1. The EITC
(https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit)
is available to people who earn income, but less than a threshold – a very low
threshold if they have no children ($14,820 for single filers), a higher one if
they have children ($39,131 for single parents of one child, see
https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
for more details). Someone with $20,000 in income, no spouse, and one child
living at home will get about $3,000.
2. I think this is indeed a salary supplement – it supplements
income, and is unavailable if there is no earned income. If my hypothetical
poor minister didn’t have earnings at all, he wouldn’t get the EITC. It is
indeed available to employees generally, not just to ministers, which is
precisely why I’m using this here: It’s an example of a salary supplement
available on an equal basis.
3. I gave this as a response to Chip’s view argument that there
is “a deep and abiding constitutional principle that the government may not ...
pay the salaries of clergy in private faith communities”; that argument, I
assume didn’t turn on whether the check is sent to a church or to the clergy
member. The EITC example, I think, helps show that this “principle” shouldn’t
apply to programs where the clergy get a salary supplement because they are
earners generally, rather than because they are members of the clergy.
But if you want an example of the government sending a check to
a church, let me return to the Oklahoma City example, which I think I’ve
mentioned in the past. Following the Oklahoma City bombing, Congress provided
funding to help nonprofit organizations rebuild from the blast. A church
located near the bombed federal building sought “$12,000 from the Federal
Emergency Management Agency to cover uninsured damages caused after the blast,
when rescuers placed bloody bodies on the carpeted church floor and pitched
tents in its newly resurfaced parking lot.” FEMA at first “refused by saying
the aid would violate the constitutional separation of church and state,” but
later changed its mind under pressure from members of the Oklahoma
Congressional delegation. Laura Vozzella, Aftermath Gives New Confidence to
Oklahomans, J. Rec. (Okla. City), Apr. 19, 1996.
Was the check that FEMA ultimately sent an Establishment Clause violation? If
the government gives funds for all property owners to rebuild following a
terrorist attack, a hurricane, or whatever else, is the government obligated to
exclude churches, on the ground that “We have a deep and abiding constitutional
principle that the government may not pay to build houses of worship”? What if
the government gives funds for altering buildings to withstand earthquakes, and
thus potentially saving lives of those in the buildings; would the government
have to exclude churches? Chip’s theory suggests that indeed the government
has to leave the people who visit churches unprotected, even as it’s protecting
everyone else. That doesn’t seem right to me.
Eugene
Marty Lederman writes:
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.
Samuel Brunson writes:
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.
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.
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