Ministries in Wisconsin are now in danger of losing religious exemptions that the law plainly affords them.
Ministries in Wisconsin are now in danger of losing religious exemptions that the law plainly affords them.
A recent Wisconsin Supreme Court decision puts the state on a collision course with the First Amendment, with troubling consequences for ministries — even churches — engaged in charitable work there.
Earlier this month, Wisconsin’s top court ruled that Catholic Charities entities — charitable arms of the Diocese of Superior — aren’t sufficiently “religious” to be exempt from a state insurance program. Across the nation and the world, Catholic Charities organizations serve the poor, vulnerable, and marginalized through an array of social services such as housing, food assistance, health care, job training, childcare, and immigration and refugee services. They do so based on the principles of Catholic teaching, ultimately rooted in Christ’s command to care for “the least of these.” In northern Wisconsin, Catholic Charities ministers to thousands of individuals and families in need, providing critical assistance that, otherwise, the state would have to provide — or that wouldn’t be provided at all.
Like most religious organizations that do charitable work, Catholic Charities doesn’t condition its services based on religious affiliation. It doesn’t proselytize. It serves everyone — Catholics, people of other faiths, and those of no faith. That, it turns out, disqualifies it from being “religious,” at least according to Wisconsin’s high court.
At issue in the case is a Wisconsin law that exempts an organization from paying into the state’s unemployment system if it is “operated primarily for religious purposes.” Many states have an exemption like this. It’s designed to alleviate government interference in religious affairs, and it recognizes that religious ministries — and those who donate to and volunteer for them — play a critical role in the social safety net.
Simply put, the state needs religious charities. It needs the charitable services they provide — and those services are inextricably tied to their faith and their faith-based insistence on justice and human dignity. But the state should also honor their integrity and freedom on principle. In the words of James Madison, the religious convictions that motivate these institutions are “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”
The Wisconsin supreme court ignored this essential truth, reasoning that Catholic Charities’ religious motivations could be walled off from its charitable activities. And those activities, the court said, are “secular in nature.” That the state’s exemption is based on an organization’s “religious purposes” meant little to the court. It read that language out of the law, declared Catholic Charities “wholly secular,” and denied the exemption.
Central to the court’s conclusion is the fact that Catholic Charities serves everyone and doesn’t proselytize. This is head-scratchingly bizarre on two levels. First, it suggests the state would only exempt organizations that, for example, insist on religious conversion as a condition of being served. Second, it punishes organizations that serve all without distinction — essentially encouraging religious discrimination. What interest does this serve? It turns the separation of church and state on its head.
According to a majority of Wisconsin’s justices, the only religious activities that might qualify for the exemption are corporate worship, counseling, education, and activities such as “baptism, marriage, burial, and the like.” These, the court said, are “hallmarks of religious purposes,” unlike service to the poor, which “can be provided by organizations of either religious or secular motivations.” But even under a cursory inspection, that distinction doesn’t hold up. Secular organizations and individuals likewise engage in counseling, education, and ceremonies that mark important life events, such as marriages and funerals. The court’s distinction artificially carves up religious exercise in ways most religious believers wouldn’t recognize. This is anathema to our nation’s First Amendment tradition.
If the test were whether an activity is entirely unique to religious practitioners, the scope of religious freedom would extend no further than the walls of a church. Even that conclusion might not hold, however. Churches, synagogues, mosques, and temples across the country engage directly in charitable work. What stops a state from invading even their sacred precincts, declaring them “wholly secular,” and remaking them in the government’s preferred image? Simply put, under the Wisconsin court’s reasoning: nothing.
Ministries in Wisconsin are now in danger of losing religious exemptions that the law plainly affords them. And courts in other states, emboldened by this decision, will find it easier to impose similar burdens.
Thankfully, the First Amendment puts firm limits on this sort of judicial overreach. It prohibits government from cleaving a ministry’s faith from its mission, and from trying to divine where religious motivations “end” and supposedly “secular” activities begin. As Justice Gorsuch put it in a recent case, “What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands? . . . What does it mean to tell an Orthodox Jew that she may follow her religion but may be targeted for observing her religious calendar?” Gorsuch concludes: “The right to be religious without the right to do religious things would hardly amount to a right at all.”
Wisconsin’s wrongheaded decision is ripe for review and correction in the nation’s high court. Justice Gorsuch and his colleagues should take up the charge.
Ian Speir is a First Amendment attorney and a Senior Legal Fellow with the Religious Freedom Institute. Nathan Berkeley is Communications Director and Research Coordinator with the Religious Freedom Institute.