                                               I attest to the accuracy and
                                                 integrity of this document
                                                  New Mexico Compilation
                                                 Commission, Santa Fe, NM
                                                '00'05- 16:59:29 2019.02.07

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMSC-003

Filing Date: December 13, 2018

Docket No. S-1-SC-34974

CATHY MOSES AND PAUL F.
WEINBAUM,

       Plaintiffs-Petitioners,

v.

CHRISTOPHER RUSZKOWSKI,
Secretary of Education, New Mexico
Public Education Department,

       Defendant-Respondent,

and

ALBUQUERQUE ACADEMY, et al.,

       Defendants/Intervenors-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Sarah M. Singleton, District Judge

Graeser & McQueen, LLC
Christopher L. Graeser
Santa Fe, NM

Frank Susman
Santa Fe, NM
for Petitioners

New Mexico Public Education Department
Dawn E. Mastalir, General Counsel
Santa Fe, NM

Sutin, Thayer & Browne, P.C.
Susan M. Hapka

                                         1
Albuquerque, NM

for Respondent

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Rufus E. Thompson
Jennifer G. Anderson
Sarah M. Stevenson
Albuquerque, NM

The Becket Fund for Religious Liberty
Eric S. Baxter
Washington, DC

for Intervenors-Respondents

                                         OPINION

VIGIL, Justice.

{1}     In this opinion we reconsider the constitutionality of New Mexico’s textbook loan
program. In Moses v. Skandera (Moses II), this Court considered whether using public funds
to lend textbooks to private school students violated Article XII, Section 3 of the New
Mexico Constitution, which precludes the use of public funds "for the support of any
sectarian, denominational or private school, college or university.” 2015-NMSC-036, 367
P.3d 838, vacated sub nom., N.M. Ass’n of Non-public Sch. v. Moses, 137 S. Ct. 2325 (2017)
(mem.). This Court held “that the plain meaning and history of Article XII, Section 3 forbids
the provision of books for use by students attending private schools, whether such schools
are secular or sectarian.” Moses II, 2015-NMSC-036, ¶ 2. The United States Supreme Court
subsequently vacated this Court’s judgment and remanded the case for further consideration
in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct.
2012 (2017). N.M. Ass’n of Non-public Sch.,137 S. Ct. 2325.

{2}     On remand, we conclude that this Court’s previous interpretation of Article XII,
Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the
United States Constitution. To avoid constitutional concerns, we hold that the textbook loan
program, which provides a generally available public benefit to students, does not result in
the use of public funds in support of private schools as prohibited by Article XII, Section 3.
We also hold that the textbook loan program is consistent with Article IV, Section 31 of the
New Mexico Constitution, which addresses appropriations for educational purposes, and
Article IX, Section 14 of the New Mexico Constitution, which limits “any donation to or in
aid of any person, association or public or private corporation.”

I.     BACKGROUND

                                              2
{3}     Cathy Moses and Paul F. Weinbaum (Petitioners) initiated this case by filing a
complaint for declaratory judgment against Hanna Skandera, the Secretary of the New
Mexico Public Education Department (Department).1 Petitioners sought a declaration that
the Instructional Material Law (IML), NMSA 1978, §§ 22-15-1 to -14 (1967, as amended
through 2011), violates several provisions of the New Mexico Constitution because the IML
provides for the distribution of public funds to private schools.

{4}    The IML establishes an instructional material fund that is administered by the
Department. See § 22-15-5(A). The Department uses the fund to purchase textbooks that are
loaned free of charge to public and private school students enrolled in first through twelfth
grades and in early childhood education programs. See §§ 22-15-5(B), 22-15-7(A); see also
§ 22-15-2(C) (defining “instructional material,” which is referred to collectively in this
opinion as “textbooks”). Although schools play a role in the implementation of the IML,
they do so as agents for the benefit of their students. See §§ 22-15-7(B), 22-15-8(B). The
Department allocates the money in the instructional material fund to schools based on the
number of students enrolled. See § 22-15-9(A). The schools select textbooks from a
“multiple list” approved by the Department. See §§ 22-15-2(D), 22-15-8(B). The IML
permits schools to use a portion of their allocated funds for the purchase of instructional
materials, classroom materials, and “items that are not on the multiple list; provided that no
funds shall be expended [by a private school] for religious, sectarian or nonsecular
materials.” Section 22-15-9(C). The Department distributes the textbooks to the schools, see
§ 22-15-7(B), and the schools disseminate the textbooks to their students, see § 22-15-7(C).
Schools are responsible for the safekeeping of the textbooks, id., and may hold a student or
parent “responsible for the loss, damage or destruction of” a textbook that is “in the
possession of the student.” Section 22-15-10(B).

{5}      Petitioners moved for summary judgment in the district court. At a summary
judgment hearing, the district court indicated that it intended to grant the motion based on
Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949 (addressing issues concerning
public funding of parochial schools and Catholic influence in public schools). But before the
district court entered summary judgment, Intervenors, the Albuquerque Academy, the New
Mexico Association of Non-public Schools, Rehoboth Christian School, St. Francis School,
Hope Christian School, Sunset Mesa School, and Anica and Maya Benia moved to intervene.
The district court granted the motion to intervene and ordered the parties to submit additional
briefing on whether Zellers precluded the use of IML funds to purchase textbooks for
distribution to private schools. At a second summary judgment hearing, the district court
concluded that Zellers did not constitute binding or persuasive authority, denied Petitioners’
motion for summary judgment, and granted summary judgment in favor of the Department.
The Court of Appeals affirmed. Moses v. Skandera (Moses I), 2015-NMCA-036, ¶ 2, 346
P.3d 396, rev’d, 2015-NMSC-036, ¶¶ 12, 41.


       1
       Christopher Ruszkowski, the current Secretary of Education, has been substituted
for Hanna Skandera on remand.

                                              3
{6}    Petitioners sought review by this Court, raising five issues:

       (1) whether this Court’s decision in Zellers constituted dicta; (2) whether the
       IML violates Article XII, Section 3 of the New Mexico Constitution; (3)
       whether the IML violates Article IV, Section 31 of the New Mexico
       Constitution; (4) whether the IML violates Article IX, Section 14 of the New
       Mexico Constitution; and (5) whether the IML violates Article II, Section 11
       of the New Mexico Constitution.

Moses II, 2015-NMSC-036, ¶ 11. This Court held that loaning textbooks to private school
students violated Article XII, Section 3 and declined to reach the remaining issues. Moses
II, 2015-NMSC-036, ¶ 12.

{7}      The New Mexico Association of Non-public Schools filed a petition for a writ of
certiorari in the United States Supreme Court. The day after the Supreme Court issued its
opinion in Trinity Lutheran, 137 S. Ct. 2012, the Supreme Court granted review of this
Court’s opinion in Moses II, vacated this Court’s judgment, and remanded the case to this
Court for further consideration in light of Trinity Lutheran. See N.M. Ass’n of Non-public
Sch., 137 S. Ct. 2325. In accordance with the Supreme Court’s directive, in this opinion we
take a fresh look at the constitutionality of the textbook loan program under the New Mexico
Constitution.

II.    DISCUSSION

{8}      On remand, Petitioners argue that loaning textbooks to private school students under
the IML violates three provisions of the New Mexico Constitution: (1) Article XII, Section
3, which prohibits the use of public funds “for the support of any sectarian, denominational
or private school, college or university”; (2) Article IV, Section 31, which precludes an
appropriation for “educational . . . purposes to any person, corporation, association,
institution or community, not under the absolute control of the state”; and (3) Article IX,
Section 14, which limits “any donation to or in aid of any person, association or public or
private corporation.”

{9}     The Department and Intervenors argue that Article XII, Section 3, as interpreted by
the Court in Moses II, violates the Free Exercise Clause of the First Amendment to the
United States Constitution and the equal protection guarantees of the federal and state
constitutions. They ask this Court to interpret Article XII, Section 3 in a manner that permits
the state to loan textbooks to private school students under the IML and assert that such an
interpretation would be consistent with the United States Constitution.

A.     Standard of Review

{10} This Court applies a de novo standard of review to a constitutional challenge to a
statute. Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457. In doing

                                              4
so, we presume that the statute is valid and will uphold it “unless we are satisfied beyond all
reasonable doubt that the Legislature went outside the bounds fixed by the Constitution in
enacting the challenged legislation.” Id. (internal quotation marks and citation omitted). “We
will not question the wisdom, policy, or justness of a statute, and the burden of establishing
that the statute is invalid rests on the party challenging the constitutionality of the statute.”
Id. (internal quotation marks and citation omitted).

B.      Loaning Textbooks to Private School Students Under the IML Does Not
        Constitute Support of Private Schools as Prohibited by Article XII, Section 3

1.      This Court’s previous interpretation of Article XII, Section 3 in Moses II

{11} This Court based its decision in Moses II, 2015-NMSC-036, on Article XII, Section
3 of the New Mexico Constitution, which provides that

        [t]he schools, colleges, universities and other educational institutions
        provided for by this constitution shall forever remain under the exclusive
        control of the state, and no part of the proceeds arising from the sale or
        disposal of any lands granted to the state by congress, or any other funds
        appropriated, levied or collected for educational purposes, shall be used for
        the support of any sectarian, denominational or private school, college or
        university.

To determine whether loaning textbooks to private school students constituted support of
private schools in violation of Article XII, Section 3, this Court considered the historical
circumstances that led to the provision’s adoption, including the nationwide controversy over
public education. See Moses II, 2015-NMSC-036, ¶¶ 19-23.

{12} “During the early nineteenth century, public education was provided in public
schools known as common schools.” Moses II, 2015-NMSC-036, ¶ 19 (internal quotation
marks and citation omitted). These common schools were heavily influenced by non-
denominational Protestantism. See Mark Edward DeForrest, An Overview and Evaluation
of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L.
& Pub. Pol’y 551, 559-60 (2003) (describing the “overt fusion of Protestant faith with public
education”); Joseph P. Viteritti, Blaine’s Wake: School Choice, The First Amendment, and
State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657, 666 (1998) (noting that the
common schools promoted “the teachings of mainstream Protestantism”). The Protestant-run
common schools were “ ‘designed to function as an instrument for the acculturation of
immigrant populations, rendering them good productive citizens in the image of the ruling
majority.’ ” Moses II, 2015-NMSC-036, ¶ 19 (quoting Viteritti, supra, at 668). “State
statutes at the time authorized Bible readings in public schools and state judges generally
refused to recognize the Bible as a sectarian book.” Id.

{13}    “By the middle of the nineteenth century,” an “influx of Catholic immigrants created

                                               5
a demand for Catholic education, and consequently Catholics and other minority religionists
challenged the Protestant influence in the common schools.” Id. ¶ 20. Protestants responded
by “calling for legislation prohibiting sectarian control over public schools and the diversion
of public funds to religious institutions.” Steven K. Green, The Blaine Amendment
Reconsidered, 36 Am. J. Legal Hist. 38, 43 (1992). President Ulysses S. Grant entered the
debate by vowing to “ ‘[e]ncourage free schools, and resolve that not one dollar be
appropriated to support any sectarian schools.’ ” Moses II, 2015-NMSC-036, ¶ 21
(alteration in original) (emphasis added) (quoting Viteritti, supra, at 670). At that time, “[i]t
was an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Id. (internal quotation marks
and citation omitted).

{14} In 1875, Congressman James G. Blaine proposed the following amendment to the
federal constitution:

        No State shall make any law respecting an establishment of religion, or
        prohibiting the free exercise thereof; and no money raised by taxation in any
        State for the support of public schools, or derived from any public fund
        therefor, [nor] any public lands devoted thereto, shall ever be under the
        control of any religious sect; nor shall any money so raised or lands so
        devoted be divided between religious sects or denominations.

Green, supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876)). This proposed amendment to
the federal constitution failed to pass, but similar provisions were soon incorporated into
state law. Moses II, 2015-NMSC-036, ¶ 23. “By 1876, fourteen [s]tates had enacted
legislation prohibiting the use of public funds for religious schools; by 1890, twenty-nine
[s]tates had incorporated such provisions into their constitutions.” Viteritti, supra, at 673.

{15} Although many states voluntarily chose to adopt state constitutional provisions based
on the failed Blaine amendment, Congress forced New Mexico and other territories seeking
admission to the union to adopt Blaine provisions as a condition of statehood. See DeForrest,
supra, at 573-74; Viteritti, supra, at 673. Congress passed the Enabling Act for New Mexico
in 1910. See Enabling Act for New Mexico of June 20, 1910, ch. 310, 36 Stat. 557. The
Enabling Act required New Mexico to establish and maintain “a system of public
schools . . . free from sectarian control,” id. § 2, and granted New Mexico “over thirteen
million acres of federal land . . . to be held in trust for the benefit of various public schools
and other institutions.” State of N.M. ex rel. King v. Lyons, 2011-NMSC-004, ¶ 5, 149 N.M.
330, 248 P.3d 878. The Enabling Act further mandated

        [t]hat the schools, colleges, and universities provided for in this Act shall
        forever remain under the exclusive control of the said State, and 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.


                                               6
Enabling Act § 8. “The Enabling Act required that the people of New Mexico incorporate
its mandates into the state constitution, and it specified that those mandates could not be
modified without the consent of Congress and a ratifying vote of our citizens.” Lyons, 2011-
NMSC-004, ¶ 4; see also N.M. Const. art. XXI, § 9 (consenting to Enabling Act provisions);
N.M. Const. art. XXI, § 10 (making Enabling Act provisions “irrevocable without the
consent of the United States and the people of this state”).

{16} The drafters of the New Mexico Constitution modeled Article XII, Section 3 on
Section 8 of the Enabling Act but made two significant changes to the language drafted by
Congress. First, Article XII, Section 3 restricts “the use of proceeds from any lands granted
to New Mexico by Congress, not only those granted in the Enabling Act.” Moses II, 2015-
NMSC-036, ¶ 27. And second, Article XII, Section 3 restricts “the use of any funds
appropriated, levied, or collected for educational purposes for the support of not only
sectarian schools, but also the much broader category of private schools.” Moses II, 2015-
NMSC-036, ¶ 27 (emphasis added). “Through these changes, the Constitutional Convention
decided to provide for additional restrictions on public funding of education beyond the
restrictions required by Section 8 of the Enabling Act.” Moses II, 2015-NMSC-036, ¶ 27.
“The members of the Constitutional Convention chose to play it safe—by broadening the
provision to reach all private schools, they avoided drawing a line between secular and
sectarian education.” Id.

{17} In Moses II, this Court considered two interpretations of Article XII, Section 3: a
permissive interpretation that would allow the state to lend textbooks to private school
students under the IML, and a restrictive interpretation that would preclude such lending.
Moses II, 2015-NMSC-036, ¶¶ 30-38. Our Court of Appeals had taken the permissive
approach, construing the limitations in Article XII, Section 3 as coextensive with the
limitations set forth in the Establishment Clause of the First Amendment to the United States
Constitution. See Moses I, 2015-NMCA-036, ¶ 34. The Court of Appeals explained that the
Establishment Clause, which prohibits Congress from making any law “respecting an
establishment of religion,” U.S. Const. amend. I, does not bar a state from creating a
textbook loan program that provides secular instructional material for the benefit of students
and their parents, “regardless of the school of their attendance.” See Moses I, 2015-NMCA-
036, ¶¶ 34-38. The Court of Appeals concluded that although the IML may provide
incidental or indirect benefits to private schools, the IML does not violate Article XII,
Section 3 because students and their parents “are the direct recipients of the program’s
financial support.” Moses I, 2015-NMCA-036, ¶¶ 39-40.

{18} On certiorari, this Court observed that Article XII, Section 3 “stands as a
constitutional protection separate from the Establishment Clause” because it prohibits the
use of public funds for all private schools, not just religious schools. Moses II, 2015-NMSC-
036, ¶¶ 17-18. This Court concluded that “Article XII, Section 3 must be interpreted
consistent with cases analyzing similar Blaine amendments under state constitutions.” Moses
II, 2015-NMSC-036, ¶ 32. State courts considering the constitutionality of similar textbook
loan programs have reached different results.

                                              7
{19} Some jurisdictions have concluded that the Blaine provisions in their state
constitutions permit a textbook loan program despite incidental or collateral benefits to
religious schools. See, e.g., Borden v. La. State Bd. of Educ., 123 So. 655, 660-61 (La. 1929);
Chance v. Miss. State Textbook Rating & Purchasing Bd., 200 So. 706, 713 (Miss. 1941) (in
banc); Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 228 N.E.2d 791, 793-94 (N.Y. 1967),
aff’d, 392 U.S. 236 (1968). These jurisdictions have emphasized that textbook loan programs
are intended to benefit the student, not the school, and that such programs advance the state’s
legitimate public welfare concern in promoting education. See Borden, 123 So. at 660-61
(concluding that school children and the state, but not the schools, were the beneficiaries of
the program); Chance, 200 So. at 713 (concluding that lending secular textbooks to
“individual pupils” did not provide “a direct or indirect aid to the respective schools which
they attend” and that any benefit to the school was only incidental); Allen, 228 N.E.2d at 794
(explaining that the textbook program was intended to “bestow a public benefit upon all
school children” and that “any benefit accruing to” religious schools was merely “a collateral
effect” that “cannot be properly classified as the giving of aid directly or indirectly”).

{20}     Other states have chosen a more restrictive approach, interpreting the Blaine
provisions in their state constitutions to preclude the provision of any aid or benefit to
private religious schools. See, e.g., Cal. Teachers Ass’n v. Riles, 632 P.2d 953, 964 (Cal.
1981); Spears v. Honda, 449 P.2d 130, 135-36 (Haw. 1968); Bloom v. Sch. Comm. of
Springfield, 379 N.E.2d 578, 581-82 (Mass. 1978); Paster v. Tussey, 512 S.W.2d 97, 104-05
(Mo. 1974) (en banc); Gaffney v. State Dep’t of Educ., 220 N.W.2d 550, 554 (Neb. 1974);
Dickman v. Sch. Dist. No. 62C, Or. City, of Clackamas Cty, 366 P.2d 533, 541-42 (Or. 1961)
(en banc); In re Certification of a Question of Law from the U.S. Dist. Court, Dist. of S.D.,
S. Div., 372 N.W.2d 113, 116, 118 (S.D. 1985). These courts have reasoned that textbook
loan programs help religious schools fulfill their religious mission. See Cal. Teachers Ass’n,
632 P.2d at 962-63 (“[I]t is an undeniable fact that books are a critical element in enabling
the school to carry out its essential mission to teach the students.”); Dickman, 366 P.2d at
544 (noting that textbooks are an “integral part of the educational process” and that the
teaching of religious precepts is an inseparable part of that process).

{21} Faced with two competing interpretations of Article XII, Section 3, this Court
concluded that the more restrictive approach honored the intent behind the failed Blaine
amendment and the mandate set forth in the Enabling Act to ensure that no public funds are
used to support sectarian schools. See Moses II, 2015-NMSC-036, ¶¶ 21, 27, 32. In reaching
that conclusion, this Court did not attach any significance to the inclusion of private schools
in Article XII, Section 3; the restrictive approach flowed from the intent underlying the
Blaine amendment and the Enabling Act and applied equally to sectarian and private
schools. This Court thus held “that the plain meaning and history of Article XII, Section 3
forbids the provision of books for use by students attending private schools, whether such
schools are secular or sectarian.” Moses II, 2015-NMSC-036, ¶ 2.

2.     Evolving First Amendment Law and Trinity Lutheran


                                              8
{22} The religion clauses of the First Amendment provide that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S.
Const. amend. I. On remand we must consider whether this Court’s interpretation of Article
XII, Section 3 in Moses II conflicts with the First Amendment principles enunciated by the
United States Supreme Court in Trinity Lutheran, 137 S. Ct. 2012.

{23} The Supreme Court described the relationship between the religion clauses in
Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947). Everson involved a
New Jersey program that reimbursed parents for school bus fares incurred by both public and
private school students, including students who attended religious schools. Id. at 3. The
Court opined that “New Jersey cannot consistently with the [Establishment Clause]
contribute tax-raised funds to the support of an institution which teaches the tenets and faith
of any church.” Id. at 16. “On the other hand, [the Free Exercise Clause] commands that
New Jersey cannot hamper its citizens in the free exercise of their own religion.” Id. Given
these competing concerns, the Court was “careful, in protecting the citizens of New Jersey
against state-established churches, to be sure that [it did] not inadvertently prohibit New
Jersey from extending its general [s]tate law benefits to all its citizens without regard to their
religious belief.” Id. The Court concluded that the Establishment Clause did not prohibit
New Jersey from providing bus fares to religious school students “as a part of a general
program.” Id. at 17. The Court explained that the state must remain “neutral in its relations
with groups of religious believers and non-believers” when providing “general government
services,” such as “police and fire protection, connections for sewage disposal, public
highways and sidewalks.” Id. at 17-18.

{24} Since Everson, the Supreme Court has issued multiple opinions analyzing whether
the Establishment Clause permits the government to provide benefits or aid to religious
schools or their students. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 644-45, 652,
663 (2002) (upholding a publicly financed school voucher program that was neutral with
respect to religion and provided aid to families who exercised an independent choice
regarding whether to enroll in public or private school); Mitchell v. Helms, 530 U.S. 793,
801, 829, 835 (2000) (plurality opinion) (upholding a program that loaned secular
educational materials to public and private schools on the basis of neutral, secular criteria);
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 3,13-14 (1993) (permitting a local
school district to provide a publicly employed interpreter for a deaf student who attended
parochial school); Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 238, 243
(1968) (upholding a New York law under which secular textbooks were loaned to public and
private school students).

{25} While there have been many opinions addressing whether the Establishment Clause
permits a state to provide aid or benefits to a religious school or its students, the Supreme
Court has only recently begun to consider the circumstances under which the Free Exercise
Clause requires a state to do so. In Locke v. Davey, the Court analyzed a Washington
scholarship program that prohibited recipients from using scholarship money to pursue “a
degree in devotional theology.” 540 U.S. 712, 715 (2004). The Court concluded that the

                                                9
Establishment Clause permitted Washington to give scholarship money to theology students
because “the link between government funds and religious training [was] broken by the
independent and private choice of recipients.” Id. at 719. But the Court held that Washington
could nonetheless exclude theology students from the scholarship program under the
Washington Constitution without violating the Free Exercise Clause. Id. at 725. The Court
explained Washington’s restrictions on scholarship recipients fell into the “play in the joints”
between what the Establishment Clause permits and the Free Exercise Clause requires. Id.
at 718-19 (internal quotation marks and citation omitted). In other words, although
Washington could give scholarship money to recipients pursuing a degree in theology
without violating the Establishment Clause, it did not have to do so. Washington’s interest
against “funding religious instruction” to “prepare students for the ministry” provided a valid
basis for excluding theology students from the scholarship program and did not violate their
rights under the Free Exercise Clause. Id. at 719; see also id. at 725 (“If any room exists
between the two Religion Clauses, it must be here.”).

{26} In Trinity Lutheran, the Supreme Court considered whether the Free Exercise Clause
required Missouri to include religious schools in a program that provided grants to schools
and other entities to resurface playgrounds with recycled tire rubber. 137 S. Ct. at 2017. The
preschool at Trinity Lutheran Church applied for a grant, but the state deemed the preschool
categorically ineligible to receive a grant based on restrictions set forth in article I, section
7 of the Missouri Constitution. Trinity Lutheran, 137 S. Ct. at 2017-18. Article I, section 7
provides

        [t]hat no money shall ever be taken from the public treasury, directly or
        indirectly, in aid of any church, sect or denomination of religion, or in aid of
        any priest, preacher, minister or teacher thereof, as such; and that no
        preference shall be given to nor any discrimination made against any church,
        sect or creed of religion, or any form of religious faith or worship.

Trinity Lutheran Church sued, arguing that Missouri’s policy of denying grants based on the
religious identity of the applicant violated the Free Exercise Clause. Trinity Lutheran, 137
S. Ct. at 2018. The federal district court ruled in favor of the state, reasoning that the case
was controlled by Locke and that the Free Exercise Clause did “not prohibit withholding an
affirmative benefit on account of religion.” Trinity Lutheran, 137 S. Ct. at 2018. The Eighth
Circuit Court of Appeals affirmed, concluding that the Free Exercise Clause did not compel
Missouri “to disregard the antiestablishment principle” embodied in its state constitution.
Id. at 2018-19.

{27} The Supreme Court reversed, holding that Missouri’s policy of excluding religious
entities from the grant program violated the Free Exercise Clause. Id. at 2024. The Court
confirmed that a state’s denial of “a generally available benefit solely on account of religious
identity” violates the Free Exercise Clause unless “justified . . . by a state interest of the
highest order.” Id. at 2019 (internal quotation marks and citation omitted). The Court
concluded that Missouri’s policy implicated the Free Exercise Clause because it “expressly

                                               10
discriminate[d] against otherwise eligible recipients by disqualifying them from a public
benefit solely because of their religious character.” Id. at 2021. The Court also determined
that Missouri’s interest in “skating as far as possible from religious establishment concerns”
was insufficient to justify its discriminatory policy. Id. at 2024. The Court did not analyze
the constitutionality of the Missouri policy under the Establishment Clause because the
parties stipulated that Missouri could provide playground resurfacing grants to religious
preschools without violating the Establishment Clause. Id. at 2019. But see id. at 2028
(Sotomayor, J. dissenting) (opining that the Establishment Clause precluded Missouri from
giving a grant to the church for playground resurfacing because the church uses its facilities
“to practice and spread its religious views”). We discuss the holding and implications of
Trinity Lutheran later in this opinion.

3.      Reconsideration of Moses II in light of Trinity Lutheran

{28} Petitioners argue that Trinity Lutheran does not require reversal of this Court’s
holding in Moses II because Article XII, Section 3 treats all private schools alike, whether
religious or secular, and does not discriminate “solely on account of religious identity.” See
Trinity Lutheran, 137 S. Ct. at 2019. The Department and Intervenors argue that despite its
facial neutrality, Article XII, Section 3, as interpreted by this Court in Moses II, violates the
Free Exercise Clause because Article XII, Section 3 was adopted as a result of animus
toward Catholics. The Department and Intervenors also assert that the decisions from other
states on which this Court relied in Moses II, 2015-NMSC-036, ¶¶ 32-38, are suspect
following Trinity Lutheran.

{29} In Trinity Lutheran, the Supreme Court changed the landscape of First Amendment
law. Under Trinity Lutheran, if a state permits private schools to participate in a generally
available public benefit program, the state must provide the benefit to religious schools on
equal terms. See 137 S. Ct. at 2022 (“The express discrimination against religious exercise
here is not the denial of a grant, but rather the refusal to allow the Church—solely because
it is a church—to compete with secular organizations for a grant.”). Trinity Lutheran was the
first Supreme Court opinion to hold that the Free Exercise Clause required a state to provide
public funds directly to a religious institution. See 137 S. Ct. at 2027 (Sotomayor, J.,
dissenting) (“The Court today profoundly changes [the] relationship [between church and
state] by holding, for the first time, that the Constitution requires the government to provide
public funds directly to a church.”). The Supreme Court also emphasized that a state’s
interest in maintaining church-state separation does not justify the withholding of generally
available public benefits based on the religious status of the recipient. Id. at 2024.

{30} Like the grant program at issue in Trinity Lutheran, the textbook loan program under
the IML is a generally available public benefit program. See Moses II, 2015-NMSC-036, ¶
28 (acknowledging “that the provision of school books for children attending both public and
private schools constitutes ‘a public service’ ”). And this Court in Moses II, like Missouri
in Trinity Lutheran, limited the availability of the program based on restrictions in our state
constitution on the expenditure of public funds.

                                               11
{31} But there is a critical difference between Article XII, Section 3 of the New Mexico
Constitution and article I, section 7 of the Missouri Constitution. Specifically, Article XII,
Section 3 of the New Mexico Constitution does not make a distinction based solely on
religious status, whereas article I, section 7 of the Missouri Constitution does. Compare
N.M. Const. art. XII, § 3 (providing that no “funds appropriated, levied or collected for
educational purposes, shall be used for the support of any sectarian, denominational or
private school, college or university”), with Mo. Const. art. I, § 7 (providing “[t]hat no
money shall ever be taken from the public treasury, directly or indirectly, in aid of any
church, sect or denomination of religion”).

{32} Article XII, Section 3, as interpreted in Moses II, 2015-NMSC-036, enunciates a
facially neutral policy of prohibiting the expenditure of public funds to support private
schools, both religious and secular. Article XII, Section 3 does not disqualify religious
individuals or entities from receiving public benefits based solely on their religious status.
Instead, it creates a distinction between public schools and private schools. The First
Amendment requires government neutrality toward religious viewpoints; it does not require
the state to treat public schools and private schools alike.

{33} Although Article XII, Section 3 is facially neutral toward religion, the Free Exercise
Clause may still be implicated if its adoption was motivated by religious animus. In Trinity
Lutheran, the Supreme Court recognized a distinction between laws that “single out the
religious for disfavored treatment” and laws that are “neutral and generally applicable
without regard to religion.” 137 S. Ct. at 2020. “[A] law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if the law has
the incidental effect of burdening a particular religious practice.” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). But “if the object of a law is
to infringe upon or restrict practices because of their religious motivation, the law is not
neutral.” Id. at 533. “Facial neutrality is not determinative.” Id. at 534. The Free Exercise
Clause “forbids subtle departures from neutrality and covert suppression of particular
religious beliefs.” Id. (internal quotation marks and citations omitted).

{34} Evolving First Amendment jurisprudence suggests that courts should consider the
historical and social context underlying a challenged government action to determine
whether the action was neutral or motivated by hostility toward religion. “Factors relevant
to the assessment of governmental neutrality include the historical background of the
decision under challenge, the specific series of events leading to the enactment or official
policy in question, and the legislative or administrative history, including contemporaneous
statements made by members of the decisionmaking body.” Masterpiece Cakeshop, Ltd. v.
Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (internal quotation marks and
citation omitted); see id. at 1729-31 (citing hostile comments from members of the Colorado
Civil Rights Commission and the commission’s inconsistent treatment of religious
discrimination and sexual-orientation discrimination to conclude that the commission’s
treatment of a cake shop owner “violated the [s]tate’s duty under the First Amendment not
to base laws or regulations on hostility to a religion or religious viewpoint”); Trump v.

                                             12
Hawaii, 138 S. Ct. 2392, 2417 (2018) (considering extrinsic evidence of anti-Muslim animus
when determining the constitutionality of a presidential proclamation).

{35} In Moses II, this Court acknowledged that the federal Blaine amendment originated
in anti-Catholic prejudice and that Congress, through the Enabling Act, forced New Mexico
to adopt a Blaine provision as a condition of statehood. Moses II, 2015-NMSC-036, ¶¶ 19-
24. The United States Supreme Court likewise has recognized that the federal Blaine
amendment was a product of anti-Catholic animus. See Mitchell, 530 U.S. at 828
(“Consideration of the amendment arose at a time of pervasive hostility to the Catholic
Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for
‘Catholic.’ ”); see also Zelman, 536 U.S. at 720-21 (Breyer, J., dissenting) (explaining that
“the Protestant position . . . was that public schools must be nonsectarian (which was usually
understood to allow Bible reading and other Protestant observances) and public money must
not support sectarian schools (which in practical terms meant Catholic”) (internal quotation
marks and citation omitted)). This history casts constitutional doubt on the motive
underlying Article XII, Section 3. We therefore consider whether the history or
circumstances in New Mexico that led to the adoption of Article XII, Section 3 cured the
provision’s anti-Catholic origins.

4.     History of public and sectarian schools in New Mexico

{36} New Mexico has a unique history and culture, and the public school debate within
New Mexico took a different course than the debate at the national level. Formal schooling
commenced in New Mexico with the arrival of the first Franciscan missionaries over four
hundred years ago. See Kathleen Holscher, Religious Lessons: Catholic Sisters and the
Captured Schools Crisis in New Mexico 28 & 206 n.13 (2012). “Under both Spanish and
Mexican rule, the Roman Catholic Church . . . handled all education with little interference
from secular forces.” Robert W. Larson, New Mexico’s Quest for Statehood: 1846-1912 101
(1968). During that time period, “New Mexico’s remote location, its rugged landscape, and
its struggling economy made a centralized system of schools no more than a far-off hope.”
Holscher, supra, at 28.

{37} In 1848, Mexico ceded present-day New Mexico to the United States, and in 1850,
New Mexico became a territory. See Treaty of Peace, Friendship, Limits, and Settlement
With the Republic of Mexico (Treaty of Guadalupe Hidalgo), 9 Stat. 922 (1848); Torrez v.
Bd. of Cty. Comm’rs, Socorro Cty., 1901-NMSC-002, ¶ 3, 10 N.M. 670, 65 P. 181. When
New Mexico became a territory, the overwhelming majority of its population consisted of
native-born New Mexicans. See Holscher, supra, at 31 (“In 1850, ninety-five percent of New
Mexico’s population was native born, either Hispano or Native American.”). Catholic
Church leaders established new parochial schools during the early territorial days, and the
Church maintained control over education in New Mexico into the 1870s. See Dianna
Everett, The Public School Debate in New Mexico: 1850-1891, 26 Arizona and the West
107, 108-09 (1984) (describing the work of “the first bishop of the Diocese of Santa Fe, John
B. Lamy,” and “Father Donato Maria Gasparri, Superior of the Society of Jesus in New

                                             13
Mexico”). Both New Mexico’s public schools and its parochial schools employed members
of the Catholic clergy as teachers and used textbooks published by a Catholic printing press.
See Howard R. Lamar, The Far Southwest 1846-1912: A Territorial History 144-45 (rev. ed.
2000); see also Holscher, supra, at 38 (explaining that “schools taught by Catholic religious”
were some of the first to receive public funding and that a Jesuit printing press “supplied
textbooks to many of the territory’s tax-supported schools”). New Mexico remained
“overwhelmingly Spanish-American in culture . . . and Roman Catholic in religion”
throughout the territorial period. See Lamar, supra, at 3.

{38} Although native New Mexicans remained a majority, the number of Anglo-American
Protestants in New Mexico increased significantly between 1850 and 1910. See Holscher,
supra, at 31. “Anglo-American transplants to New Mexico introduced a series of proposals
for public education.” Holscher, supra, at 26. These proposals met resistance because they
“relied on the familiarly Protestant objection to sectarianism” and sought “to eliminate
Catholic influence.” Id. at 38, 40; see also Lamar, supra, at 144-45, 162-64 (describing
opposition to public school proposals by Catholic Church leaders and Spanish-American
members of the legislature); Charles E. Smith, The New Mexico State Constitution 13 (2011)
(“[T]he Catholic Church had enjoyed the position of primacy in education for three
centuries, and Catholic leaders were suspicious of public schools.”). “Between 1850 and
1891, New Mexico’s government failed at multiple attempts to inaugurate a system of tax-
supported schools.” Holscher, supra, at 37. The ongoing debate over public education
evidenced “mounting hostility between public education advocates and the Archdiocese of
Santa Fe,” Holscher, supra, at 38, and was one of the most pressing problems facing the
territorial legislature, see Larson, supra, at 65.

{39} Perceived problems with New Mexico’s educational system and widespread illiteracy
also posed obstacles to New Mexico becoming a state. See David V. Holtby, Forty-Seventh
Star: New Mexico’s Struggle for Statehood 54-55 (2012); Holscher, supra, at 38-39; Lamar,
supra, at 162; Larson, supra, at 65, 124-25. Concerns about New Mexico’s educational
system were exacerbated by “strong prejudice toward [its] Spanish-speaking, Roman
Catholic people.” See Larson, supra, at 303-04; see also State ex rel. League of Women
Voters of N.M. v. Advisory Comm. to the N.M. Compilation Comm’n, 2017-NMSC-025, ¶¶
29, 32, 401 P.3d 734 (concluding that “decades of hostility toward New Mexico’s
Spanish-speaking population” delayed New Mexico’s admission to the union); Larson,
supra, at 124-25 (explaining that the “Catholicism of native New Mexicans was used in a
particularly insidious way” and that the Catholic Church was implicated “in the high
percentage of illiteracy”). “Anglo-Protestant apprehension about Catholic influence
motivated official scrutiny of the Church’s role in schooling as soon as New Mexico became
part of the United States.” Holscher, supra, at 37; see also Lamar, supra, at 144 (explaining
that officials viewed New Mexico’s schools with disfavor because classes were “Catholic
in orientation” and taught in Spanish). “[B]y the last quarter of the century everyone
understood that the territory’s prospects for joining the Union depended upon the condition
of its educational system. Above all, statehood would require schools free from Catholic
influence.” Holscher, supra, at 38.

                                             14
{40} In 1891, the territorial legislature passed “an act establishing common schools in the
territory of New Mexico and creating the office of superintendent of public instruction.”
1891 N.M. Laws, ch. 25. The 1891 act was “intended to establish a comprehensive and
harmonious system of public schools throughout the territory.” Water Supply Co. of
Albuquerque v. City of Albuquerque, 1898-NMSC-023, ¶ 9, 9 N.M. 441, 54 P. 969. The
1891 act made school attendance compulsory and served as a precursor to the IML by
authorizing free textbooks for a child whose “parent or guardian [was] not able by reason
of poverty to buy books.” 1891 N.M. Laws, ch. 25, § 42. In 1903, the 1891 act was amended
to clarify that the textbooks were only loaned to the children and that ownership remained
with the school districts. See 1903 N.M. Laws, ch. 39, § 2.

{41} When Congress passed the Enabling Act for New Mexico in 1910, New Mexico’s
centralized public school system had been in place for almost two decades. “New Mexico
held a constitutional convention that same fall in Santa Fe, and nearly a third of the
convention’s one hundred elected delegates were native Spanish-speakers.” State ex rel.
League of Women Voters of N.M., 2017-NMSC-025, ¶ 32. The delegates drafted an array of
constitutional provisions related to education. Consistent with the 1891 act, the New Mexico
Constitution requires the state to establish and maintain a “uniform system of free public
schools sufficient for the education of, and open to, all the children of school age in the
state.” N.M. Const. art. XII, § 1. The Constitution also includes explicit protections for the
educational rights of New Mexico’s Spanish-speaking citizens. State ex rel. League of
Women Voters of N.M., 2017-NMSC-025, ¶ 26; see N.M. Const. art. XII, § 8 (“The
legislature shall provide for the training of teachers in the normal schools or otherwise so
that they may become proficient in both the English and Spanish languages, to qualify them
to teach Spanish-speaking pupils and students in the public schools and educational
institutions of the state, and shall provide proper means and methods to facilitate the
teaching of the English language and other branches of learning to such pupils and
students.”); N.M. Const. art. XII, § 10 (“Children of Spanish descent in the state of New
Mexico shall never be denied the right and privilege of admission and attendance in the
public schools or other public educational institutions of the state, and they shall never be
classed in separate schools, but shall forever enjoy perfect equality with other children in all
public schools and educational institutions of the state, and the legislature shall provide
penalties for the violation of this section.”). The provisions protecting the educational rights
of Spanish speakers were safeguarded with a heightened amendment requirement and cannot
be changed without at least three-fourths of the popular vote in a statewide election. State
ex rel. League of Women Voters of N.M., 2017-NMSC-025, ¶¶ 25-26.

{42} The constitutional delegation that incorporated explicit protections for Spanish-
speaking students into the New Mexico Constitution also drafted Article XII, Section 3,
which extended the Enabling Act’s restrictions on public funding for “sectarian [and]
nondenominational school[s]” to also include “private schools.” We cannot ascertain what
motivated the delegates to draft Article XII, Section 3. See Hunter v. Underwood, 471 U.S.
222, 228 (1985) (noting the difficulty of “determining the actual motivations of the various
legislators” that make up a constitutional delegation); see also Smith, supra, at 17 (noting

                                              15
that no verbatim record was made of the constitutional convention). But under the
circumstances, it appears that the drafters of Article XII, Section 3 intended to create a
provision that would be acceptable to New Mexico voters while fulfilling the mandate set
forth in the New Mexico Enabling Act. See Dorothy I. Cline, New Mexico’s 1910
Constitution: A 19th Century Product 26-27, 45 n.31, 46 (1985) (explaining that despite a
deep political divide between Republicans and Democrats, the constitutional delegates
“agreed it was essential to guarantee the civil, religious and political rights” of native New
Mexicans). In the absence of sufficient proof that New Mexico adopted Article XII, Section
3 for a discriminatory purpose, we decline to impute an impermissible motive to the
constitutional delegation and New Mexico voters, who approved the Constitution “by an
overall majority of three to one.” See Cline, supra, at 52.

5.     We adopt a construction of Article XII, Section 3 that avoids free exercise
       concerns

{43} Even though it appears that the people of New Mexico intended for Article XII,
Section 3 to be a religiously neutral provision, the history of the federal Blaine amendment
and the New Mexico Enabling Act lead us to conclude that anti-Catholic sentiment tainted
its adoption. New Mexico was caught up in the nationwide movement to eliminate Catholic
influence from the school system, and Congress forced New Mexico to eliminate public
funding for sectarian schools as a condition of statehood. In Moses II, this Court looked to
the history of the federal Blaine amendment and the Enabling Act to conclude that Article
XII, Section 3 was intended to preclude any whisper of support for private schools. Moses
II, 2015-NMSC-036, ¶¶ 19-24, 32. After Trinity Lutheran and the cases interpreting the Free
Exercise Clause that have followed, we must reconsider our conclusion through a different
lens, one that focuses on discriminatory intent.

{44} Prior to Trinity Lutheran, this Court’s interpretation of Article XII, Section 3 in
Moses II fell into the “play in the joints” between what the Establishment Clause permits and
what the Free Exercise Clause requires. See Locke, 540 U.S. at 719 (noting that “there are
some state actions permitted by the Establishment Clause but not required by the Free
Exercise Clause”). In other words, in Moses II we concluded that New Mexico’s interest in
restricting public funding for private schools was a lawful basis for restricting funding for
religious schools. Following Moses II, the Supreme Court emphasized that the Free Exercise
Clause is implicated by a law that “single[s] out the religious for disfavored treatment.”
Trinity Lutheran, 137 S. Ct. at 2020. The Supreme Court has since underscored the state’s
constitutional duty to avert religious discrimination. See Masterpiece Cakeshop, 138 S. Ct.
at 1731 (“The Constitution commits government itself to religious tolerance, and upon even
slight suspicion that proposals for state intervention stem from animosity to religion or
distrust of its practices, all officials must pause to remember their own high duty to the
Constitution and to the rights it secures.”). Thus, we conclude that this Court’s previous
interpretation of Article XII, Section 3 in Moses II raises concerns under the Free Exercise
Clause.


                                             16
{45} When interpreting the New Mexico Constitution, we avoid a construction that raises
concerns under the federal constitution. See State v. Radosevich, 2018-NMSC-028, ¶ 8, 419
P.3d 176 (recognizing “the well-established principle of statutory construction that statutes
should be construed, if possible, to avoid constitutional questions” (internal quotation marks
and citation omitted)); State ex rel. State Highway Comm’n v. City of Aztec,
1967-NMSC-046, ¶ 9, 77 N.M. 524, 424 P.2d 801 (“[P]rinciples governing the construction
of statutes apply also to the interpretation of constitutions[.]”). When a state constitutional
provision “is susceptible to two constructions, one supporting it and the other rendering it
void,” this Court “should adopt the construction which upholds its constitutionality.” See
N.M. State Bd. of Educ. v. Bd. of Educ. of Alamogordo Pub. Sch. Dist. No. 1,
1981-NMSC-031, ¶ 26, 95 N.M. 588, 624 P.2d 530.

{46} To avoid constitutional concerns, we adopt a construction of Article XII, Section 3
that does not implicate the Free Exercise Clause under Trinity Lutheran. We have previously
held that Article XII, Section 3 serves the dual purposes of ensuring that the state maintains
control over the public education system and that the public schools do not become religious
schools. Prince v. Bd. of Educ. of Cent. Consol. Indep. Sch. Dist. No. 22, 1975-NMSC-068,
¶ 20, 88 N.M. 548, 543 P.2d 1176. The IML neither divests the state of control over the
public schools nor affects the non-religious character of the public schools. Like the 1891
act establishing New Mexico’s public school system, the IML grants students access to
appropriate textbooks regardless of their parents’ financial resources, which helps students
fulfill their duty to attend school. See N.M. Const. art. XII, § 5 (making school attendance
compulsory); NMSA 1978, § 22-12-2(A) (2015) (same). The textbook loan program furthers
New Mexico’s legitimate public interest in promoting education and eliminating illiteracy.
See NMSA 1978, § 22-1-1.2(E) (2015) (setting forth the Legislature’s finding that
“improving children’s reading and writing abilities and literacy throughout their years in
school must remain a priority of the state”). We conclude that the IML provides a public
benefit to students and a resulting benefit to the state. Any benefit to private schools is
purely incidental and does not constitute “support” within the meaning of Article XII,
Section 3. We hold that loaning secular textbooks to private school students under the IML
does not violate Article XII, Section 3.

C.     The IML Does Not Result in Any Appropriation to a Person or Entity Not
       Under the Absolute Control of the State as Prohibited by Article IV, Section 31

{47} Petitioners argue that lending textbooks to private school students under the IML
violates Article IV, Section 31, which provides in relevant part, “No appropriation shall be
made for charitable, educational or other benevolent purposes to any person, corporation,
association, institution or community, not under the absolute control of the state.” The
Department and Intervenors argue that the IML does not implicate Article IV, Section 31.
We agree with the Department and Intervenors.

{48} Article IV, Section 31 imposes limits on the Legislature’s authority to appropriate
money. Under the IML, appropriations are made only to the Department. See § 22-15-5(A).

                                              17
The Department is an executive agency established by the New Mexico Constitution and is
under the absolute control of the state. See N.M. Const. art. XII, § 6(A); see also NMSA
1978, § 22-2-1(B) (2004) (setting forth the general powers of the Department). The IML
does not result in an appropriation to any person or entity not under the absolute control of
the state. The fact that students derive a benefit from the IML does not implicate Article IV,
Section 31. Compare State ex rel. Interstate Stream Comm’n v. Reynolds, 1963-NMSC-023,
¶¶ 16-17, 71 N.M. 389, 378 P.2d 622 (holding that although certain communities and
nonprofit organizations would benefit from appropriations to the State Engineer, the
appropriations did not implicate Article IV, Section 31 because the State Engineer retained
absolute control over their expenditure), with Harrington v. Atteberry, 1915-NMSC-058, ¶¶
66-67, 21 N.M. 50, 153 P. 1041 (Hanna, J., concurring in result) (majority of three-justice
panel concluding that appropriation of funds to the fair association violated Article IV,
Section 31 because the funds did not remain under the control of the state). We hold that the
IML does not result in any appropriation to a person or entity not under the absolute control
of the state as prohibited by Article IV, Section 31.

D.     Loaning Textbooks to Students Under the IML Does Not Constitute a Donation
       to Any Person or Entity as Prohibited by Article IX, Section 14

{49} Petitioners argue that lending textbooks to private school students under the IML
violates the anti-donation clause of Article IX, Section 14, which provides, “Neither the state
nor any county, school district or municipality, except as otherwise provided in this
constitution, shall directly or indirectly lend or pledge its credit or make any donation to or
in aid of any person, association or public or private corporation.” Petitioners do not contend
that the IML results in the lending or pledging of government credit. Thus, the IML
implicates the anti-donation clause only if a textbook loan constitutes a “donation” within
the meaning of Article IX, Section 14. The Department and Intervenors argue that the IML
does not violate Article IX, Section 14 because a textbook loan is not a donation. We agree
with the Department and Intervenors.

{50} This Court has defined donation, for purposes of Article IX, Section 14, as “a gift,
an allocation or appropriation of something of value, without consideration.” Vill. of Deming
v. Hosdreg Co., 1956-NMSC-111, ¶ 36, 62 N.M. 18, 303 P.2d 920 (per curiam) (internal
quotation marks omitted). Article IX, Section 14 permits “incidental aid or resultant benefit
to a private corporation or other named recipients” unless the aid or benefit “by reason of its
nature and the circumstances surrounding it, take on character as a donation in substance and
effect.” Vill. of Deming, 1956-NMSC-111, ¶¶ 34, 37. This Court has found violations of the
anti-donation clause in circumstances involving an outright gift of public money to a private
individual or entity. See, e.g., Chronis v. State ex rel. Rodriguez, 1983-NMSC-081, ¶¶ 24,
30, 100 N.M. 342, 670 P.2d 953 (holding that a law granting liquor licensees a credit against
gross receipts taxes owed to state constituted an unconstitutional subsidy to the liquor
industry); State ex rel. Mechem v. Hannah, 1957-NMSC-065, ¶¶ 18, 40, 63 N.M. 110, 314
P.2d 714 (holding unconstitutional a law granting “an outright gift” of public funds to
ranchers and farmers to purchase livestock feed in times of drought); Hutcheson v. Atherton,

                                              18
1940-NMSC-001, ¶¶ 24, 35, 44 N.M. 144, 99 P.2d 462 (holding unconstitutional the
appropriation of bond money to finance auditoriums for use by private corporations because
the aid was “direct and substantial”).

{51} In this case, the textbook loan program does not involve any donation or gift to
students or private schools. The Department merely loans textbooks to students for use while
attending school. See §§ 22-15-7, 22-15-10(B). The Department retains ownership and
control over the textbooks and the fund used to purchase them. See §§ 22-15-4(B), 22-15-
5(A), 22-15-10(E). We hold that loaning textbooks to students under the IML does not
involve a donation to any person or entity as prohibited by Article IX, Section 14.

E.     Equal Protection Clauses of the State and Federal Constitutions

{52} The Department and Intervenors argue that excluding private school students from
participation in the textbook loan program violates the equal protection guarantees of the
state and federal constitutions. See U.S. Const. amend. XIV, § 1; N.M. Const. art. II, § 18.
We decline to address these arguments because we conclude that private school students may
participate in the textbook loan program. See Trinity Lutheran, 137 S. Ct. at 2024 n.5
(deciding the case on free exercise grounds and declining to reach the equal protection claim
raised by the church).

III.   CONCLUSION

{53} We hold that the textbook loan program established by the IML does not violate
Article IV, Section 31; Article IX, Section 14; or Article XII, Section 3 of the New Mexico
Constitution. We reinstate the provisions of the IML that allow private school students to
participate in the textbook loan program.

{54}   IT IS SO ORDERED.

                                              ____________________________________
                                              BARBARA J. VIGIL, Justice

WE CONCUR:

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
CHARLES W. DANIELS, Justice

JUDITH K. NAKAMURA, Chief Justice, dissenting

GARY L. CLINGMAN, Justice, joining in dissent

                                             19
NAKAMURA, Chief Justice (dissenting).

{55} Moses II correctly concluded that the provision of school books under the IML to
students who attend private schools—whether secular or religious—violates the plain
language of Article XII, Section 3. Moses II, 2015-NMSC-036, ¶ 2. Understanding what
Trinity Lutheran does and does not do makes clear that this Court should not abandon this
conclusion.

{56} Trinity Lutheran holds that, “[i]f a state awards grants, on religiously neutral criteria,
to create safer playground surfaces, it cannot exclude an otherwise eligible playground
simply because it is owned by a church. Such discrimination against religion violates the
Free Exercise Clause, and awarding the grant would not violate the Establishment Clause.”
Douglas Laycock, Churches, Playgrounds, Government Dollars—and Schools?, 131 Harv.
L. Rev. 133, 133 (2017); see Trinity Lutheran, 137 S. Ct. at 2024. At the heart of the Trinity
Lutheran Court’s holding is the following thought: “If the state neutrally supports
playground surfaces for religious and secular daycares alike, and for religious daycares of
different faiths, it is supporting daycares, or just playgrounds, but not religion. Equal
funding gives the religious daycares no advantage; funding only secular daycares would put
religious daycares at a disadvantage.” Laycock, supra, at 147. This thought is not a
departure from settled First Amendment principles.

{57} The conclusion in Trinity Lutheran that Missouri cannot disqualify an applicant for
a public benefit “solely because of its religious character,” 137 S. Ct. at 2024, advances the
“core principles of the Religion Clauses: that government should not penalize any person
because of his religion, and that government should be neutral with respect to the people’s
religious choices and commitments.” Laycock, supra, at 148. But see Trinity Lutheran, 137
S. Ct. at 2027 (Sotomayor, J., dissenting) (“The Court today profoundly changes th[e]
relationship [between church and state] by holding, for the first time, that the Constitution
requires the government to provide public funds directly to a church. Its decision slights
both our precedents and our history, and its reasoning weakens this country’s longstanding
commitment to a separation of church and state beneficial to both.”). This is an adequate
summary of what Trinity Lutheran does. We need to understand with equal certainty what
Trinity Lutheran does not do.

{58} Footnote three of Chief Justice Robert’s opinion for the Court2 points out that Trinity
Lutheran “involves express discrimination based on religious identity” and clarifies that
Trinity Lutheran does not “address religious uses of funding or other forms of
discrimination.” 137 S. Ct. at 2024 n.3 (emphasis added). In other words, “[f]ootnote three
carefully limits the reach of the opinion” and “reserve[s]” the very issue before this Court


       2
        Footnote three was joined by four justices (including the Chief Justice), but has
unquestionable significance for future cases (like this one) given how the other Justices
proposed to resolve Trinity Lutheran. Laycock, supra, at 135-36.

                                              20
on remand: whether a very different form of alleged discrimination than that considered in
Trinity Lutheran is also an unconstitutional abridgment of religious liberty. Laycock, supra,
at 134-35.

{59} The “discrimination” we are faced with here, on remand, is “public-private, not
religious-secular.” Id. at 167. This difference is critical. Because of this difference,
“motive” becomes essential. Id. at 167-68. The question remand to this Court prompts is
this: was Article XII, Section 3 “adopted because of a desire to prohibit funding for Catholic
education?” Laycock, supra, at 167. “If [Article XII, Section 3] was motivated by anti-
Catholicism, it should be unconstitutional.” Laycock, supra, at 168. This is because,
“[w]here sufficient evidence of motive is available, Trinity Lutheran should extend to cases
of antireligious discrimination shrouded in facially neutral provisions.” Laycock, supra, at
169. Careful attention must be paid to the instances of the word “should” in the two
preceding sentences.

{60} Trinity Lutheran does not resolve the question presented on remand. Laycock,
supra, at 134. We can only make educated guesses about how the United States Supreme
Court will resolve the issues reserved, and we will only know whether those guesses are
correct when the Supreme Court takes up the “next round of cases.” Id. at 169. While we
eagerly await future guidance, we must nevertheless answer the question before us: whether
there is sufficient evidence that the motivations for the enactment of Article XII, Section 3
were discriminatory. I cannot conclude sufficient evidence exists.

{61} “In determining if the object of a law is a neutral one under the Free Exercise Clause,
we can . . . find guidance in . . . equal protection cases.” Lukumi, 508 U.S. at 540. In the
equal protection context, a litigant claiming that a facially neutral provision is
unconstitutional because it emanates from discriminatory motives is required to establish that
the provision did in fact arise from discriminatory motives. See Hunter, 471 U.S. at 227-28;
see also Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018) (“Whenever a challenger claims that
a state law was enacted with discriminatory intent, the burden of proof lies with the
challenger, not the State.”). Only after making such a showing must the proponent of the
provision’s constitutionality attempt to rebut the claim. Hunter, 471 U.S. at 227-28.

{62} “Proving the motivation behind official action is often a problematic undertaking.”
Id. at 228. This is particularly true when the official action under review is the drafting of
a constitutional provision that occurred a century ago. See id. The problem is only further
compounded when the provision under scrutiny is neutral and constitutional on its face. Id.

{63} The history the majority recounts suggests that a straight line of anti-Catholic bigotry
runs from the motivations underlying the Blaine Amendment to Article XII, Section 3. Maj.
Op. ¶¶ 12-17, 43. This history, first explicated in Moses II, purports to establish that anti-
Catholic animus prompted the Blaine Amendment, which was in turn incorporated into the
Enabling Act (most directly) at Section 8, which was in turn the basis for Article XII,
Section 3. Maj. Op. ¶¶ 12-17, 43. Moses II was too quick to conclude that the root of this

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series of events was, in fact, anti-Catholic bigotry.

{64} “Those who characterize the Blaine Amendment as a singular exercise in Catholic
bigotry . . . give short shrift to the historical record and the dynamics of the times.” Steven
K. Green, The Insignificance of the Blaine Amendment, 2008 B.Y.U. L. Rev. 295, 296
(2008).

       The Blaine Amendment had as much to do with the partisan climate of the
       post-Reconstruction era and related concerns about federal power over
       education as it did with Catholic animus. Included in the mix was a sincere
       effort to make public education available for children of all faiths and races,
       while respecting Jeffersonian notions of church-state separation.

Id. (internal quotation marks and citation omitted). Any attempt at a summary of the many
social forces at play in the lead-up to the creation of the Blaine Amendment is beyond the
scope of this dissent. See generally id. It suffices to state that there is reason to doubt the
first link in the chain of inferences that must be accepted to conclude that Article XII,
Section 3 was motivated by anti-Catholic animus (i.e., that anti-Catholic animus was the sole
force behind the Blaine Amendment). The next link—that between the Blaine Amendment
and the Enabling Act—is equally susceptible to attack.

{65} The suggestion that the motives underlying the Blaine Amendment (whatever they
were) were shared by the drafters of the Enabling Act is problematic. The enabling act

       which authorized the statehood of Arizona and New Mexico contained the
       proviso that both nascent states must have constitutional language forbidding
       public funding to sectarian schools. Opponents of the Blaine Amendment
       claim that the same anti-Catholic animus behind the federal Blaine
       Amendment motivated this mandate to new states in the enabling acts.
       However, a recent study by historians prepared in an amicus brief to Locke
       v. Davey found that no evidence of anti-Catholic bigotry lay behind a similar
       enabling act for Washington State that same year, and the Supreme Court
       noted in a footnote that the history of the federal Blaine Amendment was not
       relevant to consideration of Washington’s similar provision.

Jill Goldenziel, Blaine’s Name in Vain?: State Constitutions, School Choice, and Charitable
Choice, 83 Denv. U. L. Rev. 57, 79-80 (2005) (footnotes omitted). The “legal and religious
historians and law scholars who” authored the amicus brief in Locke point out that “[m]any
state constitutions . . . contain no-funding provisions [like Article XII, Section 3] that have
nothing to do with anti-Catholicism or nativist sentiment.” Brief Amicus Curiae of
Historians and Law Scholars on Behalf of Petitioners Gary Locke, et al., Locke v. Davey,
540 U.S. 712 (2004) (No. 02-1315), 2003 WL 21697729 at 1, 4. They further note that
“[t]he no-funding principle, as applied to educational matters, arose independently of and
prior to the rise of Catholic parochial schooling and the organized nativist movement of the

                                              22
mid-nineteenth century.” Id. at 2.

{66} These authorities are offered not as indisputably correct and definitive; rather, they
merely illuminate the complexity of the historical questions before us: What, precisely were
the motives behind the Blaine Amendment? How, exactly, did those motives influence the
drafters of the Enabling Act? And how, specifically, did these events influence the drafters
of Article XII, Section 3? It is because the answers to these difficult questions are uncertain
at best and because we must “eschew guesswork” that other interpretive tools must be
prioritized. Hunter, 471 U.S. at 228, (internal quotation marks and citation omitted).

{67} As Moses II observes, the drafters of our state constitution made a significant drafting
decision when writing Article XII, Section 3. Moses II, 2015-NMSC-036, ¶ 27. Unlike
Section 8 of the Enabling Act which “precludes the use of public funds for the support of
sectarian or denominational schools[,]” Article XII, Section 3 restricts the use of public
funds for “the much broader category of private schools.” Moses II, 2015-NMSC-036, ¶ 27
(emphasis added). Moses II correctly notes that this drafting choice is self-evidently
significant: “The members of the Constitutional Convention chose to play it safe—by
broadening [Article XII, Section 3] to reach all private schools, they avoided drawing a line
between secular and sectarian education.” Id. ¶ 27. In other words, the drafters of Article
XII, Section 3 took affirmative measures to decouple the provision from the problematic
language in the Enabling Act. Our understanding of the drafter’s motives must incorporate
these measures, which strongly suggest that their motives were not discriminatory but the
opposite. The majority seems in agreement with this point.

{68} The majority ultimately concludes that they cannot “impute an impermissible motive
to the constitutional delegation[,]” Maj. Op. ¶ 42, and doubt that it is possible to “ascertain
what motivated the delegates to draft Article XII, Section 3.” Maj. Op. ¶ 42. They do
accept, however, that “the constitutional delegates agreed it was essential to guarantee the
civil, religious, and political rights of the native New Mexicans[,]” who were largely
Catholic. See Maj. Op. ¶¶ 37, 42. It is difficult to see how the majority’s conclusions and
concessions do not end the inquiry in this case and dictate the outcome.

{69} “Discriminatory intent is simply not amenable to calibration. It either is a factor that
has influenced the legislative choice or it is not.” Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 277 (1979). It “implies more than intent as volition or intent as awareness of
consequences.” Id. “It implies that the decisionmaker . . . selected or reaffirmed a particular
course of action at least in part because of, not merely in spite of, its adverse effects upon
an identifiable group.” Id. (internal quotation marks omitted).

{70} Respondents have not established that Article XII, Section 3 was the product of
impermissible, discriminatory motives, and the majority appears to recognize this. All that
has been established is that Article XII, Section 3 is guilty by association. See Maj. Op. ¶
43 (“Even though it appears that the people of New Mexico intended for Article XII, Section
3 to be a religiously neutral provision, the history of the federal Blaine amendment and the

                                              23
New Mexico Enabling Act lead us to conclude that anti-Catholic sentiment tainted its
adoption.” (emphasis added)). But this is insufficient and does not amount to discriminatory
intent or purpose as the United States Supreme Court has defined this concept.

{71} Moreover, the claim of guilt by association here is doubtful as the history associated
with the Blaine Amendment and Enabling Act are unclear at best. We are left wondering:
With what, exactly, is Article XII, Section 3 guilty of associating? More critically, “[p]ast
discrimination cannot, in the manner of original sin, condemn governmental action that is
not itself unlawful.” See Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018) (internal quotation
marks and citation omitted). The drafters of our constitution took affirmative measures to
avoid becoming ensnared by the nativist discrimination—to whatever extent it existed—in
the Blaine Amendment and Enabling Act. We should not ignore these efforts and condemn
the drafters to be forever and inescapably associated with a viewpoint the majority
acknowledges the drafters of Article XII, Section 3 did not embrace.

{72} Moses II’s conclusion that the plain language of Article XII, Section 3 prohibits the
state from loaning textbooks to children enrolled in private schools does not run afoul of the
principles articulated in Trinity Lutheran. There is insufficient evidence Article XII, Section
3 stems from discriminatory motives. Respondent and Intervenor’s renewed free-exercise
claims fail. The majority disagrees and embraces a construction of Article XII, Section 3
that is inconsistent with the provision’s plain language and permits the state to loan secular
textbooks to private school students, including religious students. See Maj. Op. ¶ 46. They
do so to “avoid constitutional concerns,” but these are concerns that do not exist. Id.

{73} Because the conclusions in Moses II survive Trinity Lutheran and because the IML
violates Article XII, Section 3, there is no need to address whether the IML also violates
Article IV, Section 31 or Article IX, Section 14 of our state constitution. See Baca v. N.M.
Dep’t of Pub. Safety, 2002-NMSC-017, ¶ 12, 132 N.M. 282, 47 P.3d 441 (noting that courts
exercise judicial restraint by deciding cases on the narrowest possible grounds and avoid
reaching unnecessary constitutional issues).

{74} The majority does not address Respondent and Intervenor’s arguments that
interpreting Article XII, Section 3 to preclude the provision of books to private schools gives
rise to a violation of our state constitution’s equal protection clause. The majority need not
do so given their resolution of this matter. See Maj. Op. ¶ 52. Because I resolve this case
differently, I address these claims.

{75} The argument presented is that providing books to public school students but not to
private school students treats two classes of similarly-situated students differently. Public
school students will receive books, private school students will not. This disparate treatment
is a violation of equal protection, or so it is argued.

{76} “The New Mexico Constitution provides that no person shall be denied equal
protection of the laws.” Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 21, 137 N.M.

                                              24
734, 114 P.3d 1050 (citing N.M. Const. art. II, § 18). “Like its federal equivalent, this is
essentially a mandate that similarly situated individuals be treated alike, absent a sufficient
reason to justify the disparate treatment.” Id. “What level of scrutiny we use depends on
the nature and importance of the individual interests asserted and the classifications created
by the statute.” Id. ¶ 12. “Rational basis review applies to general social and economic
legislation that does not affect a fundamental or important constitutional right or a suspect
or sensitive class.” Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 11, 138 N.M. 331, 120
P.3d 413. “Under rational basis review, the challenger must demonstrate that the legislation
is not rationally related to a legitimate government purpose.” Rodriguez v. Brand W. Dairy,
2016-NMSC-029, ¶ 23, 378 P.3d 13. It is conceded that rational basis review applies to the
equal-protection argument presented.

{77} The decision by the drafters of our state constitution that state largesse be directed
to the public schools alone, and not to private schools, is rationally supported by the
legitimate principle that doing so ensures that the public schools of our state are maximally
financed, a circumstance necessary to ensure that “[a] uniform system of free public schools
sufficient for the education of, and open to, all the children of school age in the state shall
be established and maintained.” N.M. Const. art. XII, § 1. “It has never been held that if
private schools are not given some share of public funds allocated for education that such
schools are isolated into a classification violative of the Equal Protection Clause.” Norwood
v. Harrison, 413 U.S. 455, 462 (1973).

{78} Trinity Lutheran does not require us to abandon the conclusion reached in Moses II
that Article XII, Section 3 precludes the provision of school books to private schools under
the IML. The state-constitution, equal-protection claims advanced by Respondent fails.

{79}   Accordingly, I respectfully dissent.

                                               ____________________________________
                                                JUDITH K. NAKAMURA, Chief Justice

I CONCUR:

___________________________________
GARY L. CLINGMAN, Justice




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