By GARRY RAYNO, InDepthNH.org
CONCORD — The state’s Blaine amendment prohibiting state funding of religious schools, is a stain on the state’s reputation, said supporters of repealing it through a proposed constitutional amendment that could be before voters in 2022.
But opponents said despite two recent U.S. Supreme Court decisions, state money should not be used to promote any particular sect or denomination in a religious school.
The two-hour public hearing before the House Education Committee Thursday included one of the lead attorneys in the last US Supreme Court case overturning the Blaine amendment, Erica Smith from the Virginia-based Institute for Justice which was initially funded by Charles Koch. The case was Espinoza vs. Montana,
“It is important to remove the mark of bigotry from the New Hampshire Constitution,” Smith said. “Keeping it in the New Hampshire Constitution is inviting frivolous litigation when it comes to school choice programs.”
She said the federal establishment clause already protects the separation between church and state,
The two Supreme Court rulings say you cannot discriminate against religion, Smith said, instead government has to be neutral to religion and religious institutions.
“In both cases, the court said Blaine is not being neutral, but was discriminating against religion and religious schools,” she said.
Committee members Rep. Linda Tanner, D-Sunapee, noted the state constitution includes a provision prohibiting compelling anyone to support schools of any sect or denomination.
But Smith said the state Supreme Court has said the state constitution has the same protections of neutrality toward religion.
The prime sponsor of CACR 3, Rep. Glenn Cordelli, R-Tuftonboro, said the two Supreme Court decisions say 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 Maine Senator who hoped to ride the anti-Catholic sentiment that was at the heart of the amendment, to the presidency but he was not successful.
The amendment failed to pass the U.S. Senate but did pass in many states, he noted. Today 38 states, like New Hampshire, have the Blaine amendment in their constitutions, adding New Hampshire passed it in 1877.
Others testifying for the change in the constitution agreed the Blaine amendment violates the first amendment’s guarantee of freedom of religion.
“The Blaine amendment is a stain on our state and a stain on the reputation of our state,” said Rep. Norman Silber, R-Gilford. “It is just plain wrong and should be taken out of our constitution.”
But others said the state has no business funding religious schools or for one person testifying, any private schools.
Former House Education Committee member, David Doherty of Pembroke, said he spent many years working in parochial schools and has 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 work for its detriment.
Concord attorney Ken Barnes said the original amendment may have been enacted because of bigotry, but that was 150 years ago.
It is not religious bigotry today, he said, it does not say you cannot practice religion, it does not say you cannot go to a religious school.
“It only applies to state funding and the very important principle of separation of church and state,” Barnes said. “That is a fundamental principle in the United States and in New Hampshire.”
Barnes noted no one is prohibited from sending their child to a religious school.
The state already pays for public education and should not divert some of that money to support religious schools, he said. The constitution requires the state to provide an adequate education for all children in public schools, and that is what the state attempts to do.
“We should not undermine the funding for that education,” Barnes said, “we should in fact beef it up.”
Former state Supreme Court Chief Justice and now Rep. Bob Lynn, R-Windham, supported the constitutional change, saying if the provision is left in the constitution there will always be plaintiffs and organizations attempting to have the state Supreme Court uphold its validity and carve out some exception. “That will cost everybody a lot of money,” he noted.
He declined to say any suit bought now based on the Blaine amendment would be frivolous as some implied, adding the U.S. Supreme Court did find public money could not go to support schools to become priests or rabbis, noting every case is different.
Jody Underwood, the vice chair of the Croydon School Board who was involved in a suit against the Department of Education when it ruled against allowing a town student to attend a religiously affiliated school, backed repeal of the Blaine amendment.
The town does not have its own middle or high school and had an agreement with Newport to take their students, but one family wanted to send their child to Mount Royal Academy, a religious affiliated school in Sunapee.
On Thursday, Underwood, a Free State Project member, said the federal Supreme Court ruled in favor of allowing state money to be spent on religious schools, noting most of the money for education is locally raised.
“Blaine is dead at the federal level,” Underwood said. “Let’s not leave it lying around for judges to make it undead.”
Lobbyist Robert Dunn, representing the Catholic Diocese of Manchester, supported the bill.
The real issue is barring aid to religious schools simply because of what it is, and the Supreme Court says that is no longer allowed, he said.
“New Hampshire’s Blaine amendment does exactly that,” he said. “It bars all aid simply because of what the 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 of a different time for the body politic and for schools.
A proposed constitutional amendment needs a three-fifths majority in the House and a three-fifth majority in the Senate to be placed on the next general election ballot, where it needs a two-thirds majority in order to change the constitution.
The committee did not make an immediate recommendation on the resolution.
Garry Rayno may be reached at firstname.lastname@example.org.