DocketNumber： CV-97-0412-SA
Judges： Zlaket, Feldman, Jones, Martone, Moeller
Filed Date： 1/26/1999
Status： Precedential
Modified Date： 11/2/2024
dissenting.
¶ 73 Believing A.R.S. § 43-1089 (the Arizona tax credit) violates the explicit text of our state constitution and the Establishment Clause of the federal constitution, I respectfully dissent.
¶74 Today’s decision upholding the use of a tax credit to support private and sectari
THE ARIZONA TAX CREDIT PLAN
¶ 75 This case does not deal with or question reference to the deity in the state’s seal or preamble to the constitution. Nor does it deal with public or charter schools, voucher programs providing educational aid to low-income families, or even charitable contributions. Constitutionality in this case, as in most, turns on analysis of statutory purpose and effect. The Arizona tax credit does not survive this analysis. The tax credit statute permits any taxpayer, not just parents of school children, a $500 direct credit against taxes, but only to reimburse so-called contributions to school tuition organizations (STOs) supporting nongovernmental schools. At least seventy-two percent of these schools are sectarian. See Coffey, A Survey of Arizona Private Schools (1993) (Appendix I of Intervenor Lisa Graham Keegan, Arizona Superintendent of Public Instruction). Contributions to public schools will not qualify for the credit because a “qualified school” is limited to “a nongovernmental primary or secondary school” of the “parents’ choice.” § 43-1089(E)(l), (2) (emphasis added).
¶ 76 It is true the public school system is tuition-free and students at those schools therefore need no scholarships or tuition grants, but provisions could have been made for a tax credit for contributions supporting the educational mission of the public school system. This would have put the state’s private, sectarian, and public schools on the same basis. But § 43-1089.01 allows only a maximum $200 credit for contributions to public schools and is available only to reimburse fees paid for extracurricular activities. The majority intimates that comparison of the two school credits is “unnecessary” to the analysis because the costs of public school establishment and operation are already borne by the state. Op. at ¶ 25. The problem with that argument is apparent from reading our own opinions on the deficiencies of state financing of public schools and the underfinanced and unfilled educational missions of those schools. See, e.g., Roosevelt Elem. Sch. Dist. v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994). If we are to consider equality or neutrality of the two credits, we must bear in mind that public schools, like private schools, need assistance to perform their educational mission.
¶ 77 Notably, the private school tax credit does not restrict use of the grant money to secular purposes. Thus, the recipient schools may use the government’s subsidy for direct support of sectarian education or observance, the very thing both our state and federal constitutions forbid. Further, while prohibiting the STOs from making grants to “only students of one school,” the statute does not prevent an STO from directing all of its grant money to a group of schools that restrict enrollment or education to a particular religion or sect. § 43-1089(E)(2). In fact, a group of taxpayers who subscribe to a particular religion may form an STO that will support only schools of that religion. Worse, in defining the schools qualified to receive STO grants, the Legislature excluded schools that “discriminate on the basis of race, color, sex, handicap, familial status, or national origin” but not those that limit admission on the basis of religious adherence, preference, or observance. § 43-1089(E)(l). Indeed, STOs are to use the grant money to “allow” children to “attend any qualified school of their parents’ choice.” § 43-1089(E)(2). Thus, nothing forbids an STO from limiting its grants or scholarships to students who ad
¶ 78 There is, of course, nothing bad and everything good in private support for religious schools and sectarian education. But both state and federal constitutions forbid using the power of government to provide the type of support encompassed by Arizona’s statute. I turn first to the federal constitution.
THE FEDERAL CONSTITUTION
¶ 79 The majority believes the standard of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), provides an appropriate framework for its review of the constitutionality of § 43-1089. Op. at ¶ 5. The second prong of Lemon’s three-part test requires that a statute be “neutral on its face and in its application” and not have the “primary effect” of advancing sectarian aims of nonpublic schools. See Mueller v. Allen, 463 U.S. 388, 392, 103 S.Ct. 3062, 3065, 77 L.Ed.2d 721 (1983); see also Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788, 93 S.Ct. 2955, 2973, 37 L.Ed.2d 948 (1973). To comply, “aid to sectarian schools must be restricted to ensure that it may not be used to further the religious mission of those [religious] schools.” See Mueller, 463 U.S. at 406, 103 S.Ct. at 3073 (citing Wolman v. Walter, 433 U.S. 229, 250-51, 97 S.Ct. 2593, 2606-07, 53 L.Ed.2d 714 (1977)). I believe § 43-1089 fails this analysis.
A. The primary effect of A.R.S. § 43-1089 is not neutral
¶ 80 The Establishment Clause issue turns on the United States Supreme Court’s opinions in Nyquist and Mueller. Arizona’s tax credit contains each of the factors that led the Court to declare the credit unconstitutional in Nyquist and none of the provisions that saved the deduction in Mueller.
¶ 81 The New York plan considered in Nyquist involved a tuition grant program for low income families, together with a tuition tax deduction program that varied by income level. Both plans were limited to families whose children attended private schools; neither program was available for parents of children who attended public schools.
¶ 82 The Court noted that the private schools were predominantly religious and concluded that both tuition aid programs violated the Establishment Clause.
[When] grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.
413 U.S. at 786, 93 S.Ct. at 2972.
¶ 83 In Nyquist, New York issued vouchers redeemable only at private schools. Arizona’s tax credit is available only for private school contributions. The result is state support of private, mostly sectarian schools. And contrary to the majority’s assertion, it is not affected even though the “final destination” of the money is chosen by “individual parents,” not the state. Op. at ¶ 19. In New York, the funds went first to the parents and then to the school of their choice. Id. at 785-86, 93 S.Ct. at 2972. Similarly, under the Arizona plan, the money goes first to the STO and then to the school of its choice. In a footnote, the Nyquist Court made it clear that the result might be different if the scholarships and tuition grants were neutrally “available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.” 413 U.S. at 782 n. 38, 93 S.Ct. at 2970 n. 38. Arizona’s tax credit, however, may be used only at private, mostly sectarian schools.
¶ 84 In Mueller, the Court upheld a Minnesota law allowing a deduction, in part because it was “available for educational expenses incurred by all parents including those whose children attend public schools.” Making the benefit available to this neutral and “broad class” is an “important index of secular effect.” 463 U.S. at 397, 103 S.Ct. at 3068 (quoting Widmar v. Vincent, 454 U.S. 263, 274, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981)). The Court said the Establishment Clause does “not encompass the sort of at
¶ 85 This case is very like Nyquist and very unlike Mueller. The Arizona tax credit is available only to those who choose to support private, predominantly religious schools. Those who wish to contribute to public schools are allowed only a $200 credit, and their contributions can be used only to reimburse fees paid for extracurricular activities. Thus, the tax credit does not offer the same or even similar benefits to all taxpayers, is not neutral, and the “money involved represents a charge made upon the state for the purpose of religious education.” Nyquist, 413 U.S. at 791, 93 S.Ct. at 2974.
B. The tax credit is not one of a group of permissible, generally available tax benefits
¶ 86 The majority argues that “both credits and deductions ... are intended to serve policy goals, and clearly act to induce ‘socially beneficial behavior’ by taxpayers.” Op. at ¶ 12 (quoting Elizabeth A. Baergen, Note, Tuition Tax Deductions and Credits in Light of Mueller v. Allen, 31 Wayne L. Rev. 157, 173 (1984)). The court goes on to say there are “mechanical differences between deductions and credits,” but “that these distinctions are [not] constitutionally significant.” Id.
¶ 87 I fear the court conflates personal philanthropy with government grants. The difference is one of substance, not mechanics or labels. Unlike deductions allowed for general charitable giving, the tax credit provides a dollar-for-dollar reimbursement available only to those who support our primarily sectarian private school system. It is everything Nyquist held unconstitutional — a direct stipend that has the primary effect of advancing religion by tuition grants to religious schools. Nyquist, 413 U.S. at 779-80, 791, 93 S.Ct. at 2969, 2974-75.
¶88 The court sees this quite benignly, as just one of the “tools by which government can ameliorate the tax burden while implementing social and economic goals.” Op. at ¶ 15. But the Establishment Clause forbids the government from promoting religious education by special benefits unavailable for general, charitable giving. This, of course, includes tax subsidies available only for religious education. Nyquist, 413 U.S. at 782-83, 93 S.Ct. at 2970-71; see also Witters v. Washington Dep’t of Serv. for the Blind, 474 U.S. 481, 487-88, 106 S.Ct. 748, 751, 88 L.Ed.2d 846 (1986) (discussing impermissible direct subsidies to religious education). As the Court recognized in Nyquist’s companion case, a statute that implicates the Establishment Clause cannot “singled] out a class of its citizens for a special economic benefit. ” Sloan v. Lemon, 413 U.S. 825, 832, 93 S.Ct. 2982, 2986, 37 L.Ed.2d 939 (1973). When such a benefit acts as a tuition subsidy that helps only children attending primarily sectarian schools, it supports religiously oriented institutions. Id.
¶89 Thus, in arguing that the Arizona tax credit is but one of many tax credits provided by the Arizona Legislature, the court overlooks this crucial distinction: the Establishment Clause is not implicated when the Legislature grants tax credits to support socially beneficial programs such as environmental cleanups or assistance to the working poor. Op. at ¶ 15; see also §§ 43-1086, 43-1088. If it wished, the Legislature could, without constitutional conflict, make direct appropriations for these purposes. But credits that support religious education implicate the religion clauses of both the state and federal constitutions. Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 218-19, 68 S.Ct. 461, 468-69, 92 L.Ed. 649 (1948). And when the tax credit is available only for support of private, predominantly religious schools, the Establishment Clause is not just implicated, it is violated. Nyquist, 413 U.S. at 793, 93 S.Ct. at 2975.
C. There is no real private choice — religious institutions primarily benefit
¶ 91 The Supreme Court has assessed a law’s effect by examining the character of the institutions benefited to determine whether they are predominantly religious. See, e.g., Meek v. Pittenger, 421 U.S. 349, 363-64, 95 S.Ct. 1753, 1762-63, 44 L.Ed.2d 217 (1975). As the majority indicates, the Mueller Court voiced concern over whether statistics could be used to determine whether legislation will have a predominantly religious effect. 463 U.S. at 401, 103 S.Ct. at 3070. But there is a big distinction between Mueller and the present case. Because the Mueller statute was facially neutral and available for support of both public and private schools, the Court chose not to examine statistics showing which taxpayers — those deducting for private school expenses or those deducting for public school expenses — actually took advantage of the tax benefit. Id. “We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent of various classes of private citizens who claimed benefits under the law.” Id. (emphasis added).
¶ 92 The Arizona statute is not facially neutral because its beneficiaries are supporters of Arizona’s private schools, not parents who may take a deduction for either public or private school expenses. The Arizona tax credit, unlike that in Mueller, is not limited to helping all parents with school children but is available only to taxpayers willing to direct the money to private schools. When the benefit can flow only to private schools, the court must determine what percentage of those private schools is sectarian. This is the precise statistic the Court examined in Meek, 421 U.S. at 364, 95 S.Ct. at 1762-63 (system seventy-five percent sectarian); Nyquist, 413 U.S. at 757, 93 S.Ct. at 2957 (eighty-five percent sectarian); Sloan, 413 U.S. at 830, 93 S.Ct. at 2985-86 (ninety percent sectarian); and Lemon, 403 U.S. at 610, 91 S.Ct. at 2110 (ninety-five percent sectarian).
¶ 93 In Meek, the Court described Pennsylvania’s seventy-five percent sectarian private school system as “predominantly religious.” 421 U.S. at 363, 95 S.Ct. at 1762. This phrase is, of course, applicable to Arizona’s private, seventy-two percent sectarian schools. Thus, “it simply defies reason to say that such a statute does not aid sectarian schools.” Kosydar v. Wolman, 353 F.Supp. 744, 762 (S.D.Ohio 1972), aff'd sub nom. Grit v. Wolman, 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021 (1973). Contrary to the majority’s assertion, the statute promotes support of religious schools. It does this without prohibiting use for sectarian instruction, thereby allowing direct state subsidy of religious instruction and observance.
D. A.R.S. § 43-1089 places no limitation on use of the tuition grants
¶ 94 The Establishment Clause is violated when state aid is directed exclusively to private, mostly sectarian schools without limitation on use. See Nyquist, 413 U.S. at 780, 93 S.Ct. at 2969; Sloan, 413 U.S. at 829, 93 S.Ct. at 2985; Lemon, 403 U.S. at 616-17, 91 S.Ct. at 2113-14; see also Meek, 421 U.S. at 365-66, 95 S.Ct. at 1763-64. The Nyquist Court held that “[i]n the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideologi
E. The Arizona tax credit, unrestricted as to use, exceeds the boundaries set in the United States Supreme Court’s Establishment Clause jurisprudence
¶ 95 Because Arizona’s tax credit statute does not require that grant use be restricted to the secular aspects of education, the STOs’ grants to private schools may be used in any manner the recipient school wishes. Nor does the statute prevent an STO from directing all of its grant money to schools that restrict enrollment or education to adherents of a particular religion or sect. Moreover, there is no limit on the dollar amount the STO can give to a school on behalf of a student. Thus, an STO could pool several contributions and then pay the full tuition for any student, group of students, or for that matter, all students in any group of schools of a single religious faith.
¶ 96 None of the Court’s cases permits such a government subsidy. The majority incorrectly relies on a number of cases that have built on Mueller. In Witters, for example, the benefit was used to provide vocational rehabilitation services for a blind student at a Christian college, but the benefit was equally available to any eligible student at any school, public or private. 474 U.S. at 488, 106 S.Ct. at 752.
¶ 97 In Zobrest v. Catalina Foothills School District, the Court approved a school district’s provision of sign language interpreters under a federal act benefiting individuals with disabilities. 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). Thus, interpreters were available for deaf students attending classes at a Catholic high school, but also for students attending public schools. The Court held that the government had offered “a neutral service on the premises of a sectarian school as part of a general program that ‘is no way skewed toward religion’____” Id. at 10, 113 S.Ct. at 2467.
¶ 98 In Agostini v. Felton, the Court held that grants for general remedial services available to aid the educational, nonreligious function of religious and public schools are not per se invalid. 521 U.S. 203, -, 117 S.Ct. 1997, 2010, 138 L.Ed.2d 391 (1997). The Court relied on the principles established in Nyquist and Mueller: neutral government benefits do not violate the Establishment Clause when provided without regard to the sectarian-nonsectarian or publicnonpublic nature of the institutions supported. Id. at-, 117 S.Ct. at 2011. The Arizona program, however, is available only to private schools and may be used for sectarian instruction and observance.
¶ 99 The majority today puts great reliance on the Wisconsin case of Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, cert. denied, — U.S.—, 119 S.Ct. 466, — L.Ed.2d —(1998). Op. at ¶ 18. Even if we are to assume that Jackson will eventually withstand Establishment Clause analysis, it does not support the majority’s result because the Wisconsin program is quite different from Arizona’s. First, the Wisconsin statute contains an “opt-out” provision by which students may be excused from the religious aspects of sectarian education. Second, Wisconsin requires schools receiving grants to admit applicants without regard to religious/nonreligious preference. Third, Wisconsin limits support to the private institution’s educational programs. Finally, Wisconsin’s program is designed to help low income families send their children to private schools.
¶ 101 The majority has cited Professor Baergen’s article for several points. See, e.g., Op. at ¶¶ 12, 15. Professor Baergen’s conclusion, however, provides a good summation for the Establishment Clause issue:
Mueller v. Allen held that facially neutral income tax deductions for educational expenses are not an unconstitutional infringement of the Establishment Clause. This note suggests that tax credit provisions, which could entirely subsidize private sectarian education, should be carefully scrutinized for an unconstitutional legislative purpose. Such an impermissible purpose should be found if the credit is limited, to private educational expenses or if the credit gives such an unbalanced benefit to the parents of private school children that it is clearly intended as a tax incentive to subsidize private, primarily sectarian education. Likewise, a credit limited to private school expenses would suffer an unconstitutional primary effect of advancing religious education, unmitigated by the deference shown by courts to true legislative tax enactments [such as deductions] which equitably allocate tax burdens based upon a definition of net income. Moreover, tax credit provisions which are facially neutral but only supply a [de minimis ] benefit to parents of public school children should be subject to statistical analysis to determine the true beneficiaries of the program and expose the facial neutrality as a facade.
Baergen, supra, 31 Wayne L. Rev. at 184 (emphasis added).
THE STATE CONSTITUTION
A. Historical background
¶ 102 The Arizona tax credit violates the state constitution’s prohibition that “[n]o public money ... shall be applied to any religious worship, exercise, or instruction or to the support of any religious establishment.” Article II, § 12. It also violates the prohibition on laying any “tax ... in aid of any ... private or sectarian school....” Article IX, § 10. The text is clear and unambiguous. Thus, the case should have ended there. But for those who somehow find ambiguity in the quoted words, we can turn to the intent of those who wrote our constitution.
¶ 103 The majority says we should use great “skepticism” in divining the framers’ intent. Op. at ¶ 54. We are to look instead for the framers’ “larger purposes.” Op. at ¶ 55. But this court has always prided itself on its devotion to text and framers’ intent. E.g., Fain Land & Cattle Co. v. Hassell, 163 Ariz. 587, 595, 790 P.2d 242, 250 (1990) (“The cardinal rule ... is to follow the text and the intent of the framers____”). Putting aside the explicit text, I believe the framers’ intent is quite plain, even to our contemporary understanding, and their larger purposes quite apparent from a closer look at state history and the text of the relevant constitutional clauses.
¶ 104 The authors of the Arizona Constitution did not adopt the religion clauses in a historical vacuum. Article II, § 12 and article IX, § 10 were the product of contemporary social forces and a national and local battle over separation of church and state in public school instruction. The people who formed this state attempted to save us from religious bigotry by separating religion from state funding and support through our explicit religion clauses.
1. The national scene
¶ 105 In the nineteenth century atmosphere, before the Establishment Clause applied to the states, the emerging public
¶ 106 These education-related contests between Protestants and Catholics led to calls for stringent separation of church and state in education finance. President Grant took up the cause in an 1875 address to the Army of Tennessee:
Let us then begin by guarding against every enemy threatening this perpetuity of free republican institutions____ The free school is the promoter of that intelligence which is to preserve us. ... Let us all ... [ejncourage free schools and resolve that not one dollar appropriated for their support shall be’ appropriated to the support of any sectarian schools. Resolve that either the state or the nation, or both combined, shall support institutions of learning sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family circle, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate.
Conrad Henry Moehlman, The American Constitutions and Religion 16 (1938) (emphasis in original). In his next message to Congress, President Grant recommended a constitutional amendment to preclude state funding of private (Catholic) schools, while permitting continued Protestant influence in the public schools via reading of the King James Bible. The proposal, named after its sponsor, Rep. John Blaine, became known as the Blaine Amendment.
¶ 107 As passed by the House of Representatives, the amendment provided, inter alia, that “no money raised by taxation in any state, for the support of the public schools or derived from any public fund therefor, shall ever be under the control of any religious sect____” One of the Senate’s principal objections to the amendment was that it “would only forbid school funds [from aiding religion and denominational schools]; it would not prohibit the States from using any other public funds for religion or sectarian schools. To block every avenue, the Senators wrote several new strictures into the House project.” William O’Brien, The States and “No Establishment”: Proposed Amendments to the Constitution Since 1798, 4 Washburn L. Rev. 183, 193 (1965) (second emphasis added; cites to Congressional Record omitted). As a result, the version of the Blaine Amendment that narrowly failed to receive Senate approval read:
No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property, and no public revenue of, nor any loan of credit by or under the authority of, the United States, or any State, Territory, District, or municipal corporation, shall be appropriated to, or made or used for, the support of any school, educational or other institution, under the control of any religious or antireligious sect, organization, or denomination, or wherein the particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization, or denomination or to promote its interests or tenets. This article shall not be construed to prohibit the*300 reading of the Bible in any school or institution.
Moehlman, supra, at 17 (emphasis added).
¶ 108 While the Blaine Amendment, and similar proposals,
2. The Arizona scene
¶ 109 Arizona’s Blaine Amendment clauses contain a stringent proscription on educational aid, forbidding state aid to all private schools, sectarian or secular. See John D. Leshy, The Arizona State Constitution: A Reference Guide 216 (1993)(our article IX, § 10 “is a more targeted (and potentially more stringent) specification of the prohibition against subsidies to private entities”); Linda S. Wendtland, Note, Beyond the Establishment Clause: Enforcing Separation of Church and State Through State Constitutional Provisions, 71 Va. L. Rev. 625, 633 (1985). The history of Arizona public schools and the pertinent legislation leading up to the constitutional convention confirm that the strict language of our constitution emerged from the framers’ firm conviction that the state should be absolutely prohibited from subsidizing any form of sectarian education— a conclusion drawn from the framers’ territorial experience.
¶ 110 In 1864, the territory’s First Legislative Assembly established a publicly funded common school system. See chapter XXIII, § 11, The Howell Code (1864). Ironically, the first school appropriation was an 1866 grant of $250 to the mission school at San Xavier. Jay J. Wagoner, Arizona Territory, 1863-1912: A Political History 51 (Tucson 1970). In the following decade, however, the national battle over public funding for sectarian schools hit Arizona’s emerging public education system, and Arizona forged a clear path toward separation by prohibiting state aid to sectarian education.
¶ 111 In light of the large Mexican-American, predominantly Catholic population of the territory, the possibility of public funding for Catholic schools would have had a substantial impact. See Samuel Pressly McCrea, Establishment of the Arizona School System, in Biennial Report of the Superintendent of Public Instruction of the Territory of Arizona, for the years ending June 30, 1907 and June 30, 1908, at 95 (1908). Governor A.P.K. Safford, known as the father of Arizona education, expressed early concern that sectarian, primarily Catholic, schools would attract public moneys for their support. McCrea, supra, in Biennial Report, at 96. The Legislative Assembly apparently shared Governor Safford’s concern and in 1871 sought to prevent such a result by enacting a prohibition against use of sectarian books or other documents and teaching of “sectarian or denominational doctrine” in Arizona’s public schools. Any school in which such sectarian or denominational doctrine had been taught could not receive public school funds. Act to Establish Public Schools in the Territory of Arizona § 34 (approved Feb. 18, 1871).
To the end that children of every religious faith may consistently attend these schools, the legislature wisely prohibited the use of sectarian books and religious teaching in them. Therein children of parents of any and every faith can meet in harmony and upon an equality in all respects. Based upon any other character of law, the freesehool-system would and should soon be destroyed. Were one religious doctrine taught, children of other religious doctrines would surely be driven from the schools. In this age of science, learning, and religious and political independence, it will not do to promote any sect at the common expense. The funds which maintain the grand free schools are drawn from people of every creed, and it is but just that all shall be equally benefited, without the least attempt to inculcate any of the many religious beliefs. Religious instruction peculiarly belongs to the family-circle and church. The most cruel and bloody wars recorded in the pages of history show that they were the offspring of the intolerance of religious sects. Bigotry has brought untold thousands of innocent men and women to torture and death. The cloak of religion has been used to cover dire crimes against mankind; but happily for poor and rich of all beliefs and conditions, the time for such cruel intolerance has passed away. Under the benign influences of our free Republic, every one has and can exercise the inalienable right, free from threats and oppression, to worship God in his own way; and our public schools constitute the safe foundation upon which the prosperity and endurance of our beloved country rest and our rightful liberties are secured and assured. In the public-school-room the children of every creed are gathered, not to despise and hate each other, as in olden times, under sectarian teaching, but to love and respect manly and womanly virtues wherever or in whomsoever found, regardless of the faith one or the other entertains.
Report of Hon. A.P.K. Safford, in Report of the Commissioner of Education for the Year 1873, at 426-27 (G.P.O.1874).
¶ 113 The 1871 act was also the first to provide for a general or territorial tax to support schools. Wagoner, supra, at 106. Section 32 stated: “No portion of the public school funds, whether derived from Territorial, county or district taxation, shall be used or appropriated to any other than school purposes.” Yet in a separate act, the 1871 Legislative Assembly appropriated $300 from the general fund to the Sisters of St. Joseph of Tucson to reimburse them for school books purchased.
¶ 114 This 1875 payment, coupled with the Catholic community’s apparent boycott of fundraising efforts on behalf of the public schools, set off a wave of debate on the issue of state funding of private religious institutions. See John C. Bury, Dissertation, The Historical Role of Arizona’s Superintendent of Public Instruction 114-29 (Northern Arizona University 1974). The cause for public support of Catholic schools was championed by Chief Justice Edmund Dunne of the Arizona Territorial Supreme Court. He argued before the 1875 Legislative Assembly that either Catholics whose children attended private, sectarian schools should be exempt from paying taxes to support public schools or public moneys should be used to support Catholic schools. Id. at 117-18. He sought to enforce his vision of state-funded Catholic schools by asking the Assembly to create corporations that would establish private schools. These corporations would then receive tax funds based on the number of enrolled students in their schools. Id. The
¶ 115 Governor Safford remained publicly silent on the issue until after the Legislative Assembly settled it in favor of nonsectarian instruction. In his 1877 message to the Legislative Assembly, Governor Safford recounted the achievements of the nascent Arizona public schools and strongly argued for continuing nonsectarian instruction and limiting expenditure of public school funds to support of public schools:
The school room is peculiarly an American institution. It is organized and kept free from sectarian or political influences____ To surrender this [public school] system, and yield to a division of the school fund upon sectarian grounds, could only result in the destruction of the general plan for the education of the masses, and would lead, as it always has wherever tried, to the education of the few and the ignorance of the many. This proposition is so self-evident, and experience has proved it so true, that it does not require argument.
Journal of the Ninth Legislative Assembly, at 32 (1877) (emphasis added).
¶ 116 Resolution of the 1875 school controversy was not, however, the final legislative word on sectarian influence in the public schools. In 1885, the Legislative Assembly revised the school laws to provide far more stringent protections. The first change was to amend the earlier proscription on sectarian instruction to read:
No books, tracts or papers of a sectarian character shall be used in, or introduced into any school established under the provisions of this act, nor shall any sectarian doctrine be taught therein, nor shall any school whatever under the control of any religious denomination, or which has not been taught in accordance with the provisions of this act, receive any of the public school funds, and upon satisfactory evidence of such violation the county school superintendent must withhold all apportionments of school moneys from said school.
Act to Establish a Public School System and to provide for the maintenance and supervision of Public Schools in the Territory of Arizona § 84 (approved March 12,1885) (emphasis added).
¶ 117 While this first amendment did little more than strengthen the existing proscription on sectarian influence in the public schools, a second legislative measure distinguished Arizona from the anti-Catholic bigotry pervading most of the nation on the church/school question. In contrast to the Blaine Amendment and constitutional amendments in states that discriminated against Catholics and promoted Protestantism through reading the King James Bible in schools, Arizona legislated against all religious exercise:
Any teacher who shall use any sectarian or denominational books or teach any sectarian doctrine, or conduct any religious exercises in his school, or who shall fail to comply with any of the provisions mentioned in section 89 of this act, shall be deemed guilty of unprofessional conduct, and it shall be the duty of the proper authority to revoke his or her certificate, or diploma.
Id. § 93 (emphasis added). As noted in a United States Bureau of Education Report on Public School Education in Arizona:
Every school law since that of 1871 had contained provisions against the introduction of tracts or papers of a sectarian character into the public school, also against the teaching of any sectarian doctrine in them. For some reason this was not believed to be drastic enough, and a section was added to the law which provided for revoking teachers’ certificates for using in their schools sectarian or denominational books, for teaching in them any*303 sectarian doctrine, or for conducting any religious exercise therein. The lawmakers evidently aimed to relegate all religious teaching to the home and the church. The prohibiting of “religious exercises” in schools has met with strong condemnation from many Protestant church members, but with the variety of religious creeds represented in the Territory it is doubtful whether a better policy could have been found.
Stephen B. Weeks, United States Bureau of Education, History of Public School Education in Arizona 55 (Bulletin No. 17, 1918) (quoting McCrea, supra, in Biennial Report, at 121-22) (emphasis added). Thus, by 1885 Arizona had fimúy demonstrated its commitment to the separation of church and state in education. Moreover, it had radically distinguished itself from most of the rest of the nation by extending its separationist commitment to preclude Protestant, Catholic, and all other religious influence in its public schools.
¶ 118 Arizona’s continued commitment to ehureh/state separation in education was next evinced in the 1891 Draft Constitution proposed as part of the statehood movement. Article VIII, § 3 stated:
All common schools, universities and other educational institutions, for the support of which lands have been granted to the State, or which are supported by a public tax, shall remain under the absolute and exclusive control of the State, and no money raised for the support of the public schools of the State shall be appropriated or used for the support of any educational institution, wholly, or in part, under sectarian or ecclesiastical control. No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the -State, either as teacher or student. No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any books, papers, tracts, or documents of a political, sectarian or denominational character be used or introduced in any school established under the provisions of this A’ticle.
Notably, the latter portion is copied practically verbatim from Arizona’s longstanding legislation on the subject.
3. The 1910 constitutional convention
¶ 119 Unless we assume our convention delegates lived in isolation from the issues of the day and were ignorant of their recent past, the foregoing leaves little doubt about the separationist intent of the framers of article II, § 12 and article IX, § 10. We need not, however, infer the intent of those proscriptions solely from the history leading up to the convention. The events surrounding their enactment speak directly to the question.
¶ 120 The substance of the Arizona Constitution, like that of numerous other state constitutions, was not entirely under the framers’ control. Arizona’s admission into the Union was authorized by a federal enabling act. See 36 U.S. Stat. 568-79 (1910). Strict separation of church and state continued to be important to Congress at the time it passed the Arizona Enabling Act, and statehood was expressly conditioned on the “perfect toleration of religious sentiment.” Arizona Enabling Act § 20, ¶ First. In addition, Congress required that “provisions shall be made for the establishment and maintenance of a system of public schools which shall be open to all the children of said State and free from sectarian control.” Id. ¶ Fourth. Further, “no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be' used for the support of any sectarian or denominational school, college, or university.” Id. § 26. Such conditions were common to several western states seeking admission to the union. See Robert Larson, New Mexico’s Quest for Statehood 1846-1912 (1968); Robert F. Utter & Edward J. Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution, 15 Hastings Const. L.Q. 451, 458-69 (1988) (description of background and emotion surrounding Blaine Amendment and influence on wording of constitutions in emerging western states).
¶ 121 Numerous, and often repetitive, propositions bearing on religion and education were introduced, considered, and ei
Neither the Legislature or any county, city, town, township, school district or other public corporation shall ever make any appropriation or pay from any public fund or moneys whatever in aid of any church or sectarian or religious society, or any sectarian or religious purpose, or to help support or sustain any schools, academy, seminary, colleges, universities, or other literary or scientific institutions controlled by any church or sectarian or religious denomination whatsoever, nor shall any grants or donations of any lands, moneys or other personal property ever be made by the State or any other such public corporation to any church, or any sectarian or religious purpose.
No ... teacher or student of any [public educational] institutions shall ever be required to attend or participate in any religious service whatever. No sectarian or religious tenets or doctrine or doctrines shall ever be taught in public schools. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of the Legislature of the State of Arizona, nor shall any teacher of any district receive any of the public school money in which the schools have not been taught in accordance with the provisions of this section.
The Records of the Arizona Constitutional Convention of 1910 (John S. Goff, ed.) (hereinafter Records), Proposition 15, §§ 4 and 6, at 1065-66.
¶ 122 One day after the introduction of Proposition 15, delegate Crutchfield, a Methodist minister, introduced Proposition 41. Notably, Crutchfield’s proposal differed from Proposition 15 in that it explicitly permitted nonsectarian religious instruction by omitting Proposition 15’s proscription that “no teacher or student of any [public educational] institutions shall ever be required to attend or participate in any religious service whatever” and closing with a clause borrowed directly from the Blaine Amendment: “Provided, [t]hat nothing herein contained shall be interpreted as forbidding the reading of the Bible in the public schools.” Id. at 1139.
¶ 123 Both Propositions 15 and 41 were referred to the Committee on Education. On November 14, the Committee recommended rejection of Proposition 41 and approval of a Substitute Proposition 15 that more concisely stated the proscription on use of public funds for sectarian purposes: “[N]o public funds of any kind or character whatever, state, county or municipal, shall be used for sectarian purposes.” See id. at 555, 1360, 1364-65. The convention eventually rejected Proposition 41 by postponing it indefinitely. Id. at 540. The majority is not correct, therefore, in stating that the convention transcripts “reveal almost nothing about the clauses in question.” Op. at ¶ 58.
¶ 124 Thus far in the convention, no explicit discussion of state support of religion had taken place. On November 19, the only speech given on the issue was made by delegate William J. Morgan, a former territorial legislator from Navajo County. The Arizona Gazette reported his speech on tax exemption of church property as follows:
He began his address by quoting from former President Grant, who said that if the evils resulting from the extensive acquisition of property by the churches were not corrected they would soon lead to trouble. General Grant in that famous argument said that with the growth of ecclesiastical property the time would probably come when sequestration would come about and that it would in all probability be attended by the shedding of blood.
Morgan argued for free speech, free thought and a free press[,] for the separation of church and state, for keeping the Bible out of the public schools, and for the taxation of all property. He quoted decisions of the supreme courts of Illinois and*305 Wisconsin that the Bible is legally sectarian.
Arizona Gazette, Nov. 19, 1910, at 1.
¶ 125 While it is impossible to discern the precise effect of Morgan’s strong words on the delegates, his speech nonetheless demonstrates that some of the delegates adhered to extreme views on separating church from state. More important, Morgan’s statements referring to President Grant’s calls for strict separation of church and state show the delegates’ familiarity with the Blaine Amendment. See id. This, coupled with Morgan’s calls to proscribe Bible reading in public schools, mirrors the strict separationist positions previously taken by the Legislative Assembly as evidenced, for example, by the 1885 school law proscribing all religious exercises.
¶ 126 Although Morgan’s proposals to prohibit tax exemptions were ultimately rejected, his views on Bible reading were adopted. Crutchfield’s Proposition 41 was killed only three days after Morgan’s speech, and the amended Proposition 15 was adopted by the delegates. Records, at 555.
B. Text and intent
¶ 127 Prom this record, it is clear the delegates sought to preserve strict separation of church and state in the public schools by excluding all religious exercise, consistent with Arizona’s territorial history. In fact, Arizona’s constitution far exceeds the Enabling Act’s requirements. Cf. Utter & Larson, supra, 15 Hastings Const. L.Q. at 467-69 (discussing how the Washington clauses were adopted to effectuate Blaine agenda). In my view, the import of the framers’ choice not to adopt Proposition 41’s Bible-reading provisions is clear: Given the delegates’ stance on religious exercise in the public schools and the breadth of Arizona’s strong policy of refusing to fund private or sectarian education, the delegates clearly intended to prohibit state sponsorship or support of sectarian schools. They expressed this intent three times and in clear English. In article II, § 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” And in article IX, § 10: “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” And in article XI, § 7: “No sectarian instruction shall be imparted in any school or State educational institution that may be established under this Constitution____”
¶ 128 Additional evidence of Arizona’s separationist commitment is adduced from an examination of the Blaine clauses of the 1889 Washington Constitution,
¶ 129 The Washington cases demonstrate that state’s absolute proscription on any state support, direct or indirect, to secular education. See Witters v. Washington Comm’n for the Blind, 112 Wash.2d 363, 771 P.2d 1119 (1989) (financial vocational assistance to student who was pursuing a Bible studies degree violated state constitution); Washington State Higher Educ. Assistance Auth. v. Graham, 84 Wash.2d 813, 529 P.2d 1051 (1974) (state purchase of loans made to students at sectarian schools, while indirect and incidental, was unconstitutional attempt to circumvent provisions of state constitution forbidding any use of public funds to support sectarian schools); Weiss v. Bruno, 82 Wash.2d 199, 509 P.2d 973 (1973) (public funds for financial assistance to secondary and elementary students at nonpublic schools violates state constitution). As with Arizona’s tax credit, none of these programs dealt with direct appropriation to schools.
¶ 130 Given the history of the Blaine Amendment, the stringent language of our constitution, the framers’ indisputable desire to exceed the federal requirements, the Washington model, and the specificity of our constitution’s proscription of state aid to private and secular schools, I think it is absolutely clear the constitution prohibits the tax credit at issue in this ease. Leaving aside its facade and ingenious methodology, the Arizona tax credit grants a state subsidy to private and sectarian schools and thus violates both the text and the intent of our constitution.
¶ 131 The majority concedes the potential that the government subsidization of private schools may weaken the public school system. The wisdom of such policy making, it says, is a matter left to the Legislature. Op. at ¶ 63. But the history and text of Arizona’s religion clauses make it clear that the delegates to the 1910 convention were well aware of the recent sectarian battles and the resulting Blaine Amendment and did not intend to give the Legislature the power to subsidize a private, sectarian school system.
¶ 132 Of course, if legislators wish to revive what is foreclosed by our constitutional history and text, they may propose a constitutional amendment. Should Arizona’s citizens want to repeal our constitutional prohibitions, they may adopt such an amendment. But this court ought not destroy our framers’ intent, which is exactly what it does by finding some distinction between direct appropriation and government-sponsored diversion of tax funds. Constitutional principle prevents the state from doing by indirection what the constitution forbids it to do directly.
C. Public money — deductions and credits
¶ 133 The majority next suggests an overly narrow interpretation of the term “public money” and concludes there is no constitutionally significant difference between a general tax deduction for a contribution to a private school and the Arizona tax credit. Op. at ¶ 38. I believe the majority is wrong on both counts.
1. Whether tax credits are public money
¶ 134 The majority argues that because the state lacks possession and immediate control of the tax credit funds, they are not public money. Op. at ¶¶ 36-38. The same can be said, of course, about funds in an escrow account that are payable to the state on closing, debts owed the state but not yet due and payable, taxes due (after all credits) but not yet paid, and innumerable other funds that are owed but have not yet reached the treasury. It is a dangerous doctrine that permits the state to divert money otherwise due the state treasury and apply it to uses forbidden by the state’s constitution. But that, of course, is the exact result of today’s decision.
¶ 136 Grant and the other authorities the majority cites involve bureaucratic management and mismanagement of public finances, problems that can arise only when funds are in actual possession or control of state agencies. The definitions in those eases are irrelevant to cases involving state subsidies. If the court need infer a definition of public money, we would be better to find it in the statutory provisions dealing with the precise matters at issue in this case.
¶ 137 The tax code does define public money when read in conjunction with legislative and executive branch implementation of our constitution. Article IX, § 4 provides that an “accurate statement of the receipts and expenditures of the public money shall be published annually, in such manner as shall be provided by law.” (Emphasis added.) The Legislature has implemented this constitutional requirement:
A. The director [of the Department of Revenue] shall be directly responsible to the governor for the direction, control and operation of the department and shall:
4. In addition to the report required by paragraph 2 of this subsection, on or before November 15 of each year issue a written report to the governor and legislature detailing the approximate costs in lost revenue for all state tax expenditures in effect at the time of the report. For the purpose of this paragraph, “tax expenditure” means any tax provision in state law which exempts, in whole or in part, any persons, income, goods, services or property from the impact of established taxes including deductions, subtractions, exclusions, exemptions, allowances and credits.
A.R.S. § 42-105 (emphasis added). Thus, the Legislature clearly views the article IX, § 4 words “receipts and expenditures of public money” to embrace “tax expenditures,” including tax credits.
¶ 138 The executive branch also views tax credits and deductions as “tax expenditures” similar to direct appropriations. Thus, in the annual report to the Legislature required by § 42-105, the Department of Revenue explains:
Tax expenditures are provisions within the law (exemptions, exclusions, deductions and credits) that are designed to encourage certain kinds of activity or aid to taxpayers in certain categories. Such provisions, when enacted into law, result in a loss of tax revenues, thereby reducing the amount of revenues available for state (as well as local) programs. In effect, the fiscal impact of implementing a tax expenditure would be similar to a direct expenditure of state funds.
Arizona Department of Revenue, The Revenue Impact of Arizona’s Tax Expenditures 1 (May 1998) (emphasis added).
¶ 139 Legislative and executive branch determination that tax expenditures such as tax credits comprise public money, plainly comports with long established, fundamental principles of public finance.
¶ 140 Courts throughout the country also are well aware that tax credits are expenditures of public money. The majority overlooks the great body of precedent dealing with the religion clauses. Other courts, state and federal, have long viewed “tax subsidies or tax expenditures [similar to Arizona’s tax credit as] the practical equivalent of direct government grants.” Opinion of the Justices to the Senate, 401 Mass. 1201, 514 N.E.2d 353, 355 (1987); see also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 236, 107 S.Ct. 1722, 1731, 95 L.Ed.2d 209 (1987) (Scalia, J. dissenting) (“Our opinions have long recognized — in First Amendment contexts as elsewhere — the reality that tax exemptions, credits, and deductions are ‘a form of subsidy that is administered through the tax system,’ ”) (quoting Regan v. Taxation With Representation, 461 U.S. 540, 544, 103 S.Ct. 1997, 2000, 76 L.Ed.2d 129 (1983)); Nyquist, 413 U.S. at 791, 93 S.Ct. at 2974 (money available through tax credit is charge made against state treasury; tax credit is “designed to yield a predetermined amount of tax ‘forgiveness’ in exchange for performing a certain act the state desires to encourage”); Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228 (D.N.J.1978), aff'd, 590 F.2d 514 (3d Cir.1979); Minnesota Civil Liberties Union v. Minnesota, 302 Minn. 216, 224 N.W.2d 344 (1974), cert. denied, 421 U.S. 988, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975); Curchin v. Missouri Indus. Dev. Board, 722 S.W.2d 930, 933 (Mo.1987) (“tax credit is as much a grant of public money or property and is as much a drain on the state’s coffers as would be an outright payment by the state....”).
¶ 141 Moreover, our own legislature leaves little question that it views the specific tax credit at issue in this case as a matter involving public funds. It requires that the “director of the department of revenue shall submit a report to the governor, the president of the senate and the speaker of the house of representatives regarding the fiscal impact of the tax credit provided for donations to school tuition organizations on July 1, 1999.” Laws 1997, Ch. 48, § 4 (emphasis added).
¶ 142 Finally, the judicial wisdom of treating such tax expenditures as public money comports with one of the nation’s most reputable experts on the subject:
The U.S. Constitution and some statutory legislation impose restraints on the spending of government funds. Thus, under constitutional doctrines, the government may in general not engage in activities that are discriminatory in terms of race or sex, for example, or act without due regard for fair procedures and process. Direct government spending programs that involve such practices can be challenged in the courts. Private entities that receive significant support from government funds and engage in such practices are likewise subject to challenge. The question ... is whether these constitutional doctrines also apply to tax expenditure benefits and to private entities receiving them. Given that tax expenditures are government assistance programs, it would seem almost axiomatic that they should.
Stanley S. Surrey and Paul R. McDaniel, Tax Expenditures 118 (1985). The authors expressly consider whether “the grant of an income tax credit” to “parents of children who send their children to parochial schools” should be included among the numerous constitutional issues involving tax expenditures. Unsurprisingly, they conclude:
Judicial cases involving constitutional or interpretative issues with regard to tax expenditures should be decided in the same manner as eases involving direct gov-*309 eminent spending programs. Given the federal government’s own assertion that tax expenditures “can be viewed as alternatives to budget outlays, credit assistance or other policy instruments,” and the “[tax] expenditures have objectives similar to those programs funded through direct appropriations,” it is difficult to see how this position can be denied.
Id. at 154 (quoting U.S. Government, Special Analysis G, 203, 1981).
¶ 143 The majority argues that there is a real debate about whether tax credits constitute public funds. Op. at ¶ 41. This argument resurrects a discredited critique of the tax expenditure concept. The United States Supreme Court spoke on that dead school of thought recently, observing that the “wholesale rejection of tax expenditure analysis was short-lived and attracted few supporters. Rather, the large body of literature about tax expenditures accepts the basic concept that special exemptions from tax function as subsidies." Rosenberger v. Rector & Visitors, 515 U.S. 819, 861 n. 5,115 S.Ct. 2510, 2532 n. 5, 132 L.Ed.2d 700 (1995) (Thomas, J., concurring) (quoting Donna D. Adler, The Internal Revenue Code, The Constitution, and the Courts: The Use of Tax Expenditure Analysis in Judicial Decision Making, 28 Wake Forest L. Rev. 855, 862 n. 30 (1993)) (emphasis added).
11144 The majority in Rosenberger also makes it quite clear that the expenditure of funds that have not and will never enter the public treasury is nevertheless the use of public money subject to scrutiny under the federal Establishment Clause, a provision much less specific than our constitutional provisions. Id. at 842-43, 115 S.Ct. at 2523-24.
¶ 145 In sum, the majority’s narrow interpretation of public money in a religion clause case is without precedential support and is contrary to academic and expert views as well as federal and state cases. Absent the taxing power, the money would not exist. In my estimation, the majority’s attempt to support the credit with a comparison to valid tax deductions only makes the matter worse.
2. Deductions versus credits
¶ 146 The majority argues that Arizona’s tax credit must be valid because there is no significant difference between it and long-recognized, valid tax deductions and credits. It fears that invalidating the private school tax credit “directly contradicts [Arizona’s] decades-long acceptance” of charitable deductions and tax exemptions for churches and other religious institutions. Op. at ¶¶ 38, 43. I disagree.
¶ 147 There are very significant differences between valid tax benefits and the Arizona tax credit. The latter is not an inducement to charitable giving; there is no philanthropy at all because the credit provided is dollar-for-dollar. A taxpayer’s $500 donation is rebated as a credit against the tax that otherwise would be paid to the state. It is a bottom-line reduction — money that would, in its entirety, go to the treasury.
¶ 148 Most of us do not enjoy paying taxes, and one would suspect that a large number of Arizonans faced with the choice of directing $500 to an STO supporting their favorite religious institution or to the tax collector would prefer the former, especially if there is a chance to make a profit.
¶ 149 The majority argues that the Arizona tax credit is just one among many available credits. Op. at 1115. This is true, but unlike valid tax credits, the private school tax credit supports an activity the constitution forbids the state to support. Other Arizona tax credits, such as those provided by §§ 43-1083 and 43-1084 (for installation of solar energy devices and purchase of agricultural water conservation systems), grant tax subsidies for programs the Legislature could support by direct appropriation if it so desired. As with the private school tax credit, the Legislature seeks by partial subsidization to encourage private action by Arizona’s citizens. But the state constitution forbids subsidization of religious education, whether full or partial. As article II, § 12 says, “No public money ... shall be appropriated for or applied to any religious worship, exercise, or instruction____” (Emphasis added.) That prohibition is reinforced by article IX, § 10, which says, “No tax shall be laid or appropriation of public money made in aid of any ... private or sectarian school.” (Emphasis added.)
¶ 150 At present, the subsidy is capped at $500, but there is no principled reason under the majority’s analysis that the limit could not be increased to whatever sum the Legislature chooses until the state is, in effect, paying the full cost of private, sectarian education. Pragmatically, today’s opinion simply writes article II, § 12 out of the state constitution.
¶ 151 There is no need for this. The framers’ intent to forbid governmental aid to private or sectarian schools does not require proscription of all deductions or exemptions. We are squarely confronted with two fundamental axioms of constitutional interpretation. On the one hand “we are bound to uphold the Arizona Constitution, and the spirit and purpose of that instrument may not be defeated.” Selective Life Ins. Co. v. Equitable Life Assur. Soc., 101 Ariz. 594, 598, 422 P.2d 710, 714 (1967). On the other hand, as the majority recognizes, “in order to fulfill the original intent of the constitution, [its provisions] must be viewed in the light of the contemporary society, and not strictly held to the meaning and context of the past.” Community Council v. Jordan, 102 Ariz. 448, 454, 432 P.2d 460, 466 (1967).
¶ 153 Indeed, it is quite likely that prohibiting deductions for charitable contributions to religious institutions or schools when such deductions are generally permitted for contributions to all types of other charitable institutions would discriminate against religion and thus violate the Free Exercise Clause of the First Amendment. Rosenberger, 515 U.S. at 849-51, 115 S.Ct. at 2526-28 (O’Connor, J., concurring); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Widmar, 454 U.S. at 274, 102 S.Ct. at 277.
¶ 154 In two brief paragraphs, the majority asserts that article IX, § 10, which states that no tax should be “laid ... in aid of any church, or private or sectarian school, ...” is inapplicable because a “tax credit is not an appropriation of public money____ To the contrary, this measure reduces the tax liability of those choosing to donate to STOs.” Op. at ¶¶ 49, 50 (emphasis in original).
¶ 155 I cannot agree. The majority does not tell us how one can obtain a credit against a tax unless the tax is first laid. The school tax credit is an offset against taxes otherwise due and owing, as the statute itself describes it. See § 43-1089(B) (unused tax credits in any particular year may “offset” future taxes). The aid to private schools comes from a tax that was laid and imposed. Absent the state’s levy of a tax, there would be nothing to offset and consequently no credit. Article IX, § 10 applies.
CONCLUSION
¶ 156 We are all free to use our money to support any religious institution of our choice. Under the Free Exercise Clause, the government cannot prevent us from making that choice. It may passively encourage such philanthropy as part of a scheme of using tax benefits to support charitable giving of all types — to religious, nonreligious, educational, social service, and all the other institutions that qualify for deductions. So long as the tax benefits are general and neutral, they may be allowed even though some of the institutions supported are those the government is prohibited from assisting by direct grants or subsidies.
¶ 157 But the Arizona tax credit is quite different. It is directed so that it supports only the specific educational institutions the Arizona Constitution prohibits the state from supporting — predominantly religious schools. By reimbursing its taxpayers on a dollar-for-dollar basis the state excuses them from paying part of their taxes, but only if the taxpayers send their money to schools that are private and predominantly religious, where the money may be used to support religious instruction and observance. If the state and federal religion clauses permit this, what will they prohibit? Evidently the court’s answer is that nothing short of direct legislative appropriation for religious institutions is prohibited. If that answer stands, this state and every other will be able to use the taxing power to direct unrestricted aid to support religious instruction and observance, thus destroying any pretense of separation of church and state.
¶ 158 I disagree for the reasons stated and respectfully dissent.
. Several congressmen continued to propose similar constitutional amendments through 1888. See Frank J. Conklin & James M. Vache, The Establishment Clause and the Free Exercise Clause of the Washington Constitution: A Proposal to the Supreme Court, 8 U. Puget Sound L. Rev. 411, 433 n. 115 (1985). From 1889 on, the Blaine agenda was advanced in Congress by inserting requirements in the enabling acts for prospective states that church/state separation clauses be included in the constitutions of newly admitted states. See id. at 433.
. In 1871, St. Joseph's Academy, a private girls’ school, was the only school operating in Tucson. The first public school did not open until 1872. Wagoner, supra, at 70, 107.
. According to McCrea, when Arizona decided against public support of private sectarian education it "then and there parted from New Mexico in educational policy.” McCrea, supra, in Biennial Report, at 96. The contrast with New Mexico is as striking as it is illuminating. In New Mexico, the Catholic Church dominated education, and attempts to secularize the schools via the 1889 draft constitution were in large part responsible for the failure to ratify that constitution. See Robert W. Larson, New Mexico's Quest for Statehood 1846-1912, at 125, 159-68 (1968).
. Utter & Larson, supra, 15 Hastings Const. L.Q. at 468-69. The majority argues that we should give little heed to Washington’s constitutional provisions, even though they are identical to ours, and less to Washington’s decisions on this subject, even though we have many times indicated that decisions from Washington’s courts with respect to our constitutional provisions will be given great weight. Op. at ¶¶ 68, 70. But Washington’s clauses, like Arizona’s, came from the national debate described above and reflect a common view of the prohibition on using public funds to promote any sectarian instruction. Id.
. See Roosevelt Elem. Sch. Dist. v. Bishop, 179 Ariz. 233, 247 & n. 4, 877 P.2d 806, 820 & n. 4 (1994) (Feldman, J., concurring) ("our delegates routinely borrowed provisions from the Washington Constitution,”) (citing Mohave County v. Stephens, 17 Ariz. 165, 170-71, 149 P. 670, 672 (1915) (“section 4, art. 6 of our Constitution is taken almost word for word from the Washington Constitution’’); Faires v. Frohmiller, 49 Ariz. 366, 371, 67 P.2d 470, 472 (1937) (as "far as its judicial features were concerned,” the Arizona Constitution was evidently modeled on similar provisions” in the Washington Constitution); Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 166, 370 P.2d 652, 654 (1962) (Arizona constitutional clause against uncompensated taking of private property “was adopted from the constitution of Washington”)).
. Note, however, that there is a difference between deductions and credits. A progressive income tax "must tax only net income if its taxable base is to have some relationship to a taxpayer’s ability to pay, a goal we [seek]. The income tax system requires a particular class of deductions or exclusions to prevent its taxing gross receipts (a base that is unrelated to the taxpayer's ability to pay). For example, exclusions for capital recoveries and deductions for costs of production are needed to secure an accurate measure of net income. Such deductions and exclusions, properly timed, help refine the net income concept and are called 'normative' provisions, not tax expenditures.” Bernard Wolfman, Tax Expenditures: From Idea to Ideology, 99 Harv. L. Rev. 491, 491-92 (1985).
. Arizonans may well make a profit on the tax credit. After a taxpayer has contributed to the STO and received a dollar-for-dollar refund from the Arizona Department of Revenue, nothing in the Internal Revenue Code prevents him or her from reporting the contribution as a charitable deduction on the federal income tax return. The taxpayer cannot do so on the state return because § 43-1089(C) states that the credit is "in lieu of any deduction pursuant to section 170 of the Internal Revenue Code and taken for state tax purpose.” However, the Internal Revenue Code has no similar provision.
. It is interesting to note the degree of governmental encouragement provided by deductions compared to that provided by credits. Under § 43-1089, a couple with an income of $60,000 per year sending $500 to an STO would receive a tax credit of $500 and would thus save $500 in taxes. The "contribution” would cost them nothing. The same couple contributing to al
. The majority finds specific support in Community Council. Op. at ¶¶ 45, 57-58. Community Council is not on point. It holds that the state may reimburse a community council for its "direct financial aid [to the indigent] in emergency situations” without violating the Arizona Constitution, even though the Salvation Army, a religious organization, was the central agency through which the aid was disbursed and the Phoenix Council of Churches participated in choosing the disbursement agency. 102 Ariz. at 450-51, 432 P.2d at 462-63. But in Community Council the ultimate recipients of aid were the impoverished persons, not religious organizations, as is the situation in the case before us. In Community Council neither the Council's initial contributions nor the state’s reimbursements were used to further sectarian observance or instruction but, rather, to provide a form of welfare assistance. This, of course, is something for which the Legislature could have made a direct appropriation. I have no quarrel with Community Council. It would be a strange rule indeed that would prevent the state from utilizing the beneficial services of religious organizations to help the needy or to accomplish any other goal perceived as worthwhile and not prohibited by the constitution. The constitution does not require government to sever contact with religious institutions or to dispense with their help. It does prohibit providing them with the money with which to instruct in and inculcate their religious beliefs. In the present case, unlike Community Council, the money does not pass through the religious institution to help the needy. Instead, it stays in the religious organizations, where it may be used for religious instruction and observance for all, rich and poor.
. Walz speaks to the historical acceptance of exemptions for religious institutions:
All of the 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees. For so long as federal income taxes have had any potential impact on churches — over 75 years — religious organizations have been expressly exempt from the tax.... New concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.
Id. at 676-77, 90 S.Ct. at 1415 (emphasis added) (footnote omitted).
[A]n unbroken practice of according the exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated: 'If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it... Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922).
Id. at 678, 90 S.Ct. at 1416.
. Again, the analogy to exemptions is useful. Walz establishes the constitutionality of exemptions due to their neutrality toward religion, using words quite applicable to deductions, credits, and other tax benefits:
The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.
397 U.S. at 672-73, 90 S.Ct. at 1413.