On Monday, the Supreme Court will hear argument in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, which presents the strange spectacle of Catholic Charities having to argue in court that it is a religious organization. That became necessary after Wisconsin’s Labor & Industry Review Commission disqualified Catholic Charities from an otherwise-available tax exemption because it did not meet the state’s criteria for religious behavior.
Wisconsin participates in the cooperative federal-state unemployment compensation programs benefiting unemployed workers and mandated by the Federal Unemployment Tax Act. The state exempts from the unemployment tax system religious organizations that are “operated, supervised, controlled, or principally supported by a church or convention or association of churches” and that are also “operated primarily for religious purposes.” Catholic Charities Bureau is the social ministry arm of the diocese of Superior, Wisconsin, and is subject to the plenary control of the bishop of that diocese. Since 1917, its mission has been to provide “services to the poor and disadvantaged as an expression of the social ministry of the Catholic Church.” That includes a wide range of ministries to help the poor, elderly, disabled, and people in need of disaster relief.
Catholic teaching directs the Church’s charitable ministry to “the entire human race,” with charity dispensed impartially towards “members of other religions.” But because it hires and gives aid to non-Catholics as well as Catholics, because it does not proselytize those it serves, and because its activities were deemed not primarily religious in nature, Wisconsin state agencies and ultimately the Wisconsin Supreme Court concluded that Catholic Charities was not “operated primarily for religious purposes.” The framing of the issue in Justice Ann Walsh Bradley’s opinion for the court was so tendentious that it apparently did not matter that the parties agreed on the religious nature of Catholic Charities’ motivations for conducting its ministry.
Those following the Wisconsin Supreme Court election, which occurs the day after oral argument, should take note of that body’s activism here. In Catholic Charities, the court was divided 4–3. A dissenting opinion by another Bradley—Justice Rebecca Grassl Bradley—charged that the majority “belittles Catholic Charities’ faith—and many other faith traditions—by mischaracterizing their religiously motivated charitable activities as ‘secular in nature’ . . . —that is, not really religious at all.” Bradley asserted that the court’s analysis of Catholic Charities’ activities (and separating that from its belief) entailed impermissible entanglement. Citing U.S. Supreme Court precedent, the justice pointed out that asking whether an activity is “religious in nature” requires the court to “study the doctrines of the various faiths and decide for itself what religious practices are actually religious. The Constitution bars civil courts from such intrusions into spiritual affairs.”
Don’t be surprised if we hear the same concerns expressed by justices during Monday’s argument. Today’s Court does not tolerate the watering down of the religion clauses of the First Amendment that used to occur on a regular basis. They recognize the Establishment and Free Exercise Clauses not as undermining each other, but as working in tandem to protect the autonomy of religious organizations. The argument against judicial entanglement into spiritual affairs is one consequence of this understanding of the religion clauses. Another related but separate argument advanced by Catholic Charities and endorsed in Justice Bradley’s dissent is that Wisconsin discriminates by treating Catholic Charities differently from other religious groups that serve only those of their own faith or proselytize. But the most compelling point in this case may well be the overarching common-sense understanding of Catholic Charities as, in fact, a religious organization through and through.