Attorneys for Catholic Charities and the State of Wisconsin squared off at the U.S. Supreme Court last week in a major tax exemption case. Like ECFA, which submitted a brief that warned against the constitutional dangers of subjective state religiosity tests, most of the justices appeared concerned with the state’s position.

The case stems from a request by Catholic Charities 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.”

“This case is not complicated,” said Becket Senior Counsel Eric Rassbach on behalf of Catholic Charities at the U.S. Supreme Court on March 31. “The Wisconsin Supreme Court got it wrong when it interpreted a state-law religious exemption to favor what it called ‘typical’ religious activity and when it held that helping the poor can't be religious because secular people help the poor, too.”

“To resolve this case this Court need do nothing more than say that the Constitution doesn't allow courts to do that,” he added.

On the other side, Wisconsin Assistant Attorney General Colin Roth warned against a “motive-only test” for the religious exemption that he believed would “radically expand similar exemptions like 501(c)(3), Title VII, Section 702, and property tax exemptions, all of which examine what organizations do, not simply their motives for acting.”

The justices explored ideas about motives and the ability to determine sincerity of beliefs with each party, including a representative for the federal government who argued on the side of Catholic Charities. However, many of their questions came back to wariness of entangling the state with religion. For example, Justice Elena Kagan told the Wisconsin attorney, that it is “pretty fundamental” for the government not to give preference to certain religions.

“The reason why we're so worried about entanglement is because it gets us enmeshed in the content of religious doctrine,” said Kagan. “But your way of doing it, you know, basically puts the state on the side of some religions with some doctrine versus other religions with a different doctrine.”

After probing Wisconsin’s response, Justice Neil Gorsuch added, “But I think what Justice Kagan is getting at is, isn't it a fundamental premise of our First Amendment that the state shouldn't be picking and choosing between religions, between certain evangelical sects, and Judaism and Catholicism…for example? And doesn't it entangle the state tremendously when it has to go into a soup kitchen, send an inspector in, to see how much prayer is going on?”

In an amicus brief, ECFA and several colleagues argued that Wisconsin was violating the First Amendment’s prohibitions on both establishment of religion and infringement on religious free exercise. The state’s reasoning, which ignores Catholic Charities’ 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.

It appears many of the justices are similarly concerned though it is unclear how broadly or narrowly they will approach a resolution of this case. The court is likely to rule by early summer.