Supreme Court appears poised to side with Catholic Charities as string of religion test cases arrive
WASHINGTON − The Supreme Court on Monday delved into how to define a religious act as it weighed whether charities run by religious groups have to pay unemployment taxes for their workers.
“It’s kind of a big question,” Justice Amy Coney Barrett said when a lawyer for the Catholic Church encouraged the justices to think about “what is religion.”
That theological question is central to the case because Wisconsin said the social ministry arm of the Catholic diocese and four affiliates have to participate in the state’s unemployment benefits system because the work being performed is primarily secular, even if it’s motivated by religious belief.
There’s no religious instruction with the job training, placement and coaching offered to disabled people through the affiliates, the state said. Neither employees nor the people they serve have to be Catholic and Catholic Charities and their affiliates are incorporated separately from the diocese.
Justices seemed likely to side with Catholic Charities
A majority of the justices seemed likely to agree with Catholic Charities that the state’s decision was wrong, but they debated where to draw the line for religious exemptions.
Wisconsin’s law, which is similar to most state’s and to the federal government’s, grants exemptions from its unemployment program for certain church-controlled organizations that are “operated primarily for religious purposes.”
The purpose of the exemption is to keep the government from violating the First Amendment by getting too involved in a church’s employment decisions. Because an employee is not eligible for unemployment benefits if he was fired for misconduct, a state doesn’t want to have to consult papal doctrine, for example, to determine if a priest was legitimately terminated.
“Exemption is limited to the employers most likely to draw the state into doctrinal dispute,” said Colin T. Roth, assistant attorney general for Wisconsin.
Otherwise, he said, a “motive only test” could leave more than 1 million employees in the country who work for religiously affiliated hospitals outside of the unemployment benefits system. It would also “radically expand” similar exemptions in other parts of the law and lead to states deciding not to grant any exemptions rather than have to grant them to anyone claiming a religious motivation, he said.
Catholic Charities said Wisconsin discriminated against the church
But Eric Rassbach, an attorney for the Catholic Church, said there’s nothing wrong with the test being used, just the way Wisconsin applied it.
Rassbach said Wisconsin discriminated against the church because – unlike other religious organizations – the charitable arm is incorporated separately from the diocese and because it broadly offers its services without proselytizing.
“The problem here is that Wisconsin draws distinctions along theological lines, something that this court has repeatedly forbidden,” he said.
Rassbach said the test for distinguishing between what qualifies as religious and what doesn’t is whether there’s a “transcendent truth.”
“Does all religion have to have a transcendent truth?” Barrett asked.
Rassbach said the overall point is that “there’s something transcendent or supernatural that you are feeling obligated by.”
Justice Ketanji Brown Jackson said she thought the law focused on the activities themselves, not whether they were religiously motivated. That makes more sense given the reason the exemption was created, she said.
But Justice Brett Kavanaugh said the phrase “operated primarily for religious purposes” seems to be addressing "why they do it, not what they do.”
`We don't treat some religions better than other religions'
Chief Justice John Roberts and Justice Samuel Alito asked Wisconsin what Catholic Charities would have to do to qualify for an exemption.
Roth said employees at the charity would have to be expressing and inculcating religious doctrine, such as requiring participation in a prayer before a meal is served at a soup kitchen.
“That would be sufficient?” Alito asked. “You don’t get the soup unless you pray first?”
Justice Neil Gorsuch said that standard would get the government too involved in religion if inspectors had to visit soup kitchens to see how much praying was involved.
And Justice Elena Kagan pointed out that some religions proselytize and some don’t.
“There are lots of hard questions in this area,” she said. “But I thought it was pretty fundamental that we don’t treat some religions better than other religions.”
More religious rights cases coming
Catholic Charities' appeal is one of three religious rights cases the Supreme Court is hearing in the next few weeks.
Another – which will determine whether Oklahoma can create the nation’s first religious charter school – is a potential blockbuster because it would allow government to establish and directly fund religious schools for the first time.
The third – a challenge from parents who want their elementary school children excused from class when books with LGBTQ+ characters are being used – could boost parents’ ability to demand curriculum opt-outs in public schools.
A decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission is expected by the end of June.