In June, a unanimous Supreme Court, in an opinion by Justice Sotomayor (in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Comm’n), ruled that the Wisconsin supreme court violated the Establishment Clause in its bizarre interpretation of 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 Wisconsin court, in a 4-to-3 ruling in 2024, held that a Catholic organization did not qualify for the exemption because it neither engaged in proselytization nor served only Catholics in its charitable work. As Justice Sotomayor explained, the Wisconsin supreme court unconstitutionally “imposed a denominational preference by differentiating between religions based on theological lines” (because some religions forbid proselytization and religious discrimination in the provision of charitable services while others don’t).
On remand, Wisconsin attorney general Josh Kaul is so hellbent on denying the Catholic organization the tax exemption that he proposed to the Wisconsin supreme court that it consider remedying its First Amendment violation by invalidating the exception in its entirety. In response, Becket, the religious-liberty group that represents the Catholic entity, provided several reasons why the Supreme Court’s decision “cannot be read to allow anything other than extension of the tax exemption to” its client. But in an order yesterday, the Wisconsin court, over the vigorous dissent of two of its members, invited briefing on the question.
Under the doctrine of constitutional avoidance, a court will interpret a statute in a way that avoids casting doubt on its constitutionality. As the dissenters from the Wisconsin supreme court’s 2024 ruling pointed out, the majority “bends over backwards to alter the statute’s meaning and create a constitutional violation, turning the canon of constitutional avoidance on its head.” From its order yesterday, it seems that the same majority is intent on again applying what might be called a canon of constitutional violation.
In brief: The Wisconsin supreme court adopted a flagrantly unconstitutional interpretation of an unobjectionable tax exemption. After being unanimously reversed by the U.S. Supreme Court, the Wisconsin court isn’t content to allow the exemption to bear its ordinary meaning. It instead is considering using its own unconstitutional interpretation as a reason to invalidate the exemption in its entirety.