’t practice religion, it doesn’t say you can’t go to a religious school.

“This only applies to state funding and the very important principle of the separation of church and state,” Barnes said. “It is a fundamental principle in the United States and in New Hampshire.”
Barnes noted that no one is prohibited from sending their child to a religious school.

The state is already paying for public education and should not divert some of that money to support religious schools, he said. The constitution requires the state to provide adequate education for all children in public schools, and that is what the state is trying to do.

“We shouldn’t be undermining the funding for this education,” Barnes said, “we should actually be strengthening it.”

Former Chief Justice of the State Supreme Court and now Representative Bob Lynn, R-Windham, supported constitutional change, saying that if the provision is left in the constitution there will always be plaintiffs and organizations that will try to ensure that the State Supreme Court maintains its validity and carves out an exception. “It will cost everyone a lot of money,” he noted.

He declined to say that any lawsuit bought now based on the Blaine Amendment would be frivolous as some have suggested, adding that the US Supreme Court has found that public money cannot help schools. to become priests or rabbis, noting that each case is different.

Jody Underwood, the vice-president of the Croydon school board who was involved in a lawsuit against the Department of Education when it decided not to allow a city student to attend a religiously affiliated school, argued the repeal of the Blaine Amendment.

The town does not have its own middle or high school and had an arrangement with Newport to take its students, but one family wanted to send their child to Mount Royal Academy, a religious school affiliated with Sunapee.

On Thursday, Underwood, a member of the Free State Project, said the Federal Supreme Court had ruled in favor of allowing the state’s money to be spent on religious schools, noting that most of the funds intended for education were collected locally.

“Blaine died federally,” Underwood said. “Don’t let him hang around the judges to make him undead.”

Lobbyist Robert Dunn, representing the Catholic Diocese of Manchester, supported the bill.

The real problem is banning aid to religious schools just because of what it is, and the Supreme Court says it’s no longer allowed, he said.

“The New Hampshire Blaine Amendment does just that,” he said. “It prohibits any help just because of what school is and that violates the free exercise clause.”
Repealing it is the right thing to do, Dunn said, adding why leave in the constitution a relic from another era for the body politic and for the schools.

A proposed constitutional amendment needs a three-fifths majority in the House and a three-fifths majority in the Senate to be entered in the next general election ballot, where it needs a two-thirds majority to change the vote. constitution.

The committee did not make an immediate recommendation on the resolution.

Garry Rayno can be contacted at [email protected]


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