Wisconsin Supreme Court Contorts Statute to Engage in Unconstitutional Probe Whether Church’s Activities Are ‘Religious in Nature’

In a bizarre ruling last Thursday (in Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission), the Wisconsin supreme court ruled by a sharp 4-to-3 divide that the Catholic Charities entity and four of its sub-entities in the Diocese of Superior, Wisconsin do not qualify for a statutory unemployment-tax exemption. The statutory exemption extends to entities that are “operated primarily for religious purposes” (and that meet one other standard not in dispute).

The majority, in an opinion by Justice Ann Walsh Bradley, rules that the test of “operated primarily for religious purposes” was not satisfied by Catholic Charities’ uncontested religious motivation. Catholic Charities also had to prove that the activities it engaged in were primarily “religious in nature.” Because Catholic Charities did not “attempt to imbue program participants with the Catholic faith nor supply religious materials to program participants or employees,” the majority concludes that its activities are “primarily charitable and secular.” In particular, the services it provides to individuals with developmental and mental-health disabilities “can be provided by organizations of either religious or secular motivations, and the services provided would not differ in any sense.”

In a comprehensive dissent, Justice Rebecca Grassl Bradley, shreds the majority’s statutory analysis and its concoction of an “activities prong” that “swallows the majority’s purposes prong.” (To avoid confusion between the two Bradleys, I’ll just refer to the dissent.) As the dissent explains, “no activities are inherently religious; religious motivation makes an activity religious.” The majority instead “inquires whether Catholic Charities’ activities are stereotypically religious.” (Emphasis in original.)

The distinction that the majority posits between activities that are primarily religious and those that are primarily “charitable and secular” is astounding—as if it doesn’t grasp that charitable works are, as the dissent puts it, “a central religious practice” for many religions.

The dissent also argues compellingly that the majority “engages in religious discrimination and entangles the state with religion in violation of the First Amendment. (Dissent at 2-3, 41-72.) The majority’s claim that activities that secular entities engage in “aren’t religious at all, even when performed by Catholic Charities … directly contradicts Catholic Charities’ faith,” which, as Pope Benedict XVI has explained, regards the ministry of charity as “an indispensable expression of [the Catholic Church’s] very being.” The majority somehow “deem[s] works of charity worthy of the exemption only if accompanied by proselytizing,” but that is “a combination forbidden by Catholicism, Judaism, and many other religions.”

The dissent is clear that it is not arguing, and that Catholic Charities is not arguing, that the Free Exercise Clause guarantees Catholic Charities an exemption from paying the unemployment tax. Rather, it is objecting that the Free Exercise Clause does not allow the exemption to be withheld based on a discriminatory assessment that religiously motivated activities are not religious.

The dissent also shows that the majority’s botched statutory analysis causes an excessive entanglement of the state in religious matters in violation of the Establishment Clause. Under the majority’s approach, agencies and courts need to “answer debatable questions [they] have no authority to answer,” i.e., “what activities are sufficiently religious to qualify as ‘religious in nature.’”

(One of the three dissenters found it unnecessary to reach the constitutional questions.)