What makes an activity religious? That’s a question facing the Supreme Court
Case tied to unemployment laws, but ruling could have broader implications
Update: Oral arguments on this case were heard March 31. Both liberal and conservative justices appeared sympathetic toward the position of the Catholic Charities Bureau, questioning whether the government should take on the role of determining what types of activities are religious. A ruling on the case is expected in June.
Original story: The first religion-related case the U.S. Supreme Court is hearing this session will decide whether a Catholic charitable organization is required to pay into Wisconsin’s unemployment compensation fund.
Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission hasn’t drawn much attention, most likely because it will decide a fairly narrow aspect of law, one not tied to hot-button social issues. But lawyers on the side opposite the charity suggest that the ruling potentially could affect health-care employees working for Catholic and other church-related hospitals. And at least one reputable journalist has suggested that a ruling for the charity could provide a loophole for some for-profit employers to avoid paying into the unemployment fund.
The Catholic Charities Bureau, which provides assistance to the elderly, disabled and poor in northern Wisconsin, decided a few years ago to seek an exemption from the law that requires employers to participate in the state fund that compensates workers who lose their jobs through no fault of their own. CCB wants instead to provide similar coverage through a private entity, the Wisconsin Bishops’ Church Unemployment Pay Program. Such exemptions are routinely granted under a provision in state allowing nonprofit entities “operated primarily for religious purposes” to opt out of the insurance program.
The problem the state had with the charity’s planned change is that it didn’t see CCB as operating for a “religious purpose” because its program was operated the same way that a secular program would be. CCB didn’t use the program for proselytizing, nor does the program a faith component such as religious instruction. The CCB fought the decision in a trial court, then lost its appeal to the Wisconsin Supreme Court on a 4-3 vote before appealing to the top U.S. court.
The Supreme Court will hold oral arguments on the case March 31. A decision is expected in May or June.
The Wisconsin Supreme Court found that the charity operated as a “a wholly secular endeavor,” pointing out that its services “can be provided by organizations of either religious or secular motivations, and the services provided would not differ in any sense.”
Charity and its allies build their case
In its appeal, the charity countered that caring for the needy is an essential tenet of the Catholic faith, and that therefore the charity’s mission was inherently religious.
The charity has received legal support from a wide range of churches and other religious organizations that say that it shouldn’t be the job of government to determine whether a religious organization’s activities are sufficiently religious. One group1 representing adherents of 11 religious organizations including about 90 million Americans said in its friend-of-the-brief to the high court:
[Our] autonomy would be severely undermined if the First Amendment allowed the government to second-guess their decisions on matters of church government such as a religion’s organizational structure or employment or service decisions.
The CCB’s brief to the high court used strong language to describe the ruling of the Wisconsin high court:
This is therefore a simple case. Wisconsin has denied Catholic Charities a religious exemption that the state freely extends to other religious organizations based on the absurd view that Catholic Charities’ aid to the needy isn’t actually religious at all. The Religion Clauses of the First Amendment do not allow such a remarkable conclusion. Instead, the Clauses work in tandem to protect a sphere of autonomy for religious organizations, to prevent entanglement of church and state, and to prohibit government discrimination among religious organizations. Wisconsin’s effort to pick and choose among religious groups — and carve out works of mercy from the realm of the “religious” altogether — thus violates the Constitution three times over.
Opponents warn of risks to unemployment fund
Several smaller religious groups2 as well as various labor and business interests are siding with the unemployment commission, citing economic reasons as well as concerns that a favorable ruling for the charitable could entangle state officials in matters of religious doctrine.
In its legal arguments, the Wisconsin commission said it grants exemptions when a nonprofit is involved in clearly religious activities “to avoid entangling the state in employment disputes that turn on religious faith and doctrine.” If it did otherwise, the brief pointed out, the state could become entangled in “employment disputes that turn on religious faith and doctrine”:
If the First Amendment did not allow religious accommodations to be tailored to particular religious groups on a nondenominational basis, legislatures (and courts) would have to choose between exempting all religious groups or none at all. Such a rule would threaten the entire project of fitting religious accommodations to the problems they seek to solve.
In their brief, the Economic Policy Institute and several other organizations cite fear that a broad exemption for religiously affiliated employers would undermine the unemployment system’s ability to support laid-off workers and counter economic downturns.
One group frequently involved in church-state cases, the Freedom from Religion Foundation, also cited economic concerns. It said that a ruling in favor of the Catholic charity could lead to six of the country’s 10 largest health care systems seeking exemption from similar laws in other states, potentially leading as many as 787,000 workers being opted out of unemployment plans.
The journalist warning of this case is Ian Millhiser, a senior correspondent for Vox who has a law degree and writes frequently about the Supreme Court. Millhiser wrote that he expects the high court to rule in favor of the charity, and if the court “chooses to be expansive, it could overrule a line of precedents that protect workers from exploitative employers who claim a religious justification for that exploitation.”
Organizations in the group are the General Conference of Seventh-day Adventists; the United States Conference of Catholic Bishops; The Church of Jesus Christ of Latter-day Saints; the Lutheran Church – Missouri Synod; the Ethics & Religious Liberty Commission of the Southern Baptist Convention; The United Methodist Church; the Church of Christ, Scientist; the Assembly of Canonical Orthodox Bishops of the United States of America; the Union of Orthodox Jewish Congregations of America; the Hindu American Foundation; and BAPS Swaminarayan Sanstha, a Hindu denomination.
They are Bend the Arc: A Jewish Partnership for Justice; the Interfaith Alliance; the National Council of Jewish Women; the Reconstructionist Rabbinical Association; and Sadhana: Coalition of Progressive Hindus.