The diocese has petitioned for review before the US Supreme Court the Catholic Charities decision by the Wisconsin Supreme Court.

Note: All the filed materials with the US Supreme Court are available at the court’s public docket for this case.

In its decision, Catholic Charities v. LIRC, 2024 WI 13, the Wisconsin Supreme Court held that non-profit entities affiliated with the diocese (but not actually funded by the diocese) were not exempt from paying unemployment taxes for their workers. The services being provided were the same kind of services being provided regardless of the motivation and there was no overt, religious mission connected to those activities. Disabled people receiving job support help, for example, were not required to be Catholic or to listen to a faith-based message in order to receive the job support services being provided (and largely paid for through government funds). As the Commission explained in its decisions:

Today, “through the responsible use of the state’s tax dollars,” CCB [Catholic Charities Bureau] and its sub-entities service the needs of the state’s citizens and achieve a common good. (T2. 23-24). Their employees perform charitable work — “corporal acts of mercy” — to the public at large. (T2. 30). CCB and its sub-entities are operated for the purpose of improving “the quality of life for the people [they] serve, whether they are elderly, disabled, children with special needs, or families in poverty.” (Ex. 13). While the hope and expectation is that the employees of CCB and its sub-entities act in conformity with Catholic Social Teachings and the Catechism of the Church, they are instructed simply to reach out to those in need with compassion and concern. (Ex. 13.)

In its petition for US Supreme Court review, the Becket Fund for Religious Liberty, representing the diocese, contends that the avowed purpose for why the services are being performed should solely determine whether those services are religious in nature or not. It is for a church or any religious organization to determine itself without any interfering oversight from government agencies whether the services and activities in question are religious in nature or not. To do otherwise, according to the petition, is to violate the separation of church and state set forth in the First Amendment of the Constitution.

As noted previously, this argument represents a radical departure from well-established understandings of the First Amendment and would lead to large swathes of the workforce suddenly be exempted from basic workplace protections on nothing more than a declaration that the services in question have a religious purpose of some kind.

There is no dispute that religious activities in general are exempt from government regulation. Workplace discrimination law and unemployment law do not apply to churches, religious schools, and other entities engaged in religious activities of some kind. Indeed, ministers and rabbis are even exempt from Social Security taxes, and nearly everyone understands that churches and religious schools pay no income or property taxes. The law has generally understood that activities that are religious in nature and serve specific religious purposes are exempt from government regulation. The issue here is whether to expand the scope of “religious activities” to include generic charitable activities because there is a “religious” purpose to that charity, even when the funding for those activities is secular. Catholic hospitals, care facilities affiliated with a church in some way, religious-connected thrift stories, many kinds of homeless services, and colleges connected to a church (e.g., Marquette) could all be exempted from unemployment taxes (and their workers no longer eligible for unemployment benefits) under the change in the law being pushed here.

Note: While the petitioner in this case is the diocese in Superior Wisconsin, Archbishop Listecki in Milwaukee actually testified at the unemployment hearings in 2018 that began this case. See the Commission decisions. So, it seems that this case was very much from the start an effort to create a test case for expanding the exceptions for religious organizations from basic workplace requirements like unemployment benefits. This spiritual libertarianism undermines the concerns for common good at the heart of these programs and prioritizes a church’s organizational objectives to exempt itself from these general concerns for a safety net.

Many of the same parties that wrote amicus briefs before the Wisconsin Supreme Court have also provided amicus briefs in support of the diocese, including, for example, the Wisconsin legislature.

Representing the Commission and the Department, the Wisconsin Department of Justice is slated to provide its response by Nov. 22nd. Amicus briefs in support of the state agencies are due by Nov. 22nd as well.