Liz and Rebecca break down the latest Supreme Court case, Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. They explain how the case seeks to expand religious tax exemptions yet again, while threatening the unemployment benefits of thousands of workers. They share their analysis of the oral arguments and predictions on how the Court’s decision will affect workers.
Background
Upcoming Cases
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with Americans United and I’m Liz Cavell with the Freedom From Religion Foundation. Before we get into today’s topic, I just wanted to address an issue that has been deeply disturbing to me personally and professionally, and I’m sure you as well, Liz. And this is the threats the Trump administration is lodging against the legal community. Specifically any lawyers who challenge his administration’s actions. As you might be aware, Trump has been signing executive order after executive order targeting large law firms, basically in order to chill their work and to punish them for giving representation about matters on issues with which he disagrees or dislikes and dare I say it also his political rivals.
Liz Cavell: Right.
Rebecca Markert: This is reprehensible and should be concerning to everyone. The impact of these tactics are going to be felt by all Americans, not just those in the legal profession. These are attacks that will directly impact everyone’s civil rights. I was mentioning to Liz before the show that everybody loves a good lawyer joke until you actually need a lawyer. And what the Trump administration is doing here is chilling activity by lawyers so that they cannot represent you in your civil rights claims.
Liz Cavell: Right. I used to be once upon a time a public defender, which means I defended people, indigent clients, who were accused of crimes and were facing the massive weight of the government machinery coming against them to take away their liberty. And having a lawyer when you are facing some sort of action or attempt to take away your life, liberty, or property by the government is an unimaginable task and you can’t do it without a lawyer. And so the whole point of these tactics to target law firms one at a time and go after them and make it so that they can’t represent clients in lawsuits against the government is making it so when someone needs a lawyer to represent them against the government, there are no lawyers left to take those cases and those people are powerless before the power of the government. It’s totally un-American and it’s straight out of the authoritarian playbook, and all Americans should be deeply afraid of moves like this to cut off our access to lawyers when we’re facing action by our government.
Rebecca Markert: This is not going to just be limited to the big law firms that you’ve been hearing about. These attacks are going to continue and they are going to target any lawyers that are challenging government action, including nonprofits like ours at Americans United and the Freedom From Religion Foundation and our allies. So it is really important for us to speak out against these threats and to stand up for the legal profession. I’m also really proud of the legal community that has stood up and has started to fight back. I know there are lawsuits initiated by some of the big law firms against these executive orders, as well as the American Bar Association and many other legal professional groups that have come out to stand up for lawyers and to stand up for the legal profession and actually the rule of law in our democracy. I’m also very proud that Americans United did join a group of hundreds of legal groups and individual attorneys sending a letter to the Attorney General Bondi to urge her to stop these attacks on the legal community and to denounce these attacks, we need to affirm our commitment to the constitution, the rule of law, and what the role of the legal system is in protecting the rights of all Americans.
I don’t believe that attorneys at either of our organizations are going to back down and we remain resolute in our commitment to our mission to keep religion and government separate and to defend the Constitution.
Liz Cavell: Well said. Well, shall we swerve?
Rebecca Markert: We shall swerve. So we are in the high, I guess, unholy season of the Supreme Court. We are in the midst of a lot of different oral arguments and are rapidly coming up to the month of June, which will lead to a lot of the decisions on these cases that we’re hearing this spring. And in particular, the latter part of March and the month of April are dedicated to three religious liberty cases that are before the court. We’re going to be spending the next couple of episodes talking about the oral arguments in these cases.
Liz Cavell: That’s right. So today we are going to cover a case that is currently being reviewed. Like Rebecca said, it just was heard at oral argument this week, and so we’re going to give you the full rundown, the background and what we heard at oral arguments and what we’re expecting. The case is called Catholic Charities Bureau Inc. versus Wisconsin Labor and Industry Review Commission. So this is a case that arose in Wisconsin, our home state right here in the Great North, but Wisconsin’s not unlike many states in that they have a state unemployment benefits system, so it taxes employers to fund benefits for workers who lose their jobs.
Rebecca Markert: I just want to throw in a fun fact. Fun fact: Wisconsin was the first in the country to put together an unemployment insurance plan in the 1930s.
Liz Cavell: That’s right. So this was right like depression era social policy, and I didn’t know that it was the first, but I did know that it dates back to the thirties. So longstanding state unemployment benefit system to protect employees in the state of Wisconsin should they find themselves losing their jobs. The system is funded by employer-based taxes. Most people are quite familiar with this, right? Your employer pays a tax into the unemployment system in your state, and the employees of those employers in return have access to unemployment benefits in the unfortunate event of them losing their jobs. So, Wisconsin law contains an exemption for church run nonprofits, and the language in the statute for how a church run employer qualifies is that it is operated primarily for religious purposes. So that is the statutory language that comes to be at issue in this case. But first, let’s break it down to the parties, so it’s all there in the caption. This is about Catholic Charities.
Rebecca Markert: Yes, Catholic Charities in Wisconsin has arms in all of the diocese in the state, but the party in this case is affiliated with the Diocese of Superior, which is in the northern part of the state and four of the groups that are under its umbrella. These groups are ones that provide social services to people with disabilities. Catholic Charities as the four subsidiaries of Catholic Charities up north that are part of this case are Black River Industries Diversified Services, Headwaters, and Barron County Developmental Services. Again, these are organizations that provide secular services like job placement, training, and other services. Again, for those with disabilities.
Liz Cavell: So this is worth mentioning just because it kind of paints the picture of what we’re talking about. If Catholic Charities is a big employer or subsidiary holder in your community, then maybe you’re familiar with this or if you know people that work for a subsidiary of Catholic Charities, then maybe you’re familiar with this, but Catholic Charities is a separately incorporated organization of whatever diocese, and then these subsidiaries that Rebecca is describing, Black River, Diversified Services, these are not not signaling Catholicism. Sometimes they’re even secular nonprofits that have been taken over or absorbed or purchased or whatever it is acquired by Catholic Charities and then run as a secular nonprofit providing whatever social services those organizations have provided. Like Rebecca said, we’re talking about job placement, job training, social services to people with disabilities and things like that. We’re talking about separately incorporated and sub-incorporated organizations that oftentimes when you get down to the sub-subsidiary level are these really specific nonprofit organizations that do this really specific social services work. That’s just like painting the picture of the parties that eventually came to bring this suit, which is Catholic Charities. And these four individual subsidiaries of the Superior Catholic Charities.
Rebecca Markert: Catholic Charities in these subsidiaries have been paying into the unemployment tax system in Wisconsin since the seventies. But then in 2016, Catholic Charities seeks an exemption from the tax. Again, the exemption under Wisconsin State Law is for an organization that is operated primarily for religious purposes.
Liz Cavell: So nothing changed about the statute, right? All of a sudden, I guess Catholic Charities just woke up one day in 2016 and said, by golly, we should be exempt from this statute. But you can make up your own minds. But I’ll say to me, what it reflects is if you’ve been paying into this system for decades as you’re operating as a charitable organization, that signals to me that you understand that under the statute, your organizations don’t qualify for exemption. That’s why you’ve been paying into them. But right, things have changed and shifted to the point where in 2016 Catholic Charities decides, nope, we’re going to go for this exemption and push it to the limit. So Catholic Charities and these four subsidiaries suddenly applies for the exemption and they’re denied because as has always been understood under that statutory language operated primarily for religious purposes. It’s not meant to encompass organizations that perform charitable activities that are secular. They’re not religious. In other words, it’s not a church or a church type organization. They’re not doing worship, they’re not doing prayer, they’re not doing religious training, they’re doing charity.
Rebecca Markert: So this goes all the way up to the Wisconsin Supreme Court, which rules in favor of the state. The court reasoned that a business cannot sidestep employee protections simply by claiming that it’s primarily religious. And instead the Wisconsin Supreme Court looked at the actual work of the business and how it operates. And in doing so, the court concluded that given the services that to these groups provide, they are secular and the manner of provision of those services is secular, and the employees of these entities do deserve unemployment protections that cover other workers in Wisconsin.
Liz Cavell: Right? In other words, the court, as is often the case, just like the taxing authority in the state in the first instance, has to make a decision about whether or not any individual or organization is exempt from any given tax. That’s a factual determination. The court, just like the taxing authority, has to make some sort of evaluation of Catholic Charities and their subsidiaries and what they do to determine whether or not they qualify for the exemption. And so looking at what they do, is it primarily religious? No, it’s not. They do secular activities, they do job training, religious education or worship is not a big part of what the actual organizations do in their operations. And so what’s being targeted by that narrow religious exemption is not encompassed by what these subsidiaries do. That was not a revolutionary decision that was in line with all of the case law and the way that this exemption had been interpreted and understood by everyone for decades, including apparently Catholic Charities themselves. But of course, when it lost at the Wisconsin Supreme Court, it took its case all the way to the Roberts Supreme Court.
Rebecca Markert: Why don’t you tell us a little bit about the amicus brief that Freedom From Religion Foundation filed in the Wisconsin Supreme Court because you were one of the only organizations, maybe the only organization that did that at the Supreme Court, the amicus brief actually did make an impact.
Liz Cavell: Yeah. So when the Wisconsin Supreme Court was considering this case, which is a big case with huge ramifications just in the state of Wisconsin, I mean the impact was going to be huge just when confined to employees in Wisconsin. Now the Supreme Court has it, the potential to harm workers is so much greater, but FFRF is headquartered in Wisconsin. And so we do take an interest in cases that are in our backyard, especially big cases that are about religion and the law and religious exemptions. And so we did file an amicus brief at the Wisconsin Supreme Court level, and you’re right, it’s not as common of a place for there to be a big back and forth with amicus filings, but what we tried to point out in the Wisconsin Supreme Court was in large part the impact of allowing the diocese and Catholic Charities to kind of reframe this inquiry into what’s religious purposes mean, operated primarily for religious purposes because what they’re arguing is that they have a religious motivation to do their charitable works, and that is what the state should consider.
That’s all the state should consider when deciding whether or not they’re operated for religious purposes. And our brief argued or just pointed out that allowing that test to be the standard for exemptions really does not have a principled limit. It would allow any religiously affiliated organization, which includes a lot of humongous employers in the state of Wisconsin, including hospital systems, universities. All of those employers would be able to exempt themselves from the unemployment insurance program, which means it’s a nightmare for workers in the state because overnight tens of thousands of workers would lose their unemployment protections should they lose their jobs. You think you’re going to be covered by unemployment if you lose your job or you’re laid off only to find, no, your employer doesn’t actually pay into the unemployment tax system so you’re not covered.
Rebecca Markert: So this case then gets appealed to the US Supreme Court, which did grant review last fall and heard the case at the end of March, March 31st.
Liz Cavell: That was yesterday. We’re recording this on April 1st, so I’m fresh off of screaming into a pillow for the past 24 hours.
Rebecca Markert: Liz does have a very long list of things that she wants to talk about today, so she’s ready to go. But as Liz was mentioning when she was describing the arguments that FFRF made at the Wisconsin Supreme Court, the impact that this decision has on workers’ rights and just the ability of religious organizations to claim exemptions for religious motives is really, really huge. As lawyers, we like to say this is a slippery slope. If you allow businesses to opt out of the unemployment system by claiming a religious motive, that is going to spill over into other tax schemes and systems that we have. And obviously we’ve seen the increased fight for exemptions in many other different contexts like the bakeries claiming exemptions because of religious motivations and things like that. Discrimination is going to be a big one. If anyone can claim an exemption for religious belief, religious motivations would be privileged then over non-religious ones, and this would discriminate against people without religious beliefs. And as Liz was saying, this is really going to undermine our tax and worker protection systems. So we would not have a functional tax and worker protection system if everybody and their brother can claim an exemption for a religious motivation.
Liz Cavell: And again, we’re going to talk about oral arguments and the way that the justices sort of talk about this at oral argument as though it’s this novel question that there’s such obvious bias or discrimination going on that only now these nine justices are finally uncovering and nobody’s seen it for decades. This is not novel or complicated. We have tax laws, we have civil laws, religious organizations are part of our civil society, and sometimes the laws regulate them. There are many exemptions built into our laws to prevent the state from having to too closely entangle itself in questions of religious ideology or theology. But for the most part, these exemptions have been applied without a problem for decades and not just in the context of the unemployment tax system, but you see these exemptions all over the place. And these inquiries, not just for exemptions, but for how we determine what is taxed.
So for example, our property taxes for nonprofits and churches are determined by how the property is being used and the language is similar. For church owned property to be exempt from property taxes as a nonprofit organization or a church is like our organizations and churches. The property itself has to be used for exclusively religious purposes. So in other words, a church can’t buy up for-profit housing, apartment buildings or just for-profit businesses and just because they’re owned by the church, they’re not exempt from property taxes. It has to do with what the property is being used for and whether or not they’re exclusively religious purposes and taxing authorities as well as courts are very accustomed to making those fact-based inquiries looking at what’s going on at those properties, what’s the property being used for? We can look at that without having to answer questions of religious dogma or theology or make judgements about religious beliefs. We’re just looking at the actual situation or the organization or the use of property or whatever it is, and we’re evaluating whether or not it’s religious in its character because that’s what the exemption is for. And there is nothing like discriminatory or unusual or even new about this process, and it affects a lot of different areas of civil law where we have whole entire tax schemes and we make these fact-based inquiries to determine who’s exempt and who’s not.
Rebecca Markert: I wanted to bring up the amicus brief that Americans United filed at the US Supreme Court in this case because our arguments in that brief focused on what you were just talking about, Liz, that the country has this multi-sensory tradition of our courts relying on objective factors to determine whether entities qualify for religious exemptions. And the brief details a lot of the laws that you were just talking about, Liz, the fact of the matter is courts and our laws have drawn these types of lines and rightfully so since our founding, this is nothing new or novel. This is just how we get the system to work.
Liz Cavell: Okay? So that’s a lot of what our organizations focused on in our amicus briefs, both at Wisconsin Supreme Court and at the US Supreme Court. And the biggest thing to focus on as we pivot to what we heard at oral arguments is the real world impact blowing this exemption wide open to the point where the exemption will swallow the entire purpose of the system, the actual real world impact and the winners and the losers, because as we’ll talk about in a minute, that is what is always so frustratingly absent from oral arguments, which is any discussion of who will bear the impact of a decision here in favor of Catholic Charities, and that is workers, working Americans, many workers work for religiously affiliated employers. You may not even know it. If you work for a big huge hospital system in this country, there is a not outside chance that you work for some sub subsidiary of a Catholic diocese. If you knew that you were not going to be covered by the unemployment insurance system in your state, I think that would affect you a lot as a worker or an employee of one of those organizations. Arguably, you would be the person most affected by a decision in this case, and yet it’s not what we heard about at all in oral arguments yesterday.
Rebecca Markert: So let’s talk about the oral arguments. They didn’t run long, from what I recall. They just sort of like in other cases they’ve droned on for way beyond the time, but–
Liz Cavell: Small mercies, I guess?
Rebecca Markert: Maybe. But I do think that generally speaking, the impressions that we got from oral arguments were that the justices seemed to be likely to embrace the argument that Catholic Charities deserves an exemption here.
Liz Cavell: And I mean no surprise there, right? They lost at the Wisconsin Supreme Court in a state Supreme Court interpreting a state statute, and yet somehow SCOTUS decided they needed to review this case of all the cases that they could possibly review. They choose to review this case to determine whether or not the Wisconsin State Supreme Court, in its own wisdom interpreting its own state statute, has violated some federal free exercise right on steroids that they have announced in their prior case law on the free exercise clause. And so it’s not a surprise just by taking this case that that is what we are expecting to have happen, but I think it’s still kind of not clear considering the potential implications of this. It’s not clear what the breakdown will be and on what grounds the opinion will be decided, and particularly how, if at all, it will be limited in any way and not just something that explodes all tax schemes and just explodes all religious exemptions and opens them up to basically blanket exemption for anyone with any organization with a religious motivation, not religious in its purpose or operations just religiously motivated. It’s hard to overstate what a huge departure that is from the way we currently interpret so many of our tax laws when it comes to who’s exempt.
Rebecca Markert: I will say it’s not surprising that they’re probably going to overturn the Wisconsin Supreme Court, but I think I was surprised at just how sympathetic almost all of the justices seemed to be to doing that, particularly Justice Kagan. Justice Kagan actually said during the argument that it was pretty fundamental that we don’t treat some religions better than others, and we certainly don’t do it based on the content of religious doctrine. And so if we’re predicting how this is going to come out that we could get–
Liz Cavell: Oh, it could be 9-0, depending on how limited it is.
Rebecca Markert: That was the scary thing. I was like–
Liz Cavell: Oh, a hundred percent.
Rebecca Markert: I feel it’s at least going to be 7-2 if not unanimous. But Justice Jackson did seem to be the one pushing back the most.
Liz Cavell: She gets it, and we’ll get into the nitty gritty here, but just overall, overall impressions, I agree with you a hundred percent. There is a version of this opinion depending on who authors it and how narrowly it’s written that could be 9-0, which is infuriating. And let me just say I have had it with Justice Kagan’s credulity about these free exercise like discrimination persecution, woe is me claims. Guess what listeners? Guess who brought this case? What a weird coincidence. Here they are again at the United States Supreme Court. It must just be luck of the draw. It’s the Becket Fund. They’re driving this case, okay? This is all part of the project to just explode religious exemptions and free exercise rights in this country to subsume every civil law we have to protect all of us. And it’s not a surprise, it’s not an accident.
This is Becket Fund back at the Supreme Court for the millionth time in the last 10 years, expanding religious exemptions to the detriment of huge groups of third parties in this case, workers. And I’m just tired of how credulous the justices are at buying this spin and these narratives that are created from the time the case gets brought in 2016 to the time it gets to this court. Somehow we heard at oral arguments, every justice expressed some sort of sympathy with the idea that Catholic Charities is somehow being discriminated against because they can’t get this tax exemption because their charitable works don’t do religion. They just don’t. They don’t proselytize. The spin! And the justices are often way too willing to just parrot this and eat it up. And I get it that the usual suspects are going to be talking those lines, Gorsuch and Alito and Thomas.
But it’s really disappointing to see some of the other justices be so just naive to what is going on here, the greater project at play, the idea being argued really poorly by Becket Fund’s lawyer. By the way, it’s so infuriating that they’re going to win on the merits because I said this on another podcast, on Andrew’s podcast, but the argument from the Becket Fund lawyer in defending Catholic charity’s position was literally giving the public defender from my cousin Vinny. It was an absolute mess of a defense of a position to vastly expand a religious exemption in a hugely important Wisconsin tax law. And it was just like he could not answer a question, if you just listened to his part of the argument, you would think Catholic Charities is going to lose. But then you had the Solicitor General because of course the United States government had to weigh in here on the side of Catholic Charities, and they’ve got their own interesting angle in the argument because they have a federal law that somewhat tracks the language in or quite closely tracks the language in the Wisconsin statute.
So they want to make sure that their law is protected and upheld or not affected or invalidated by whatever the Supreme Court does here. But of course, they’re arguing on the side of Catholic Charities. And then once you finally heard from the lawyer representing the state of Wisconsin is when the justices jumped in with all their skepticism and their really tough questions for Wisconsin about why isn’t this discriminatory? If charities that do proselytization, that was what was seized on, proselytization and evangelism. If that’s religious purposes, then why isn’t just charity and feeding the hungry and housing the homeless? Why can’t that be religious? Just because they don’t proselytize? The spin is because Catholic Charities is so incredible in their charitable motivation and they perform all this charitable work without proselytizing. They’re penalized because then they can’t qualify for this religious exemption. Whereas if they did proselytize or hold hostage their charitable works for only repenter or people who would pray or whatever, then somehow they could be eligible for this exemption.
Oh, that’s so unfair and it’s discriminatory. That is discriminating between different sect. There would be a religion that thinks they should proselytize. Well, they do charitable works, but Catholic Charities doesn’t think that. And so that’s the basis on which this exemption turns. It’s just like, I dunno, Rebecca, I’m so exhausted from the whole thing where we all just pretend there’s the academic realm. Let’s have all these hypos in these academic conversations about what could be and what about in this factual scenario. And then there’s just the practical real world implication and the other interests at play. The fact is, Wisconsin has an interest in having an unemployment benefits system that is adequately paid into by employers so that it works. That’s how insurance systems work and minimizing exemptions because we want more employees across the state to be covered by benefits should they lose their jobs. And so the actual tens of thousands of human beings impacted on that side of the equation. Those are also stakeholders. There are actually other interests at play that could be weighed against the interests and whatever harm you think is being suffered by Catholic Charities. But we don’t really hear any of that balancing in oral arguments. We just hear this narrative.
Rebecca Markert: No, it was completely academic and like you’re saying, completely missing the real life impact that this could potentially have on workers overall. I mean, especially when you’re talking about religious hospitals and organizations that employ hundreds if not thousands of people who may or may not adhere to the faith of the employing institution. They’re just not protected. And they got into these questions of what’s evangelizing, what’s proselytization, and what about the religions that don’t have that as part of their faith?
Liz Cavell: Well, I will say that I did think that Justice Jackson and Justice Sotomayor showed a real grasp and understanding of what the statute is doing and why it is very basic and constitutional. Justice Jackson repeatedly jumped in with questions that pointed out religious purposes under the statute is not about motivation. It’s about the kinds of activities the organization undertakes, and there’s a federal provision that the solicitor General was there to protect that makes the same distinction. And there was, Justice Jackson was bringing up legislative history behind the federal corollary that sort of showed, operated primarily for religious purposes, has long been understood by legislators to be talking about churches, right? Houses of worship and places that train clergy, like monasteries and things like that, not orphanages, homes for the elderly. These were examples that Justice Jackson was drawing from legislative history and just showing an understanding of like, this is not complicated.
Courts and taxing authorities have used this language used for religious purposes to talk about activities, not motivation, not like anything you do that’s religiously motivated falls under the exemption. And this is not hard, but we heard a lot from the conservative justices and especially Gorsuch really zeroing in, and this is where I think some of the more moderate and liberal justices were way too credulous about which was discrimination, discrimination, discrimination. Like can’t we just decide this on discrimination grounds? We don’t have to undermine the statute. We just say the Wisconsin Supreme Court decided this or interpreted this in a discriminatory way by focusing on proselytization and the fact that they hire non co-religionists. So in other words, Catholic Charities, they don’t discriminate in their hiring. In other words, tens of thousands of people that work for them are non-Catholics.
And that’s a fact that is used to evaluate whether or not the organization is operated primarily for religious purposes along with whether or not or how much of their business involves evangelizing, proselytizing ministry, the types of things the churches do. And I think the court seems poised, and Gorsuch was trying to steer the court here, I think, which is he said some version of isn’t the simplest way to decide this. "We could break no new ground." That was his quote. We just decide this on discrimination grounds and we won’t have to break any new ground. It’s the simplest argument. We could say the Wisconsin Supreme Court violated our case law by discriminating between denominations and be done with it. And I personally think that is the most likely basis on which the decision is going to turn, especially if it brings on some votes from the more liberal justices on the court.
Rebecca Markert: No, it certainly seems like that’s most likely, especially when you saw Justice Kagan, again, focusing in also on the differences between the different religions and how this system plays out on that.
Liz Cavell: And one of the reasons I think that that’s the most likely kind of axis for this opinion to be written on is because there were a fair amount of questions, including by Justice Barrett and Roberts that involved some sort of grappling with what would the limits be like, how would we limit our decision to not have all these implications that Rebecca and I are here warning about? This doesn’t take a crystal ball to foresee that if you say actually religious motivation is enough, you have to interpret this statute religious purposes to mean what motivates your organization, then that’s going to be completely unlimited. It’s just suddenly going to explode the exemption. And I think the justices are aware of that. And there was a fair amount of questions posed to attorneys from both sides about how would you have us limit this decision or what would the limits be on your argument or how would your analysis apply to hospitals?
And I think actually that was a really interesting question because Justice Roberts, I think it was the one that straight up asked that question to the attorney for Catholic Charities, and he basically said as much, it’s the same analysis if it’s primarily operated for religious purposes, and that means it’s got some level of control like Catholic Charities by the diocese, which many religious hospitals do. If at a distance it still ultimately is sort of corporately controlled by Catholic diocese and they’re religiously motivated in providing caring for the sick or whatever it is, then yes, a religiously affiliated hospital would qualify for the exemption. And that was the answer. So I mean, I don’t know how that sits with Justice Roberts, but I do know that based on their questions, the justices are thinking about how broadly this decision that’s going to be in favor of Catholic Charities, the potential for how broadly their decision could impact workers and employers.
Rebecca Markert: So talk to me about Justice Sotomayor and her questions during the oral argument because I found that she was quieter than usual.
Liz Cavell: Yeah, for sure. She didn’t ask as many questions as she might have typically, and I don’t know how much of that is, I am not kidding when I say that the attorney for Catholic Charities had a tough time.
Rebecca Markert: He did have a tough time.
Liz Cavell: Normally that would be when you would expect her to jump in with the hard hitting skeptical questions. And I just think he was doing such a bad job, even with the softball questions. I’m not kidding you when I’m saying it was–
Rebecca Markert: Oh I hundred–
Liz Cavell: It was tough. It was tough stuff.
Rebecca Markert: I a hundred percent agree. I remember writing to colleagues and saying, this isn’t going well for him.
Liz Cavell: And so I think part of it is that that would’ve been her time to be the skeptic. And you did see it was Roberts and Jackson jumped in and Barrett and they were giving, and even Alito, they gave some softball questions, and the attorney for Becket fund just was not hitting the softballs. And so maybe Sotomayor just ended up not asking as much as she planned or doing as much of the hard hitting as she planned on that side of the argument she did bring up during that attorney’s time. So basically the Trump administration claims that Wisconsin misinterpreted its own statute, but she was saying to the Becket Fund, your arguments all come down to a discrimination claim isn’t that right? And if that’s true, that’s not the end of the inquiry. That’s the beginning because it’s not just like this was discriminatory, the end you win. It’s like, okay, well now the court is supposed to analyze was the discrimination invidious or intentional, and then go to an examination of the government’s action, the government’s interests and things like that. And so that was the one thing, and again, I don’t think she got a very solid answer on that from the attorney for Catholic Charities. And then the only other time she spoke up, I think was when the state of Wisconsin was doing its argument at the end.
Rebecca Markert: And it was the same thing where she was asking about denominational discrimination. And that, again, like you were saying, this is the beginning of the inquiry, not the end. So if we find discrimination, then we have to apply strict scrutiny and how do you survive strict scrutiny, those types of questions. So definitely, again, signaling that this idea of discrimination between religions is really what the justices are keying in on.
Liz Cavell: So Sotomayor at least is reflecting the reality that that’s not the end of that inquiry. In other words, we have actual legal tests here trying to get away from the spin and the narrative and just framing it back into, okay, if we find that there’s discrimination here, do you survive strict scrutiny? One thing I did appreciate that she brought up as well at the end, there was, there are states that don’t give this exemption. Any problems with that guys. In other words, the state of Oregon, they have an unemployment insurance system. State legislature could just change the statute, no religious exemptions. That’s it. If you’re an employer, you pay in. Is there any problem with that? And I appreciated that because all this fight over, you’re violating my religious rights by not giving me all of the protections of the law, and none of its burdens ignores the fact that the protections are in the law already to accommodate you. The legislature doesn’t have to accommodate you in this way. It’s doing so because we recognize religion in our constitutional order is this thing that should have somewhat of an autonomous character in our constitutional order. And so it’s frustrating that we lose sight of the fact that tax exemption is a privilege, it’s not a right.
Rebecca Markert: And that is something that we brought up in our amicus brief as well, that the consequence of this decision could be that states just decide to not provide this protection at or this exemption at all, which then again, would also continue to strip rights for workers,
Liz Cavell: Right? Oh, we got to talk about how Thomas had to throw shade at the Lemon Test.
Rebecca Markert: Oh my god, yes!
Liz Cavell: Oh, yes. So we can’t end without talking about Justice Thomas and what he had to add to the conversation,
Rebecca Markert: Which is always fun because his questions are always interesting. But he always takes the opportunity to mention how he would like to just eviscerate the Establishment Clause completely in one of his lines of questioning, talk about the Lemon Test, and he said, I think hopefully, or he described it as the hopefully defunct Lemon Test.
Liz Cavell: Yes. So I think the context here is important because it says so much about Thomas and how he feels about just the principle of state church separation as an American value. So a lot of the oral argument and just the argument in the briefs, and one of the big things that Wisconsin is arguing as its interest in having this exemption written and interpreted the way it is, is to avoid entanglement with the government and religious organizations. So in other words, interpreting religious purposes, the way they do is the most sort of clean way for Wisconsin to sort of evaluate an organization to see whether or not they qualify for this exemption. And so the interpretation that Wisconsin uses is the one that they think will be the least entangling between religion and the government, and that is an interest that they have as the state because we as America value anti entanglement between church and state.
Thomas just wanted to jump in there and make sure he just put out there as a question for the Wisconsin attorney, what do you mean by anti entanglement when you’re justifying Wisconsin statute and the attorney is like, it means that we don’t want to have any entanglement more than is necessary to interpret and administer the law with religion. And that’s when Thomas says, "well, other than the hopefully defunct Lemon Test, where does the concern about state church entanglement even come from?" In other words, guys, this isn’t even a valid state interest problem solved. We don’t even have to worry about writing our statutes in a way that’s un-entangling. It’s just wild to me that he can’t resist an opportunity to just take a crap on the entire idea of state church separation as an American constitutional value.
Rebecca Markert: Right? Right. Also, you guys pretty explicitly got rid of Lemon, so why are you saying hopefully?
Liz Cavell: Hopefully it’s defunct, right? Well, right. This is the Kabuki theater around are we overturning longstanding precedent or are we just abandoning it? It’s just the stupid way that the court is trying to obfuscate how much it has completely rejected stare decisis and does not follow precedent.
Rebecca Markert: Well, he’s not going to stop until he just gets rid of the Establishment Clause, or at least–
Liz Cavell: Oh, a hundred percent
Rebecca Markert: Renders it to mean literally establishing an official state religion.
Liz Cavell: Yep. He’s like entanglement, who cares? Right? And the Wisconsin lawyer to his credit was, I’m sorry, but we care about state church entanglement. Right? He stood his ground, and I appreciate that, but it’s still, it’s notable, right? So little comes up in these oral arguments yet somehow Justice Thomas found a way to make time for that comment.
Rebecca Markert: But the Wisconsin attorney also just rightly pointed out that this is an interest and something that courts have been considering since way before Lemon.
Liz Cavell: Yes. Yes, yes. I appreciated that answer as well. He’s like, well, yeah, I guess you’re having an issue right now with the Lemon Test, but this is a principle that dates back to a hundred years in our case law. So calm down. Calm down. Yeah. Alright, well, this is a case that is now submitted. We’re not going to hear anything more about this until a decision comes down and probably not until late June, but once we do have an opinion, we will cover it on the show and give you the follow-up to this discussion.
Rebecca Markert: Right. Definitely let you know what the court says on this issue and also see if any of our predictions came true. I’m hoping it’s only seven two, I would be upset if it’s eight, one or nine. Oh, I mean, I’m upset either way, obviously, because of course all of these cases that are being argued before the Supreme Court are not going to go in a way that is helpful to our practice. But I really just, 7-2, 8-1 sounds way worse than 6-3.
Liz Cavell: Well, I love how low our bar is for satisfaction and relief. Sorry, workers.
Rebecca Markert: Yeah. So watch this space. Watch this space. We will definitely give you more. And like I said, at the top of the show, the next two episodes are going to be devoted to other religious liberty cases that are going before the court in April, Mahmoud versus Taylor, which involves reading curriculum in a public school in Maryland, and then the religious charter school case out of Oklahoma. So there’s going to be a lot of religious liberty coming down the pike–
Liz Cavell: All the religious liberty you can handle.
Rebecca Markert: Our next two episodes will be devoted to those cases as well. So stay tuned.
Liz Cavell: Yes. Well, that is it for today’s show. Thank you so much for tuning in. I’m Liz Cavell.
Rebecca Markert: And I’m Rebecca Markert. If you haven’t already, please follow us on our socials. Facebook, Instagram, X. What else are we on? Bluesky. We are on Bluesky. Usually Liz is the one who reads this. So yes, follow us on Facebook, Instagram, X and Bluesky.
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