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Vermont tax dollars may soon be going to faith-based elementary and secondary schools, if a case filed last week in federal district court succeeds. The case is styled Valente v. French. The lead plaintiffs are Mount Holly parents who send their son to the Roman Catholic Mount Saint Joseph Academy in Rutland. Dan French is the secretary of education.

The case is the latest product of a decades-long legal debate over a sentence of the First Amendment that reads "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." In a 1947 case the Supreme Court incorporated these protections to bind the states as well.

Montana has long had a "no aid" law prohibiting "direct or indirect" government aid to churches. Five years ago the Montana legislature approved an income tax credit of up to $150 for contributions to a nonprofit organization that provided scholarships to students attending independent schools.

On June 30 the U.S. Supreme Court ruled (5-4, with seven opinions) in Esperanza v. Montana that the state could not allow the tax credits only for scholarships to non-sectarian schools. It must offer the scholarship benefit to students choosing sectarian schools as well. The court said that not including sectarian schools burdened the plaintiffs' right to the free exercise of their religion.

"Free exercise" once meant that the government couldn't prevent you from holding your own religious beliefs, participating in your own religious services, and maintaining your own churches and schools. With the new ruling the court goes far beyond the paltry tax credit at issue. It now declares that denying any government benefit to churches and schools because they are religious places a discriminatory burden on "free exercise."

If the Valente 0laintiffs prevail — and the language in Esperanza gives them a fairly strong case — parents in tuition towns will be able to have their school districts pay the tuition directly to the religious school, just as it is now paid to nonsectarian schools. Other parents will want the same privilege.

It's commonplace to exempt all churches, synagogues, schools, colleges, and veterans' posts from property taxation. But it's a big leap from that practice to having the government distribute tax dollars directly as benefits to a church or sectarian school.

There are two arguments against this. First, it makes the religious institution constantly eager to win more government support. That will produce an "excessive entanglement" of church and state that the founders recognized as an invitation to endless discord, turmoil and bloodshed.

Further, collecting tax dollars from citizens and handing them over to sectarian institutions compels the taxpayers to support teachings and practices that they may view as harmful or even deplorable.

Vermont's Constitution writers dealt with this problem by specifying that "no man can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience."

In 1999 the Vermont Supreme Court seized on this "no compelled support" clause to prevent the town of Chittenden from tuitioning 13 students to Mount Saint Joseph Academy. In so doing the court misread the history and intent of this provision. The "no compelled support" clause does not prevent school districts from giving parents vouchers they can use to pay tuition to approved sectarian schools. It protects individual taxpayers from having their tax dollars spent for that purpose.

A more creative arrangement would be for the school district to give vouchers in various amounts to parents to buy education for their children from providers of their choice, including public schools, sectarian and non-sectarian independent schools, virtual academies, schools run by businesses, unions, colleges, and civic organizations, homeschools, and other yet unimagined types of providers.

The parents direct their vouchers to the providers that offer programs best suited to the needs, interests, abilities and values of their children. Those providers will compete for customers, but this is a far removed from competing politically for government payments.

To meet the "no compelled support" requirement, objecting taxpayers could ask for a rebate of their proportional share of the payments to the disfavored provider. That would reduce the pool of money to cover the vouchers used for tuition at those providers. In practice, however, it's likely that only a handful of objectors in a district would take the trouble to claim a small rebate.

Admittedly, these transformative changes would never gain the support of those, notably the public school establishment and the teachers union, who are intensely committed to defending the public school near-monopoly. But they would minimize the Establishment Clause's "excessive entanglement" concern, observe the "no compelled support" requirement, and comply with the (strained) Free Exercise rationale of the Esperanza case.

John McClaughry is vice president of the Ethan Allen Institute, a conservative think tank that is affiliated with the State Policy Network.


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