A Charity Case

State supreme court justices often must resolve difficult issues in hard cases. No one expects them to get every hard case right. But judges who faithfully adhere to their oaths of office are unlikely to make obvious errors in easy cases whose issues are governed by clear rules and settled precedents. So, what is going on in Wisconsin?

Last week, in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, the Supreme Court of the United States reversed a ruling of the Supreme Court of Wisconsin. A unanimous US Supreme Court ruled that Wisconsin’s high court had rationalized religious discrimination by Wisconsin officials in violation of the First Amendment. Writing for the Court, Justice Sotomayor observed that this was not a hard case.

A charitable explanation for the Wisconsin ruling is that a majority of Wisconsin’s justices suffer deep jurisprudential confusion. The court committed three major errors. All three errors are conceptual as well as legal and constitutional. And all three errors matter because they are incompatible with constitutional rule and ordered liberty.

The case arose under a Wisconsin law that requires employers to pay taxes into a scheme of unemployment insurance and exempts religious, nonprofit employers. The Catholic Charities Bureau claimed this tax exemption. But the Supreme Court of Wisconsin decided that Catholic Charities’ charitable ventures are not “operated primarily for religious purposes,” as state law requires. The court acknowledged that Catholic Charities and its subsidiaries are motivated by an explicit Christian mission and are governed by the bishop of a Roman Catholic diocese. But the court asserted that these religious institutions “offer services that would be the same regardless of the motivation of the provider.” The court concluded that Catholic Charities’ “activities are primarily charitable and secular.”

The Wisconsin court held that it did not violate the First Amendment to withhold the exemption from Catholic Charities. A dissenting justice charged that the court’s reasoning “excessively entangles the government in spiritual affairs, requiring courts to determine what religious practices are sufficiently religious under the majority’s unconstitutional test.” But the majority disagreed. “The review we endorse in this case is a neutral and secular inquiry based on objective criteria, examining the activities and motivations of a religious organization.”

The Wisconsin court also insisted that its holding would not infringe Catholic Charities’ free exercise rights. Catholic Charities can afford the tax. To require Catholic Charities to participate in the state’s unemployment compensation scheme, therefore, did not place a “constitutionally significant burden” upon its religious exercise, the court concluded.

Religious liberties are not contingent on sovereign will, Justice Thomas insisted.

In reversing, the justices of the Supreme Court of the United States unanimously held that the Wisconsin ruling was not neutral between different religions, as long-established First Amendment doctrine requires. The Establishment Clause, as the US Supreme Court has interpreted it over several decades, prohibits governments from favoring any religion over any other. This rule of “denominational neutrality,” as the Court calls it, requires strict scrutiny of any law or application of a law that distinguishes between religions, treating one more favorably than another.

Wisconsin violated the neutrality rule. To affirm that violation was the Wisconsin court’s first error. “There may be hard calls to make in policing that rule,” Justice Sotomayor acknowledged, “but this is not one.” Wisconsin officials engaged in a “paradigmatic form of denomina­tional discrimination.”

Wisconsin drew a line between religious charities based on “theo­logical differences in their provision of services.” Wisconsin deemed Catholic Charities and its affiliates ineligible for the tax exemption “be­cause they do not ‘attempt to imbue program participants with the Catholic faith,’ ‘supply any religious materials to program participants or employees,’ or limit their charita­ble services to members of the Catholic Church.” On that reasoning, Catholic Charities “could qual­ify for the exemption while providing their current charita­ble services if they engaged in proselytization or limited their services to fellow Catholics.” But Catholic Charities and its affiliates argued that Catholic doctrine forbids them to use “works of charity for purposes of prose­lytism” and requires them to serve everyone. The burden on religious exercise is obvious.

The implications of this first error for ordered liberty are profound. The problem is not mere favoritism. A state supreme court that arrogates the power to draw the boundary between religious and non-religious activities by religious associations has seized the power in principle to nullify the religious freedom of those associations by defining their free exercise of religion out of legal and constitutional existence.

Writing a separate concurrence, Justice Thomas identified a second error of the Wisconsin court. Catholic Charities Bureau operates through a separate corporation from the Diocese that oversees it. For the Wisconsin majority, this meant that Catholic Charities is a separate “organization” from the Church, and the Church’s religious motivations, therefore, were irrelevant in ascertaining Catholic Charities’ primary purpose.

As Justice Thomas observed, that “hold­ing contravened the church autonomy doctrine,” another well-established constitutional rule. It requires Wisconsin’s courts “to defer to the Bishop of Superior’s religious view that Catholic Charities and its subentities are an arm of the Diocese.” Religious institutions have a First Amendment right to structure their legal affairs in the manner best suited to their own ecclesial governments, theological doctrines, and practical, legal needs. The Supreme Court of Wisconsin has no power to decide which corporate structure is sufficiently religious for a church’s ministries.

The Wisconsin court’s legal error, Thomas explained, was to identify the association of charitable Roman Catholic believers with the legal structures that the association uses to carry on its business. The Roman Catholic Church “is a single worldwide religious insti­tution,” not a legal sub-entity incorporated in the state of Wisconsin. Though the Wisconsin justices acknowledged that the Bishop of the local Diocese directs Catholic Charities and controls its affairs, they nevertheless “viewed Catholic Charities and its subentities as distinct, nonreligious or­ganizations merely because they are separately incorpo­rated.”

The Wisconsin court’s conceptual error was, in Justice Thomas’s words, to think of “religious institutions as nothing more than the cor­porate entities they have formed.” Churches and other religious communities have an existence of their own, which is not reducible to their formal, legal structures and not contingent upon the laws of a state or judgments of secular officials. Whether its rights and obligations are secured by a corporation, a trust, or some other legal fiction, a religious group exists in reality, independent of its recognition in positive laws and legal and equitable judgments.

Justice Thomas pointed out the implications of this conceptual error for civil liberties and the rule of law. Quoting an 1835 decision of the Vermont Supreme Court, Justice Thomas explained, “To conclude that a religious institution has no existence outside its corporate form ‘would be in effect to decide that our religious liberties [are] dependent on the will of the legislature, and not guar­anteed by the constitution.’” Religious liberties are not contingent on sovereign will, Justice Thomas insisted, because “religious institu­tions are a parallel authority to the State, not a creature of state law.”

The majority of justices of the Supreme Court of Wisconsin are not equal to the powers that they arrogated. Secular courts have no legal or constitutional competence to adjudicate questions of canon law, religious or theological doctrine, or ecclesiology. And as the Wisconsin majority opinion illustrates, elite lawyers often lack professional competence to address such questions, as well. Most of the top law schools no longer require law students to learn jurisprudence and legal history, much less canon law. And increasing numbers of lawyers have no meaningful experience of religion.

A society comprised of charitable persons is immeasurably better off than a society whose members only do what they are obligated to do.

Thus, it is not surprising that most of the Wisconsin justices misunderstood religion. Not all religious people proselytize. Though the Christian religion involves evangelization, winning converts is neither the totality of the Christian religion nor its essence. The Christian life consists of acts of obedience. “If you love me, keep my commandments,” Jesus of Nazareth instructed his followers. Among those commandments are several injunctions to perform acts of charity. God will reward those who give food to the hungry, drink to the thirsty, and clothes to the naked. If anyone demands your shirt, give him your coat as well. Above all, love your neighbor as you love yourself.

The Wisconsin justices committed a third conceptual error, which the justices of the US Supreme Court did not correct—indeed, Justice Jackson compounded this error in a separate concurrence. They misunderstood charity. In the minds of the Wisconsin justices, the “religious motivation” for Catholic Charities’ charitable work was “not enough to receive the exemption” because non-religious organizations can provide the same services. The charitable services, therefore, “are secular in nature.”

In this line of reasoning, the justices identified charity according to its outward action and effect, without regard to its motivation. They identified the relevant “activities” as “job training, placement, and coaching, as well as services related to activities of daily living.” Whether these valuable ends are pursued for “religious or secular motivations,” the justices speculated, “the services provided would not differ in any sense.” Therefore, they concluded, the services are activities of a “wholly secular endeavor.”

That conception of charitable action, identifying charity with its effects and consequences, mistakes the character of charity. A charitable intention is what makes an act charitable. To be charitable is to intend to give what one has a right to retain, and to yield up one’s rights with no claim or expectation of reciprocity, for the sole reason that the recipient will benefit. Paying taxes and making payrolls of social services agencies are not acts of charity. Donating time and money that one has no duty to give, so that another may learn or eat, is charity.

Because it is the intention that makes an act charitable, the primary values of charity are moral and spiritual, not pragmatic. As Thomas Aquinas taught centuries ago, acts of charity, such as almsgiving, have an internal effect on the soul of the almsgiver, bearing the “spiritual fruit” of loving another person more than riches. And such acts can also generate gratitude and benevolence in the recipient.

Charity’s moral value is its central aspect. Charitable acts certainly can produce what Aquinas called “a corporal effect, inasmuch as they supply our neighbor’s corporal needs.” But what makes charitable action so valuable, and a chief reason why we extend to charitable actors so many special, legal privileges and immunities, is that charitable actions make charitable persons. And a society comprised of charitable persons is immeasurably better off than a society whose members only do what they are obligated to do.

Is charity religious? In theory, charity can be secular. Every human being has the capacity for charity. But in practice, charity is a religious phenomenon. Viewing the full sweep of human history reveals that charity is a distinctly religious virtue and almost exclusively a religious activity. While many societies throughout history have practiced hospitality and altruism, the Jewish and Christian religions invented charity. And it was Christian societies that placed charity in the mainstream of civic life and gave it a unique place in our fundamental law.

By redefining charitable action according to its material effects, rather than its intention and spiritual value, the Wisconsin majority attempted to make charity commensurable to non-charitable forms of poor relief. This false equivalence opens the door to threats to ordered liberty. If government welfare programs, social engineering projects, or other secular, non-charitable endeavors can produce equal or better results, and if it is the results that matter, then those in power may decide that we can do without charity. If we don’t need to preserve rights to perform charity, then officials may decide they don’t need to respect the autonomy of charitable associations. And we may end up with more rulings like that of the Supreme Court of Wisconsin.