What a unanimous Supreme Court said about religion
Plus, a quick response to a short but thoughtful critique of my book
Earlier this week the U.S. Supreme Court ruled for a religious nonprofit organization in Wisconsin. The group, Catholic Charities Bureau, was pushing back against Wisconsin’s decision to bar it from opting out of unemployment compensation taxes, an exemption the state generally affords to religious organizations.
At issue was the state’s criteria declaring that exemptions ought to apply only to entities “operated primarily for religious purposes.” Because Catholic Charities is controlled by the Catholic Church but does not exist primarily for religious reasons—that is, because its work includes a variety activities not exclusively religious in nature—the state determined it should not be granted the exemption.
Catholic Charities disagreed, sued, and was eventually vindicated.
The decision, authored by Justice Sotomayor, was unanimous, attracting the Court’s six conservatives and three liberals. The Court held that the state’s criteria violates the First Amendment when it decides what is and is not driven by theological or sectarian motives. In doing so, the state impermissibly decides what is and isn’t religious action.
Here are some key passages from Justice Sotomayor’s opinion:
“A law that differentiates between religions along theological lines is textbook denominational discrimination. Take, for instance, a law that treats “a religious service of Jehovah’s Witnesses . . . differently than a religious service of other sects” because the former is “less ritualistic, more unorthodox, [and] less formal.” Or consider an exemption that applies only to religious organizations that perform baptisms, engage in monotheistic worship, or hold services on Sunday. Such laws establish a preference for certain religions based on the content of their religious doctrine, namely, how they worship, hold services, or initiate members and whether they engage in those practices at all. Such official differentiation on theological lines is fundamentally foreign to our constitutional order….”
“Wisconsin’s exemption, as interpreted by its Supreme Court, thus grants a denominational preference by explicitly differentiating between religions based on theological practices. Indeed, petitioners’ eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists) … Much like a law exempting only those religious organizations that perform baptisms or worship on Sundays, an exemption that requires proselytization or exclusive service of co-religionists establishes a preference for certain religions based on the commands of their religious doctrine.”
“It is fundamental to our constitutional order that the government maintain “neutrality between religion and religion.” … There may be hard calls to make in policing that rule, but this is not one. When the government distinguishes among religions based on theological differences in their provision of services, it imposes a denominational preference that must satisfy the highest level of judicial scrutiny.”
Justice Thomas—the Court’s most conservative voice—added a concurring opinion, agreeing with the decision but laying out his own rationale:
“The Court correctly holds that Catholic Charities and its subentities have suffered unconstitutional religious discrimination even on the assumption that those entities should be considered in isolation… I would reverse for an additional reason—that the Wisconsin Supreme Court violated the church autonomy doctrine. However incorporated, Catholic Charities and its subentities are, from a religious perspective, a mere arm of the Diocese of Superior.”
And Justice Jackson, President Biden’s sole appointment to the Court and a reliable liberal voice, authored her own concurring opinion:
“As the Court explains, the Wisconsin Supreme Court’s application of that exemption has created a constitutional problem: The State treats church-affiliated charities that proselytize and serve co-religionists exclusively differently from those that do not… Because I agree that this distinction violates the neutrality principle of the Constitution’s Religion Clauses, I join the Court’s opinion in full.
“I write separately because, in my view, [the Federal Unemployment Tax Act’s] religious-purposes exemption does not distinguish between charitable organizations based on their engagement in proselytization or their service to religious adherents. Nor does that exemption differentiate based on religious motivation, as the Government (as amicus) insists. Rather, both the text and legislative history of FUTA’s religious-purposes exemption confirm that Congress used the phrase “operated primarily for religious purposes” to refer to the organization’s function, not its inspiration. Put differently, [it] turns on what an entity does, not how or why it does it.”
The Court’s decision here is a clear victory for religion and religious entities. The idea that a state should determine whether an organization’s conduct is sufficiently religious should make everyone (be they religious or non-religious) very uncomfortable. Consider the following statement from Eric Rassbach, the Becket attorney who argued the case before the Court:
“It was always absurd to claim that Catholic Charities wasn’t religious because it helps everyone, no matter their religion. Today, the Court resoundingly reaffirmed a fundamental truth of our constitutional order: the First Amendment protects all religious beliefs, not just those the government favors.”
Furthermore, as they did in 2012’s unanimous Hosanna-Tabor decision, all nine justices agreed that the state has no interest in interfering in the motivations or internal mechanisms of religious entities. The present case is not a precedent ready to be overturned with the addition of one skeptical justice to the Supreme Court. That this decision was unanimous only strengthens its staying power.
For those who favor limits on government power to determine both the scope and legitimacy of people’s deepest held beliefs, the Court’s unanimous decision here is unequivocally a good one.
Uneasy Citizenship has been out for over a year now, so it’s always encouraging to learn of someone reading it. This time it was Miles Smith, an assistant professor of history at Hillsdale College and author of Religion and Republic: Christian America from the Founding to the Civil War.
Over on The Website Formerly Known as Twitter, Miles said the following:
His observation is a reasonable one. I do belong to a Presbyterian church (a congregation affiliated with the PCA, to be specific), yet I was raised in what can best be described as a nondenominational evangelical congregation.1 My thinking concerning a faithful approach to politics among Christians is no doubt shaped heavily by the latter as well as the former.
At the same time, I’m not sure my book is asking for “churchly politics,” necessarily. Politics, like any other venture in which Christians engage in their public lives, is bound to be affected by sin and the Fall. I do not think Christians ought to consider (or attempt) a politics untainted by the realities of the world. Inevitably, our politics—like everything else we do on this side of finished sanctification—are bound to flawed, and limited by the options in front of us.
Still, I do think we ought to strive for an approach to politics that is consistent with and agreeable to our identity in Jesus. That is, our political engagement should be different from the world’s understanding. How we do politics should confound, confuse, and upend what our fellow citizens expect of us, even when this politics may be less “effective” by the world’s standards. Because if we are no different from the world, then what good is our witness to the world?
I’m sure Miles and I could have a much longer conversation about this — indeed, I hope we do someday! Until then, I always appreciate when someone has not just read my book, but has thought about it enough to critique it.
For the record, I do identify as an evangelical Christian in the sense espoused by David Bebington. Specifically:
I consider the Bible to be the inspired and holy word of God,
I consider a personal conversion to be important for a person’s faith journey, including my own,
I consider engaging and influencing the world and community around me to be an important element of my Christian faith, and
I consider the life, death, and bodily resurrection of Jesus to be essential to my salvation as a fallen and sinful person.