Hampton, New Hampshire Establishes The Catholic Church as the Town Church

 

Fans and readers of Mad Dog will by now know that the town of Hampton has, every year for the past several years, voted to establish the Catholic Church as the town church by way of voting to award a tithe to the Church from town accounts.

Mad Dog has pointed out to anyone who will listen that this is establishment of a state religion, which is forbidden by the establishment clause of the First Amendment. Because the federal government cannot write checks to churches, by the Supremacy Clause (Article 6, Clause 2) no local government can do what the federal government is forbidden from doing.

But there is law and then there is practice: Until someone forces the town to comply with the Constitution, the town is free to violate whichever of the articles or amendment the town pleases to violate.

Mad Dog has contacted all the folks you might think would be interested: the American Civil Liberties Union (no response at all) and the organization Americans United for Separation of Church and state. 

The lawyer from AUSCS (aka AU) responded that if the church used the funds for strictly non religious purposes, there would be no problem. He was quite emphatic on this point, as settled law, and he is sure how the Supreme Court would rule.

Here is a representative email:

First, AU has not “failed to respond” to your requests.  I personally emailed you three months ago, explained the law, and told you that I would need to know more about what the funding was specifically being used for.  Without that information, it’s not really possible for us to determine whether this is a violation or not.  It might be!  It might not!  This answer isn’t going to change even if you email every single staff member and email address you can find on our website, as you seem determined to do.  Find some more specifics on the funding, and we will be happy to take a deeper look at it.

 

Second, you keep bringing up Justice Jackson’s dissenting opinion in Everson.  I’m going to assume that you aren’t a lawyer and explain something that may not be obvious: dissenting opinions have no precedential authority.  No court in this country is allowed to use Justice Jackson’s dissent as controlling authority, save the U.S. Supreme Court, which will not do so.  You may find Justice Jackson’s opinion to be well-reasoned, compelling, and utterly convincing, but until a majority of the U.S. Supreme Court overturns Everson’s majority opinion and adopts Jackson’s reasoning, it is not the law.  Whether or not you think Everson’s majority opinion is correct is irrelevant. 

Of course, the lawyer for AU is quite correct: Mad Dog is not a lawyer.

Justice Jackson's dissent likely has no "controlling authority." 

But let's look at the case this way: Precedents in cases brought to prevent towns from supporting churches with money have been concerned with a different set of circumstances, as in Everson. The Court has found that when a town makes funds available to students or children in a town, say for bus transport to school or for playground equipment repair, the town cannot deny use of town funds to church schools simply because they are connected to a church because the town has to provide services and repairs equally to all children in town regardless of their religious affiliation.

Fair enough, so Everson does not apply to the current Hampton case for 2 reasons: 1. Jackson in saying support of a church school is the same as support of the church which encompasses the school is a dissent not a majority opinion.  2. In the case of Everson a service provided (school buses) was supported for all students.

But in the case of Mad Dog v Hampton, the money is not for a service provided for all Hampton children, only for those who attend the church school.

Suppose, for example, the town of Hampton decided to buy a boat to rescue swimmers in trouble off the Hampton Beach shore. No problem there: a service for all the town's people funded by taxpayer funds.  But then, the Church of the Miraculous Medal/Sacred Heart School decides it wants to launch a rescue boat and it gets the money for the boat from the town of Hamtpon account. Now, the church uses its rescue boat to rescue drowning Catholics only, not drowning Protestant, Muslims or Jews. 

Would you have a problem with that? Well, the Church argues, our mission is to care for our flock, our Catholic flock, and we like our boat for that purpose.

Now the lawyer for the Americans for Separation of Church and State argues, well, if the money was used for non religious purposes, say painting the boat, or buying better oars or a walkie talkie for use with the lifeguards on shore, no problem. Only if the boat is used for sermons delivered from the boat as it patrols the beach would that be a problem the AU would be interested in involving itself in. 

And one last thing:  The fact that a truth is contained within a dissent does not make it less true. If,  in fact, distinguishing a church school (whose main purpose in life is to promulgate faith) from the Church itself, is like drawing a distinction between the jet engines and the jet. If the town pays for the jet engines for the papal jet, but not for the jet itself, would you still say we have no "controlling authority"?

To the Editor:

The Sacred Heart School community would like to extend a sincere thank you to the Hampton voters and Seabrook voters who supported our child benefit service (CBS) funds article. The yes vote from the Hampton voters on the warrant article guarantees Sacred Heart School’s continued support for the Hampton students. The no vote from Seabrook was close and we hope for success from the Seabrook voters in March 2020.

These funds are applied towards non-religious textbooks, school supplies, technology, testing materials and school nurse services and supplies for our SHS students that reside in Hampton.

We’d also like to express our gratitude to the budget committees and school boards of each town for recommending and supporting the CBS funding for the Sacred Heart School students from each respectful town.

A sincere thank you for your continued support.

Teresa Morin Bailey

Principal

Sacred Heart School