A lawsuit has been filed jointly by the American Civil Liberties Union, Americans United for Separation of Church and State and the New Hampshire Civil Liberties Union against a new law that could give corporations tax credits for donating to organizations that seek to pay for students to attend a school of their choice. Their argument is that the program would allow the funneling of tax-payer money to religious organizations, which they say is unconstitutional.
The law passed over the veto of former Governor John Lynch, who objected to it on similar grounds. Now a Stafford County Superior Judge will be deciding if the fact that the money could go to both secular and religious schools is its fatal flaw.
Gene Chandler, the Republican Leader in the New Hampshire Legislature, said that the lawmakers who voted for it were sure that it would not run afoul of the Constitution. Jason Bedrick, writing for Cato at Liberty, agrees.
Bedrick claims that it is the ACLU and its co-plaintiffs who represent the real threat to freedom in this case. When a similar issue arose in the 2011 Supreme Court decision in ACSTO v Winn, the argument that tax credits represent coercion was rejected by the justices; if this is the case, any tax-exempt donation to a religious institution could arguably be considered coerced.
Although that is the reason that Bedrick believes that ACLU’s argument will fail, there is also an ideological incompatibility in their assertions – while claiming to be fighting against coercion, they are actually stepping up to defend the system that is coercive by design.
To explain why it is, Bedrick quotes the commentary on the Winn decision by Andrew Coulson, Director of Cato’s Center for Educational Freedom:
Unlike the funding of public schools, which is compulsory for all taxpayers, participation in Arizona’s tax credit program is voluntary. If an individual chooses not to donate to an STO, his taxes are collected just as they have always been, and those dollars cannot be used for any sectarian purpose. Furthermore, if a taxpayer does choose to make a donation, he is free to select the STO most consistent with his own values. Arizona has scores of different STOs, some with a religious emphasis and some without.
It doesn’t help matters that the only organization that is registered to accept these kinds of donations is the strictly secular non-profit Network for Educational Opportunity.
As Yogi Berra once said, it’s difficult to make predictions, especially about the future. Just because something has never happened doesn’t mean it can’t. It’s impossible to predict with certainty how the New Hampshire Supreme Court will decide. Let us hope that they remain faithful to the text of New Hampshire’s constitution. The educational futures of countless children depend on it.