Catholic Charities performs religious works, according to a unanimous Supreme Court decision in Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission.
Was that really so hard? Apparently not. Per Justice Sonia Sotomayor, author of the majority opinion, “There may be hard calls to make” where the free exercise of religion is concerned, “but this is not one.”
It took the Court less than two months to reach that unanimous decision, practically warp-speed as these matters go.
Still, it begs the question: With all the truly difficult questions roiling our courts, why was it necessary to make a federal case out of a matter obvious to any layman? There are a few possible reasons.
First, though, a brief background on the case.
Wisconsin requires employers to contribute to the state’s unemployment compensation program, but it exempts all sorts of entities, including those operated primarily for religious purposes. Catholic Charities Bureau, the petitioner in the case, is an entity founded and controlled by the Roman Catholic Diocese of Superior, Wisconsin, to “carry on the redeeming work of our Lord” by ministering to the local communities within that diocese.
Nevertheless, Wisconsin’s Labor and Industry Review Commission concluded that the organization did not qualify for a religious exemption because it works were primarily secular. The Commission so concluded because Catholic Charities ministered to non-Catholics and did not require them to hear or read Catholic teachings to receive services.
After ping-ponging through the state system, the Wisconsin Supreme Court upheld the Commission’s determination. Blinding itself to Catholic Charities’ self-evident religious character, the court decided that the need to make the unemployment exemption scheme workable endowed it with authority to define religion according to its own judgment.
A majority of the court concluded that secular organizations perform the same sorts of charitable work and that, in the absence of stereotypically religious behavior like preaching, the state was not obliged to treat Catholic Charities as religious.
One reason the Supreme Court might have agreed to hear the case is that it might have thought the case presented a harder question. The Beckett Fund, which ably represented Catholic Charities, framed the matter primarily in terms of the church autonomy doctrine, which holds that the First Amendment prevents governments from interfering in matters of internal church organization. Wisconsin had violated that doctrine by using Catholic Charities’ distinct status from the diocese as a means of stripping its religious character. Had the diocese performed those same works directly, Wisconsin would have treated it as eligible for the same exemption.
A decision along these lines might have broken new ground in this area, granting religious organizations greater independence from government restraint.
Yet while the church autonomy argument had both force and appeal, by the time the case was presented for oral argument at the end of March, the justices hit on a more straightforward rationale for overturning Wisconsin’s decision: religious discrimination.
Despite the apparent diversity of reasons the state offered for its conclusion, questioning from the justices collapsed them into a single criterion: the requirement that organizations proselytize—try to convert non-believers—if they want to be considered religious by the state.
That’s the criterion Wisconsin’s supreme court used to convert a few ad-hoc musings on what religious organizations might do into a definition binding under state law.
That, however, was untenable as a legal rationale because not all faiths deem it necessary to preach to and convert nonbelievers. By making preaching a prerequisite for the exemption, Wisconsin discriminated against those religions that did not actively seek converts.
Technically, Wisconsin’s decision might have survived if its discrimination could be justified as a means narrowly tailored to a compelling state interest. But unsurprisingly, that was a burden Wisconsin could not meet.
Sotomayor rejected the asserted interest in funding the state’s unemployment program, noting that many other entities enjoyed exemptions without threatening the program’s solvency. And Catholic Charities, for its part, offered its own unemployment insurance.
The state’s putative interest in avoiding entanglement with religious questions fared even worse as a justification. The question of whether and in what circumstances believers should preach their faith is a quintessential question of religious doctrine.
Far from avoiding entanglement in religious and doctrinal questions, Wisconsin managed to back itself into deciding religious matters it was totally unequipped to resolve.
The concern for state entanglement with religion gestures at a broader reason the Court might have agreed to hear this case: the tension between a religiously neutral government versus a secular government. Wisconsin’s view fits in the latter category.
Sotomayor’s opinion states that the “First Amendment mandates government neutrality between religions.” That proposition is anodyne enough to garner the agreement of all her colleagues.
But it is a mistake, conceptual and legal, to assume that neutrality between religions requires the government to be secular. A government that is neutral adopts a posture of valueless non-judgment regarding religion. A government that is secular makes value judgments with the purpose of diminishing the role of religion in public life.
Wisconsin made such a judgment by determining that whenever socially beneficial activities, like those performed by Catholic Charities, can be understood as secular, then the state must understand them as secular. But the simple fact that a state might find it convenient to think in these terms does not mean that the Constitution permits it to do so.
Wisconsin also misunderstood Catholic Charities’ separate incorporation as a fact depriving it of ecclesial character. As Justice Thomas observes in his concurrence, such entities, “however incorporated,” remain religiously one with the church, holding their authority from a source outside of the state.
In an era when the commentariat brays about the Court’s internal divisions, it’s always heartening to see that common sense can unite all nine justices behind one result. Still, one can only draw so many conclusions from this opinion about the justices’ views on religion in public life.
That’s especially true when one considers Justice Ketanji Brown Jackson’s curious concurring opinion, which garnered no other votes. Jackson styles her effort as a defense of the federal analogue to Wisconsin’s tax law, the Federal Unemployment Tax Act. But her purpose appears to be preserving for the future an argument that she lost in this case.
The Federal Unemployment Tax Act has an identical religious purposes exemption to that in the Wisconsin statute. Jackson maintains that in applying the federal exemption, Congress intended for decisionmakers to consider only the activities of the entity seeking an exemption, not its religious motivations.
Given that view, it is a little difficult to understand why she joins the court’s opinion “in full.” She explains that in the Wisconsin case, there is no need to examine Catholic Charities’ “religious motivation” because “the church-affiliation prong already does that work.”
But the majority did not rest its decision strictly on Catholic Charities’ affiliation with the Diocese of Superior. Jackson might well be right about what Congress intended decisionmakers to consider, but that does nothing to answer the question of whether such congressional intent squares with the First Amendment’s protections for varied religious practice.
Her concurrence today, as well as her recent performance during oral arguments in Oklahoma Charter School Board v. Drummond, lends credence to the view that Jackson considers secularity, not neutrality, as the normatively desirable posture of government towards religion. May her view never become the majority.
This article was originally published at www.dailysignal.com
