New Hampshire Court Strikes Down Tax-Credit Aid To Religious Schools

Court Agrees With Civil Liberties Organizations That ‘Neo-Voucher’ Program Violates New Hampshire Constitution

Americans United for Separation of Church and State, the New Hampshire Civil Liberties Union and the American Civil Liberties Union welcomed a state court decision today that said a tuition tax-credit program violates the New Hampshire Constitution.

Ruling in favor of the three civil liberties groups, the Strafford County, N.H., Superior Court held that the state’s Education Tax Credit Program is unconstitutional because it diverts tax payments to religious schools.

Presiding Justice John M. Lewis held, “New Hampshire students, and their parents, certainly have the right to choose a religious education. However, the government is under no obligation to fund ‘religious’ education. Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution.”

The three civil liberties groups sued on behalf of nine plaintiffs, including clergy, public education advocates and parents of public school children. They asserted that the tax-credit program will primarily benefit private religious schools, which are free to use the tax funds for religious instruction and discrimination.

The program allows businesses to receive an 85 percent tax credit for donations made to K-12 “scholarship organizations,” which pay for tuition at religious and other private schools. Programs such as this one have often been dubbed “neo-vouchers” because they raise the same kinds of legal and policy concerns that school voucher schemes do.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said, “This decision is a great victory for public schools and for anyone who doesn’t want tax dollars to pay for religious indoctrination and discrimination. I am delighted that this convoluted scheme has been struck down.”

Alex J. Luchenitser, associate legal director at Americans United and lead counsel in the Duncan v. State of New Hampshire case, added: “This program was a blatant attempt to circumvent the state constitution’s clear prohibitions against diversion of tax funds to religious schools. We’re pleased that the court’s wise opinion saw through the Program’s smoke and mirrors.”

Barbara R. Keshen, staff attorney for the New Hampshire Civil Liberties Union, further explained: “We believe that everyone has the right to practice according to his or her own religious beliefs, but taxpayers should not bear the expense of educating school children about religious beliefs that they don’t share. This is a core constitutional principle that the Court has upheld today.”

The program, passed by the New Hampshire legislature last year, took effect on January 1, 2013. It allows up to $3.4 million in tax credits to be claimed in its first year and up to $5.1 million during its second year. It provides for additional increases in tax credits for subsequent years.

Heather L. Weaver, senior staff attorney for the ACLU Program on Freedom of Religion and Belief, said, “The court’s decision today reaffirms the State Constitution’s fundamental religious liberty protections. New Hampshire parents will always have the right to send their children to religious schools, but the State should not and cannot finance such religious education.”

The plaintiffs in Duncan include public education advocate Bill Duncan, United Church of Christ minister Richard Stuart, retired public school librarian Ruth Stuart, rabbi Joshua Segal, state legislator Rebecca Emerson-Brown and public school teacher Charles Rhoades.

In addition to Luchenitser, Keshen and Weaver, the attorneys representing the plaintiffs include Americans United Legal Director Ayesha N. Khan and AU Steven Gey Fellow Randall Maas (admitted in Massachusetts only, supervised by Luchenitser), as well as ACLU Program on Freedom of Religion and Belief Director Daniel Mach.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.