1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: December 13, 2018 4 NO. S-1-SC-34974 5 CATHY MOSES AND PAUL F. 6 WEINBAUM, 7 Plaintiffs-Petitioners, 8 v. 9 CHRISTOPHER RUSZKOWSKI, 10 Secretary of Education, New Mexico 11 Public Education Department, 12 Defendant-Respondent, 13 and 14 ALBUQUERQUE ACADEMY, et al., 15 Defendants/Intervenors-Respondents. 16 ORIGINAL PROCEEDING ON CERTIORARI 17 Sarah M. Singleton, District Judge 18 Graeser & McQueen, LLC 19 Christopher L. Graeser 20 Santa Fe, NM 21 Frank Susman 1 Santa Fe, NM 2 for Petitioners 3 New Mexico Public Education Department 4 Dawn E. Mastalir, General Counsel 5 Santa Fe, NM 6 Sutin, Thayer & Browne, P.C. 7 Susan M. Hapka 8 Albuquerque, NM 9 for Respondent 10 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 11 Rufus E. Thompson 12 Jennifer G. Anderson 13 Sarah M. Stevenson 14 Albuquerque, NM 15 The Becket Fund for Religious Liberty 16 Eric S. Baxter 17 Washington, DC 18 for Intervenors-Respondents 1 OPINION 2 VIGIL, Justice. 3 {1} In this opinion we reconsider the constitutionality of New Mexico’s textbook 4 loan program. In Moses v. Skandera (Moses II), this Court considered whether using 5 public funds to lend textbooks to private school students violated Article XII, Section 6 3 support of any sectarian, denominational or private school, college or university.” 7 2015-NMSC-036, 367 P.3d 838, vacated sub nom., N.M. Ass’n of Non-public Sch. v. 8 Moses, 137 S. Ct. 2325 (2017) (mem.). This Court held “that the plain meaning and 9 history of Article XII, Section 3 forbids the provision of books for use by students 10 attending private schools, whether such schools are secular or sectarian.” Moses II, 11 2015-NMSC-036, ¶ 2. The United States Supreme Court subsequently vacated this 12 Court’s judgment and remanded the case for further consideration in light of Trinity 13 Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017). 14 N.M. Ass’n of Non-public Sch.,137 S. Ct. 2325. 15 {2} On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment 17 to the United States Constitution. To avoid constitutional concerns, we hold that the 18 textbook loan program, which provides a generally available public benefit to 19 students, does not result in the use of public funds in support of private schools as 1 prohibited by Article XII, Section 3. We also hold that the textbook loan program is 2 consistent with Article IV, Section 31 of the New Mexico Constitution, which 3 addresses appropriations for educational purposes, and Article IX, Section 14 of the 4 New Mexico Constitution, which limits “any donation to or in aid of any person, 5 association or public or private corporation.” 6 I. BACKGROUND 7 {3} Cathy Moses and Paul F. Weinbaum (Petitioners) initiated this case by filing 8 a complaint for declaratory judgment against Hanna Skandera, the Secretary of the 9 ...
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