Religious enough to count

The U.S. Supreme Court just gave the state of Wisconsin a good Sunday school lesson.

Wisconsin had taken the legal position that helping the poor is a civic responsibility, not a religious calling. As if Christ’s command to serve the least of these were somehow secular. The Supreme Court disagreed, unanimously, and said not only was it poor judgment, it was a judgment the state had no business making.

That’s Catholic Charities Bureau v. Wisconsin in a nutshell. But this case was more than a clean win for religious liberty. It showed what happens when bureaucrats evaluate religion with a state-issued yardstick, deciding religion only counts if it measures up. Catholic Charities served the poor, disabled, and elderly without preaching or proselytizing. And for that, the state said it didn’t qualify as “primarily religious.” In other words: Wisconsin perceived the Charities, not the Catholic. But Catholic Charities wasn’t helping despite its faith. It was helping because of it.

This never sat well with Justice Neil Gorsuch. In oral argument, he posed a biting hypothetical: If a soup kitchen requires a service before the soup, it qualifies—but if it offers one later, it doesn’t? “I would have thought this would entangle the state in religion a whole lot more.”

Other cases this term raise serious concerns for Christians: U.S. v. Skrmetti, on whether states can ban gender-transition procedures for minors under the Equal Protection Clause, and Mahmoud v. Taylor, on the boundaries of parental rights in public education.

But Catholic Charities stood out as the term’s defining religious-liberty case. It touched both pillars of the First Amendment’s religion clauses, free exercise and establishment. Here’s what happened: Catholic Charities Bureau wanted to opt out of Wisconsin’s unemployment tax system and join a church-run alternative offered by the state’s Catholic bishops. State law allows that but only for organi­zations “operated primarily for religious purposes.”

As my co-host Mary Reichard reported on The World and Everything in It podcast, more than 40 states—and the federal government—use similar language in their exemption laws. So the implications will be felt across the country.

Justice Sonia Sotomayor wrote the court’s opinion. That’s notable in itself. She dissented in two other religious-liberty decisions earlier. But here she drew the line decisively: “An exemption that requires proselytization or exclusive service of co-religionists,” she wrote, “establishes a preference for certain religions based on the commands of their religious doctrine.” That’s not neutrality, she argued. It’s unconstitutional discrimination among faiths.

That line stuck with Stanford Law fellow Lael Weinberger, a former clerk to Justice Gorsuch. When Mary and I spoke with him after the decision came down, he warned of the danger in government deciding what counts as religious. “Even something as innocent and mundane as a soup kitchen,” he said, “we’re not going to count that as religious unless you do other stuff that we think looks like religion.”

Weinberger is co-author of a law review article Justice Clarence Thomas cited in his concurring opinion that went much further. Thomas argued that this wasn’t just a case of doctrinal discrimination—it was a violation of the church autonomy doctrine. “The Bureau is part of the Catholic Church,” he wrote. And the First Amendment “protects the Church’s internal governance, including its decision to conduct charitable work as an expression of its faith.”

That’s a stronger position. It protects religious organizations not only from being judged against one another, but from being judged at all. Thomas drew on other precedents to insist that courts defer to a church’s own understanding of what its ministries are and what they do. Only Justice Gorsuch joined that concurrence.

The result was unanimity, but in this case, that might be the problem. To get all nine justices on board, the court narrowed its rationale. It struck down Wisconsin’s discrimination but left open the broader question of whether gov­ernments can still evaluate religiosity, as long as they do it more evenly. That might be the price of unanimity: a less principled, more ­pragmatic protection.

Was it worth it? That’s a strategic, not a legal, question. Maybe unanimity sends a stronger cultural signal. But the trade-off is real. Stronger language from the court would have helped protect ministries whose theology doesn’t conform to popular expectations. A bare majority ruling, with clearer limits on government authority, might have done more.