Change sought in NH Constitution to prohibit funding for religious schools

By GARRY RAYNO, InDepthNH.org

CONCORDE — The state’s Blaine Amendment banning public funding of religious schools is a stain on the state’s reputation, say supporters of its repeal through a proposed constitutional amendment that could go before voters in 2022.

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

The two-hour public hearing before the House Education Committee on Thursday included one of the lead attorneys in the latest U.S. Supreme Court case striking down the Blaine Amendment, Erica Smith of the Virginia-based Institute for Justice, originally funded by Charles Koch. The case was Espinoza v Montana,

“It’s important to remove the brand of bigotry from the New Hampshire Constitution,” Smith said. “Keeping it in the New Hampshire Constitution invites frivolous litigation when it comes to 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 toward 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, Rep. Linda Tanner, D-Sunapee, noted that the state constitution includes a provision against coercing anyone to support schools of any sect or denomination.

But Smith said the state Supreme Court said the state constitution provides the same protections of neutrality toward religion.

CACR 3’s main sponsor, Rep. Glenn Cordelli, R-Tuftonboro, said both 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 push through the anti-Catholic sentiment that was at the heart of the presidential amendment, but he was unsuccessful.

The amendment did not pass the US Senate, but did in many states, he noted. Today, 38 states, such as New Hampshire, have the Blaine Amendment in their constitution, adding that New Hampshire adopted it in 1877.

Other witnesses to the change in the constitution agreed that the Blaine Amendment violated the First Amendment’s guarantee of freedom of religion.

“The Blaine Amendment is a stain on our state and a stain on our state’s reputation,” said Rep. Norman Silber, R-Gilford. “It is simply wrong and should be removed from our constitution.”
But others said the state had no involvement in funding religious schools or, for one person testifying, private schools.

Former House Education Committee member David Doherty of Pembroke said he had spent many years working in parochial 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 foundation of public education.”

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

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

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

“That only applies to state funding and the very important principle of separation of church and state,” Barnes said. “It’s 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 already pays for public education and should not divert any of that money to support religious schools, he said. The constitution requires the state to provide adequate education to all children in public schools, and that is what the state attempts to do.

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

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

He declined to say any suit purchased 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 be used to support schools to become priests or rabbis, noting that each case is different.

Jody Underwood, vice-chairman of the Croydon School Board, involved in a lawsuit against the Department for Education when it ruled against allowing a pupil in the town to attend a religiously affiliated school, has supported the repeal of the Blaine Amendment.

The town does not have its own middle or high school and had an agreement 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 U.S. Supreme Court ruled in favor of allowing state money to be spent on religious schools, noting that most of the money for education is raised locally.

“Blaine is dead federally,” Underwood said. “Let’s not drag the judges out to make them undead.”

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

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

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

A proposed constitutional amendment needs a three-fifths majority in the House and a three-fifths majority in the Senate to be placed on the next general election ballot, where it needs a two-thirds majority to amend the Constitution.

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

Garry Rayno can be reached at [email protected]

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