(ANALYSIS) On March 14, the Wisconsin Supreme Court held that the Catholic Charities Bureau is not exempt from the state’s unemployment compensation law because the organization isn’t religious.

This decision, Catholic Charities v. Wisconsin Labor & Industry Review Commission, might at first glance seem to be yet another boring administrative matter. However, exemptions from the law can be given to religious organizations, but the court made the strange ruling that the charity — although under the active authority of a Catholic diocese — is primarily a “charitable” and “secular” organization. The plaintiffs plan to appeal the decision to the U.S. Supreme Court. 

This court has recently been a major object and source of ideological division. On April 4, 2023, Janet Protasiewicz was elected to a seat, giving liberals their first majority in 15 years that was also the most expensive state Supreme Court race in American history.

READ: Sotomayor’s Dissent Sheds Light On Religious Universities Amid Affirmative Action Debate

The election was not concerned with Catholic Charities and was principally about abortion and especially how the justices would handle looming Congressional redistricting decisions. But recently, many liberal judges espouse a very cramped view of the role of religion in society.

The background is that, through its unemployment insurance program, Wisconsin assists people who have lost their job through no fault of their own. Some nonprofits, including religious ones, may be exempt from taxes for this insurance program. 

Catholic Charities, whose self-defined mission since 1917 has been “providing services to the poor and disadvantaged” and being “an effective sign of the charity of Christ,” requested an exemption and instead wished to enroll in the Wisconsin Bishops’ Church Unemployment Pay Program, which provides the same level of benefits as does the state system. Lower courts had denied this requested exemption, arguing that Catholic Charities was not primarily religious.

The Becket Fund for Religious Liberty argued for Catholic Charities, who had lots of support from groups that included conservative Baptists, liberal United Methodists, Lutherans, the Church of Jesus Christ of Latter-day Saints, the International Society for Krishna Consciousness, the Sikh Coalition, the Jewish Coalition for Religious Liberty, the American Islamic Congress and the Islam and Religious Freedom Action Team of the Religious Freedom Institute. This was not a narrow “religious right” position.

In opposition to this wide-ranging support, in a 4-3 decision, the court’s liberal majority found that Catholic Charities must pay the unemployment tax because it was not “operated primarily for religious purposes,” the key phrase in state law. Justice Ann Walsh Bradley, writing for the majority, stated that “both the motivations and activities” of an organization must be examined and that such examination showed that Catholic Charities was not run primarily for religious purposes, even though supervised and controlled by a Roman Catholic diocese.

She added that, “Although the motivations of an organization certainly figure into the analysis … allowing self-definition to drive the exemption would open the exemption to a broad spectrum of organizations based entirely on a single assertion of religious motivation.”

Clearly, Justice Bradley is correct in her observation that a court cannot simply defer to any organization's assertion that it is religious and must have its own criteria. However, Justice Bradley further states that the services provided, such as those given by Catholic Charities, "would be the same regardless of the motivation of the provider.” Since secular groups provide similar social services, she calls this “a strong indication” that the Catholic group does not “operate primarily for religious purposes.” She added that an “objective examination of the actual activities of CCB … reveals that their activities are secular in nature.”

Chief Justice Rebecca Grassl Bradley (there are two Justice Bradleys on the court) wrote a 73-page dissent, which stated that the majority “mangles” the statute. She argued that the majority was “impermissibly entangling the government in church doctrine” and used their preferred reading of the law to give preference to religious groups that combine charity and proselytizing, as opposed to Catholicism and Judaism, which forbid such a combination.

She added that this way of determining which practices are "sufficiently religious” discriminates against groups such as Sikhs, Hindus and Hare Krishnas. In short, she suggested that the majority gives legal preference to one parochial understanding of religion over many others.

Justice Ann Walsh Bradley’s majority decision asserts that charitable acts are the same, even identical, regardless of the religious or other motives of those who perform them. However, the different motivations for acts, much like distinctions between manslaughter and murder, are a fundamental feature of legal analysis. Motivations are a key factor in understanding law. Human acts are not simply bodily movements.

The justice also does not explain why charitable work should almost by definition be regarded as “secular,” itself a controversial word. She simply assumes that charity is per se “secular” rather than religious. She thereby rejects ab extra most religions’ own views of what their faith requires.

Catholic Charities’ own filing argued that the church “holds that charity is as integral to its nature as liturgical worship and spreading the faith. The church, it added, “practices charity as a fundamentally religious activity in which it both encounters Christ in those served and bears witness to the Gospel to the world. … For these reasons — not simply as a humanitarian act or means to proselytize or impose the faith on others — the church instructs bishops to perform charitable works.”

Similar beliefs are found among Protestants, Orthodox Christians, Jews, Muslims, Sikhs and others. In the words of James’ epistle, they hold that faith without works is dead.

Also, as Isaiah says (1:13-15,17) in words held sacred to over half of humanity:

I cannot bear your worthless assemblies.

Your New Moon feasts and your appointed festivals....

When you spread out your hands in prayer,

I hide my eyes from you;

even when you offer many prayers,

I am not listening....

Instead:

“Learn to do right; seek justice.

Defend the oppressed.

Take up the cause of the fatherless;

plead the case of the widow.”

For most of the world's believers, ignoring charity or confining it to one’s own would be a violation of religion, as would restricting religion to worship.

Paul Marshall is Wilson Distinguished Professor of Religious Freedom at the Institute for Studies of Religion, director of the Religious Freedom Institute’s South and Southeast Asia Action Team, senior fellow at the Hudson Institute’s Center for Religious Freedom, and author of over 20 books on religion and politics.