Amid leftists’ ongoing judicial coup against the Trump administration, America’s propaganda media have fomented baseless fears that President Trump is going to “defy” or “ignore” a decision from the U.S. Supreme Court if it rules on a case in a way he doesn’t like. But if these so-called “defenders of democracy” are concerned about government officials “ignoring” court rulings as they claim, where is their outrage about Democrat-led Wisconsin’s apparent bid to sidestep SCOTUS in a prominent religious liberty decision issued earlier this year?
In June, the U.S. Supreme Court unanimously ruled in Catholic Charities Bureau, Inc. v. Wisconsin Labor and Industry Review Commission that the Wisconsin Supreme Court’s denial of tax-exempt status to the state-based Catholic Charities Bureau (CCB) violated its First Amendment rights. While seemingly a major victory for religious liberty, the Christian group’s “win” now appears to be in jeopardy.
In the months since SCOTUS remanded the case back to the Wisconsin courts to remedy the violation, the Badger State’s Democrat-led government has been seeking to deny the tax-exemption not only to the CCB, but to all such religious and nonreligious organizations across Wisconsin — a move the charity’s legal representation says “should raise some red flags.”
“This is an organization that’s trying to help people and trying to do it as efficiently as possible. They have limited resources. They want to use them well. You’d think the state would want to partner with that as opposed to targeting it,” Becket Fund for Religious Liberty Attorney Colten Stanberry told The Federalist.
Background
To fully understand the intricacies of this case requires delving into the CCB (represented by Becket) and the origins of its ongoing legal battle.
As The Federalist previously reported, the Catholic Charities Bureau is the philanthropic arm of the Diocese of Superior in Wisconsin and works alongside its various sub-entities to provide charitable services as part of its core mission statement. While its sub-groups are overseen by the CCB, the sub-entities themselves, as summarized by Oyez, “are primarily funded through government contracts and do not receive direct funding from the Diocese.”
“Neither employees nor service recipients are required to be of any particular religious faith, and the programs do not provide religious training or attempt to promote the Catholic faith,” according to Oyez.
In 2016, the CCB and its sub-entities pursued an exemption that would allow them not to contribute to Wisconsin’s unemployment system — a request that was denied by the state Department of Workforce Development (DWD). The state agency argued that the CCB “did not qualify for the exemption” because its charitable activities do not hold a “primarily” religious purpose.
When an administrative law judge overturned DWD’s decision, the agency petitioned the Wisconsin Labor and Industry Review Commission, which overruled the judge’s edict. The case came to the Wisconsin Supreme Court, which agreed with the DWD’s assertion that the CCB doesn’t qualify for the tax exemption because it didn’t establish that it operates for a primarily religious purpose.
After taking up and hearing arguments in the case, the U.S. Supreme Court unanimously reversed the Wisconsin Supreme Court’s decision this past June. Writing for the court, Associate Justice Sonia Sotomayor noted that the Wisconsin Supreme Court’s “application of [existing law] to petitioners violates the First Amendment.”
“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,” Sotomayor wrote. “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. Because Wisconsin has transgressed that principle without the tailoring necessary to survive such scrutiny, the judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”
Wisconsin Plays Political Games
Speaking with The Federalist, Stanberry noted that in cases such as this, in which SCOTUS “revers[ed] the decision of the Wisconsin Supreme Court,” that “typically means that you do the opposite of whatever the Wisconsin Supreme Court did.”
“Because the Wisconsin Supreme Court didn’t give [the CCB] the exemption, the right remedy would be to give [it] the exemption,” Stanberry said. “Other times, the Supreme Court will use the term ‘vacate,’ which means, ‘We’re just taking that decision off the books and you get another chance, lower court.’ But in this instance, they used the term ‘reverse,’ and so what the Wisconsin Supreme Court should do is give us the tax exemption that we’ve been seeking for almost a decade now.”
It seems, however, that Wisconsin Attorney General Josh Kaul, a Democrat, had other plans in mind.
A month after the U.S. Supreme Court’s decision, Kaul’s office sent a letter to the Wisconsin Supreme Court, asking that additional briefing be held to decide how to remedy the situation.
Authored by Assistant Attorney General Colin Roth, the Democrat AG’s team noted that, in the state’s view, “the mandate here leaves a critical issue undecided: the appropriate remedy for the First Amendment violation identified in Catholic Charities.” Roth specifically argued that there are two possible resolutions to the U.S. Supreme Court’s decision: to grant the CCB the exemption, or to “eliminate[]” the exemption “entirely.”
“That remedial question remains unanswered here. The U.S. Supreme Court held that this case ‘involve[d] [a] paradigmatic form of denominational discrimination’ … but it did not hold that Wisconsin must eliminate that discrimination by extending the statutory exemption at issue to Petitioners (or, for that matter, by eliminating the exemption altogether). Instead, the Court remained studiously silent on the fate of Petitioners’ request for an exemption, leaving this remedial choice ‘in state-court hands, subject to subsequent definitive disposition by the State’s legislature,’” Roth wrote. “Respondents therefore respectfully request that the Wisconsin Supreme Court order briefing that addresses the unanswered remedial question.”
The Becket Fund issued a response letter on the CCB’s behalf a day later, in which Vice President and Senior Counsel Eric Rassbach urged the Wisconsin Supreme Court to deny the state’s request. He notably argued that SCOTUS’s decision in the Catholic Charities case, “which reversed this Court’s prior opinion, cannot be read to allow anything other than extension of the tax exemption to Petitioners.”
Unfortunately for the Catholic Charities Bureau, the Wisconsin Supreme Court granted Kaul’s request. In its Sept. 18 order, the Badger State’s highest court directed parties to “file simultaneous briefs regarding the appropriate remedial measures” within 30 days — a decision that prompted a sharp dissent from conservative Justices Rebecca Bradley and Annette Ziegler.
In their brief filed on Monday, Kaul and his office encouraged the Wisconsin Supreme Court to invalidate the exemption altogether, arguing that the “Court can avoid collateral damage to Wisconsin workers while still curing the discrimination the U.S. Supreme Court identified” by axing the exemption.
“The [Wisconsin] Legislature could not have been clearer that unemployment represents an ‘urgent public problem’ that ‘gravely affect[s] the health, morals and welfare of the people of this state.’ … And over the past 50 years, the Legislature has consistently expanded the universe of nonprofit employers that must participate in the unemployment system,” the brief reads. “Enlarging this exemption would reverse that trend, potentially leaving thousands of employees of religiously motivated nonprofits (like certain large healthcare systems) without this ‘imperative’ insurance coverage.”
“This remedy, although it means Catholic Charities would remain subject to the state unemployment insurance system, ‘fully addresses [the] First Amendment injury’ that lies ‘at the heart of [this] suit,’” it added.
The Road Ahead
Following the September directive from the Wisconsin Supreme Court, attorneys for the CCB also filed their brief with the state court on Monday. The plaintiffs argued that the answer to Kaul’s request to nuke the exemption “is unequivocally no,” and laid out 10 reasons as to why the Badger State high court should reject his ask.
Among the points raised by Rassbach and fellow attorney Kyle Torvinen is the argument that “Wisconsin long ago forfeited any claim to request that Catholic Charities’ remedy be anything other than receiving the exemption.” They contended that the state “should have raised that issue well before reversal and remand by the United States Supreme Court.”
“They’ve been litigating this case for [almost] 10 years. They’ve never said this was an option,” Stanberry said of Wisconsin’s attempt to ax the exemption. “You had a whole bunch of opportunities to raise this argument, you haven’t done it, [and] therefore, you don’t get to do it now.”
Stanberry further highlighted the plaintiffs’ argument surrounding “legislative intent.” He specifically cited how the Wisconsin Legislature has “appeared in support of us at multiple stages of the case, including at the Wisconsin Supreme Court [and] the U.S. Supreme Court.”
The legislature has “said [they] want Catholic charities to get this benefit,” Stanberry said.
In their brief, plaintiffs contended that “Any one of these problems would be reason enough to reject Wisconsin’s proposal,” but taken together, “they mandate what the United States Supreme Court already decided — Catholic Charities is entitled to the exemption.”
How the Wisconsin Supreme Court ultimately decides to remedy the case remains unclear. Should the Badger State’s highest court side with Kaul in trying to nuke the exemption altogether, Stanberry predicted that the matter would eventually return to the U.S. Supreme Court for further litigation.
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