From today’s Union Leader (usually referred to in this blog as #DyingPaper) regarding Senate Bill 193, which establishes education savings accounts:
Attorney General Gordon J. MacDonald has waded into one of the most highly charged legislative debates of 2018, concluding a Senate-passed bill giving parents state money to send their children to private schools, including religious ones, would be constitutional.
This legal seal of approval comes days before what could be a showdown vote in the House of Representatives next Thursday and potentially removes one of the obstacles that has prevented similar legislation from ever winning House approval in recent years.
First, what the hell took the Attorney General so long to correct the erroneous legal opinion that he rendered in April:
… Associate Attorney General Anne Edwards warned House lawmakers in committee that if the bill became law as is and allowed families to use state funds at parochial schools, a constitutional challenge would come – and be successful.
The United States Supreme Court issued a decision in late June, 2017 that established that the Attorney General’s position on Senate Bill 193 was erroneous. I blogged about the decision on June 27th, more particularly about how it affected the “Croydon” bill (Senate Bill 8). More recently (November 25th), I explained how the decision affected Senate Bill 193:
In a nutshell, because of a recent United States Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Pauley, there is no longer any question that the State Constitution’s Blaine Amendment cannot be used to exclude tuition at religious schools from Senate Bill 193’s qualifying educational expenses. Indeed, what would be unconstitutional (under the federal constitution) would be to exclude religious schools from Senate Bill 193. A more detailed discussion follows.
It is very disturbing that it took the Attorney General six months from the time that the United States Supreme Court issued the Trinity Lutheran decision to correct the erroneous legal advice that he gave the legislature back in April.
Second, why are some House Republicans outsourcing their duty to uphold the State and federal constitutions to the executive branch? Stated slightly differently, if the Attorney General hadn’t at the proverbial eleventh hour reversed his constitutional thumbs-down on Senate Bill 193 would House Republicans have voted against the bill notwithstanding the Trinity Lutheran decision?
Third, when is the Attorney General going to advise the legislature and affected school districts that the Trinity Lutheran decision renders the Croydon bill, Senate Bill 8, unconstitutional to the extent that it discriminates against religious schools:
The Trinity Lutheran decision means that Senate Bill 8 is unconstitutional to the extent that it discriminates against religious schools. This means that the prohibition against placing students in religious schools cannot be followed. In other words, Senate Bill 8 must be interpreted to allow placements in religious schools.
and if he doesn’t when are the House and Senate GOP going to revisit Senate Bill 8 in order to make it comply with the United States Constitution’s prohibitions against religious discrimination?