S6, Ep. 12: Back to SCOTUS: Regular business in disturbing times

There has been no shortage of news from all three branches of government in Washington, D.C., but one thing hasn’t changed: the U.S. Supreme Court continues to be interested in religious liberty cases. On today’s show, Amanda and Holly review the recent oral arguments in Catholic Charities Bureau v. Wisconsin, which focuses on a religious exemption in the state’s unemployment compensation laws. There are big questions being asked in this case, such as where one draws the lines, how can “religion” be defined, and what is meant – exactly – by the term “proselytization.” Plus, Holly and Amanda take a moment to step back and talk about the current attacks we are seeing on the rule of law in our country. 

SHOW NOTES
Segment 1 (starting at 00:38): Current state of the courts and various attacks on the rule of law

There are three church-state cases that the Supreme Court will hear this term:

• Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission (Oral arguments were March 31)
• Mahmoud v. Taylor (oral arguments will be April 22)
• Oklahoma Virtual Charter School Board v. Drummond (oral arguments will be April 30)

 

Segment 2 (starting at 08:00): Oral arguments in Catholic Charities Bureau v. Wisconsin

Visit the website of the U.S. Supreme Court for a transcript and an audio recording of the oral arguments in Catholic Charities Bureau v. Wisconsin. 

We played a clip from the oral arguments between Justice Neil Gorsuch and Colin Roth, who argued the case as the assistant attorney general for the state of Wisconsin. You can read the exchange beginning on page 81 of the oral argument transcript.

Holly and Amanda mentioned the 2021 case of Fulton v. Philadelphia. Read more about that case on BJC’s website. 

Read Amy Howe’s coverage of the Catholic Charities case for SCOTUSblog: Supreme Court likely to embrace expanded tax exemption for religious charities

Read Adam Liptak’s coverage for the New York Times: Supreme Court Leans Toward Catholic Charity in Tax Case

 

Segment 3 (starting 26:48): Decision thoughts and what’s ahead

Amanda mentioned the upcoming Oklahoma v. Drummond case. BJC filed a brief in that case, and you can read it on our website.

Respecting Religion is made possible by BJC’s generous donors. Your gift to BJC is tax-deductible, and you can support these conversations with a gift to BJC.

 

Transcript: Season 6, Episode 12: Back to SCOTUS: Regular business in disturbing times (some parts of this transcript have been edited for clarity)

 

AMANDA: There are balancing interests — right? — and we often see this in these church-state cases.
HOLLY: But we don’t want to define religion too much. We don’t want to do so in a way that tends to favor the majority or is too restrictive.

 

Segment 1: Current state of the courts and various attacks on the rule of law (starting at 00:38)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. On today’s episode, we’re returning to the subject of religion and the law at the U.S. Supreme Court, and specifically we’re going to review the recent oral arguments in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. It’s one of three church-state cases on the Court’s docket this term, and the Court heard oral arguments recently, on Monday, March 31.

And it’s good to see you. I know you’re back home in Dallas after quite a busy travel schedule.

AMANDA: Yes. I have been on the road, so it is good to be home. It’s good to be back in front of the mic and back to talking about Supreme Court cases, too. There is a lot going on, Holly, in the world and in our country, and this is a little bit of kind of what it’s been like, maybe a bit of normalcy, you know, in the midst of a lot of what is absolutely not normal that’s happening in our country.

HOLLY: That’s right. It is quite normal, as our listeners know, at least in the recent decade that the Court has quite a lot of interest in religion law cases. And as I mentioned, there are two other cases that we’ll discuss on the podcast later on.

We’ll discuss Oklahoma Statewide Charter School Board v. Drummond, aka the Oklahoma religious charter school case, and we’ll discuss Mahmoud v. Taylor, the religious opt-out public school curriculum case, both of which will be heard later this month. But today we want to focus on this specific case but also note the environment in which we’re recording today.

AMANDA: Yeah. I mean, this is a fraught time for the law, the rule of law, for the legal community, and, you know, as much as I do want to kind of get into the particulars of this case, it doesn’t feel right to do so without acknowledging the larger context.

You know, some of what we’ve talked about, Holly, off air — right? — just between us is how disturbing it is to see lawyers and law firms attacked by this administration, just for doing their job of representing clients, of making sure that the rule of law is effectively enforced and that we have fair trials, we have fair cases, and that that real baseline of the rule of law in a pluralistic democracy is being actively challenged by this administration, and that some law firms are being complicit in it by acceding to demands from the administration, while other law firms are standing up, and that there’s this active debate going on in the legal community about the role of lawyers in a democracy, particularly when authoritarianism is on the rise.

HOLLY: We always know as lawyers, we learn very early on the importance of representation. We learn about ethical guidelines. We learn about, you know, everyone theoretically being entitled to have representation to enforce their rights in a lot of different contexts. And so it’s always bothersome when people think certain people don’t deserve representation.

At the same time, we know that there are financial interests in big law firms, and so different firms have different focus on the kind of business they do and work they do. But these attacks really seem to have put these law firms in a position of having these two things at odds, like the basic duty to represent clients, to operate in a world where that’s appreciated, and then a real threat that they seem to be feeling that they will lose their entire firm because an administration is coming after them, threatening if they take certain work, then they will do anything they can to harm them.

Of course, what we’d like to see is all the law firms stand together against such an assault. That would be great for the rule of law. I think it’s also better for these law firms. But that remains to be seen, you know.

AMANDA: Yeah. And, I mean, there is that collective action problem that we’re seeing not just in the legal community but in other sectors, like colleges and universities, for instance, business community, and so we’re seeing it play out. And so on our podcast, where we focus on religion and the law, it makes sense, I think, for us to be keeping this front of mind as well.

You know, the other piece is in our constitutional democracy, we have three co-equal branches of government. I’m increasingly concerned about our Article I branch of government, the U.S. Congress, not holding up its end of the constitutional bargain and really enforcing its duties and really exercising its duties to the U.S. Constitution.

Overall, I’ve been pretty pleased with Article III branch of government, the federal courts, in trying to process these cases that are being filed quickly. But we’re seeing attacks on the federal judiciary as well, calls for impeachment of federal judges simply for ruling against the administration or trying to enforce nationwide injunctions, for instance, and really seeing a need for the entire legal community to defend the important role that the federal judiciary plays in providing a check in a system that relies on checks and balances in order to ensure American democracy.

HOLLY: Well, we are certainly counting on, hoping for the best from this U.S. Supreme Court as there are so many challenges, both those that are typical and those that are quite atypical, given the times.

AMANDA: Well, and leadership from the Court and particularly Chief Justice John Roberts, I think, has been standing up for the federal judiciary. In March, he issued a rare rebuke of President Trump and his allies for the president’s urging on of the impeachment of judges. And I think that is more than a symbolic move. I think that’s an important sign from the person who holds the highest position in the federal judiciary to do that.

And then we’re also seeing, of course, that alongside its regular docket of cases — all of the cases that it accepted to hear this term, we have a number of emergency applications that are coming up to the U.S. Supreme Court. They’re ruling in a variety of ways but seem to be dispensing of those cases very quickly, which is important for some of these emergency cases that are coming up.

And so I just want to acknowledge — and some of those, we may get more in-depth on in these conversations on Respecting Religion in episodes to come — but wanted to acknowledge that we’ve got that going on on one side, while we have this full docket, including, as we’ve noted, three church-state cases in this term as well.

 

 

Segment 2: Oral arguments in Catholic Charities Bureau v. Wisconsin (starting at 8:00)

HOLLY: So today we’re going to focus on the recent arguments in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, or as we’ve been calling it, the Catholic Charities – Wisconsin case.

First of all, let’s just describe what the case is about. In short, the Supreme Court is reviewing a decision of the Wisconsin Supreme Court concerning the interpretation and application of a religious exemption in the state’s unemployment compensation laws.

Wisconsin provides a statutory exemption for churches but also for religiously affiliated organizations operated primarily for religious purposes. So just that little quoted part — quote, “operated primarily for religious purposes,” close quote — is at the center of this case. But as we’ll discuss, there are some larger ways of thinking about this.

AMANDA: In this case before the U.S. Supreme Court, Catholic Charities challenged a ruling, an administrative ruling, of the Wisconsin Labor & Industry Review Commission that denied their application for that religious exemption. And they are arguing to the U.S. Supreme Court that the Wisconsin Commission’s denial was based on criteria that violates the First Amendment, particularly the religion clauses of the First Amendment.

So before we get into the oral argument, Holly, how do you think about this dispute and how does it fit into the larger church-state law picture?

HOLLY: Yeah. That’s a really good question. I’d start with the idea that exceptions for religion, for religious organizations, are part of the law that are quite normal. We often talk about exemptions that are required by the First Amendment in order to protect free exercise or against religious establishments by the government. But then there are exemptions that are permissible, where legislatures can allow certain exemptions to kind of avoid being entangled in religion.

So we kind of start from that background, and then as I read the lower court decision that’s on review — and this decision of the Wisconsin Supreme Court that upheld this administrative agency — I see this case addressing two big concerns.

On the one hand, the state, as it creates exemptions, should not define religion narrowly. Okay. We know that. We know religion is protected in a certain way. It is named in the First Amendment, so that makes it different from other concerns.

But we don’t want to define religion too much, because we know religion looks differently. We don’t want to do so in a way that tends to favor the majority or is too restrictive. So that’s one concern.

And then on the other hand, there is a concern on the state’s part that as it creates exemptions, it has to draw certain lines. You have to say what’s in and what’s out, and you need to do that in a way that makes sense, that fits with the goals, and that is administrable. So it can’t be that every line drawn necessarily is a problem and you have to let everything in or nothing in.

So those are kind of the big concerns I saw in this case. And I had to spend quite a bit of time in this case, even though BJC was not directly involved in it, just to get my arms around it. It was an extremely long decision from the Supreme Court of Wisconsin. I think it was a more than 50-page majority opinion and a more than 70-page dissent, really sprawling and addressing lots of different concerns, at times getting very technical, picking apart statutory language, that language that I cited, really exploring every kind of meaning for each of those words individually and together.

As we talk about the oral argument, I just want to remind listeners that the Supreme Court has to decide the case, but it doesn’t have to agree with the lower court in how it sees the case. They can affirm, or they can reverse the decision and send some clear instructions.

AMANDA: That’s right. We see this a lot in cases that come to the U.S. Supreme Court, that once it gets to the Court, which, of course, is not bound by any higher authority — right? It’s trying to apply precedent and how other Supreme Courts have ruled on interpreting the First Amendment. But it can often — and we’ve seen this — get creative in the way that it shapes the law and determines a new rule here.

So just a quick overview of the oral argument in this case: There were three advocates who were arguing, two for Catholic Charities and one for the state of Wisconsin. The principal attorney for Catholic Charities was Eric Rassbach, who is with Becket, a religious liberty law organization that frequently appears before the U.S. Supreme Court. Joining him on the side of Catholic Charities, someone from the U.S. Solicitor General’s Office, Curtis Gannon. And then defending the decision from Wisconsin was the assistant attorney general for the state of Wisconsin, Mr. Colin Roth.

HOLLY: Yeah. And the case started off like they often do, with the petitioner’s advocate asserting that very clearly what’s at stake and that it’s an easy case that the Court needs to reverse.

So the oral argument began with the advocate for Catholic Charities saying, the Wisconsin Supreme Court got it wrong when it interpreted a state law religious exemption to favor what it called could be typical religious activity and when it held that helping the poor can’t be religious because secular people help the poor, too;  which I thought, well, that was a good way to start, Eric — just really attack this as a super harsh way of describing the Wisconsin Supreme Court decision that, as I said, was methodically and really trying to go through the application of its exemption for religious-affiliated organizations.

He asserted that the Supreme Court needs to be clear and declare that the First Amendment does not allow courts to make the kinds of decisions that the Wisconsin court did below. He came on really strong, and so it was good to see that then the first question gets to this point of, okay, wait a minute.

Justice Thomas said, Can a state impose any limits on the exemptions, because, you know, if you’re just going to wholesale attack this long decision of the Wisconsin Supreme Court that’s trying to apply an exemption, just say, You can’t do it at all, we can see that on that side, that he’s asking for a quite a deal of deference to religious organizations which creates this question that Justice Thomas asked.

AMANDA: Yeah. And I think, you know, back to your original framing, Holly, you talked about exemptions can be required or they can be permissible. And I think this is the kind of exemption that is permissible, but once it’s provided, then it is prohibited to discriminate between different religions, and this inquiry that the Wisconsin Supreme Court seemed to have into particular theology is problematic.

But I also think it is important — and the justices seemed to get right to it here — on how do we draw lines, because there have to be lines that can be drawn. The state of Wisconsin has a strong interest in providing unemployment benefits to and having an unemployment fund for employees who lose their jobs. And so there are balancing interests — right? — and we often see this in these church-state cases.

There are interests for the religious organizations, but there are also interests in this case for the state. And so how do we draw lines? That’s kind of the main question that’s here.

HOLLY: And it felt to me, Amanda, like the Court was eager to get into this question, whether — at times I wasn’t sure it was necessary — about what is religious and religious enough, kind of in a really broad way, they were thinking, as opposed to in this particular statutory context. Right?

In the law, words have definitions in particular contexts, and that doesn’t mean that it’s a definition for all purposes. But, man, they really got straight into it, with particularly Justice Gorsuch, Justice Kagan, focusing on some language in the lower court decision that was problematic because they were considering that organizations that are operated primarily for religious purposes — one indicator of that is whether or not they proselytize, and so there was quite an interesting argument about what does that mean and is that necessary and do you have to do that to be religious.

AMANDA: And that was a theme that seemed to run throughout the argument, but there was a particularly searing question back and forth between Justice Gorsuch and Mr. Roth that we’d like to play here.

JUSTICE GORSUCH: (audio clip) What is proselytization?

MR. ROTH: Proselytization would mean when the — if Catholic Charities, when it’s delivering services, says, you know, Please repent, essentially, you know.

JUSTICE GORSUCH: Repent. They have to say, Repent.

MR. ROTH: Anything like, you know, Please join our religion; we would like you to become Catholic if you’re going to receive this service, because when — I’m sorry, Your Honor.

JUSTICE GORSUCH: So they have to say — I just want to know what the test is. So, Repent your sins, you get the exemption. Not require you to repent your sins, I guess you don’t get the exception.

MR. ROTH: No. The —

JUSTICE GORSUCH: Or — or what was the other one? What was your other test for proselytization? Join their church? You become — you know, become a member as opposed to, We welcome you to attend our services if you want; here’s some information about them. What’s the line there, because they say they do. They say, You’re always welcome, I mean, in the Catholic church; we’d love to have you, but we’re not saying you have to show up for — so is mandatory church attendance versus optional church attendance, that’s the line?

HOLLY: Amanda, I think that clip, which follows the introduction of that point — you know, and it was addressed by petitioner’s counsel first. Petitioner’s counsel really focused on the fact that the Wisconsin Supreme Court noted that Catholic Charities doesn’t proselytize and then they didn’t get the exemption, so I think that was clearly a focus for Catholic Charities to show how unfair it is.

And then that clip shows that, yeah, we don’t really believe that, that religions that proselytize versus that don’t are more entitled to favorable treatment under the law. So I think that exchange really is damning to the lower court’s opinion. They’ve got to do something to say that that’s wrong.

Now, as we said at the outset, the Court doesn’t have to then take the position of the dissent. And, you know, the dissent and, I think, what petitioners seem to be arguing is that what matters is not whether you proselytize or not but what your motivation is. And that argument also has problems. It’s problematic because a rule that says only motivation matters opens the door so widely as also not to make sense.

AMANDA: So that line from Gorsuch that we just played earlier is kind of typical of what Justice Gorsuch tends to do in argument. He often uses his questioning to point out how preposterous the lawyers’ arguments can be at times, and sometimes that comes off in not the best way.

I thought that Justice Kagan also had a very effective way of getting at this same point. When she was talking about proselytization — and particularly thinking about the line is, it can’t be whether a religious group requires religious participation in order to receive assistance. And I thought she — I really appreciated when she acknowledged that for some people, not proselytizing while they do charity is part of their religion. And I thought, yay, religious liberty, yes.

HOLLY: Yeah, that’s right.

AMANDA: For those of us for whom religious liberty is a core part of how we theologically think about practicing our faith, she’s acknowledging that they need to be included in organizations with religious purposes as well.

But I also — I found this part problematic, and the justices really didn’t go there. But we have this very developed area of the law when it comes to organizations that get public money — right? — and what is required or allowed when they get public money and whether or not they’re doing proselytizing as part of their services.

We’ve had lots of other conversations on this podcast about that point. It’s not directly relevant to this case, but it bothered me that we were having this conversation without acknowledging the fact that that could lead, for organizations that take government money, into government-funded religious discrimination in some ways.

HOLLY: In other contexts, it’s more obvious that proselytization — kind of persuading someone to join a religion or making participation in religious exercises part of a services program — is problematic, and that is in this area of government-funded services.

And we know Catholic Charities is a big player in government-funded social services. I mean, historically they have been, and they continue to be. In recent church-state cases, we’ve seen that. The Fulton v. Philadelphia case that dealt with contracts for providing foster care services.

Yeah. We’re not afraid of a conversation about proselytization, even though that’s such a weird word. I think I heard Professor Laycock one time, Doug Laycock — one of the church-state scholars that we admire and work with a lot — talk about that term and say, Religious people don’t use it themselves; it’s just a term that we use in the law to try to say kind of evangelizing, promoting religion; although in this case, they had a little colloquy there where they were trying to distinguish between different ways of presenting religion that might be proselytization or might just be evangelism or might just be good manners and welcoming.

So, anyway, your point’s well taken, Amanda, that we know that that can make a difference in certain contexts, but I think the justices in this context really didn’t like it. And so they really are trying to distance themselves from that part and maybe the whole decision of the majority below, because they talked about proselytization.

Now let me say something for the state of Wisconsin, though. To their credit, the attorney who was arguing for the state there, he was not digging in on proselytization. He didn’t love that either. That’s not his favorite part of his win below. And so he really tried to say that these terms that the Court used below were to attach to how the employee and the exemption for Catholic Charities was tied to what the employees do.

He’s trying to just say that, you know, the closer the work of the religious affiliate is to religious purposes — and he could — it’s easy to say, religious purposes, in kind of in a shorthand way of worship and education and proselytization. The closer it is to that, the more the exemption made sense from the state’s perspective.

And, again, we got to remember. This is a context of when you get benefits because you were fired for no reason that you did anything wrong versus misconduct. So it’s only in certain contexts that the state is saying that you should have that exemption, and from the state’s perspective, that exemption should be narrower in situations where the employment and the work of the employee is very related to the religious purposes and obvious religious activity of the organization.

AMANDA: Yeah. And I think — I’m really glad you made that point, because I do think it’s important that we keep in mind: What is the impact here? Right? And we saw this in a lot of the reporting on the case after, and we’ll put some links to some of those pieces here, particularly from SCOTUSblog and from The New York Times.

And those all talked about, you know, that the Court is considering and seems likely, given the questioning at the argument, seems likely to expand the exemption. Right? So there is currently a federal unemployment law which many state unemployment laws are based that provides this exemption, as we noted earlier, for churches and other integrated auxiliaries.

But because Catholic Charities is an independent organization, it says it would also qualify under the same reasoning for that exemption. And so what’s the impact of that? Mr. Roth for Wisconsin is saying it could be up to 1 million Americans. That’s a lot of people who could potentially not qualify for unemployment benefits. And some of the organizations that are organized like that are religious schools and universities or religious hospitals. We could see some of these employers potentially applying for the exemption.

Now, the attorney for Catholic Charities tried to make it seem like it’s a smaller impact and particularly in the state of Wisconsin, he said it would be .6 percent of the Wisconsin federal employment fund. Now, those numbers may or may not kind of line up, but 1 million certainly seems a lot more than .6 percent.

That’s kind of the impact, and that’s why I think the justices are trying to figure out. There has to be a line that’s drawn, but help us – advocates — figure out where to draw that line in a way that doesn’t run afoul of the First Amendment.

HOLLY: That’s right. And it seems apparent that it would run afoul of the First Amendment if it appears to be on theological lines, which is what it felt like when you go down that focus on proselytization.

 

 

Segment 3: Decision thoughts and what’s ahead (starting at 26:48)

HOLLY: It’ll be interesting to see how much the Court goes back to the briefing or is influenced by the oral argument, which, you know, did present the issue from the state’s perspective a little bit differently than some of the briefing below by trying to draw an analogy to the ministerial exemption.

The ministerial exemption is that broad First Amendment principle that really protects churches, religious organizations, from having to be — having the state involved in their employment decisions about a certain class of employees, you know, ministers. We’ve had recent cases on that.

So, the advocate for the state was trying to say, Look, you’ve allowed these lines to be drawn in other areas, so you can do that here. And, you know, we’ll see how that plays out after this oral argument.

But, Amanda, I agree with you, when you said this to me earlier. It did seem like the state had a tough time at the Court that day.

AMANDA: Yeah. And I wonder what you think about this, Holly, because on the ministerial exemption argument, it sounded to me like Wisconsin’s attorney was trying to make the argument that that should be the same circle that would apply for this religious exemption.

I don’t know if he was ever quite that explicit about it, but some of the purposes or the activities seemed to be similar. And that didn’t hit me right, because —

HOLLY: Yeah.

AMANDA: — that’s a higher bar, because that’s actually saying that Title VII, for instance, doesn’t apply. And that’s not what these religious organizations or this particular exemption would provide.

HOLLY: Yes. I don’t think he was trying to say — to draw the exact same line, but instead to use that as an example to say, it’s okay to make some distinctions. But whether or not that was effective, we will see when we see the justices’ decision. I think it was simply an idea to try to tell the Court that they could draw lines that made important distinctions related to employment and kind of using the ministerial exemption case as an example.

AMANDA: So we will definitely be watching and, of course, providing analysis when the opinion eventually does come out, which is expected before this Court’s term ends at the end of June. And we will also be watching if some of the themes and the conversation that the justices had in this oral argument impact or relate to later oral arguments and particularly the one in the Oklahoma religious charter school case, an argument that the Court will hear on April 30, and which BJC has been more involved in, including filing a friend-of-the-court brief recently in that case.

HOLLY: That brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org where you can find show notes and a transcript of this program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy with editorial assistance for this episode from Sabrina Strickland-Harris and Iona Gordon.

Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

HOLLY: And we’d love to hear from you. You can send both of us an email by writing to [email protected].

AMANDA: We’re also on social media @BJContheHill, and you can follow me on X, Bluesky and Threads @AmandaTylerBJC.

HOLLY: And if you enjoyed this show, share it with others. Take a moment to leave us a review or a five-star rating to help more people find it.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us next time for a new conversation Respecting Religion.