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Judge had to work hard to find that tax 'credits' are same as 'taxes'

  • Published in Letters

To The Daily Sun,
Concerning Strafford County Superior Court Justice John Lewis' June 17 ruling, in Bill Duncan et al. v The State of New Hampshire et al. and Network for Education Opportunity et al:
Let's take a look at the Tax Credit Education Program, SB-372, a law passed in 2012 by overriding Governor Lynch's veto. It enabled businesses in N.H. to contribute to scholarship organizations which in turn would offer scholarships to qualified families who would use the funds to help defer the cost of sending their child to the school of their choice be it private or public, some could even receive funds for home schooling. The donating company then receives a state tax credit for up to 85 percent of their donation.
Let's take a look at some applicable articles of our state Constitution. In Part 1, Article IV it says, "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received of them. Of this kind are the RIGHTS OF CONSCIENCE." This right of conscience cannot be overstated for it follows directly after Article III, which explains the need to surrender some natural rights in order to protect others. It is therefore making it clear that this right of conscience should not be surrendered up to that society in that trade off. You can read it for yourselves at http://www.nh.gov/constitution/constitution.html. Part 1 Articles V and VI should be read for they encourage the practice of religion and recommends it as a support for good government.
We have in the education tax credit program a bill that takes up the cause of the poor and extends the freedom of conscience, which our Constitution considers unalienable, to those of lesser means and Judge Lewis doesn't even mention it in his decision, in denying funds to religious schools. He instead works long and hard to find precedent to call the tax credits provided to donating businesses, taxes. He is not bound by our Constitution to do so, but he works it hard to come to that conclusion. Judge Lewis can't have it that the state is acknowledging the donations from these companies as fulfilling their obligation toward education and offering a tax credit for doing so. He has to have it that this donation is tax money, because it would have flowed into the tax system otherwise. The bill itself claims exemption from the codification into law of the precedent of counting a tax credit as tax money. This precedent seems to have risen from convenience, rather than having the company pay the tax and the state then reimbursing them, and barring an ulterior motive, constitutionally need not be considered as an unalterable principle.

Considering the actual history of the passing of the Blaine Amendment in N.H.; SB-372 should be seen as an honest and upright provision for not forcing our poorest citizens to pay double, therefore making it beyond their means, to choose an education for their children that falls within the dictates of their conscience, which would comply with Art. IV, Art. VI and Art. 83 of our Constitution. Rather than admitting the circumstance of the passage of the Blaine Amend. to Art. 83 (noted in my Sept. 12 letter that the Blaine Amendment was adopted to preserve protestant education) and honestly assessing the current state of public education, the judge turns a blind eye to the historical evidence and waves it off as indiscernible.

Judge Lewis then injects his own bias into it: Quoting professor Charles Clark saying, " the amendments purpose was simply the protection of the public school system and prevention of diversion of funds away from it." and again "that a discernible major purpose of the No-Aid Clause, when enacted, was to promote and sustain public schools, which, were, over time losing their protestant orientation." As if that shift, which has abundantly manifest itself in the 20th and 21st Centuries, implies neutrality. With the wave of the the wand of professor Clark, Judge Lewis severs the Blaine Amendment of Art.83 from the rest of the Constitution, and from the essence of its purpose as understood by the N.H. voters who passed it. In doing this he makes the Blaine Amendment to our Constitution a bait and switch provision, as our public schools are no longer protestant in nature. In fact they teach values that are quite the opposite of protestant values, which the voters of N.H. voted to preserve in 1876, in voting for the Blaine Amendment. In fact Christian and even Catholic schools, as they have moved closer in America to the Protestant model, resemble more closely the education model which the voters in N.H. in 1876 were trying to preserve, than that which our public schools have become.

In making this decision, Judge Lewis has moved from his role as one who's job it is to rule according to our Constitution, to that of a politician playing hardball, cleansing our citizenry of "improper" religious bias. Our N.H. Supreme Court should overturn this ruling, for even if most of N.H.'s citizens do not know the history of our Blaine Amendment, God knows and He will judge rightly. To our good if we judge rightly ourselves, and to our hurt if we judge corruptly.

John Demakowski