SUMMARY OF ARGUMENT
The Governor confines her argument in this amicus brief to whether the superior court correctly concluded that the education tax credit program enacted under RSA § 77-G violates Article 83 insofar as it permits organizations authorized to receive donations subsidized by the credit to use those donations to fund student scholarships to religious, non-public schools. In the Governor’s view, the superior court’s finding of unconstitutionality was correct.
In its text, structure, and history (including its interpretive history), the New Hampshire Constitution significantly differs from the First Amendment’s Establishment Clause with respect to the question whether revenue generated through taxation—i.e., public funds—may be used to subsidize student scholarships to religious, non-public schools. Accordingly, more permissive federal court precedents interpreting the Establishment Clause should have little bearing on this question. Under the New Hampshire Constitution, the answer to the question is “no”; public funds may not be used to subsidize student scholarships to religious, non-public schools. Public financial support of religious schools would not only violate the constitutional rights of New Hampshire taxpayers who do not wish their tax dollars to subsidize the operation of such schools, but it also would necessitate additional public regulation of the affairs of religious schools. Either way, the result would be a dangerous state entanglement in religion that is inconsistent with New Hampshire’s Constitution and traditions.
The question therefore becomes whether the superior court correctly concluded that revenue raised and appropriated through the tax credit program enacted pursuant to RSA § 77-G constitutes “money raised by taxation” within the meaning of Article 83. The superior court’s conclusion was correct. The monies made available to schools through RSA § 77-G are monies raised by taxation. The legislature has appropriated a portion of New Hampshire’s tax dollars to pay for scholarships to religious schools through the tax credit program. Any other conclusion would require this Court to bless a formalistic and functionally meaningless distinction between tax dollars appropriated directly by the State, and tax dollars directed to religious schools through the tax credit program legislation. Such a crabbed reading of the Article 83 guarantee would jeopardize both the hallowed underpinnings of religious tolerance and freedom, and the prohibition against entanglement made sacred by our New Hampshire Constitution. This Court should not vindicate a formalism that would enable an easy end-run around a basic constitutional limit on the power of the State with respect to taxpayer funds.
Finally, the violation of Article 83 occasioned by RSA § 77-G is no mere technical breach of the wall of separation between church and state. The Governor views tax incentives as appropriate tools of public policy when revenues are allocated to constitutional uses. Moreover, nothing prevented individuals or businesses from contributing to private religious schools of choice—and from enjoying the federal tax benefits of such contributions— before RSA § 77-G was adopted, and nothing prevents them from doing so now. Yet § 77-G creates a vehicle by which substantial sums of public revenue raised through the taxation of New Hampshire citizens would be diverted to religious, non-public institutions. Such a financially imprudent diversion of scarce tax dollars would undermine the State’s ability to meet its other obligations in the coming years, including the provision of an adequate education for all New Hampshire children; providing New Hampshire’s civil and criminal justice systems with adequate resources to ensure the delivery of justice in New Hampshire; and maintaining the health, safety and wellbeing of New Hampshire’s citizens.
The superior court’s order should be affirmed.
Lucy C. Hodder & John M. Greabe, Brief Amicus Curiae of the Honorable Margaret W. Hassan Governor of the State of New Hampshire in Support of the Plaintiffs/Cross-Appellants, Duncan v. State of New Hampshire, 2013-0455 (2014).