Wisconsin Supreme Court Tells State AG to Obey the U.S. Supreme Court and Quit Trying to Punish Church-Based Charities

Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission

​States from Maine to Colorado keep defying court rulings by crafting new and disingenuous ways to exclude religious charities and schools from enjoying the same access to state benefits as secular organizations. And they keep getting slammed by the courts. And they keep asking to get slammed again.
 
To paraphrase the old John Mellencamp song – sometimes the law doesn’t feel like it should, so judges are there to “make it hurt so good.” This year’s award for top legal masochist has to go to Wisconsin Attorney General Josh Kaul.
 
Kaul had gone all the way to the U.S. Supreme Court to argue that the Catholic Charities Bureau of Wisconsin didn’t deserve a religious exemption from the state’s unemployment tax law. The reason? Because Catholic Charities serves the poor and the elderly of all faiths, without discriminating by religion or trying to proselytize its beneficiaries. Kaul thus deemed the Catholic Charities Bureau as being insufficiently religious. In June, Kaul was squashed by a 9-0 Supreme Court opinion.
 
“It is fundamental to our constitutional order that the government maintain ‘neutrality’ between religion and religion,” Justice Sonia Sotomayor wrote for the Court. “There may be hard calls to make in policing that rule, but this is not one.”
 
So credit Kaul for at least forging a moment of unity between the liberals and conservatives on the Court.
 
Then Kaul came back with a new theory. He argued that these exemptions should be taken away from all religious charities. In other words, he wanted Wisconsin to go from discriminating against one religion to discriminating against all religions. Protect The 1st joined many groups in filing briefs in support of Catholic Charities.
 
On Monday, the Wisconsin Supreme Court hit Kaul with a terse order to obey the Supreme Court decision. Perhaps they had taken in the advice we gave the court in our brief, writing:
 
“By repealing a valuable statutory exemption for an entire class of religious organizations while keeping the exemptions in place for secular organizations, the State’s proffered remedy invites the Court to violate the Constitution in new ways and to flout U.S. Supreme Court precedent in this and related contexts. This Court should decline that perilous invitation.”
 
Don’t be surprised, however, if Kaul or Wisconsin legislators come back with yet another legal scheme or legislation that continues to push the campaign to punish Catholic Charities. Why these persistent efforts? We don’t pretend to know. Anti-religious bias? Because Roman Catholics hold traditional views on abortion and sexuality? Or do politicians like Kaul have such a blinkered view of the First Amendment that blatant discrimination goes unseen?
 
“It turns out that penalizing charities is not a winning legal strategy,” said Eric Rassbach, vice president and senior counsel at Becket, which represented Catholic Charities.
 
But we must admit that there is a kind of logic behind these persistent efforts by the states, whether Kaul’s or Pennsylvania’s continued bullying of the Little Sisters of the Poor. These would-be pruners of the First Amendment only need to get lucky once – to win in an appellate court, with the precedent holding after an exhausted Supreme Court finally finds no room in its docket.
 
For that reason, the defenders of freedom of belief must be just as persistent. Whether you are religious or not, when it comes to the First Amendment we must all keep the faith.

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