The Ministerial Exception and Neutral Rules after Carson v. Makin

States like to give money to things. They like to fund schools, or recycling campaigns, or building repairs, or sports programs. And sometimes, religious entities are among organizations who conduct the program the state is funding -- they run the school, or the recycling campaign, or the the building, or the sports program. In such scenario, there are constitutionally-speaking three possibilities:

1. The state is prohibited from giving the money to the religious entity. Funding the religious organization is an Establishment Clause violation.
2. The state is required to give the money to the religious entity. Refusing to fund the religious organization, when other comparable organizations are funded, is a Free Exercise violation.
3. The state can choose whether to give the money to the religious entity. There is "play in the joints" between the Free Exercise and Establishment Clause issues, and states can choose how they want to resolve that tension.

Today, in Carson v. Makin, the Supreme Court took a big step towards Door #2. The Court struck down a Maine program which (for certain rural areas lacking public schools) funded private schools, but only if those schools are non-sectarian. If Maine is offering parents funds to send their kids to private schools generally, it cannot withhold those funds if the parents elect to send their children to a religious academy. Religious schools must be eligible for generally-available funding on the same basis as any other "comparable" private school.

In making this ruling, the Court distinguished (and significantly narrowed) an older case, Locke v. Davey, where the Court upheld a program which excluded ministerial training from an otherwise generally available scholarship program. The Carson Court said Locke was limited only to circumstances where the school was specifically training ministers; not "religious education" more broadly.

This got me thinking, however, about what options are still available to a state like Maine which is perhaps leery about sending its tax dollars to directly support religious education. Carson does not directly say "states must fund religious education" after all. It merely says that states must allow religious schools to obtain funding when they would otherwise be eligible based on the general criteria the state uses for assigning funds.

So imagine the following rule: "No school shall be funded unless each of its employees is fully subject to anti-discrimination rules." The state, it is fair to say, has a strong interest in ensuring that the subjects of its funding abide by and are protected by anti-discrimination rules. Still, anti-discrimination law contains certain exemptions, one of which is known as the "ministerial exemption" -- ministers are not subject to anti-discrimination protections. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court expanded who counts as a minister beyond the proverbial priest or Rabbi to include many teachers at religious institutions -- these teachers now cannot sue if they are the victims of discriminatory conduct. Religious schools are relatively likely to have such "ministers" on the payroll, so they would run afoul of the neutral rule, and would not be eligible for state funding.

Whether this gambit will work depends a lot on how it is phrased and the degree to which courts are willing to accept it as a neutral rule (which, in turn, may relate to whether there are other schools whose eligibility for state funds would be limited by the rule for reasons having nothing to do with religion). But -- on about an hour's worth of thought -- it seems like a plausible argument.

Maine Governor: My Statement that Drug Traffickers Named "D-Money" are Impregnating "Young, White Girls" Was Not About Race

I think we just hit peak post-racial, everybody:

Maine Republican Gov. Paul LePage told a town hall audience on Wednesday that heroin use is resulting in white women being impregnated by out-of-state drug dealers named "D-Money."

LePage was asked by an attendee what he was doing to curb the heroin epidemic in his state. "The traffickers—these aren't people that take drugs," he explained. "These are guys with that are named D-Money, Smoothie, Shifty, these types of guys, that come from Connecticut and New York, they come up here, they sell their heroin, then they go back home. Incidentally, half the time they impregnate a young, white girl before they leave, which is a real sad thing because then we have another issue we that we've go to deal with down the road."

But if any of you thought that statements about "D-Money" "from New York" coming up to Maine to "impregnate a young, white girl" has anything to do with race, well, Governor LePage's spokesperson is here to clear that up.

Statement from @Governor_LePage spox, who says the governor wasn't discussing race. #mepolitics pic.twitter.com/gegStcmesA

— Michael Shepherd (@mikeshepherdME) January 7, 2016

Gosh, will people ever stop playing the race card? Anyway, I'm so glad that we avoided any ridiculous misinterpretations.

Weekend Roundup: 1/31/14

Very busy at work right now. But I have a vacation coming up in a week. These two statements are not unrelated.

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A fascinating peek at Utah's efforts to reform police raids.

The White House has announced it is looking to provide clemency to low-level drug offenders convicted in the days of overly-harsh mandatory minimums. Reason Magazine wonders if he's serious (both links via Radley Balko).

Maine Supreme Court rules that rules that banning a female transgender student from the girls' bathroom violates the state's anti-discrimination law.

Ken White at Popehat tackles people who compare critical speech to "lynch mobs", "the Holocaust", "witch hunts", and other like terms. Fair enough, but I again refer back to this post. "Bullying", for example, often includes physical intimidation, but just as regularly is "just" speech -- yet even Ken seems to recognize that this legitimately seriously harmful in a way that he dismisses in other contexts.

Meanwhile, Jon Chait tackles the ludicrous opinion of the Wall Street Journal that maybe rich people really are at risk of a Holocaust-style wave of terror. Kevin Drum takes a closer look at why -- against all evidence -- the rich "feel" besieged.

The 47%, Redux

Maine Governor Paul LePage (R) takes a page out of Mitt Romney's book (via):

Maine Gov. Paul LePage (R) took a page from the Mitt Romney playbook when he told a conservative audience at an event last week that 47 percent of able-bodied people in the state don't work, the Bangor Daily News reported Tuesday.

[...]

"Number two, when you talk about workforce development, it really means that the people that -- about 47 percent of able-bodied people in the state of Maine don't work," LePage said. A woman can then be heard on the recording reacting to that figure, to which LePage reiterated "About 47 percent. It's really bad."

Politifact rates this statement "mostly true" because the real figure undoubtedly contains two digits followed by a percent symbol.

Maine Gov. LePage Calls IRS "Gestapo" -- Twice

I had vaguely heard of this before reading LePage had apologized, but I didn't really look into the specifics -- I just figured it was yet another case of embarrassingly overheated Tea Party rhetoric. But The Forward's more comprehensive coverage manages to shock even me.

Generally, casual Nazi references are done pretty thoughtlessly -- the speaker tends not to flesh things out too much because doing so would pretty rapidly demonstrate the absurdity (and moral depravity) of the comparison. But LePage was hardly being casual or off-the-cuff -- here are his remarks to a Vermont alternative paper after the original firestorm from the first time he called the IRS the Gestapo:

“What I am trying to say is the Holocaust was a horrific crime against humanity and, frankly, I would never want to see that repeated. Maybe the IRS is not quite as bad - yet,” LePage said.

Asked if the IRS was headed in that direction, LePage responded, “They’re headed in that direction.”

Asked if he knew what Adolf Hitler’s secret police did during World War Two, including the imprisonment and murder of millions of Jews, LePage said, “Yeah, they killed a lot of people.” Asked whether the IRS “was headed in the direction of killing a lot of people,” LePage answered: “Yeah.”

If I can have a moment of levity before I return to outrage -- "frankly", the Governor doesn't want the Holocaust to repeat itself? Why thank you -- I'm so glad you can be frank with us. It's so rare to have someone willing to boldly stand up for unpopular positions like "I don't want mass genocides to reoccur."

But anyway, Gov. LePage makes it very clear that when he is talking about the IRS-as-Gestapo, he is talking about mass slaughter, and that he does think that the IRS is "headed in that direction". The warrant for that is, naturally, the ACA -- I wouldn't say I was joking when I called the GOP's perspective on the ACA "taxing the rich to exterminate the poor", but I didn't expect a state governor to come out and say it so directly.

Technical Error Roundup

This one might be a bit more haphazard than most, as it incorporates some election night celebration. As for the title, my laptop had its hard drive replaced, and in the middle of doing so my wireless card somehow snapped. So that has to get fixed too.

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My comment to this post set of a twitter war between myself and the Republican Jewish Committee, centered around my observation that if disliking Bibi means hating Israel, then disliking Obama means hating America. Why do Republicans hate America so much, anyway?

Occupy movement inspires unions to get bolder.

Andre Berto is dropping his belt to pursue a rematch against Victor Ortiz, which may pave the way for a match between Randall Bailey (42-7, 36 KOs) and Carson Jones (32-8-2, 22 KOs) to claim the vacant belt. I like both guys, but I'm a particularly fervent Jones fan, so I approve. Bailey is average at best in all dimensions of the sport save one: concussive, brutal, devastating, one-punch power. So it should be good.

Though Blacks are far more likely to be imprisoned for it, it's White kids who actually are more likely to use drugs.

Mostly a good election night for Team Blue: Maine voters reinstated same-day voter registration, Ohio voters tossed Gov. John Kasich's (R) anti-union law, Mississippi(!) voters decisively rejected a "personhood amendment" that would declare life begins at conception, and won massive victories in most Kentucky statewide races as well as an Iowa State Senate election that preserves their control of the chamber. Also, one of the chief xenophobes in the Arizona State Senate, Senate President Russell Pearce, was successfully recalled by another (more moderate) Republican.

On the negative side, the Virginia state Senate will likely flip by an agonizingly small margin (86 votes in the pivotal race) and Mississippi approved a voter ID law (and elected a new GOP governor -- no shock there).

UPDATE: Another bit of good news: Dems have retaken the Wake County (NC) school board. That's a big deal: Wake County had been one of integration's few true success stories, and the GOP board that swept to power last cycle was looking to undo that.

The Futile Symposium Roundup

Tomorrow is going to be a hilarious meeting.

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The tea-baggers have taken Maine.

Ta-Nehisi Coates on what other people can supposedly say.

The emergent attack on Elena Kagan is that she's too tough on slavery.

...Well, that, and that she's fat.

Something different: A radio debate where the liberal opposes Kagan and the conservative supports her.

Medical marijuana stores firebombed in Montana.

Friendly fire costs a Democratic seat in Hawaii: The DCCC is pulling out since the two Democratic candidates are going to split the vote and let a GOPer slip through the middle.

Maine, Stay!

Maine becomes the latest victim of the Mauve Hand's march through New England, as Gov. John Baldacci (D) signed a bill legalizing gay marriage. But, as always seems to be the case, the fight isn't over yet: If opponents can get 55,000 signatures, they can "suspend" the law until a referendum can be held.

I doubt we'll be able to keep it off the ballot, but maybe this time we can win the ensuing vote.