The courts and a core principle

Justice Neil Gorsuch put his finger on the nub of the problem during recent oral arguments in an important religious liberty case: “Doesn’t it entangle the state tremendously when it has to go into a soup kitchen—send an inspector in—to see how much prayer is going on?”

That’s the practical effect of a ruling by the Wisconsin Supreme Court now on review by the nation’s high court. Catholic Charities Bureau of the Diocese of Superior operates a variety of social service ministries: housing for low-income seniors, job programs for persons with physical and developmental disabilities, and day care for children. The Diocese opens its doors to anyone who needs its service—it doesn’t ask first if you’re Catholic, nor does it require anyone to attend Mass before accepting a free meal.

Because its activities do not look sufficiently “churchy,” the Wisconsin Department of Workforce Development determined that Catholic Charities did not qualify for a tax exemption for religious organizations, which the state’s appellate courts affirmed. The state reasoned that a religious motivation was not sufficient—the activities themselves had to have an explicitly religious cast to qualify for the exemption.

Justices from across the jurisprudential spectrum on the U.S. Supreme Court seemed deeply skeptical of that conclusion. Justice Elana Kagan, for instance, pushed the attorney for the state: “There are lots of hard questions in this area. But I thought it was pretty fundamental that we don’t treat some religions better than other religions and we certainly don’t do it based on the contents of the religious doctrine that those religions preach.” Her question pointed to a second problem in the state’s case: Not all religious organizations do “churchy” things that would look like a typical religious activity, like services on a Sunday morning.

Indeed, this case should be one of the easy questions. The First Amendment protects religious organizations of all stripes. It protects the free exercise of religion, not only of worship but religion in all its manifestations and ministries. And the accompanying establishment clause frowns on the idea of a state bureaucrat conducting inspections to determine whether a given organization’s activities look religious enough.

That concern is doubly present here, as the tax exemption specifically applies to the state’s unemployment insurance system. Persons who lose their job due to misconduct at work qualify for specific benefits. Will we have inspectors on the front end determining whether a given ministry is religious enough, and then on the back end determining whether an employee’s personal choices in conflict with an employer’s faith expectations constitutes “misconduct”?

The state and the amicus briefs supporting it are horrified at the idea that not only Catholic Charities, but schools, colleges and universities, hospitals, nursing homes—the full panoply of social service ministries undertaken by faith-based organizations—might also escape the government’s grasp through the UI system and taxation.

That effort to narrow the religion clauses to only churches and ministries tightly tied to churches (like seminary education) runs headlong into the Supreme Court’s precedents in recent years. In Our Lady of Guadalupe School (2020) and Hosanna-Tabor Evangelical Lutheran Church and School (2012), the Court recognized the First Amendment’s free exercise protections embrace church-affiliated ministries like K-12 schools. “The religious education and formation of students is the very reason for the existence of most private religious schools,” the Court wrote in Our Lady, even if the private religious school spends more time on reading, writing, and arithmetic than on explicitly religious education.

I am hopeful for a 9-0 decision in this case that reaffirms the core principles of the First Amendment: The free exercise of religion encompasses all faith-motivated ministry, even those ministries that have secular, non-religious counterparts, and the establishment clause means the government should steer clear of inspecting and supervising religious activities.

Editor’s note: Suhr wrote an amicus brief on behalf of Wisconsin faith-based organizations in this case.