What is the Difference Between a Church and a Religious Organization? Amici line up in Support of Catholic Charities

From the Foundation Group

Friends of the Court are lining up in support of Catholic Charities Bureau's Petition for Certiorari.  Here is a brief recap:

Wisconsin denied a religious exemption from employment taxes to the Wisconsin Catholic Charities Bureau and its charitable sub-agents (independent organizations operating under the CCB umbrella) because they were not operated "primarily for religious purposes." CCB sought exemption from Wisconsin's unemployment tax but the Wisconsin Supreme Court ruled that Catholic Charities Bureau is not churchy enough.  This, even though the Wisconsin Diocese controls and operates the CCB, and all separate organizations under CCB's general supervision are required to comply with CCB guidelines.  Those guidelines don't require adherence to or preaching of Catholic doctrine but merely that sub-agents practice good altruism, such as serving all comers without discrimination.  None of the guidelines require the separate CCB-approved and loosely controlled agents to proselytize.

The lower courts ruled that neither the CCB nor the subagents were operated for "primarily for religious purposes" within the statute's intended meaning because they didn't preach, teach or otherwise proselytize.  The Wisconsin Supreme Court, affirmed explaining that operating "primarily for religious purposes" means organizations federal law considers churches.  Plain old "religious organizations" don't get "church" status for purposes of Wisconsin's unemployment tax exemption.  At best, CCB and the organizations might just be considered "religious organizations" under federal law.  Religious organizations don't get extra special dispensation under federal tax law that churches get.  

So far there are 8 amicus briefs supporting the cert petition from a wide variety of groups, including The Catholic Conferences of Illinois, Iowa, Michigan and Minnesota, the Wisconsin State legislature, a group of Religious Liberty Scholars, the Wisconsin Catholic Conference, the Jewish Coalition for Religious Liberty, the Lutheran Church Missouri Synod,  the National Association of Evangelicals, Hands for Kids After School Ministry, The Ethics and Religious Liberty Commission, the Minnesota-Wisconsin Baptist Convention, The Islam and Religious Freedom Action Team, the International Society for Krishna Consciousness, and the Sikh Coalition.  There are more friends than briefs because some of the amici submitted joint briefs.  There are too many to read carefully so I picked one -- the Krishnas' joint brief with the Sikh Coalition -- and only skimmed the argument summaries of the others.  The common theme is that by defining "religious organizations" narrowly to exclude organizations that do not teach, preach or proselytize, the Wisconsin Supreme Court impermissibly intrudes on religious practices and discriminates against certain religions:

The Wisconsin Supreme Court’s decision authorizes a sweeping government intrusion into the religious sphere—empowering government tribunals to scrutinize the religious nature of an institution’s activities and disadvantaging minority religions in the process.  The lower court’s decision thus cannot be reconciled with the First Amendment’s fundamental protections against government interference in religious activities and beliefs. To make matters worse, the Wisconsin Supreme Court required courts to pass judgment on the religious character of an organization’s activities even in circumstances where, as here, a court has already determined that the organization has a sincere religious motivation for undertaking those activities. This Court should grant review to prevent this erosion of fundamental First Amendment protections.  

The problem, it seems to me, is that when a legislature grants special dispensation to organized worshippers -- whether it calls them "religious organizations" or "churches" -- it must necessarily define the universe of eligible organized worshippers.  Otherwise, the dispensation must be provided to all who assert a spiritual motivation.  So long as the legislature defines organized worshippers by reference to  objective content neutral criteria ("we don't care what you teach, preach or proselytize, but you must at least do that much"), it should not be unconstitutional to limit the dispensation to organizations that fit the definition.  What am I missing here?

Two other points:  The first is a pragmatic one.  The Wisconsin Legislature filed an amici brief when it can resolve the issue by simply overruling the Wisconsin Supreme Court's narrow statutory interpretation of "primarily for religious purposes."  Wisconsin can change the statutory definition so that it includes all spiritually motivated or religiously controlled organizations even if they don't preach, teach, or proselytize.  I don't know whether "the Wisconsin State Legislature" means all the legislators or a simple majority but it seems to me the better and quicker option would be to just amend the law. 

Second, if a legislature cannot define that which is a "church," as does the federal law (quite loosely, of course, and only be silent acquiescence at best), the only option would be to grant special dispensation to all organizations claiming spiritual motivations, or to none at all.  If the Court were to rule that a legislature can grant tax exemption to organized worshippers, but may not define organized worshippers in any sort of exclusive manner that does not pass judgement on the religion, the legislature is in a quandary.  

Here are the Amicus briefs:

1. Catholic Conferences of Illinois Iowa Michigan and Minnesota
2. Wisconsin State Legislature
3. Religious Liberty Scholars
4. Wisconsin Catholic Conference
5. Jewish Coalition for Religious Liberty
6. Hand Club for Kids After School Ministry
7. The Lutheran Church Missouri Synod, The National Association of Evangelicals, The Ethics and Religious Liberty Commission, the Minnesota=Wisconsin Baptist Convention, the Islam and Religious Freedom Action Team
8. International Society for Krishna Consciousness and the Sikh Coalitions

Amici are all more knowledgeable than I am about religious liberty, about that I am sure.  But I am not so sure they have sufficiently thought through the ramifications of the notion that government cannot define, by content neutral criteria, the universe of "organized worshippers" to whom it grants tax benefits.

darryll k. jones