Legal Docket: “Not Religious Enough”?

MARY REICHARD, HOST: It’s The World and Everything in It for this 14th day of April, 2025. Thanks for listening, and good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

A major religious liberty case is now before the U.S. Supreme Court. This one is unusual.

Most of the time, these cases involve religious groups asking the government to respect their religious freedom. But here, the dispute is different: the state is claiming that a Catholic charity is not religious enough to qualify for a key legal exemption.

REICHARD: The case involves the state of Wisconsin and a Catholic social services agency — part of the broader Catholic Charities network.

This particular agency operates in the Diocese of Superior, covering 15,000 square miles of Northern Wisconsin. It has served anyone in need, regardless of religious affiliation, for more than a hundred years.

EICHER: Bishop James Power leads the diocese. He spoke outside the court:

POWERS: Wisconsin is punishing Catholic Charities Bureau for following the example of Christian love. We do not help the needy because they are Catholic. We help them because we are Catholic.

Catholic Charities paid into the state’s unemployment insurance system for decades. But it recently sought a religious exemption so it could participate in a church-run plan more in alignment with Catholic teaching.

Wisconsin law permits that, but restricts it, in the words of the law, to organizations “operated primarily for religious purposes.” You ask: Who’s to say?

REICHARD: And there’s the rub.

The state and the Wisconsin Supreme Court both say Catholic Charities doesn’t “operate primarily for religious purposes.” They say feeding the hungry and caring for the disabled is secular work, not religious work—no matter the motivation to do the work.

EICHER: Eric Rassbach is a lawyer with Becket Fund and represented Catholic Charities in court. He said the state crossed a line.

RASSBACH: This case is not complicated. The Wisconsin Supreme Court got it wrong when it interpreted a state-law religious exemption to favor what it called "typical" religious activity and when it held that helping the poor can't be religious, because secular people help the poor too. …By that measure, Mother Teresa might not qualify.

The justices pointedly questioned each side. Justice Elena Kagan pointed to the danger of the government evaluating religious doctrine.

KAGAN: But it might be a matter of religious doctrine that we don't require people to say the Lord's prayer with us before we give them soup. I mean, what's --what's -- what's --what's problematic about this --I mean, there are lots of hard questions in this area. Vegan restaurants, hospitals, lots of hard questions. 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 content of the religious doctrine that those religions preach.

REICHARD: Arguing for Wisconsin was Assistant Attorney General Colin Roth. He didn’t dispute that charity is an essential part of the Catholic religion. But:

ROTH: When the employee is simply performing the corporal work of mercy without expressing and inculcating religious doctrine, this is the point. This is an an anti-entanglement statute. And so if they're not expressing and inculcating religious doctrine, they are not going to create the entangling problems.

If that sounds upside-down—a U.S. state saying Catholics aren’t religious enough to count as religious—you’re in good company. Justice Neil Gorsuch thought so, too. Here’s how he put it:

GORSUCH: Are you going to go --is Wisconsin going to go around and --and this soup kitchen, you know, you have to go -- you have to go to the service before you get your soup, they're good to go. But that one, they just invite you to the service after the soup, and they're bad. I mean, is it really that's the --I would have thought this would entangle the state in --in religion a whole lot more than a non-discrimination rule between religions.

EICHER: Roth replied that some ministries outright worship and proselytize. Those would be an exception because those things express and inculcate what the state must avoid. But Catholic Charities isn’t like that. Again, Justice Gorsuch, with Roth caught in a misunderstanding pointed out by Justice Amy Coney Barrett:

GORSUCH: Really, there are no nuns and priests and deacons at the soup kitchen?

ROTH: I --I'm not saying that at all, Your Honor. But if they are not --when they --when they are deliberate --

GORSUCH: The bishop, you know, is overseeing it? I mean, come on.

ROTH: It's --right. Your Honor, it's not about who --who the employees are. It's about --

GORSUCH: Okay --

BARRETT: You said they were.

GORSUCH: Yeah, you just --

ROTH: It's about what they do.

BARRETT: You said ministerial exception, it was about who they are.

ROTH: Well, sure, yeah, but --I apologize.

The justices grappled with how to draw lines between a church and an affiliated ministry. Justice Clarence Thomas:

THOMAS: If the function is exactly the same, but it's a separate entity, what's the difference? Religiously?

REICHARD: Roth answered that churches get special exemptions. But separate, incorporated ministries might not, depending upon what they do.

That set off alarms in several justices. Justice Brett Kavanaugh addressed the lawyer for Catholic Charities Eric Rassbach. Kavanaugh wondered: what might be a limiting principle to distinguish religiosity from non-religiosity?

KAVANAUGH: Sincerity is one limit -- -but what else? Is there any other limit to the Chief Justice's….

RASSBACH: I would say that's probably the main limit, is is it sincere.

KAVANAUGH: Is it the only limit?

RASSBACH: Well, I would say also religiosity, but in the sense of religion versus philosophy. So this is the thing that actually comes up in the Yoder case….

Pardon me. Hold that thought—the Yoder case needs a quick footnote.

That was a 1972 decision where the Court said the Amish couldn’t be forced to send their kids to high school—because their objection was a sincere religious belief, not just a personal philosophy.

Counsel, back to you:

RASSBACH: So this is the thing that actually comes up in the Yoder case, where the Court makes a big distinction between what the Amish were doing and what Henry David Thoreau was doing. And it said, well, you know, there is special solicitude under the First Amendment for religion, and the Amish get that, but Thoreau doesn't, even though he felt very strongly about his opinions.

Their First Amendment rights outweighed the State’s interest in compelling school attendance beyond that. So, Rassbach’s point is a much bigger question the court should consider in this case:

RASSBACH: It's --and it's a fascinating one. I think if you go back even to the Virginia Declaration of Rights, you know, it says "the duty which we owe to our creator and the means of discharging it." And then…--Professor McConnell, you know, sort of extended that a little bit more broadly to just this idea of transcendent binding truth. Because the problem that comes up in these issues for the religion in the law and why it is important what religion is for the law, is conflicting obligations. So if you go to Madison's Memorial and Remonstrance, you see there's this conflicting between the obligations of the --of God and the obligations of the --the --the government. And, you know, Madison says, you know, you have to --you have to navigate that. So I think that --I think you have to be able to see that things are religious or not because you look at whether there's a --a transcendent truth added.

EICHER: Chief Justice John Roberts asked Roth for Wisconsin what would Catholic Charities have to do differently in order to qualify:

ROBERTS: What is the simplest thing that the Catholic Charities would have to do to qualify for the religious exemption in Wisconsin?

ROTH: I think…

GORSUCH: Would they -- should they have one sign in the dining hall saying: ‘This meal provided by Catholic Charities. If you want to find out about the church, here's a brochure?’

ROTH: No, Your Honor…. We're looking for activities that express and inculcate religious doctrine: worship, proselytization, religious education. And it's precisely because it's those activities that create the entangling problem in the state –

GORSUCH: What --what is -- what is proselytization?

ROTH: "Proselytization" would mean when the --if Catholic Charities, when it's delivering services, says, you know, please repent, essentially. You know --

In other words, just being Catholic isn’t sufficient. An organization has to act religious enough according to the state. Justice Gorsuch bore down again:

GORSUCH: Repent. They have to say "repent"?

ROTH: Anything like, you know, please join our religion. We would like you to become Catholic if you're going to receive this service.

GORSUCH: So --

ROTH: Because when --I'm sorry, your Honor.

GORSUCH: So --so they -- they have to say --I just want to know what the test is. So ‘repent your sins.’ You get the exemption. Not requiring you to repent your sins, you --you don't --I guess you don't get the exception.

ROTH: No, the --

GORSUCH: Or --or what was the other one? What was your other test for proselytization? Join their church? You become --you know, become a member, as opposed to we welcome you to attend our services if you want, here is some information about them? What's the line there?

One friend of the court brief echoed the worries the justices expressed that Wisconsin’s test invites intrusive government inquiry into theology. Something the First Amendment was designed to prevent.

REICHARD: More than forty states have similar religious exemption laws as Wisconsin, as does federal law. So however the court decides, it’ll set a wide precedent.

If Catholic Charities prevails, religious groups that express faith via service could gain more protection from taxation. If Wisconsin wins? Then the government will nose into the inner workings of religious systems and decide what it thinks is religious, or not religious enough.

EICHER: One more quick case, and if you think the justices had the legal teams needing to loosen their ties in the last case, this one is way worse.

So imagine you’re one of the top lawyers in the country, standing before the U.S. Supreme Court, when suddenly, you realize mid-argument that you’ve boxed yourself in.

So you try to change your legal strategy — right there, in real time — while the justices watch it happen.

REICHARD: That’s what happened to Carter Phillips in a case called CC/Devas v. Antrix. It’s a half-a-billion-dollar international dispute that hinges on a narrow but powerful exception in U.S. law.

The case began when India canceled a satellite contract with Devas, an Indian media startup. Devas won big in international arbitration, and came to U.S. courts to collect.

EICHER: That’s allowed under the Foreign Sovereign Immunities Act — the FSIA — if the foreign government agreed to arbitration. But India argued the case doesn’t belong in U.S. courts … for the simple reason that there’s no real U.S. connection. The companies are Indian, the contract was carried out in India, and the arbitration happened in India. No “minimum contacts,” as the legal term goes.

REICHARD: But now to that dramatic moment.

Carter Phillips had originally conceded that the FSIA arbitration exception did apply. But during oral argument, he tried to walk it back—and Justice Kagan called him on it:

KAGAN: Have you given up on that?

PHILLIPS: I have given up on that, Your Honor.

KAGAN: So why isn’t the right thing to do just to say everybody agrees that the Ninth Circuit was wrong, we toss it back for the Ninth Circuit for everything else?

EICHER: Phillips backtracked a bit, asked the high court to rehear the case, with the requisite touch of respectful humor.

REICHARD: And now what you’ll hear is a lawyer’s nightmare! An exchange that makes me happy I just report on these things rather than be reported on! Yikes.

PHILLIPS: ….And --and, look, if the Court --if the Court thought --I think the Court, rather than remanding, if --if --if you take my argument seriously, which I think you have to, then you ought to ask the case --you know, reset the case for argument, rebrief that issue, and then we'll argue that preferably next month because it's fresh in my mind. I'd rather not have to renew all of this stuff. (Laughter.) That’s for you all to decide….--this is not lint on a sweater that you can knock off and move away. This is --this is attached to the fabric of the sweater…

There you have it: A top-tier lawyer trying to pick off a bit of lint, only to realize he’s tugging at the hem.

Proving that even the best can get snagged, especially with complex laws and hundreds of millions of dollars on the line.

The justices seemed inclined to let that thread alone—siding narrowly with Devas and holding that the arbitration exception applies, no matter how little U.S. fabric is in this particular garment.

And that’s this week’s Legal Docket!

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