*1 Cynthia al., Andrews, Town District Chittenden School et Department Intervenors of Education and Elizabeth Sojourner, al., et Intervenors
[738 539] A.2d No. 97-275 (Ret.) Dooley, Johnson, JJ., Allen, Gibson, Present: Morse and CJ. J. (Ret.), Specially Assigned Opinion Filed June Schwiebert, Reiber, Kenlan, Facey, Hall & A. III Facey, John Mellor, D. III, Richard Rutland, Bolick and H. Clint and William DC, for Komer, Justice, Plaintiff-Appellant. Washington, Institute for *2 ser, Jr., Crowley, Campbell, Key Orland H. Meub and William Rutland, Plaintiffs- Sullivan, P.C., for Meub, den, Lay Kulig & Andrews, et al. Cynthia Intervenors-Appellants Assis- General, J. Di Sorrell, Attorney Stefano, Mark H. William Richards, L. General, Paul C. Fassler and Karen Attorney and tant General, for Defendant- Montpelier, Attorneys Assistant Special Appellee. Wool, and Joel Middlebury, Langrock Sperry L. Pearl of &
Mitchell Cook, Vermont-NEA, Montpelier, for Defendants-Intervenors- D. Sojourner, et al. Appellees Elizabeth Rutland, A. Stephen and Jeffrey Kaplan A. Martin S. Taylor, LLP, Boston, Massachusetts, Lisa of Hale Dorr Jonas York, Thurau, York, Curiae National Commit- New New Amicus Religious Liberty. for Public Education & tee action, Dooley, again In we are called declaratory judgment J. this of the Vermont implications to consider the constitutional upon high education provide statutes school districts to school authorizing by by nonpublic to their students tuition for schools selected paying Campbell §§ 16 and 824. In parents. their See V.S.A. Directors, 161 Vt. Manchester Board School (1994), Clause of United we concluded Establishment not an to the reimbursement impediment Constitution was States school in the circum expense paid of tuition a sectarian 447-48, 456, 641A.2d at of the id. at presented. stances case then 356-57, to the in Swart v. (overruling prior holding contrary our (1961)). Burlington Disk, 122 A.2d 514 Town Sch. Vt. South id. see explicitly Campbell, we confront a reserved Today question n.5, tuition A.2d at 356 n.5: reimbursement at 447-48 whether Clause of the Vermont transgresses Compelled Support scheme Const, Constitution, I., speaks ch. which not to Vt. art. establish religion religious worship. but to state ment and the Department court in favor' of the Education superior ruled its on the department, basing analysis with aligned intervenors federal Establishment focus on the Clause. We Vermont Constitution and conclude that school district when Chapter violates Article 3 § it reimburses tuition for a sectarian school under 822 the absence of adequate safeguards against the use of such funds case, worship. safeguards Because of the such absence affirm the judgment superior court. Background
I. The case superior facts, was submitted court on stipulated which we part. summarize in relevant Plaintiff Chittenden Town ninety-five School District has in grades students nine through twelve. It does maintain a school for high the education of these Instead, secondary students. it pays public high tuition to schools or approved independent schools for this purpose, explicitly autho- 822(a)(1) § 824(b), §§ rized V.S.A. 822. Pursuant parents may the students an approved select school to which to their send children.
Until the year, 1996-97school the Chittenden School Board autho- tuition payments only rized for public high schools or approved secondary schools that it found to be nonsectarian. the 1995-96 *3 year, school for paid seventy-five tuition secondary school students. these, seventy-two Of attended of one the five public high schools operating in Rutland County, and three attended approved private secondary schools.
In of December the Chittenden School a adopted Board new secondary-education tuition-reimbursement policy would allow tuition to be paid sectarian schools. approved One independent sectarian secondary school operates Rutland That County. school is (MSJ), Mount Saint Joseph Academy a parochial school high located City in the of Rutland. is MSJ owned and operated the Sisters of Saint under Joseph, the of authority the Roman Catholic Diocese of Burlington. is an MSJ institution in which the secular and sectarian of aspects program its educational are intertwined. Its statement of philosophy reveals that its program academic incorporates religious and moral through education a range broad of curricular and co-curricular activities and that learning “[w]e believe that occurs in an atmosphere community where faith emphasized and are overtly practiced. . . .”
Consistent its with educational philosophy, requires MSJ instruc- tion in theology, constituting four twenty-three of required credits graduation. The four theology courses are entitled “Salvation Histo- description of “Sacraments,” and “Commitment.” “Ethics” ry,” at MSJ states: theology the curriculum spirituality is development the year period, a four During experiential retreat and prayer, through liturgy, found biblical . the historical and Through . . learning activities. roots, and discussions presentations, faith study our leaders, a students build of Christian Gospels and lives the spiritual their individual development the foundation for lives. the theology education expected the outcomes
Among “witness students will school are religious life activities Gospel proclaim and will “continue identity” a of Catholic sense kingdom through fulfilling and work towards of Jesus service/ ministry/action.” students are with a to which all day prayer, school begins MSJ month, the entire school give quiet attention. Once
required aby priest. mass led a celebration the Roman Catholic attends attend, in the required participate Non-Catholics must but are retreats, All annual which spiritual must attend sacrament. students All must attend a twice-annual and mass. students prayers include reconciliation; participation of the sacrament celebration required. is not sacrament in their faculty required to adhere Catholic doctrine
MSJ values of exemplify and must demonstrate and teachings messages live teach the Gospel faith by striving Catholic nun. is a Roman Catholic Of principal Jesus. The MSJ teachers, priests. four are nuns twenty-seven to examine been the issue before us Although required by we have MSJ, emphasize that the aspects the sectarian education Ninety-one school. very good high record indicates MSJ years, went on to recent college. of MSJ’s class percent in MSJ has 83% to 93%. Of the students enrolled percentage been Roman Catholics and year, 1996-97 school were faiths. remainder were of different *4 specifically approved the School Board May Chittenden were en- Chittenden students of tuition MSJ. Fifteen
payment year. rolled in MSJ for the 1996-97school secondary funds education Town School District Chittenden tax property raised the local by a combination of revenues through from the State of Vermont. For and to education received aid $39,000 it year, 1996-97school intended use to pay funds $3,000 tuition at has a policy, MSJ. MSJ three-tiered tuition charging non-Catholics; $2,775 annually to Catholics who reside Diocese, Rutland; $2,525 but not in the City and to Catholics who City reside Rutland. its projected MSJ cost per-pupil $5,021 education at for 1996-97. The Diocese and local Rutland parishes up would make bulk the difference.
When the Chittenden School Board voted to tuition reim- allow MSJ, bursement to the Commissioner of Education terminated state aid to education to the district. The Chittenden Town School District then brought against action this Commissioner and the Vermont Department Education, asserting, claims,1 among other tuition reimbursement to MSJ seeking was constitutional and an order to restore state-aid funding. Defendants counterclaimed that the Chittenden decision to make tuition payments MSJ violated the Establishment Clause First Amendment to the United States Constitution and Chapter Article 3 of the Vermont Constitution. They sought injunction. also superior court groups authorized two intervenors. One
group, aligned plaintiff, with parents consists of who are sending secondary children MSJ for education and seek payment by MSJ tuition the Chittenden Town School District. The other defendants, group, aligned with consists of residents of the Town of Chittenden oppose who the use of their tax state and local payments to fund sectarian education.2 17,1996,
On October the superior court a temporary entered order based on stipulation of the parties. The temporary prohib- order ited the Chittenden Town School District from making any tuition payments to MSJ and required Department of Education to continue to make payments state-aid-to-education to the district. On 27, 1997, June superior opinion order, court-issued its and original complaint claims, 1 The contained other but these were dismissed with prejudice plaintiff aligned plaintiff neither nor the appealed intervenors with have the dismissal. Religious Plaintiff also claimed that defendants’ actions violated the superior Freedom Restoration Act. The court declined to address claim because of Supreme City Flores, decision of the United States Court in Boerne 521 U.S. (1997), striking plaintiff-intervenors down this act. Plaintiff and have not raised the Religious appeal. Freedom Restoration Act on convenience, plaintiff For the sake of aligned we hereafter refer to and the intervenors collectively plaintiffs, with aligned as and to defendants their intervenors as party defendants. We also note that MSJ not this case thus cannot be required to propagation “demonstrate its curriculum does involve the beliefs,” argued the concurrence. *5 to perva- district from a school payments that “tuition concluding who schools, of the children parents or the high sively sectarian schools attend, a subsidy effect of direct would have the Constitutions.” United States and Vermont in violation and contin- summary judgment motion for granted court defendants’ however, if held, this It pending appeal. order temporary ued the decision, to reimburse the order the State its it would Court reversed paid to MSJ. already for tuition parents Chittenden decision, contending that court’s from the appealed Plaintiffs have (1) not violate either the schools does payment tuition to sectarian long as is or the Vermont Constitution States Constitution United (2) provider, educational a free choice of parent’s based on violates the Free from reimbursement exclusion sectarian schools Amendment to the United States of the First Exercise Clause tuition- Chittenden’s responded Defendants have Constitution. constitutions and that applicable violates both policy reimbursement reimbursement not violate the for sectarian schools does exclusion cross-appealed the Constitution. Defendants have United States in the event to order tuition reimbursement superior court’s decision main is holding its reversed.3 us, share we cannot but dispute
As we before analyze Court, wrote this who feelings of Chief Justice Williams of of3 the Vermont interpreting Chapter decision Article first this Court would enforce a question was whether Constitution. made Justice Williams found that the contract on the Sabbath. Chief been clearly by of law which have “principles was resolved question controverted,” known, acknowledged, and never but added: aware, however, subject under consideration We is be too much on either side is one which liable to viewed any judicial through feeling; investiga- the medium of treading forbidden may upon tion of it be as regarded ground. way may regarded promoting A decision one immorality; irreligión, licentiousness and and decision upon religious way encroaching other be considered as freedom. 219, 220, 221 and sixty 6 Vt. Over one hundred
Lyon Strong, later, years emphasize of this case is similar. We background or is not a the value of education decision about case, cross-appeal. disposition our of this we do not reach the 3 Because of religion. education about can on this From what we determine limited record, religious thriving education in this providing state many high quality education students. Nor is this decision about parental the value of in determining choice where and how children will education parental receive services. Whether choice improves quality of education for some all students must be determined branches, legislative executive and not this Court. Our challenge is to apply legal from the principles derived Vermont United and/or *6 States Constitutions to determine governmental payment whether is parents education if have free choice to their any institution, send children to approved public educational or private, secular or sectarian. Statutory
II. Overview Scheme reaching Before questions, the constitutional we find it helpful to look at controlling statutes. The is quite simple. basic scheme Since the Chittenden Town provides School District elementary education, it required provide is secondary education. See 16 822(a). § V.S.A. It has a in options number this meeting obligation. The two main ones are to maintain a or public high pay school tuition an school, “to approved public or independent high to be by selected or parents guardians the pupil, within or without (b).4 822(a), § the state.” Id. Chittenden has taken second of these options. approval public or independent high given by schools is
Vermont Board of Education. To an become approved independent school, (1) elementary education; the school must: offer secondary or (2) (3) provide prescribed minimum of study; course “substan- tially” with comply Vermont Board of approved Education rules for 166(b). independent § schools. 16 V.S.A. The rules must at a mini- mum require “that the school has resources required to meet its objectives, stated including capacity, financial who faculty quali- by fied training experience in in the areas which they are options, example, The school district does have other not relevant here. For it can designate 827(a). approved independent high § an school as its school. See 16 VS.A. It join high can operate union school district See id. school with districts. other circumstances, §§ 701-723. high In certain the district can maintain a school and tuition 822(c). private high some to a school. See id. § students or are in facilities and services physical special assigned, Id.5 regulation. or federal law any with state accordance As rules with sectarian education. nor the deal statute Neither below, adopted scheme tuition reimbursement the exact discussed after unlawful School District became Town the Chittenden Swart, in but: Court’s decision decision, implement no action to Legislature took today in position districts the same
leaving the school
allow
statutes
Although
the relevant
they were
1961.
of a resident who
tuition on behalf
pay
school districts to
school,
must
the districts
any
private
approved
a student
Establish-
payment
such a
violates the
determine whether
ment Clause.
Thus,
the statute
161 Vt.
Campbell, of a of the curriculum religious part rules deal with the nor the no and nature of impose quantity school. limit on They sectarian they that sectarian education subjects; require nor do entirely possible from education. It is secular separated will be approved independent of the education school majority religious tenets and doctrine.6 limits. The impose the tuition statutes real payment
Nor do any independent the full tuition rate of sending pay district must *7 824(b). § If the meeting public school standards. V.S.A. school standards, public not meet the tuition school does school independent average for a school student cannot exceed “the payment high schools for students in high announced tuition of Vermont union statute, require requirements to the of the the Board’s rules that In addition (2) (1) study ability age appropriate; a of and have school: offer minimum course that is — administrative, library, guidance counseling and services and a services — system progress necessary requirements to of of records to student meet the assess (3) school; objectives study a course of and the have minimum educational (4) classrooms, operate laboratory, library necessary program; other to its and facilities (5) continuing development; adequate program professional staff have of a have (6) facilities, staff; professional satisfy legal requirements on fire sufficient number of (7) students; drill, register daily of each maintain attendance and immunization of a (8) law; according operating pupil report and maintain an schedule enrollment are than those of a a total of instructional hours that not less that includes number Educ., §§ public 2226.1-2226.11 Manual of Rules and Practices school. Vermont Bd. of (1997), reprinted in 3 of Vt. Rules 22000004-5 Code Education, approved by sixty-five independent schools the Vermont Board Of the Day schools and three are identified as are identified as “7th Adventist” four remainder, Academy, appear Joseph Many like Mount Saint “Christian” schools. parochial to be schools. 9-12 for the or rate grades year” higher by such as is voted 824(c). district. Id. § sending Although electorate of the term defined, statutory “tuition” is not we see in the nothing scheme it is than the rate suggest charged by approved other school for whatever it independent educational services delivers. Thus, the cost of can purely religious education be included in the payment tuition a sectarian made to school. do suggest
We not mean to that our present inquiry implicates the ability education, of a school charge sectarian tuition for religious rather than requiring by the cost such education be borne voluntary religious donations of adherents. This is a policy choice However, below, religious school. for reasons fully discussed that, it highly any deem relevant the absence kind of regulatory the tuition process, payment system adopted by the Town Chittenden can, will, District presumably expend money School on public long education as as some undetermined percentage of money subjects funds education secular required the state’s minimum study. stipulated course of The facts indicate that this is happening public at MSJ. Apparently, private sources of are so that commingled revenue each supports religious education. scheme, reviewing statutory we are also making point about nature this case. factual by record made the parties shows, best, examples some of how Chittenden’s tuition reimburse used, policy might ment be but the record also demands a broader Albans, Robtoy City St. inquiry. 503, 504, 321 132 Vt. A.2d (1974) (function 46-47 declaratory is judgment to resolve “actual or justiciable controversy” results that involving “reasonably to be expected”). stipulated facts show that the Chittenden Town to pay School District intends tuition qualifying secondary school, secular, or selected by the students and parents. As happens, the only sectarian school now selected Chittenden MSJ, parents and students no party but is suggesting that if govern decision will not student selects another school. Therefore, this case is not about MSJ or any parochial other school such. We upon are called decide whether tuition reimbursement any “approved policy allows tuition to paid high constitutional, independent school” is Department because the may reasonably Education expect Chittenden Town School Dis *8 trict tuition for reimburse all such In schools. examining scheme, statutory schools could we are therefore at which looking designation meet standards for this and receive tuition reim if parents bursement selected by and children.
319 I, Constitution Article 3 the Vermont Chapter III. policy tuition payment the Chittenden argue that Defendants constitutions, superior and the and Vermont both federal violates analyze a Swart, this Court chose to accepted both claims. court because the under the First Amendment virtually identical case clear, uncertain of the outcome and the Court was federal law was The federal of the Constitution. Article 3 Vermont Chapter under Felton, 203, See, v. 521 U.S. e.g., Agostini has become less clear. law (1997) Felton, (1985), 402 209, (overruling Aguilar v. 473 U.S. 216-17 (1985), Ball, 473 373 and Rapids Dist. v. U.S. Grand School at schools is funded federally instruction holding in at circum least some under Establishment Clause permissible (Ohio 203, 210 stances); 711 Goff, also v. N.E.2d see Simmons-Harris 1999) grounds Clause (sustaining, on Establishment part, schools); Benson, v. that includes sectarian Jackson program voucher 602, (Wis.) that choice that includes (concluding plan 620 N.W.2d 578 denied, Clause), cert. offend schools does not Establishment Albanese, 997, 119 466 But see Strout v. 525 Ct. U.S. S. 178 (1st 1999) in context 57, conclusion (reaching opposite 64-65 Cir. F.3d schools); Bagley v. tuitioning plan explicitly excluding parochial 1999) (Me. (same). 127, Sch. Raymond Dep’t, judicial are the final Vermont interpreters We Constitu (1996), Read, 141, 153, A.2d tion, v. 165Vt. see State Hodgeman freestanding charter is a document. See our fundamental (1991).Therefore, Co., 461, 464, 599 v. Jard Vt. A.2d A.2d Badger, out 141Vt. pointed State (1982), a choice a constitutional deciding when faced with between — form a final answer in the grounds yielding case on state judgment” state our independent grounds “adequate — that facés an and a construction the federal constitution future the state of federal our applicable principles, uncertain given “If to choose course of action. our state constitution duty is the former only mean it must be enforced where it is the law anything, is to claim, . party á final answer to a and a . capable providing [who]. protections.” Accordingly, invoked its Id. we decide case has and, dispositive, Constitution since it is solely based the Vermont Clause of the First not consider whether Establishment need policy tuition reimbursement prohibit would also Amendment issue here.
Article 3 provides: a right,
That all natural and to persons have unalienable God, to worship Almighty the dictates of their according understandings, own as in their opinion consciences God; shall be the word of no regulated by person and that to, ought right or of can be to compelled any religious attend any or erect or or worship, place worship, minister, conscience, maintain any contrary to the dictates of person can any justly abridged any nor or deprived citizen, a right sentiments, civil on account of or religious peculiar mode of no religious worship; authority and that can, in, or to ought by, any be vested or assumed power whatever, any with, that shall in case interfere or in conscience, manner control the rights the free exercise religious Nevertheless, or worship. every sect denomina- tion Christians ought day, to observe the sabbath Lord’s and keep some sort of up religious worship, which to them most agreeable shall seem to the revealed will of God. Const, added). Vt. ch. art. 3 (emphasis argue Defendants policy Chittenden’s tuition violates Compelled Support Clause of is, Article 3. That the policy forces dissenting Chittenden and other taxpayers Vermont to “support place . . . worship contrary [a] the dictates of must, therefore, conscience.” Id. Our decision turn on meaning quoted of the language. constitution,
In our construing we have available number of approaches in addition to our own precedents: examination of the text, analysis, sibling historical state provi constructions similar sions, and analysis sociological economic and materials. See State v. Jewett, 221, 225-27, 500 (1985). 233, 236-37 Vt. A.2d Like the First Constitution, Amendment to the United States Article 3 expresses related, two different, but concepts about religious the nature of No liberty: power may interfere with or control an individual’s free exercise and no worship, person can be compelled or support attend worship against person’s conscience. We developed meaning of the first concept State v. DeLaBruere, 262-70, 154 Vt. 268-72 Our cases have not significantly developed Compelled meaning Support Clause.
A.
Case Law
Prior
case,
find
this
we nevertheless
not
Although they do
resolve
id.
this Court.
precedents
the relevant
helpful
examine
Compelled
263,577
interpret
opportunity
at 268. Our first
A.2d
Swart,
virtually
facts
identical
dispute
with
Clause came
Support
Swart,
Burlington,
of South
in this
citizen
those before us
case.
school,
local school
prevent
have a
sued to
high
did not then
which
secondary
nearby Roman Catholic
from
tuition to two
paying
district
The trial
students.
Burlington
attended
South
schools
were
the First Amendment
analyze
the case under
court decided
construed Article 3. This Court
had
previously
because
Court
*10
freedom which directed
that “the militant sense of
agreed, noting
slavery
against
a prohibition
be the first to write
founders to
[our]
122
.,
religious liberty.”
expression
. . was somewhat reserved
182,167
domain of religious
at 517. It added that
the
“[i]n
at
A.2d
Vt.
the more
history
the First Amendment seems
liberty, the resolute
184,
demanding.” Id.
at
A.2d at 518.
167
Buildings
in VermontEducational
A related
addressed
question
Mann,
262,
(1968),
A.2d 68
where
Financing Agency
127 Vt.
247
to issue revenue bonds
agency
chairman of the
refused
financing
the
building
a classroom
and science
and execute leases
construct
upholding
In
the
college
for a Roman Catholic
Rutland.
center
3 and
against challenges under both Article
financing arrangement
Amendment,
Article 3
“no
First
the
noted that
contains
the
Court
injunction
assistance to sectarian education”
explicit
precluding
area,
limits
concluded that
this
the
of the First Amendment
“[i]n
restrictive,” citing Swart. Id. at
the Federal Constitution are more
at
was no violation of either constitution
A.2d
73. There
expended
fact that
are
because
mere
funds
“‘[t]he
a
does not
the
by
enterprise
institution
establish
operated
religious
religion professed by
that
the
proceeds
fact
the
used
”
Swart,
Id. at
270-71, 247
at
at
(quoting
A.2d
122Vt.
recipient.’
the
518).7
184-85, 167
at
that the cause of
A.2d
The Court determined
by the facilities to be
would neither be served nor obstructed
religion
financed,
financing
and that the
were
constructed and
lease
74.
constitutional. Id.
A.2d at
Williston,
586, 589,
v. Town
A.2d
Mikell
In
Vt.
lands,
from
(1971),
lease
proceeds
715-16
the Court concluded
the
by
plain meaning approach
the coneurrencé would
taken
7 We understand
subsidy in that case did not
Mann.
held that the
result of
The decision
overrule
3;
holding
not
Article
its
on Article 3 was
dicta.
violate
originally
usage by
Royal
church
of New
granted for
Governor
Vermont,
Hampshire and the
be constitutionally paid
State
cannot
Episcopal
Although
plaintiff challenged
town to
Church.
money
usage
of the
under
the Vermont and the
both
federal
constitution,
solely
this Court relied
the federal constitution
holding
“[pjublic
of the
subsidy
dissemination
doctrine is unconstitutional.” Id. at
A.2d at
716.
Most recently,
question
we confronted the
public subsidies
sectarian education in Campbell. The
decision is central to
Campbell
law,
parties’ analysis
state of
current
the federal
but it does
not discuss or apply
requirements
of Article 3.
case
Although the
payment
school,
was about local
tuition
attend
markedly
in a
posture
issues were
different
from
those before us.
Campbell, the father of a
school
secondary
student
reimburse-
sought
already paid
ment
tuition he had
Episcopal
an out-of-state
preparatory
Pointing
decision,
school.
out the narrowness of our
we
Manchester,
held that the Town of
which
not
a public high
does
have
school and
pays
secondary
children,
tuition
educate
school
must
442,456,641
reimburse
for the
plaintiff
tuition. 161Vt. at
A.2d at
decision,
In reaching
361.
emphasized
the numerous circum-
(1)
stances that made
case unique:
the plaintiff
already
had
paid
the tuition so the
payment
town’s
would
to the
go
parent and not to
(2)
school;8
the sectarian
plaintiff
did
live
near
school, and there was no
that allowing
evidence
tuition reimburse-
ment would send any substantial number of children to sectarian
*11
(3)
institutions;
state,
the sectarian school involved was out of
and the
regulation of the institution would not be affected by the
and
ruling;
(4) because
out-of-state school could not meet
public
Vermont
the.
standards,
school approval
the reimbursement was limited to the
average announced tuition of
high
Vermont union
schools.9See id. at
452-53, 641
at
circumstances,
A.2d
359-60.
these
Under
we held that
reimbursement of the
not
tuition would
offend the First Amendment.
456,
Id. at
8 We stated that “direct may to a sectarian institution raise additional validity payment. Campbell, considerations” and did not the address direct 161 Vt. at A.2d at 359. plaintiff only partial 9 Because the paid, could receive reimbursement for the tuition he preference Campbell, we noted that the “case for shows education.” 161 atVt. day 641 A.2d We “[w]e at 360. said that for leave another consideration a case might the which reimbursement scheme favor sectarian Id. at education.” A.2d 360. of their cause. body support Plaintiffs invoke this case law (1) and law for the rely upon analysis its federal They Campbell constitu- sectarian schools are payments that tuition proposition of the long parents tional as as the schools are selected (2) that children, and attending proposition Swart Mann the First more constitutional restrictions than imposes Article 3 no basis, that tuition they argue payments Amendment. On this as choose long parents schools not offend Article 3 as do the schools. payment that a scheme
We are unable to draw conclusion necessarily not offend First is consistent with does Amendment provi 3. their the constitutional interrelationship, Article Whatever First very differently prohibits worded. The Amendment sions Const, amend. respecting religion.” “law establishment U.S. “any place worship.” Article 3 coerced Vt. prohibits I. Const, I, dealing ch. 3. are not with variant “slightly art. We Brean, easily that can be reconciled. See State v. 136Vt. phraseology” (1978) 147, 151, (discussing relationship between Amendment of Fifth to United Con self-incrimination clause States Constitution). Article 10 of the Vermont As Chapter stitution us, might to the of circumstances that come before we applied myriad simplistically provision always do not believe we can state one action another. respect religion more restrictive of state with than also and Mann emphasize We statements Swart time. involved the Court's assessment of the state federal law at the accurately analyzed applied believe that Court We the Swart leading Supreme law it then existed United States federal Education, (1947), v. Court decisions of Everson Board 330 U.S. (1948). Education, U.S. 203 However and McCollum v. Board predict today, the United States Court would rule might Supreme we believe have affirmed at the time for the reasons would Swart controlling. controversy this Court This at this time found arises believes that United States Court Supreme because Chittenden differently today. general compar- would rule Broad and statements provisions meaning of our constitutional ing meaning provisions particularly helpful constitutional are not when .federal through new meaning provision changes federal 323, 330-31, A.2d Ely, court decisions. See State 167 Vt. 1336-37 required have if do how the Swart Court would ruled
We know *12 under Article 3. must now analyze tuition-payment scheme We that perform analysis.
324
B. Text of the Constitutional Provision In performing this we turn first to the analysis, text of Article 3. language to, The relevant that “no or of provides person ought right can of . compelled support any place worship be . . . . . contrary Const, of the dictates conscience.” Vt. ch. art. 3. meaning parts some is not No language disputed. party that the disputes Gerhart, v. a Shields language self-executing prohibition, creates see (constitutional 224, 924, (1995) 163 Vt. 928 provision is “‘if self-executing it a rule supplies sufficient means of which the Burke, v. (quoting Davis right given may enjoyed protected’”) and (1900)) 179 403 U.S. (quoting Cooley, Constitutional Limitations (1883)), 99 although they disagree about the nature of that prohibi- tion. party disputes “support” No that includes financial through payment of taxes.10 Finally, party disputes no phrase “contrary to the dictates conscience” to the refers con- person science who provides support that element is ifmet compelled support place worship for religious offends the supporter. beliefs of the First, in two disagreements places. plaintiffs come argue that school, sectarian, however is not a place worship as that term is Second,
used Article 3. they assert the intent behind the — language prohibit state-sponsored was religious institutions — is, a religion state establishment of there is sponsor- no state ship not parents, district, here because the school chose the religious school. outset,
At the we can disagreement narrow the first about the Article 3. not meaning of We do read claiming defendants as that any payment equivalent Numerous courts have “support.” held that taxes is For example, Supreme paraphrased provision the Illinois prohibiting Court obligation religious worship. Bishop to “contribute” Reichwald v. Catholic 1913). Chicago, (Ill. Relying compelled-support language, 101 N.E. Virginia Supreme Court struck down scheme financed the education of certain “compels money students in taxpayers sectarian schools because contribute religious propagation opinions Day, they may which not believe.” Almond (Va. 1955). S.E.2d point distinguishes Supreme This from this case the recent decision the Arizona Killian, (Ariz. 1999), Kotterman v. Court in upholding P.2d 606 tax a tuition credit up private schools, including law for contributions to $500 to schools. The applicable provisions of prohibited public money the Arizona Constitution the use of property instruction and use of a aid of tax a sectarian school. A majority Supreme of the Arizona system Court held that the tax tuition credit involved and, public money therefore, neither nor a tax did offend the constitutional Kotterman, provisions. See id. subsidy at 620-21. Unlike this case involves a direct not a tax credit. *13 reason, school, for whatever religious to a money of public payment worship. a place it supports Article 3 because necessarily offends of Article 3 was event, reading a broad believe that such any we Swart, 122 Vt. and Mann. We noted Swart necessarily rejected Mann, 270-71, at 127 Vt. 184-85, 167 and A.2d at reiterated at expended funds are public “mere fact that 247 A.2d at that the does not establish by religious enterprise operated an institution by religion professed support that the are used proceeds fact Mann, applicable was At this statement recipient.” least broader, Thus, to be we might appear the words although Article 3. compelled support mere that Article 3 is not offended believe “worship” support is for worship compelled unless place itself. not education is narrowed, religious claim is that plaintiffs’
As 3. To reinforce this meaning within the of Article religious worship contains no specific Vermont Constitution they note point, education, address in a subject provision our attention to of this Plaintiffs also draw opinion.11 later section education, II, which provides: § the section on Chapter societies, may be united people All or bodies of religious and learn- incorporated religion for the advancement charitable shall be ing, pious purposes, or for other and enjoyment privi- in the encouraged protected immunities, estates, they injustice ought which leges, assembly of this enjoy, regulations general under such as the state shall direct. Const, II, § ch. 68. Plaintiffs in this an intent to aid language
Vt. see education, financial through support. which can occur De- necessarily try fendants take the side of the issue. We do not opposite it in language to resolve this on the alone and consider disagreement opinion. later sections of the over the of the text is central to disagreement meaning
The second 3 and the First Amendment. The relationship between Article prohibits any “respecting First Amendment law establishment Const, I. Plaintiffs that Article 3 religion.” argue U.S. amend. meaning On this and the concurrence find diametrically opposed plain point, plaintiffs with Mann that Article language. agree “no in the constitutional We contains explicit injunction precluding 127 Vt. at A.2d at 269,247 assistance sectarian education,” argue, of an mention of but cannot as the absence conclude, explicit plaintiffs no in those terms means that Article 3 has sectarian education applicability. expresses the same policy governmental aimed the same wrong. Thus, they assert that as long government does not take sides it among religions, may Here, compel support religious activities. government is not endorsing religion because the parents have free choice of or secular institutions.
Again, disagree defendants with interpretation, dowe attempt to it however, resolve on the language emphasize, alone. We appears text to be plaintiffs’ inconsistent with position. Rather than prohibiting compelled support particular of a or state- place selected worship, prohibits compelled support of “any place Const, of worship.”12 Vt. ch. art. 3. it is
Although tempting to attempt resolve the meaning of the alone, constitutional provision on the words we believe that approach possible is not in this case. We particularly guided by our decision *14 in Peck v. Douglas, 128, 132, (1987): 148 551, Vt. 530 A.2d 554
The remark of Chief Justice John Marshall McCulloch v.Maryland, 316, 407 4 (1819), Wheat. that “[w]e must never forget that it is a constitution we are expounding” resounds truth, as a vital keep and we it in mind as we face the task before the Court in this case. The standards interpreting constitutional language and meaning, related, though are not the same as for ordinary statutes. Canons of construc tion, if applied, must be used cautiously more and sometimes differently.
When embarking on process construction, of statutory we have established a clearly hierarchy articulated of available sources and turn first to “plain, ordinary meaning of the language.” Brennan v. Colchester, 175, Town 177, (1999) 169 Vt. 601, 730 A.2d 603 (citation omitted). If we can derive the intent of Legislature from plain words, meaning of the our task normally at an end. See 12 note, respectfully with, We disagree and must Supreme recently the Ohio Court’s expressed Compelled Support Constitution, dictum that the Clause of the Ohio which precludes “compelled also support” “any place . . . worship,” “approximate is the equivalent” Simmons-Harris, of the Establishment Clause. 711 N.E.2d at 211 (quoting Const, 7). I, § Ohio art. The Ohio court struck down that state’s school voucher program 214, grounds, unrelated state id. at explicitly constitutional recog while nizing religion “quite clauses of the Ohio Constitution are different from the language.” Thus, Id. at 212. federal although Supreme the Ohio Court refused to distinguish Compelled Support Clause, Clause from the Establishment the court was right careful adopt to “reserve the a different constitutional standard” under the state constitution in a future case. Id. We are required problem squarely to confront the proceeding. in the instant
327
(1998)
Sherman,
613, 614,
v.
167
708 A.2d
1349
Harris
Vt.
(mem.).
contrast,
By
interpreting
our decisions
the Vermont Consti
State,
v.
carefully
hierarchy.
Benning
tution have
avoided such a
See
(1994)
472, 476,
(noting
161 Vt.
words
to find
of a
meaning
constitutional text are one of the tools available
courts of
have followedthis
provision).
Other
last resort
(Wis.
See,
v.
approach.
e.g., Thompson Craney,
N.W.2d
1996)
of words is one of
sources used in
(“plain meaning”
three
Constitution);
the Wisconsin
Charles Reinhart Co.
construing
(Mich. 1994).
Winiemko, 513 N.W.2d
plain
There are sound reasons for
excessive reliance on a
avoiding
if
meaning approach
interpretation,
plain
to constitutional
even
meaning
compelled support language
can be found. The
of Article 3
was first
in 1777 and has antecedents
back to the
adopted
going
328-36,
Century.
Seventeenth
We
out
that the constitutions of the New
England
“basically philosophic
states are
documents
first
designed
and foremost to set a
for civil
society
express
direction
theory
republican government.”
Benning,
Vt.
institutionalize
*15
Similarly,
Even we were that the phrase “support place us, has a if worship” plain meaning for the case before it were statute, say included a modern we cannot that it has such a meaning placed in Article 3. We proceed must other evidence of meaning the Article.
C. Historical Context One of our most useful tools to determine the of a meaning context, provision understanding of its historical and we have upon history often relied to illuminate the meaning our State, 246, 257, 692 constitution. v. Brigham 166Vt. A.2d (1997); Wood, (1987) 479, 482, State v. 148 Vt. (Chapter Article 11 must be construed consistent with its “historic purpose”). As the Swart Court found in examining the historical record, it uniformly does not point many one direction. Like of the colonies, our early history shows that we were organized by religious people religion whom was central to political their social and life. accepted We the Church of England as an religion. established state original prohibitions on discrimination in the 1777 applied Constitution only professed to men who protestant “the religion.” Vermont Constitution of reprinted in Records (E Council Censors the State Vermont 6 Gillies & D. Sanford 1991). eds. The oath of office required that members of the House of Representatives be Protestants. See id. at 10. At the time of the constitution, adoption current Legislature gave towns the power Swart, tax to support 182-83, churches. See 122 Vt. at A.2d at 517. are, however,
There three elements of history that position defendants’ that the constitution prohibits the state financing of religious education involved this case. The first is our own experience with public support of churches By and ministers. a 1783 “Actto Enable Towns and Proper Parishes Erect Houses Public (the Worship Support Gospel” Act), Ministers of the Ministerial two-thirds of the voters of a levy town could a tax property in the town to construct a meeting house and hire and support minister. 13 (J. ed.). Laws Vermont 195 Williams Citizens could avoid taxation only by presenting a signed by minister, certificate deacon or elder of their church to the they effect that had “different Sentiments in religious Duties” than those of the supported minister and church. Id. at 196. That act was adopted though even Constitution contained nonsupport language of Article 3 and remained effect through adoption of the 1786 and 1793 Constitutions.
Our state constitution antedates the concept, first enunciated (1 the United Supreme Madison, States Court in Marbury 5 U.S. *16 329 Cranch) (1803), of estab- 137, government that in the form 177-78 constitution, be the ultimate judiciary would the federal by lished Thus, illogical it is not meaning.13 arbiter of constitutional at least for what was provided framers of the Vermont Constitution with the statutory enactments reconciling an alternate avenue 1870, did. Until they This government. of state blueprint fundamental Censors, an a of for Council provided the Vermont Constitution every years seven together of thirteen that came body elected of govern- and executive branches legislative “the determine whether themselves, exercised, other or . . . have . . . assumed ment the constitution.” they by than are entitled powers greater was Although § XLIV. the Council Censors Constitution from its and its body authority position whose came advisory “an Introduction, Censors, Records the Council persuasiveness,” in xi, respect commanded serious and often resulted its actions laws, early years. in in its changes especially that the 1797 version reported the Council of Censors violated Article 3 and should gospel Ministerial Act to support language, the Council repealed. quoting nonsupport be After reasoned: a only . criterion which
Here . . conscience made bound, in of such designs; man can be the execution possibly which, hereby in law to have propose opposition state, of this indis- repealed, expressly binds the citizens criminately, places worship, to erect and support ministers, contrary clearly and to maintain to this defined in right, provided they are so unfortunate as town, authority act minority any may who under the law, vote, taking who not at the this are time possessed prescribed of a certain certificate. declare, as inhab- legislature
Could well state, build a every itants town should house and settle and public worship, support congregational minister, pos- a certain number thereof were not provided certificate, of a they supported sessed of minister only This would the same different denomination? that the law both cases the ground contemplates, Marbury, however, see, Doe u had, premise e.g., accepted This Court such a before Smith, (1801), Tyler although legislative it first struck down a act as Wickwire, Dupy Chipman unconstitutional
minority only subjected by But in majority. no case power have civil right to interfere *17 concerns, to bind or except persons communities to contracts, into, their civil discharge individually entered for support the mutual social worship. at An (quoting
Id. Address of the Council of People Censors the (1800)); Williams, of Vermont see also II S. Natural History and Civil (2d 1809). of Vermont 383 ed.
The 1800 report proved only be the first toward step resolving controversy. the the Legislature amended the act for the support of gospel to eliminate what it believed be the offending provisions. to, See An Act in Act, Addition and Alteration of an “An entitled Act for Support of the Gospel,” Laws of at 17. The 1801 statute maintained the right two-thirds of the voters to system create a of tax ministers, financing churches and but tax statute, liberalized the exemption. Under the 1801 exemption was automatic taxpayer when the delivered to the clerk of the town parish signed writing stating: “I do not agree religious opinion (or with a majority of the inhabitants of this town parish as the case be).” may §Id. 2. the 1801
Although statute eliminated the of a requirement certifi- cate from an alternative religious body, and thus allowed an exemp- tion for those who religion, subscribed to no it satisfy did not Council of Censors. In its next report the Council concluded that the 1801Act also violated Article 3 and should repealed. Records the Council Censors 180. The report reiterated that support for religion was a of personal matter conscience for which . . . “[m]an feels himself accountable to none but his God.”Id. at 181 Censors). (quoting Address of the Council of The Council acknowl- edged that it was influenced “consequences” law,which, believed, it fed “constant government belief” that the had curtailed the privileges of some citizens and lessened rights, their exciting animosities and ill engendering will. Id. at 181-82.The Council found
the Act represented “the dangerous lengths of which is a foundation for us to in both go, civil and religious usurpation.” Id. at 182. On receiving report, Council’s the Legislature repealed the Ministe- rial Act and ended tax support ministers Vermont. See Laws of 1807,ch. xx. face,
On its
the Council record is valuable as an early interpretation
of Article 3. It is also significant
view,
as an answer to the
apparently
Swart,
espoused by this Court in
that the existence of the Act for public
for houses of
support
showed that tax
support
gospel
was, under
circum-
gospel
proper
and ministers of the
worship,
Swart, 122 Vt. at
stances,
Article 3. See
to be consistent with
thought
Instead,
historical record shows
Most with the only Article 3 is intended plaintiffs’ position sistent with Ministerial Even the first prohibit religion. a state establishment and did not take sides taxpayer Act was based on the choice of the however, event, Council of was the among religions. telling Act which allowed an rejection Censors’ of the amended Ministerial support any religion. who were exemption taxpayers unwilling religion, The issue then was not a state establishment of but religious activity, solely financial even when raised *18 from religious adherents. history
The second relevant element of the historical record is the
Liberty,”
of the
Bill for
as enacted in 1785 based
“Virginia
Religious
Swart,
183-84,
draft of Thomas
at
167
Jefferson. See
Vt.
advocacy
A.2d at
for it
primary
518.15Because
its author and the
Madison,
Virginia
important building
James
law became an
early
history
of the Ministerial Act is instructive on how the
times,
provisions
have stressed the
were viewed
their
time.
modern
“preeminence
governmental
that it
of the Vermont Constitution
our
scheme” and
Gerhart,
law.” Shields v.
legislative
judge-made
“stands above
or
163 Vt. at
century,
prevail uniformly
eighteenth
A.2d at 927. That view
at least
did
Making
Aichele,
among
the Vermont
those who led the state at
time. See G.
1777-1824,
166,186
Constitution:
History
56 Vermont
The Council of Censors
lawyers,
leadership positions
became a vehicle for the
who assumed
at the end of the
nineteenth,
eighteenth century
beginning
supremacy
of the
insist on the
of the
to
pragmatic approach
governance
frequently
constitution over the more
that had
Smallwood,
125-28,
prevailed. See F.
Thomas Chittenden: Vermont’s First Statesman
(1997). Thus,
history
133-34
we view the Ministerial Act
as less a debate and conflict
among persons
differing
meaning
who had
views about the
of the constitutional
language
government
and more a conflict about whether
Vermont’s
would adhere
constitutional command.
15
Virginia
analysis
Swart discussed the
Act as relevant to its
of the United States and
specific
Vermont Constitutions and drew no
conclusion about
Its influence on
it.
First Amendment was direct because James Madison was a drafter of the First
adoption
provision
Amendment. We have no direct evidence of its influence on the
of the
Constitution, although
of the Vermont
it could well have had an influence. Our interest
contemporaneous understanding
wording
express
here is in the
of the
chosen to
Jefferson’s views.
block for the First Amendment to the United States Constitution and
interpretation
of that amendment by the United States Supreme
Everson,
law,
Court. See
Although Virginia law has a preamble important detailed that is short, to its interpretation, quite the enactment is and its nonsupport provision very similar to 3. It provides: Article We the Assembly Virginia General do enact that no man shall compelled frequent be or support any religious whatsoever, worship, place, ministry or nor shall be en- forced, restrained, molested, or in his body bur[d]ened goods, nor shall otherwise suffer on account of his religious belief; opinions or but that all men shall be to profess, free maintain, by argument opinion their in matters of religion, diminish, and that the same shall in no wise enlarge, or effect their civil capacities. Buckley,
T.
1776-1787,
Church and State in Revolutionary Virginia,
at
(1977)
text);
Everson,
(reproducing
The Virginia passed law was in response to a bill “Establishing a Provision for Teachers of the Christian Religion,” which almost passed the years before the Jefferson law was enacted. See Everson, 330 J., U.S. at 72-74 (Rutledge, dissenting, Supplemental Appendix).16It provided for taxpayer support of “learned teachers” *19 of “Christian in knowledge” men, order “to correct the morals of vices, restrain their preserve and peace society.” the of Id. at 72. Each owner of property on which the tax was levied would specify the “society of Christians” to which the owner’s tax money would be paid. Id. at If 72-73. the taxpayer specify failed to beneficiary, the provided 16 Wehave appendices citations to the in relevant documents the text and likely opinion. Everson as the source most to be available to the readers of this events, sequence documents, as well as the relevant in described detail Buckley, supra. be the treasury expended to be money placed would Id. at 74. learning county. in the seminaries encouragement bill, Madison James and Remonstrance” on his “Memorial Id. power.” 64. abuse provisions dangerous its “a described duty man’s is the bill was because main with disagreement Madison’s as he believes homage, only, and such such “to render to Creator Id. against that it discriminated argued be him.” He acceptable to to no religion: religion a non-Christian professed those who embrace, to to for ourselves freedom we assert Whilst to be we believe Religion and observe the which profess to to those freedom origin, deny equal we cannot of divine has to evidence which yet yielded minds not whose have abused, it is an offence If this convinced us. freedom men, therefore, God, God, To not against man: against it be must an account of rendered.
Id. at 66. “a creating law as wall the Virginia was later describe
Jefferson States, Reynolds v. United church separation between and State.” language is that the What is instructive here 98 U.S. Article is as that in 3 of essentially used to create wall same States, and State in the Tarr, Church our constitution. See G. (familiar 73,81 (1989) story struggle of Jefferson and L. Rev. Wash. “can offer new religious Virginia establish freedom Madison to constitutionalism”). if from the of state insights perspective viewed Moreover, to a response plan law was enacted in Virginia It applied specifically bears some similarities that before us. teachers, education, religious required financing it tax although implementation. gave choice the method of its Christians could any taxpayer designate could choose to beneficiary, choose their time, seminary system to the rather than money education feature, Despite Virginia to a law religious order. choice of money “a man to furnish contributions responded compelling abhors, propagation opinion which he disbelieves tyrannical.” sinful and Virginia experience plaintiffs’ posi-
We believe that the undercuts Article but not religious worship, tion that the intent of 3 was cover was about controversy Virginia education. education, saw it and religious worship. and Madison no line between prohibit to Article was Language virtually adopted identical religious education. compelled support *20 334
The third element of the is the of relevant historical record source Much of our language. original constitutional Shaeffer, A Com- Pennsylvania. from of language came See J. parison Pennsylvania First Constitutions Vermont and of of (H. Readings History In State Nature: in Vermont 54,54 Muller of 1982). Thus, I, § S.& Hand eds. Article 3 the Pennsylvania provided right Constitution 1776 that “no man or of can be ought compelled any religious attend or or worship, support any erect or place to, maintain worship, any ministry, contrary against, his will Clauses Ball, own free and consent.” See W Religion Constitution, Pennsylvania 709,714 3 Pub. Widener J. L. n.25 Pennsylvania evolved dominating Quakers under the influence and did not establish an official church. See The First Curry, T. Freedoms: Church and State in America to the Passage the First Amendment The Establishment (1986); 72 Levy, L. Religion Clause: (1986). Indeed, and the First Amendment 25 “from its beginnings, . [Pennsylvania] . . established broadest liberty [t’jhe ., colonial . colony America. incorporated into its . . laws. provide a refusal to tax churches and clergy.” Curry, supra, at 75. constitutional nonsupport language goes back to the 1682 Frame of Government of the commonwealth. id. See
Swart cited the differences between
Pennsylvania
Constitution
Constitution,
and the Vermont
from the
quoting
mid-nineteenth
century
of Thomas
biography
Chittenden Daniel Chipman for the
proposition that Vermont
adopted
diluted version of the Pennsyl-
vania religion clause
Pennsylvania
because the
view of “‘religious
liberty would be somewhat
than
larger
people New England
Swart,
had been accustomed
at
[to].’”
Vt.
Following language most of the school or schools provided “[a] the 1777 Vermont Constitution town, for the by legislature, in conve- shall be established each masters, paid by to the youth, nient instruction of with such salaries town, thereby in town, lands each making each use of school proper 1777, of at low youth prices.” enable them to instruct Constitution II, Legislature XL. had By Section the Vermont Chapter by requiring for and that a implemented “providing the section they and that be system of local school districts be created uniform district, of by property taxes on all rateable residents financed a children paid by parents tax whose supplemented special Fussell, a Emergence Public Education as attended schools.” of (1961); Vermont, History in 29 Vermont Function the State of Stone, Vermont 51-55 History see also M. Education: State in system “sufficiently comprehensive scope was Stone, supra, at 53.19 purpose.” in an may only
Public education Vermont have been ideal when our a quickly reality first was became when adopted, constitution but could deal with matters other than the government state and local its why, inhabitants. We see no reason from first security religious cover forms of Article 3 would not be seen to all adoption, above, As religious education. indicated part even as worship point, payment Despite that tuition to sectarian the historical the author concludes I, Pennsylvania § plan a to violate Article schools under choice should found long Constitution, nonpublie “has since arguing that the need to subsidize schools ignore 3.” passed longer need the limits of article section and there is no a Jones, supra, at 1311-12. general system Pennsylvania comparison, passed act to a of education an establish language. fifty years adopted public its constitutional in in almost after it schools 1964). (1st Pfeffer, Church and State the United States ed. See A. Stokes & L. Virginia controversy what religious-support being arose over was religious labeled as education. that no We believe artificial line worship between emerged education Ver- mont. consideration, aspect
One other of our history deserves some us, what it primarily for does tell and is to our bridge Broadly of decisions speaking, consideration from other states. all of the state constitutions the United States contain some combination (1) following provisions: Establishment Clause that (2) Amendment; substantially language similar to the First Compelled Support Clause identical or similar Vermont (3) Constitution; a prohibition against exercising any state preference them; toward or any religious group discriminating among (4) a prohibition direct on the making state contributions (5) funds to religious schools; institutions sectarian and/or clause proscribing state school private regardless Note, whether it is Beyond not. See the Establishment Enforcing Clause: Separation Through Church and State State Provisions, Constitutional 71 Va. L. Rev. 631-43 & nn.31-47 *22 (1985) issue). (citing cataloging constitutional provisions at The every constitution of state except Maryland and Vermont contains some form of the latter two League clauses. See Horace Mann v. (Md. Works, 51, 1966). Board Pub. significance The of Vermont’s decision not to adopt explicit more constitutional provision addressing sectarian schools is in dispute. Plaintiffs contend that this historical omission shows that the consti- tutional drafters not were concerned with public funding of religious schools. At in part, least the Maryland accepted courts have argument. noting legislature After the Maryland taxes imposed to support churches well after the constitutional nonsupport language was adopted, Maryland commented, of Appeals Court “Had the people Maryland desired to change practice its relative such grants, certainly likely would be they would have made similar many so provisions Thus, after states had done so.” Id. the court found that the of a special absence constitutional provision demon- that Maryland strated were citizens not concerned about subsidies religious schools.
We
place
significance
cannot
on the absence of a
specific
more
constitutional provision urged by
plaintiffs
accepted by Maryland
above,
court. As
experience
discussed
our
with public
support of religious institutions is
from
Maryland.
different
that in
provision
as existed
adopt
such
not
the same reason
We did
have
financial
Moreover,
public
on
Maryland.
specific prohibitions
in
institutions were
religious
and other
schools
They were
early
American states.
constitutions of
original
in the
attempts
obtain
response
and 1928
between 1830
adopted
Note,
institutions,
schools. See
particularly
for Roman Catholic
funds
(1941)
917,
L.J.
919-20
Money,
and Public
50 Yale
Catholic Schools
(citizens
public
secular
compromise [of
saw that “the intersectarian
provi-
explicit
if
only
was safe
embodied
schools]
sion”);
Larson,
on the Frontier:
E.
Church and State
R. Utter &
Washington
in the
State
Clauses
History
the Establishment
(1988);
&
Constitution,
451, 464-67
Stokes
Hastings
L.Q.
Const.
(from
on,
its
Pfeffer,
every
amending
state
at 271
supra,
union,
constitution,
adopted
on admission
and most new states
funds to
“any
diversion
provision prohibiting
a constitutional
light
no
These
shed
later amendments
purposes”).
denominational
3,
first
in 1777.
adopted
Article which was
is the least susceptible
the Vermont Constitution
importantly,
More
amended
its
It
the shortest and least
being
omissions.
defined
Kinkaid,
State Constitutions
constitution
the United States. See J.
Academy
496 Annals of the American
System,
in the Federal
(1988)
12,18
(noting that Vermont’s is
Political and Social Science
Constitution).
Chapter
constitution shorter than the U.S.
only state
of the State
Rights
the Declaration of the
the Inhabitants
1793;
Vermont,
only
has
amended
twice since
neither amend-
been
Hill,
Vermont
Constitution:
ment was to Article 3. See W.
State
II,
provision, Chapter
The school
A
Guide
Reference
twice,
occurred in 1954
§
has been amended
but the amendments
applied
religion
after
United States
Court
Supreme
states,
to the
see Cantwell
provisions
the First Amendment
Connecticut,
(1940),
310 U.S.
and the decisions Everson
payment
made
of state funds for
and McCollum
clear
direct
of this
education offended the First Amendment.
view
from the
of a
history,
significance
special
we can draw no
absence
*23
religious
amendment on
education.
constitutional
D. Decisions Other States
next
from other states
light,
In that
consider
decisions
analysis of the decisions
similar issues. We have often found that
on
of the Vermont
interpreting provisions
is
sibling
helpful
states
1337;
331, 708 A.2d at
Ely,
Benning,
167Vt. at
Constitution. See
478,
760; DeLaBruere,
266,
Vt. at
at
Because
all states have
their
amended
constitutions
adopt specific provisions
institutions,
on state
religious
support
schools,
particularly
many
involving
of the decisions
fact
patterns similar
only
before
are
marginally
us
relevant
our
primary
task. The
of this is the
example
Supreme
recent Wisconsin
Jackson,
Court decision
which upheld against state and federal
constitutional attack the Wisconsin “Parental Choice
Program,”
plan that provides
public
school students to attend both sectarian
private
nonsectarian
schools at taxpayer expense. Specifically,the
court held that
program
did not
Compelled
violate the
Support
§
Constitution,
Clause Article
the Wisconsin
a provision
Jackson,
similar Article 3. See
at
We would view Jackson as a strong precedent for plaintiffs’ position, reasoning but its is unpersuasive. § Article Wisconsin Constitution also contains language prohibits drawing funds from treasury societies, the state “‘for the benefit of or theological seminaries.’” Id. 620 (quoting Wis. 18). I, § Const. Art. Noting that it has “traditionally looked to federal establishment jurisprudence, clause and in particular primary test,” effects when interpreting clause from the Wisconsin Constitution, the court reasoned that primary effect School Program Choice was not religion the advancement of given program’s neutrality as between “sectarian and nonsectarian alter- Thus, natives.” Id. at 621 & n.21. the court upheld the program under the Benefit Clause. Supreme
The Wisconsin Court went on to rule that the School Program Choice also did not transgress the Compelled Support § Clause Article reasoning: The Respondents assert that since eventually funds flow to religious institutions under the Pro- [School Choice gram], taxpayers compelled to support places of worship against their argument consent. This identical to the Respondents’ argument under the benefits clause. will We interpret compelled as prohibiting clause the same acts as prohibited by those the benefits clause. Rather we look for an interpretation of these two related provisions such redundancy. avoids *24 (citation omitted). because of decided that court Id. 622-23 at must Clause, Support Clause Compelled presence Benefit not money. tax students were those Since only relate to who use or participate schools to attend sectarian required either did,20 program that the the court held they when activities religious Id. at 623. Support Clause. Compelled not violate the did akin to Wisconsin’s a specific provision lacks Our constitution Thus, adopt a construction we not required Clause. are Benefit with, and subservi- Clause that is consistent Compelled Support our find no we can to, Not specific provision. surprisingly, ent this more in the Support a Clause Compelled construes state decision that other construed its Wisconsin Court way Supreme that can be Indeed, argued Article 3 plaintiffs have never provision. by Supreme the Wisconsin Court. adopted in the construed fashion on that rely only we can decisions that Jackson demonstrates Clause, con- where the court’s a Compelled Support based other by its construction of of the clause is not determined struction from states Our review of the decisions other specificprovisions. more a few such cases. shows very recently noted, the Court has already Supreme Ohio
As
the Ohio
essentially equating
dicta
decided a case that
includes
with the Establishment
Support Clause
Compelled
Constitution’s
Simmons-Harris, 711
at
First
See
N.E.2d
Clause
Amendment.
discussed,
already
both the
wording
210. For the reasons
Vermont’s
pre-
historical record
Clause and
relevant
Compelled Support
such,
draw no useful
Accordingly,
us
a view.
we
adopting
clude
from
from the Ohio decision.
insights
is,
clause,
Almond,
an
up
takes
“free exercise”
Another case
which
funds
explicit prohibition against
appropriation
public
an
to sectarian institutions or entities controlled
such
property
institution,
similarly
that is
worded
Compelled Support
Clause
Almond,
At
was a
89 S.E.2d
857-58.
issue
Vermont’s.
Virginia
orphans
tuition
providing
payments
state
program
See id. at 853. The funds were
military.
citizens who had served
for children
both sectarian and nonsectarian
attending
made available
determining
program
was
id. at 854. In
schools. See
Constitution,
Virginia
the court found three
inconsistent with the
finding
tuition-payment plan
can
the same
about
not believe
make
20 Wedo
paid
requiring
Nothing prevents
from
which tuition
Vermont.
school
exercises,
require
appears to
such
participate
MSJ
have
students
in some instances.
ment
independent
for its
bases
decision: the use of
public
provide
funds
direct
institutions in
contravention
antiestab-
provision
lishment
principles, the
“invaluable
aid”
groups
use of the
“through
compulsory
state’s
school machin-
ery,” and the fact that the tuition-payment program “compels taxpay-
money
ers to contribute
for the propagation
religious opinions
may
which
they
believe.” Id. at 858.21
*25
Baumhover,
We have also
v.
considered Knowlton
The General shall make no law respecting or religion, prohibiting establishment the free exercise thereof; any nor shall person compelled any to attend place tithes, worship, pay taxes or other rates for building or repairing places or the worship, any maintenance of minister, ministry. or Const., Knowlton, §
Iowa
In
Art.
3.
the school district had closed
public
space
schoolhouse and rented
for public education in a
Roman
parochial
Catholic
school. Although
public
school class
room was separate,
nun,
the class was
taught by Catholic
“arrayed
in
order,
the striking robes” of her
and instruction
study
included the
of the Catholic catechism and other Catholic religious study. Holding
§
3
“all
forbids
taxation for
support”
ecclesiastical
and that it
necessary
was not
“to show that the school is wholly devoted to
teaching,”
or sectarian
the court found that the school
arrangement
§
violated
3 because it used “the
or
public schools
public funds for the advancement of
or
religion
sectarian teaching.”
Knowlton,
It is ways that a school myriad here with the dealing We are not *26 22 Rudd, furnishing chaplains for practice and facilities court the of In the sustained Rudd, The of the penitentiary. N.W.2d at 133. basis at the state their work unique years analysis In before a constitu holding to Iowa: two was historical Support Compelled adopted and Clauses the identical Establishment tional convention constitution, adopted legislature in of the state Iowa’s contained the 1846 version challenged prison thus legislation authorizing practice. See id. at 132. court likely delegates convention Iowa Constitutional reasoned that it “seems proscribe statutory 3,§ present [Iowa’s] constitution would feel Art. of did not discussion, recently the court dismissed then enacted.” See id. Without scheme controlling. previous as not See id. Knowlton other Iowa cases 23 Berghorn, Supreme invalidated on state constitutional In Court of Missouri grounds taxpayer-supported program of conducted on church a by school instruction Although opinion Berghorn, does property 583. Catholic nuns. S.W.2d teaching principles, explicitly of it notes that children who to the sectarian refer ones) religious question (presumably in the in objected practices” schools to “certain public option attending See id. at given conventional schools elsewhere. of were specific language in opinion the Missouri does not refer which 583-84. holding, quoted approval the with trial provides the basis for its but Constitution policy. “unqualified . . the state constitution establishes court’s conclusionthat support directly indirectly, public properties, used to or sustain either or no funds or predispose a school child any . in such a manner as to influence or school. . conducted religious acceptance any particular religion beliefs.” Id. at 582-83. of towards Compelled Support Nonpreference Clause and a includes both a Missouri’s constitution enjoining appropriations institutions. See language sectarian as well as Const, I, §§ Mo. art. 6-7.
district can education in religious subsidize school for paying expenses that occur or not whether the school was sectarian.24 For example, this case is not governed by payments those involve schools, see, transportation school to sectarian v. Town e.g., Snyder (Conn. 1960) Newtown, 161 A.2d 778-79 (provision of transpor tation assistance children of “primarily sectarian schools serves the health, safety and welfare and fosters education” and “cannot church”), be said to compel support text books used schools, see, Justices, Opinion e.g., (N.H. 1969) (textbook loan program constitutional if books are secular), subjects or teachers of secular children, to sectarian school Educ., 1963) see Scales Board v 245 N.Y.S.2d 454 (Sup. Ct. (home-teaching assistance handicapped parochial school student remote”). aid parochial because is “slight school Nor is this a case where the amount of subsidy is so small that it clearly only covers cost secular educational expenses. See Girls, (Ill. 1917) Dunn v. Chicago Indus. Sch. 117 N.E. (payment to Roman Catholic industrial school on behalf committed juvenile is food, constitutional since payment amount is below cost clothing, medical care and training useful arts and domestic science only institution). half Nor, of such costs in secular as we above, emphasized is the issue education occurs school, rather than the content case, of that education. In this can, financing will, scheme and presumably directly pay for religious early instruction. An leading treatise on American state and federal constitutional law summarizes the law applicable to this case as things follows: “Those that are not lawful under any of the American (2) may constitutions be stated thus: ... Compulsory support, by otherwise, taxation or instruction.” 2 T. Cooley,Constitu (8th 1927). tional Limitations 966-67 ed. conclusion,
In we return to the Article 3 textual issues that divide the parties. view history, above, as we have outlined jurisdictions, and the from decisions other way we see no separate religious instruction from religious worship. The limited record we have before us indicates that there is no line between concepts. these Nor are persuaded that the constitutional drafters authorized *27 24 Although plain meaning the concurrence has approach, not fleshed out its we infer any it subsidy school, that would find by unconstitutional for activities in a sectarian irrespective of the sectarian nature of those activities. We stress we are not deciding any of whether the subsidies in text discussed would violate 3. Article II, § 68. The Chapter education financing religious public does “encouraged protected” that such education specification 3. of Article prohibition light of financing not to public extend only to state intended cover that Article 3 is we believe Nor do neither the is consistent with This limitation religious establishments. of the Council of Censors the action particularly history, text nor the Act. to the Ministerial respect with tuition- District
Thus, the Chittenden School conclude that education, funding religious with no restrictions system, payment conclusion, we think this expressing Article 3. In Chapter violates major deficiency not decided. The to state we have it what appropriate is no restrictions that there are system in the tuition-payment to fund education. money religious public the use of prevent 1992) (N.H. (deficiency in Justices, Opinion is that Hampshire Constitution under New plan educational-choice funds to public prevent application safeguards exist “[n]o uses”). tuition the district paid to which the is Schools education, religious of it to fund the costs can use some or most Vermont on how the no State express opinion will. We presumably attempt to craft deficiency should can or should address that the current only decide scheme. We complying tuition-payment or use of the purpose no on the statutory system, with restrictions funds, Article 3. tuition violates desirability also, taking on the by this not sides opinion,
We are children. the education available their parental choice determine accepted part have at least argued, As have and we plaintiffs Supreme may Court well decide the United States Campbell, parental public funding choice between the intervention unfettered will eliminate First Amend- provider source and the educational money sectarian education. We to the flow of objection ment conclude, however, has the choice same effect parental cannot equation, in Article If with to Article 3. choice involved respect being required it is the choice of those who education, of the funding. the choice of the beneficiaries not however, to save was sufficient taxpayers, Even the choice in the view of the Council of Censors. the Ministerial Act Plaintiff’s Free Exercise Claim IV. payments tuition that Chittenden’s we have concluded
Because plaintiff’s must address addi- schools violate Article we *28 tional contention that such an outcome violates the Free Exercise Clause the First It plainly Amendment. does not. The Free argument is on premised Exercise plaintiff’s assumption would may conclude children who attend schools not public receive funding, educational while children who attend public may. schools This is not our ruling. We have determined only may pay funds not within the religious worship meaning of Article it wherever occurs.
Such determination is in no
sense
variance with bedrock
jurisprudence relating to the Free Exercise Clause. The touchstone is
“neutrality
religion.”
Kiryas
toward
Board
Educ.
Joel Village
Grumet,
(1994) (citation
Sch. Dist. v.
512 U.S.
and internal
omitted).
quotation
means,
marks
“The free
religion
exercise of
first
foremost,
right
and
to believe and profess whatever religious
desires,”
doctrine one
and
state is
precluded
therefore
from
“imposing] special disabilities on the basis of religious views or
Div.,
religious status.” Employment
Dep’t Human Resources
Smith,
872, 877 (1990)(citations
Oregon
omitted);
U.S.
see also
Church
Hialeah,
Babalu
Inc. v.
Aye,
City
508 U.S.
of Lukumi
(1993).Therefore,
may
statute
violate the Free Exercise Clause
if its
only
“purpose or effect.
. . is
impede
the observance of one
religions”
or all
regardless
whether
such effect is
or
direct
Verner,
indirect. Sherbert v.
374 U.S.
Obviously,and as
Sherbert,
noted
may
the Free Exercise Clause
implicated
where
government
the denial of a
benefit
instrumentality. See id.
However, unlike the unemployment
Sherbert,
benefits at
issue
denied to the plaintiff in that
case because her
beliefs
prohibited her from
working
Sundays, today’s ruling requires no
one “to choose between
following
precepts
religion
[his
her]
and forfeiting benefits” that would otherwise be available from the
government. Id.;
Strout,
see also
V. Conclusion By prohibiting compelled taxpayer support of religious worship, I, Article 3 Chapter of the Vermont Constitution renders unconstitu- tional the Chittenden Town School tuition-payment policy District it extent that authorizes tuition reimbursement to appropriate schools without restrictions. This application state Exercise Clause the Free implicate law does court superior conclude that Because we Amendment. First defendants, their favor summary judgment entered correctly moot and it are both dismiss motion to plaintiffs’ cross-appeal not be considered. need
Affirmed. result reached J., I with the
Johnson, agree concurring. While wrong answers the majority asks and I majority, believe analysis unnecessary lengthy into a to delve question, causing *29 thereof) and (or education religious lack between of the distinction analysis straightforward eschewed a more It has religious worship. I, Vermont 3 the meaning Chapter Article plain the based on case, unnecessarily and has facts specific and the Constitution as a result. holding confused our School District wishes is Chittenden simple.
The issue before us Joseph’s Mount Saint payments to fund tuition use tax revenues the state (MSJ). of Article 3 plain language prohibits Academy is Taxation place worship. citizens compelling from is sectarian MSJ, pervasively support. parties agree, the compelled conjunction worship regularly place takes religious school at which Therefore, payments the to MSJ violate activities. with educational Article 3. not con did plaintiffs-intervenors District and
Chittenden School briefs or appellate 3 their plain language of Article either front argument based plaintiffs To the extent made argument.1 at oral Constitution, Compelled Support it was that the Vermont Chapter and the Education Clause of Article 3 Chapter Clause provisions. plaintiffs As II, § are coextensive with the federal 68 Board v. Manchester Campbell and as we detailed emphasize, (1994), 352, 357-58 Directors, 441, 448-51, Vt. 161 School Amend of the First the Establishment Clause concern under historic orga religious entanglement with excessive between ment has been involv in recent cases actors. focus governmental nizations and who receives has question schools been ing funding — individuals public money private expenditure or controls principal discussing pages in the Vermont spent one-half its brief two and Chittenden Constitution, Compelled Support in a plaintiffs-intervenors Clause cited only argument, the Vermont Consti At Chittenden’s contention under footnote. oral Compelled Support read as coextensive with Clause should be tution was Establishment Clause. federal See, or the sectarian school. e.g., Washington Witters Dep’t of Blind, (1986) (use Servs. money 474 U.S. of grant pastor allow student to train as does not violate Establishment Clause Allen, money directly student); where was provided Mueller v. (1983) (allowing U.S. tax expenses deduction for educational permissible under Establishment Clause financial because benefit is ultimately by controlled private choices of individual parents). Relying logic cases, on the of these federal plaintiffs argue that as — long as benefits distributed to neutral parties and/or — parents there is no entanglement excessive with religion because no there is connection public money between activities. They make virtually same argument under the Vermont Consti- tution, but it one carry step § further. Because 16V.S.A. 822requires school, school districts to make tuition payments directly to the contend that plaintiffs there is no meaningful distinction between to a payment sectarian school by parents payment chosen parents money who then send the to a sectarian school. not,
Plaintiffs’ is argument states, as the majority there no violation of the Vermont Constitution in this case because religious education is distinct from religious worship. See 169 Vt. at Indeed, A.2d at 556. plaintiffs make quite clear at points numerous their brief that they want the Court to consider the constitutionality of tuition payments in specific context of pervasively —school a school at which no attempt is made to separate education Rather, from worship. they claim that the Vermont Constitution is not *30 by payments violated to sectarian schools because the “taxes are supporting fellow residents rather than the schools.” per- However suasive plaintiffs’ arguments may law, be under federal argu- these ments do not address the state question that we must answer. view,
In my the First Amendment and the Compelled Support Clause cannot be read as parallel provisions. Textually, they differ markedly. The Establishment Clause of First Amendment states that “Congress shall respecting make no law an establishment of Const, religion.” noted, U.S. amend. I. As the concern under this clause is whether a particular government action is likely result in entanglement” “excessive with religion. Kurtzman, See Lemon v. 602, 612-13 U.S. question critical under the Establishment Clause, therefore, concerns the nature of the relationship between the state recipient and the religious organization. contrast,
By
the relevant text of
Article of the Vermont Consti-
tution
to,
states that “no person ought
or of right can be compelled worship,
any place
support
or erect or
religious worship,
any
attend
Vt.
minister,
of conscience.”
contrary to the dictates
any
or maintain
Const,
Clause,
Support
I.,
Compelled
3.
language
ch.
art. The
support
for the
face,
from
citizens
taxing
state
bars the
on its
Clause,
of a
the insertion
Compelled Support
religion. Under the
recipient
actor
governmental
between
private decisionmaker
problem with
remedy the constitutional
will not
religious organization
critical
organizations.
to religious
funds
transferring public
of the
is not the nature
Clause
Compelled Support
under the
question
organiza-
recipient religious
state and the
relationship between the
is,
That
funds.
tion,
receiving public
organization
the nature of the
but
worship”?
it a
“place
may not
institution
Thus,
recipient
nature of the
while
is framework, it
question
the federal
determinative under
essentially
plaintiffs
because
Again,
the Vermont Constitution.
under
constitutionality
to the
of MSJ as irrelevant
nature
see
(because
payments
they argue
payment
the tuition
scheme
school),
no
they
argu-
make
rather than the
by parents
controlled
In other
worship.
not a
ment,
they,
place
that MSJ is
nor could
words,
make
distinction between
attempt
do not even
plaintiffs
and it therefore seems
religious worship,
religious education
of this issue.
lengthy analysis
unnecessary
undertake
of the
parallel reading
compels
in our
Nothing
precedents
v.
Swart
both
Plaintiffs contend that
provisions.
and federal
Vermont
District,
A.2d 514
Burlington Town School
122 Vt.
South
Buildings Financing Agency
and Vermont Educational
(1961),
Mann,
Swart
(1968),
position.
A.2d
127 Vt.
institutions were unconstitu-
payments
held that tuition
Mann,
Court sanctioned
tional under the First Amendment.
learning
in a
higher
a sectarian institution
participation
facilities
that assisted the construction of educational
program
bonding.
provides
of state
Neither case
through
tax-exempt
the use
because,
each alluded to Article 3
although
here
guidance
and Mann even went so
Constitution,
far as to
state
Vermont
“explicit injunction precluding
no
provides
Vermont Constitution
education,”
127Vt. at
both
assistance to sectarian
exclusively
principles.
under First Amendment
cases were decided
sweep
the relative
concerning
Both cases made statements
*31
Swart stated
that the First Amendment
provisions.
state
federal
i.e.,
than
satisfy
more
demanding,”
. . . more
difficult
“seems
A.2d at 518. Mann asserted
this
“[i]n
Article
Vt. at
3.122
area, the limits of the First Amendment of the Federal Constitution
more
127 Vt. at
restrictive.”
concern on whether the Vermont Constitution is more or less restrictive than the United States By so, Constitution. doing we would lash construction of the Vermont Constitution to unsteady mast of jurisprudence, federal ensuring interpretation that our always will be in relative terms rather independently than grounded. When federal jurisprudence changes, then our jurisprudence will required be change fact, well. why that is plaintiffs today: are before us because the United States Supreme Court has shifted its Establish analysis Clause in way ment that suggests a more favorable outcome for public preferable schools. It is our interpretation of the Vermont Constitution be distinct and freestanding, and that the Court articulate adequate and inde pendent grounds state for decisions when the Vermont Constitution is invoked. See v. Badger, 430, 449, 450 336, 347(1982) State 141Vt. A.2d (although there are similarities between federal and Vermont consti tutions, Vermont Constitution is not mere reflection of federal char ter).
If we plaintiffs’ therefore decline invitation to collapse Vermont’s Compelled Support Clause, Clause into the federal Establishment — resolution of this case based plain language Article 3 and — facts before us points is clear. It also clearly Avays which majority unnecessarily complicates our analysis and hold- ing this case.
First, examining the history of Article
nothing
3 adds
to resolution
beyond
case
can
gained
what
be
analysis
from an
plain
language Article 3. Plain language should
our
first
*32
law,
resource in
as
interpreting
particularly
provides
when
clear
guide
as the
plain language
Compelled Support Clause does
here.2 Courts
other states that have considered the
light
issue
similarly
compelled-support
worded
clauses have concluded that the
precludes
clause
the use of
funds to
support sectarian schools.
Trustees,
See Williams v. Board
1917);
Findley
(Ky.
S.W
Conneaut,
v. City
(Ohio
1945);
Day,
Almond v.
(1995). A decision in this proper case must be based on the factual trial, developed record and the holding should be limited to the constitutionality the tuition funding applied statute as in this instance.
Having
case,
declined to limit itself to the facts of this
majority
lengthy
embarks
into
foray
history to address
supposed
distinction between religious education and religious worship.
exercise,
Through this
the majority attempts
predict
when and
under what
public funding
circumstances
of sectarian schools would
under
permissible
Article 3. While these lines may be drawn some
day,
case,
in a different
there is no
justification
need and no
on the
facts of this
for attempting
case
to do so today. There has been no
majority
2 1
“plain language” approach
am as sensitive as the
to the limitations of the
interpretation,
largely agree
principles
to constitutional
and I
with the
set forth in the
majority opinion.
326-29,
language
See
Philip Haverly Kaytec, Inc.
[738 86] A.2d No. 96-430 Amestoy, CJ., Dooley, Morse, Skoglund, Present: Johnson JJ.
Opinion Filed June 3 majority any subsidy that I infers “would find unconstitutional for activities in or school, irrespective a sectarian of the sectarian nature of those activities.” 169Vt. at n.24, 738 precisely my primacy A.2d at 562 n.24. It is because of belief in the presented wholly facts in this case that such an inference is unwarranted. If and when us, context, such activities come before I would address them in their as I have attempted to do here.