Dahlia Lithwick has this on the Hosanna-Tabor case that’s before the Supreme Court right now. The essence of the case—to put it somewhat critically—is whether a religious organization can exempt itself from the employment laws by designating employees as ministers and thus placing them in the ministerial exception to those laws. (That’s the well-established and perfectly sensible rule that courts can’t interfere in hire-and-fire decisions relating to clerical personnel, for the obvious reason that that would place government in the position of telling a religious body—at the request of a third party—who its ministers shall be, something that violates the First Amendment more plainly than just about anything else imaginable.) Take a few minutes and read Dahlia’s piece before continuing; she’ll get you up to speed.

Back? Good. What perplexed me as I read the briefs in this case is that because of limits on what courts may properly do, the case will be decided on murky grounds: Haggling over who is or isn't a minister and who gets to decide. As Dahlia recounts—vividly as ever—the court is baffled. For the record, the answer can only be that the church gets to decide who is a minister—otherwise government can simply give an extremely restrictive interpretation of “minister” and get into the afore-mentioned business of reappointing clerics—but that's not the point I want to focus on. The only reason we're stuck trying to parse the ministerial exception question is because we instinctively know that Hosanna-Tabor did nothing wrong and broadly construing the ministerial exception is the only way we can let them off the hook. And it shouldn't be.

And this is where we arrive at a perspective problem. It sometimes seems to me that liberals are apt to mistakenly think that the purpose of employers is to provide a service to their employees rather than the other way around: Labor is a commodity obtained by people and entities for the purpose of carrying out whatever activity the person or entity does. (That, by the way, is why trade unions are a sub rosa antitrust problem: They are a cartelization of the labor market.) The plaintiff was hired to do a job; she was no longer able to do it. How, then, is it rational to say that a small school, which exists to teach, must subsidize a nominal teacher and hire someone to actually teach her class, despite lacking any reasonable ability to do so?

Let's review: The plaintiff, Perich, was a teacher at a small parochial Lutheran school . She was diagnosed with narcolepsy, and (as the petitioner's brief puts it) "[b]ecause of the school’s small staff and limited budget, Perich’s absence created immediate difficulties. For a full semester, the school attempted to preserve a job for Perich by combining three grades into a single classroom. But parents"—quite reasonably!—"complained about that arrangement. Finally, in January 2005, seven months after Perich fell ill, the school hired a replacement for the spring semester." Perich resisted, the church removed her, and litigation ensued. Was that illegal? I don't know. The court may tell us in this case. But it certainly wasn't wrong. To see why, try an exercise in empathy: Don't put yourself into the plaintiff's shoes (the tool used by a sympathetic media to pick your side for you), but those of the parents. And imagine that the world is inside out: Imagine that public schools have been captured by conservatives, and they’re inculcating Christian conservative values. You feel that this is dead wrong, so you send your kid to a small independent liberal school that teaches the values you think are right with a much better kid to teacher ratio. You’re paying real money for this, because you think it’s best for your child. And the school says one day “you know, we’re going to combine two classes, because one of our teachers is on long-term medical leave. The alternative is that we’ll have to increase your tuition to cover both the nominal teacher and the substitute.” Would you honestly accept any of that? I doubt it. You’d ask why the school doesn’t just fire the teacher who isn’t doing her job, because the first concern of any parent is their child’s education; the school’s function is to accomplish that, not to transfer money from anxious parents to people who aren’t working there. Or imagine that you are a small environmental lobbying company doing important work, and your company administrative assistant gets sick! You were barely keeping your head above water before—these are tough economic times—and now you have to pay her and pay someone else to do her job?

So the problem is that the ADA treats Hosanna-Tabor the same way it treats GM, and that’s stupid. (Stipulating, for the time being, that such laws are rational when applied to GM.) Not every entity that employs is big enough to indulge the Periches of the world, no matter how much it might like to, no matter how little intent they had to discriminate. (The idea that this case involves invidious discrimination is just laughable, and quite frankly, the idea that it involves discrimination at all—cf. Black's 8th at 500—is puzzling, which makes this case even more absurd: We're fighting over the standards of summary judgment in a case that shouldn't even exist!) Oh, yes ADA excludes truly tiny entities from its reach (see 42 U.S.C. § 12111(5)(A) ("The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year")), but where do you draw the line? How big must a company be before we can say that an employee is fungible?

No abstract theory can supply an adequate answer to that. I suggest that the answer is to refuse to play the quantitative game (or to game the ministerial exception), and instead, recognizing that what the law appears to ask entities like Hosanna-Tabor to do is insane, declare that laws like ADA only apply to the extent that they don’t impose an unreasonable burden on employers. We're here today talking about this case only because courts shouldn't create the kind of exception I've mentioned and Congress won't.

It will no doubt be answered by the left that this would make the protections of the law turn on the size of the company you work for, and that's true, but I don't find that persuasive since the choice of employer is in the discretion of private parties in the market, not a single governmental decisionmaker. And it will no doubt be answered by a few on the right that it confers too much discretion on judges, but I don’t find that persuasive either since case-by-case questions demand case-by-case answers and only judges are situated to do that.

Steve Jobs has died. We have lost an icon today. RIP.

"...and approved by the Justice Department, torture is prohibited by the Geneva Conventions and by a Senate resolution that passed 90-6."

Exactly.

The Obama Administration has some really smart people working in it. They're having a great deal of trouble figuring out how to fix the economy (for various reasons), but I can safely say that most of the people in Obama's team are reasonably intelligent. Smart people make stupid mistakes, and this crew has made some dumb PR moves before. Honestly though, if I didn't already know better, I'd swear this was a parody, or something Scrappleface had come up with. Surely no one actually invested in maintaining the Obama Administration's public image could've greenlighted this blunder. No one sober, anyway.

But alas, they did.

Now, Obama's harshest critics need no impetus to dream fever dreams of totalitarianism, and any clear-headed person ought to see that this is really a badly executed campaign operation, in the vein of FightTheSmears.com, and that health care debate initiative they did last year. The thing is, there is a substantive problem with this--it reflects an image of weakness and almost Nixonian paranoia. It's bad in the way the mini-war with Fox was bad--it elevates the critics you're trying to challenge, it makes the President look small, and the perception of the head of the government either waging war with the media, or encouraging citizens to report other citizens for criticism of the government's policies is not a good look.

A big deal in the grand scheme? No, but it's a potential distraction the White House doesn't need, and more importantly, a very ineffective way of performing the real and necessary function of setting the record straight policy-wise.

Farhad Manjoo laments Netflix's decision to change their billing structure, and to split in two. I think he's overreacting a bit, but he has a point: I dig the idea to separate the streaming service from the DVD service, but to split into two companies seems hasty. I may be one of the few people who appreciated Netflix's original idea to have a streaming only service under the Netflix banner. 99.9 percent of my Netflix use over the past three years has been the streaming service, via my PS3 and iPad. I have nothing but love for the streaming service. I haven't rented a DVD in five months, the primary reason being that new releases have a month delay before they hit Netflix. I also have Blu-ray, and the idea of paying extra for Blu-ray bugs me. So, going from ten bucks to eight bucks for unlimited streaming is good for me...but that's just me.

A lot of customers, who do in fact rent DVDs, were hit pretty hard with the price change. If your aim to is have both DVDs and streaming, the cost has gone up, and now you're going to have to exert more effort to get what you want. It's a problem, although as Manjoo points out, there may be a bright side. I think more competition in the game rental front is good.

Any thoughts?

"...of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

It's late, but it's still Constitution Day today. Read and reflect.

Pretty much what she said.

As most of you know, our little gang here found each other first at the old Centerfield blog site, started by the Centrist Coalition. The creators of that site wound up letting it go defunct, essentially, and the pages got filled up with spam and malware links. Last year, when the creator who had been paying the hosting fees decided he had to cut back expenses, I agreed to pick up the tab for awhile to keep the site up. I had hoped to have time to clean it up, purge the spam links, and upgrade the blogging software, or at least archive it all somewhere. A lot of us wrote some pretty good stuff on it, back in the day, in posts or comments.

At any rate, as a result of my news, I must myself cut back some financial commitments, and can't keep paying the $24 per month hosting fee. Before I cut it off, I wanted to let all of you know, and let anybody who is interested have an opportunity to take over the account. It'll be a shame to see the site disappear.

Hi, everybody! If you're wondering why I've been even more out of sight than ordinary the past few weeks, it's because... I'm getting married! Yep, I finally found somebody whacky enough to put up with me. Very soon now, I'll be a proud husband to a wonderful woman and step-father to a great 12-year old, and step-petter to a not-too-hyperactive Golden Retriever. The whole crew is moving into my house, so there have been a lot of adjustments (all wonderful) going on in my life.

I'm sure I will soon return to my only regularly lackadaisical mode from the extreme lackadaisical mode I have been practicing the past month or so.

Four days ago, last Thursday, the President made some demands of Congress:

I am sending this Congress a plan that you should pass right away.
. . . .
You should pass this jobs plan right away.

Pass this jobs bill — pass this jobs bill, and starting tomorrow, small businesses will get a tax cut if they hire new workers or if they raise workers’ wages. ... You should pass it right away.
. . . .
You should pass it right away.
. . . .
And in this time of prolonged hardship, you should pass it again -- right away.
. . . .
Regardless of the arguments we’ve had in the past, regardless of the arguments we will have in the future, this plan is the right thing to do right now. You should pass it.

Etc. ad nauseum. You get the idea. Anyway, today, four days later, he says that he'll send them the bill tonight.

Ten years later, we never forget.

Wait, what? Time says that a "constitutional error recently discovered shows that North Dakota has never technically fit the requirements for statehood [because of] … the state constitution's omission in requiring the governor and other top officials to take an oath of office. In failing to require these oaths, North Dakota's constitution is at odds with federal requirements established by Article VI of the U.S. Constitution, therefore making statehood illegitimate."

Wait, what? If I'm understanding correctly, the argument is that if North Dakota's constitution doesn't require an oath, therefore its statehood is illegitimate. How does that follow? Yes, Article VI requires that "Officers … of the several States[] shall be bound by Oath or Affirmation, to support [the Federal] Constitution," but how do you get from there to "a state that doesn't oblige its officers to take said oath is not a valid member of the Union"? That makes no sense.

Hilarious.

In another place, an objection is raised to the exclusion of fringe-of-the-fringe candidate Fred Karger from the GOP debates. The question isn't why he's out, in my view, but why others are in.

I've said this several times over the last few years, but I think it's important enough to say it again. In 2007, I argued that the 2008 primary should be wide open; we should have a nice robust field with all major sections of the party represented. I was wrong, and foolish; I have recanted. (See, e.g., tthis.) What I failed to take into account is that there are significant downsides to expanding the field, particularly in regard to debates. It should be obvious that since debates have limited time, the more candidates there are, the less time each will have to speak. And that's a problem, as I shall explain.

Some people say that if you don't allow minor candidates into the debates, how will they get a chance to shine? I answer that the argument sounds rather like people who post their band on Wikipedia and fight the inevitable deletion for want of notability on the grounds that the band will become notable through the exposure gained by their wikipedia entry. It's much the same here: The argument mistakes the purpose of a primary. If you haven't shone brightly enough to be a serious candidate before the primary, you have no place in it. The purpose of a primary isn't to have a conversation about the direction of the party, or to make people feel included, and so on. It isn't to let hidden gems shine, as I've just said. The process' purpose is simple and specific: To pick the party's nominee. Nothing more.

So that's the standard against which any given component of the process must be judged: That which makes the process more efficient is good and that which makes it less efficient is maladaptive. Sucking resources away from—and reducing the practical scrutiny on—the leading candidates, which is the net effect of including minor candidates. Including candidates who have zero chance of winning the nomination in debates reduces the time for meaningful answers by the candidates who do; it is of no relevance what Ron Paul thinks about bombing Iran, but it is of immense importance what Mitt Romney and Rick Perry think about it, since one of them may be the next President, and it is not a worthwhile tradeoff to give Paul a minute on the spotlight at the expense of losing a minute in which Perry can be pressed. If you want a soapbox, get a youtube account.

That's why no-hopers like Gary Johnson, Thad McCotter, and Andy Martin aren't allowed in and why no-hopers like Ron Paul, Rick Santorum, and Herman Cain shouldn't be allowed in.The same held true in 2008: There was simply no reason for the Democratic parimary to be clogged up with people like Joe Biden, Chris Dodd, or Mike Gravel. I do not say, of course, that but for their presence the Dems might have nominated Hillary (as a large number of Democrats from the party's left and right alike now seem to acknowledge they should have), but I do think that reduced scrutiny of the leading candidates was a problem, and extra candidates didn't help.

The threshold ought to be something realistic—I hate to put a number on it, but 15% sounds like a good place to open the bidding.

Yeah. Makes sense to me. Seems we ought to nip this practice (to the extent that it is a practice) in the bud, before things start to get real messy. I'm not an expert on the specific details, and it does seem clear that the intent was to approve the signature, but there is the "shall be presented" clause. Could you argue that presenting over the phone is sufficient? Any thoughts?

On a side note, this does seem to be one of those issues tailor-made for Obama's critics to freak out over, and yet could've been so easily avoided, by simply waiting a few more days.

ADDED: Or maybe not.

That's the punchline to this by Mark Stein, which I commend to you and largely agree with. I would back off a little from Stein's position insofar as I recognize the necessity for the President to travel and the wisdom of doing to in a manner which allows him to function as the chief executive while doing so. Nevertheless, Presidents could travel less and with less. This is especially true when a President happens to believe—as this one does—that carbon poses a mortal threat to our civilization and demands a reduction in the everyone else's activities that might generate it.

Okay, let me preface this by saying that the chances of me casting a vote for Ron Paul are something below nil, and I don't agree with him on practically anything, but I find it real hard to disagree with this, from Jon Stewart:

I'll say again, I'm no fan of Ron Paul's views, but besides the fact that he really has been one of the most ideologically consistent candidates in thirty years (he has had basically one message, and as Stewart says, has been about "the small government grassroots business," since 1974), the fact is, he came in second at the straw poll. He has supporters. People who are outraged about Newsweek not giving Bachmann the treatment she deserves as a legitimate candidate, ought to be outraged about this also.

Now this isn't new, and as Dave Weigel points out, there is sort of a reason why Paul gets snubbed. Let's be honest--Ron Paul has no real shot at the nomination, but neither does Santorum, or Gingrich, or Huntsman, or even Herman Cain. Santorum did worse than Pawlenty, and Pawlenty's out. Huntsman earned less than a hundred votes. I get why Perry gets covered--he just got in, and is polling well, but why Santorum? Why Cain? Why Huntsman? If you're going to apply the "long shot" rule, apply it equally. This doesn't have to be hard--as long as you're an unbiased observer, just report the facts.

I'll say once more than this isn't any kind of endorsement of Paul--I disagree with with almost all his views, but there does seem to be an odd standard at work here.

"They were happy for me to die," she continued. "They were like animals - greedy, selfish animals who thought only of themselves."

HT: Althouse

Condolences to the family and friends of Judge Terry Evans, who will be greatly missed. To Judge Easterbrook's remarks, I would add only that his opinions were marked by exceptional lucidity and force of writing.

"… [and] that have worked rather well while the rest of the country has been going through some—most certainly the big states—pretty rough times":

don’t spend all the money. I mean, in Washington D.C. if you want to just get down to the pure epicenter, the nucleus of the problem in Washington D.C., is they’re spending too much money.

Have a tax structure that’s fair, and as low as you can have it, and still deliver the services that the people require.

Have a regulatory climate that is fair, predictable. Predictability is so important. Today in Washington D.C. the idea of predictability in the regulatory climate—it’s not there. That’s the reason there are so many people sitting on their money rather than investing it and taking the entrepreneurial risk.

Then obviously, the fourth is to have a legal system that doesn’t allow for over-suing.

And then government needs to step back and get out of the way. Stepping back and getting out of the way at the federal level is about allowing the states to compete against each other, the idea that Washington knows best how to educate our children, or knows best how to deliver health care our citizens, or for that matter knows best how to clean up the air.