ECFA recently submitted a legal brief to the U.S. Supreme Court explaining the constitutional dangers of government officials attempting to determine when a ministry’s activities are “sufficiently religious.” This filing comes as America’s top justices prepare to hear the case of a faith-based group denied a tax exemption by Wisconsin officials, who deemed its actions were not “typical” for a primarily religious organization in matters like hiring, evangelizing, and delivery of services.

“Constitutional principles of religious deference and neutrality prohibit government officials from denying religious exemptions based on their assessment of the degree of religiosity of an organization’s activities,” said ECFA and its colleagues in the brief.

The case at hand stems from a request by Catholic Charities in Wisconsin to be afforded a generally available religious exemption from paying into the state’s unemployment insurance program so it could enroll in a similar church program. However, Wisconsin officials denied the tax exemption, and a 4-3 Wisconsin Supreme Court ruling upheld that decision. The majority of the state justices ruled that the organization’s activities indicated it was “not operated primarily for religious purposes.”

In its appeal to the U.S. Supreme Court, the nonprofit’s attorneys at the Becket Fund for Religious Liberty stated, “The court held that because Catholic Charities provides services that ‘can be provided by organizations of either religious or secular motivations,’ those services do not have a religious purpose.”

“Put another way, it doesn’t matter if Catholic Charities gives a cup of water in Jesus’ name, because non-religious charities offer cups of water, too,” Becket added.

Notably, the First Amendment of the U.S. Constitution prohibits government establishment of religion and its infringement on the free exercise of faith. ECFA’s brief supporting Catholic Charities’ position argues that Wisconsin violated both of those principles. Its reasoning, which ignores the nonprofit group’s sincere religious beliefs about its community services, “turns the purpose of the Religions Clauses completely on its head.”

“A religiosity test which requires government officials to determine whether an activity (or purpose) is sufficiently religious sets government officials adrift in a sea of subjective religious determinations which they have no constitutional competence or authority to navigate,” we declared.

Even as ECFA’s brief warned against an “implicit state-defined orthodoxy,” it also countered Wisconsin’s assertion that it was not burdening religious free exercise. In fact, the brief explained that the very existence of the religious exemption suggested a substantial burden on religious exercise, and Wisconsin had no compelling reason to place this burden specifically on Catholic Charities.

“The question for religious exemption purposes should not be whether an activity is ‘sufficiently religious’ as measured by a government official’s assessment of the religious significance of the activity,” our brief summed up. “The question instead should be whether the organization’s representations regarding how its activities further its religious purposes are bona fide.”

This case is scheduled for oral argument at the high court on March 31, and a ruling is anticipated by early summer. ECFA will continue to monitor these proceedings closely.