By John McClaughry
Editor’s Note: McClaughry, vice president of the Ethan Allen Institute, a free-market oriented public policy research and education organization.
A large insurance company has been flooding the television channels with an advertising slogan “Only Pay for What You Need.” It’s an interesting exercise to apply that idea to various public spending issues.
Typically, at the state level, our elected legislators decide how the tax dollars they collect from Vermonters are to be spent — supporting schools, maintaining highways, implementing public health measures, subsidizing favored energy producers, paying for law enforcement, and so on.
Once the spending bills are enacted into law, all taxpayers are obliged to pay the taxes to cover the spending, whether or not they approve of the spending. The majority rules.
This is also true at the town level, but here the citizen taxpayers themselves, not their elected representatives, decide how their property tax dollars will be spent. (The noncitizen and nonresident taxpayers, of course, don’t get to vote.)
Most towns have on their town meeting warnings separate requests for contributions. In my town, these include everything from museum admission to ambulance service to youth baseball to transit buses. Town meeting voters decide item by item: yes, if so how much, or no. At our last meeting, all 10 requests were approved. That meant that all taxpayers were taxed to make the contributions, regardless of how any one of the participants voted. Majority rules.
Now look at your Vermont income tax form IN-111, line 23. This option allows the taxpayer to add an additional voluntary contribution to be paid into any or all of the Children’s Trust Fund, the Vermont Veterans Fund, Green Up Vermont, and the Nongame Wildlife Fund. You don’t pay anything to any of the four funds unless you choose to. The majority doesn’t rule.
Now look way back into Vermont history for yet another option. The Constitution of the Republic of Vermont, adopted in 1777, declared “no man ought, or of right can be, compelled to … support any place of worship, or maintain any minister, contrary to the dictates of his conscience…” That’s still there, unchanged, in the Constitution today (Ch. I, Art. 3).
Note that this provision did not preclude towns, by majority rule of the citizens at town meeting, from appropriating tax revenues to support churches, ministers, or, by fair implication, church schools. In certain towns, objections were raised when a majority voted to support a church or minister. The objectors argued that they could not be compelled to pay taxes to support a disfavored (by them) religious undertaking.
In 1801, the Legislature passed a law affirming this right of objectors to not be compelled to pay. But five years later, the Council of Censors recommended repeal of that law, not on any high-flown constitutional ground, but simply because it “engendered ill will.” And so it was done.
In 1999, the Vermont Supreme Court held that the Town of Chittenden school district’s decision to pay tuition for 13 pupils at Mt. St. Joseph Academy was unconstitutional for violating the “no compelled support” clause.
As I wrote at the time, the court lost its ability to actually read the law. It’s not unconstitutional for the school district to tuition students to a religious school. What is unconstitutional is for the majority to compel an objecting taxpayer to pay the portion of his taxes voted by the majority for that purpose.
The Constitution doesn’t prohibit a district from paying; it declares an objecting individual’s right not to be compelled to pay.
A bill to exempt objecting taxpayers from compelled support was introduced in the 2003 House by Rep. Bud Otterman, a former president of the Vermont Bar Association. The public education establishment was dead set both against school districts tuitioning students to sectarian schools, and recognizing any right of taxpayers to choose not to pay. The bill perished without action.
Last June, the U.S. Supreme Court held that denying school district tuition payments to sectarian schools unconstitutionally burdened the sectarian students’ First Amendment right to the free exercise of their religion. That clashes with the “no compelled support” clause of the Vermont Constitution as interpreted by the Vermont Supreme Court in the Chittenden case.
The act of 1801 protected a taxpayer’s right not to be compelled to support sectarian institutions. A modernized version would create a voluntary opt-out feature that allows school districts to comply with the U.S. Supreme Court’s free exercise ruling, and also preserves the intent and spirit of our constitution’s protection of the right of taxpayers to choose not to pay for the support of sectarian schools.
It’s worth discussing how a tax law could be crafted to allow taxpayers to opt out of financing majority-approved state expenditures that they consider harmful, dangerous, unconstitutional, or morally repugnant.