The June 30th U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue demolishes once and for all the false claim that New Hampshire’s Education Tax Credit Program violates the New Hampshire and U.S. Constitutions.
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Further, the ruling renders inoperative New Hampshire’s anti-Catholic Blaine amendment, added to the state constitution in 1877.
“While the plain text and history of New Hampshire’s Blaine Amendment should not have been an impediment to enacting robust school choice programs prior to the Supreme Court’s ruling in Espinoza, there is now no question that legislators and policymakers in the Live Free or Die state are free to design and enact programs that will empower parents to choose the educational environment that will best serve their children’s learning needs,” Tim Keller, senior attorney at the Institute for Justice and co-counsel in the Espinoza case, told the Bartlett Center.
The Espinoza case overturned a Montana Supreme Court decision that had blocked that state’s tax-credit-funded educational scholarship program because it allowed parents to use the scholarships at religious schools.
In 2013, New Hampshire political activist Bill Duncan sued to have New Hampshire’s similar program overturned for the same reason. The New Hampshire Supreme Court did not address the merits of the case, ruling in 2014 that Duncan did not have legal standing to sue.
In the Espinoza case, the U.S. Supreme Court rejected the Duncan argument. The court ruled that if a state has a scholarship program, it may not discriminate based on religious status. Such discrimination violates the First Amendment’s guarantee that individuals have the right to the “free exercise” of religion.
At issue in the case was Montana’s “Blaine amendment,” an anti-Catholic amendment to the state constitution that prohibited state appropriations from going to “sectarian schools.”
The New Hampshire Constitution has a similar amendment, added in 1877, which states that “no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.”
Related: SCOTUS Rules States Can’t Prohibit Scholarships to Religious Schools
These amendments are often called “no-aid” provisions. The court held:
Montana’s no-aid provision discriminates based on religious status. Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” the court determined. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.
To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges ‘inevitably deters or discourages the exercise of First Amendment rights
In sum, education scholarship programs cannot discriminate against schools based on the religious status of those schools. New Hampshire’s Education Tax Credit Program does not bar funds from going to religious schools, so no change needs to be made. The Espinoza ruling clarifies that this practice is constitutional and that changing the program to exclude religious schools would be unconstitutional.
In 2017, the Josiah Bartlett Center for Public Policy and the Institute for Justice published a briefing paper arguing that New Hampshire’s tax credit scholarship program does not violate the state or U.S. constitutions, for reasons similar to those laid out in the Espinoza case.
The co-authors of that report were Richard Komer and Tim Keller of the Institute for Justice. Komer argued the Espinoza case before the U.S. Supreme Court last year, and Keller was a co-counsel on the case.
