Is Separation of Church and State Unconstitutional in New Hampshire?

 

At every Deliberative Session, School Board meeting and Budget Committee meeting where the warrant article granting public funds to the Sacred Heart School is discussed an attorney rises to say this is all settled law now, and there is no question about the constitutionality of this warrant article because the New Hampshire State Supreme Court has spoken about this. 

This question arises because the New Hampshire state constitution is so explicit about the separation of church and state: 

"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." 

This woman, who always identifies herself as "Attorney" says that in 1969 the New Hampshire Supreme Court ruled on this issue. 

Now, Mad Dog is not an attorney; he is just a humble citizen with a Google account, but he has searched the internet looking for a decision in a case about public funds to religious schools in New Hampshire, and found none. 

What he did find was a state Supreme Court "advisory" which was apparently requested by the legislature to see if bills they were considering would be inevitably found unconstitutional by the Court.  So there is no case law, which depends of the details of a particular case, only a general statement of principles, which the Court clearly stated it was loathe to make, but it went ahead and made the statements anyway.

When you read through the justices' statements they first make it clear that if the Supreme Court of the United States rules it is unconstitutional, then it is unconstitutional in the State of New Hampshire (14th amendment.)

Then it goes through each of the bills proposed, each with its own circumstances:

1. Can distributions of money from sweepstakes be given to religious schools?: No. The justices said there was no way to know if this money would be used for religious purposes in those schools.

2. Can public schools be made to give or sell textbooks to the religious schools, textbooks (presumably of math or biology)? And the justices said, yes, as forbidding this might deprive the town's students at religious schools from education in those areas

Then they get to the nub: "It is our opinion that since secular [religious] schools serves a public purpose, it may be supported by tax money, if sufficient safeguards are provided to prevent more than incidental and indirect benefit to a religious sect or denomination. We are also of the opinion as expressed in the Opinion of the Justices 99N.H. 519, that members of the public are not prohibited from receiving public benefits because of their religious beliefs or because they happen to be attending a parochial school."

It is not entirely clear what "public purpose" the justices think religious schools served, although they do mention these schools served two purposes: general education (math, science) and religious education, and maybe they mean that one purpose served is enough for a public purpose. But what they do make clear is "adequate safeguards" must be in place to protect separation of church and state, i.e. to prevent public funds from pay for religious purposes.

So in the case of the Hampton warrant article, it is a matter of public record no such safeguards exist. Although the Treasure of SAU 90, who writes the checks paying for the Sacred Heart School's computers, talks about all the "audits" involved in those payments, she has been repeatedly and clearly and directly asked if those computers are used to stream religious services from St. Patrick's Cathedral and she has said, "I have no idea." On the public record. So there are  no safeguards in Hampton.

Of course, there are two arguments against Separation of Church and State:  

Gorsuch

1/ "Separation of Church and State"-- those 5 words strung together--appear nowhere in the US Constitution. This has prompted Justice Gorsuch to refer to "the so called Separation of Church and State." During arguments in Shruteleff v Boston, Justice Gorsuch remarked:

"As I understand it, Mr. Rooney said that he thought it was concern about the so-called separation of state, church and state, or the Constitution's Establishment Clause."

2/ Separation of Church and state discriminates against religion and religious institutions.

To take the first point first:

1/ Nowhere in the Constitution: 

Yes, this is quite true, you will not find those 5 words strung together anywhere in the Constitution, and for a very good reason. When the founding fathers wrote the Constitution in the 18th century, they did not want to write a document for lawyers with their "windy phrases;" they wanted to write a layman's document which any citizen could read and understand. So instead of that phrases they simply laid down a working definition of Separation of Church and State: Congress [government] shall make no law respecting the establishment of religion.

Now, you may say that leaves the matter open to interpretation: What constitutes establishment of religion? Well, in 1789 it was much the same as 2024: You can establish religion only in two ways--A/ You can state "The Anglican Church is the official state church of England"  or B/ You can simply pay the priests, pay for the upkeep of the church buildings and schools etc. 

You might, conceivably, argue if the government cannot make a law regarding the establishment of religion then it might be forbidden from making a law forbidding the establishment of religion, but you'd have to be a lawyer to believe that, not a citizen.

It is curious that both Lauren Boebert, the Congresswoman who has said Separation of Church and State is nowhere in the Constitution, and so is not really a and  Justice Gorsuch are both from Colorado. Could it be all that thin air is insufficient for cerebral function? Is this the true meaning of "Rocky Mountain High?"

2/ Separation discriminates against religion:

Alito

So, here we have the "establishment clause"--no law establishing religion--coming into conflict with the "free expression" clause, "nor the free exercise thereof."

Here, we have Justice Alito finding that if the State of Maine refuses to pay an evangelical Christian school for the education of 15 students in a remote Maine town where there is no public school, on the grounds that to pay that church and its school would violate the separation, then we are discriminating against religion because it is religion.

To which Mad Dog has to reply: Absolutely!

Suppose that one school out in remotest Maine had been a Madrassa, a school which taught that, on the basis of their deeply held religious beliefs, young men ought to fly airplanes into tall buildings to get into Heaven and have at all those waiting virgins? Suppose you had a school in the South, where the Christians there believed the races should not mix, that Blacks should not be allowed in the same hotels, restaurants, movie theaters, busses as whites? Would we discriminate against those schools?

You betcha!

We would say: You can harbor all those odious beliefs, and you can meet on your holy Sabbath days and preach those beliefs, but you cannot use taxpayer, public funds to do all that.

That is discrimination Mad Dog can embrace.

So, the Attorney who sites a New Hampshire Supreme Court endorsing public funds for religious schools, the Supreme Court of the United States which harbors a justice who snidely dismisses Separation as "so called" and another justice who uses his own prejudice in favor of churches to destroy Separation, these are all wrong minded, small minded people.

Roger Taney, the Supreme Court Justice who ruled that Dred Scott, the slave, had no right to sue for his freedom in the Supreme Court of the United States because Scott is not a human being, but a slave, with no rights and no standing before the Court--that justice's name became a sort of sick joke, an emblem of how far out a Justice can go when he is not elected, when he is appointed for life and when the only law he respects is the little tune playing in his own mind.

Gorsuch, Alito and Justice Thomas (who is even more of a right wing nut) will be footnotes in the history of the Court--either that, or the Court itself will become a footnote.