Eugene, I don’t think your EITC example does the work you want it to do. Specifically, I’d dispute your assertion that it’s a salary supplement. It’s not. It’s a social safety net payment, only (for various political reasons) the amount is tied into an individual’s earning income.
Certainly the EITC provides a refundable credit to ministers whose earnings fall within a particular range, but it provides that benefit to anybody whose earnings fall within the relevant range. But it’s not meant to supplement salary; rather, it’s intended to provide some minimum standard of living, I mean, if you really want to, you can argue that it economically functions to allow employers to underpay their employees. But in that regard, the EITC doesn’t function any differently than Medicaid and TANF and Section 8 vouchers and any other welfare program. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, May 09, 2016 4:39 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use? Eugene: Can you offer more details about who gets the EITC and when? In any event, given that it's a tax credit (and for individuals, at that), I assume that it does not entail the government sending a check to a church. Rightly or wrongly, the Court has always treated tax benefits different from direct funding for purposes of the EC. See Walz, Mueller, etc. Moreover, it's not only the Court that has drawn that distinction; history has, too: Whereas more than half the states have constitutional provisions prohibiting the expenditure of appropriated funds to churches, I'm not aware of any such tradition prohibiting tax benefits to religion, and it wouldn't surprise me if many states have provided such credits/deductions/etc., even while prohibiting direct funding. Even if the EC would not prohibit the particular grant to a church at issue in TLC--say, because of an unusual set of conditions applicable to that grant program--the principal question in the case would remain, namely, whether the longstanding, bright-line state constitutional provisions in question are unconstitutional, either on facially or "as applied" to any cases in which the EC would not itself prohibit the funding to churches. On Sun, May 8, 2016 at 9:24 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Well, let’s test that principle against paying the salaries of clergy in private faith communities, when it comes to an equal-treatment system. I posted about this in January, but I don’t think there were any reactions to it: It turns out that the government actually does offer salary supplements for ministers, alongside other employees who earn under a threshold amount, via the Earned Income Tax Credit. For instance, if a minister is a head of household, has two children, and earns $20,000 (think some assistant pastor, perhaps part-time, at some poor church), he will get a substantial net payment from the government. That's taxpayer money going to subsidize ministers (again, alongside the other earners in the same boat). Does this violate the Establishment Clause, on the grounds that the government is paying part of a clergy member’s salary? Note that this isn't a program that's available to everyone, the way police or fire protection is: it's only available to a minority of taxpayers. Unconstitutional? As to the possibility of sect discrimination in Trinity Lutheran, it seems extremely remote to me – as we’ve discussed on the list, the program there (like the Earned Income Tax Credit) relies on objective factors. Eugene Chip Lupu writes: Equality cannot be the only prism for measuring Religion Clause norms. Non-establishment does at times mandate different treatment -- favorable to religion in the context of the ministerial exception, and unfavorable in the context of public school sponsored speech. A public school may sponsor a morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, the Lord's Prayer, etc. Whether government funding should be seen the same way as state sponsored speech is a question, and "equal treatment is not establishment" cannot be the simple answer. We have a deep and abiding constitutional principle that the government may not pay to build houses of worship or to pay the salaries of clergy in private faith communities. So if a state sets up a direct funding program to help build structures for valuable community institutions, longstanding principles would say the program can help pay to build an art museum or musical venue, but cannot offer money to build a church, mosque, or synagogue. I understand that we can always debate whether to maintain that settlement. And the Trinity Lutheran Church case, involving grants for safe surfaces in playgrounds, hardly tests the core of it -- rather, it tests whether the states can expand the periphery of that no funding principle. The rationale for the principle -- fear of sect discrimination; fear of government control over the subsidized church; fear over politicization of the church's teachings so as to curry favor with appropriators; fear of rivalry among sects for public resources -- may or may not be implicated in a given case. The grant system for safe surfaces in playgrounds in Missouri at least touches on the possibility of sect discrimination -- would mosques be treated equally with popular Protestant denominations? If we fear otherwise, should we have a prophylactic anti-funding rule, or just closely monitor for sect discrimination? These are subtle questions, not answered adequately by claims for formal equality. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
