Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Wisconsin Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Wisconsin Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
The Supreme Court of Wisconsin was asked to review a decision by the state's Labor and Industry Review Commission (LIRC) and determine whether Catholic Charities Bureau, Inc. (CCB) and its four sub-entities were operated primarily for religious purposes, and thus exempt from making contributions to Wisconsin's unemployment insurance system. The Court decided that in determining whether an organization is "operated primarily for religious purposes" according to Wisconsin Statute § 108.02(15)(h)2, both the motivations and activities of the organization must be examined.
Reviewing the facts of the case, the court determined that while CCB and its sub-entities professed to have a religious motivation, their activities were primarily charitable and secular. The services provided by the sub-entities, which included job training, placement, and coaching, along with services related to daily living, could be provided by organizations of either religious or secular motivations, and thus were not "primarily" religious in nature.
The court also rejected CCB's argument that this interpretation of the statute violated the First Amendment, as it did not interfere with the church's internal governance nor examine religious dogma. Instead, it was a neutral and secular inquiry based on objective criteria. Therefore, the court affirmed the decision of the court of appeals.
Download PDF
2024 WI 13 SUPREME COURT WISCONSIN OF CASE NO.: 2020AP2007 COMPLETE TITLE: Catholic Charities Bureau, Inc., Barron County Developmental Services, Inc., Diversified Services, Inc., Black River Industries, Inc. and Headwaters, Inc., Petitioners-Respondents-Petitioners, v. State of Wisconsin Labor and Industry Review Commission, Respondent-Co-Appellant, State of Wisconsin Department of Workforce Development, Respondent-Appellant. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 406 Wis. 2d 586, 987 N.W.2d 778 (2023 – published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 14, 2024 September 11, 2023 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Douglas Kelly J. Thimm JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined with respect to ¶¶110-61 and 163-98. HAGEDORN, J., filed a dissenting opinion. NOT PARTICIPATING: ATTORNEYS: For briefs the filed Saunders, petitioners-respondents-petitioners, by S.C., Kyle H. Superior; Torvinen, Eric C. and there Torvinen, Rassbach (pro were Jones hac & vice), Nicholas R. Reaves (pro hac vice), Daniel M. Vitagliano (pro hac vice), and The Becket Fund for Religious Liberty, Washington, D.C. There was an oral argument by Eric Rassbach. For the respondent-appellant and respondent-co-appellant, there was a brief filed by Christine L. Galinat, and Department of Workforce Development, Madison; Jeffrey J. Shampo, and Labor and Industry Review Commission, Madison. There was an oral argument by Jeffrey J. Shampo. An amicus curiae brief was filed by Daniel R. Suhr, and Hughes & Suhr LLC, Chicago, IL; Caleb R. Gerbitz, James M. Sosnoski, and Meissner Tierney Fisher & Nichols SC, Milwaukee, on behalf of Maranatha Baptist University, Maranatha Baptist Academy, Concordia University Wisconsin, the Wisconsin Family Counsel, and the Wisconsin Association of Christian Schools. An amicus curiae brief was filed by Robert S. Driscoll, and Reinhart Boerner Van Deuren SC, Milwaukee; Stephen M. Judge (pro hac vice), Tiernan Kane (pro hac vice), and South Bank Legal, South Bend, IN, on behalf of Catholic Conferences of Illinois, Iowa, Michigan, and Minnesota. An amicus curiae brief was filed by Gene C. Schaerr (pro hac vice), James C. Phillips (pro hac vice), and Schaerr Jaffee LLP, Washington, D.C.; Matthew M. Fernholz, and Cramer, Multhauf & Hammes, LLP, Waukesha, on behalf of Minnesota-Wisconsin Baptist Convention, Lutheran Church - Missouri Synod, National Association of Evangelicals, American Islamic Congress, The Church of Jesus Christ of Latter-day Saints, General Council on Finance and Administration of the United Methodist Church, The Ethics and Religious Liberty Commission, and Islam and Religious Freedom Action Team. 2 An amicus curiae brief was filed by Timothy Feldhausen, Tiffany Woelfel, and Amundsen Davis LLC, Green Bay; Sarah M. Harris (pro hac vice), Mark S. Storslee (pro hac vice), Rohit P. Asirvatham (pro Washington, hac vice), on behalf D.C., and of Williams Professors & Connolly Douglas LLP, Laycock & Thomas C. Berg. An amicus curiae brief was filed by Levi W. Swank, Benjamin Hayes, and Goodwin Procter LLP, D.C.; Dina Ljekperic, and Goodwin Procter LLP, New York, NY; David W. Simon, Gregory N. Heinen, and Foley International & Lardner Society for LLP, Krishna Milwaukee, on Consciousness behalf and The of Sikh Coalition. An amicus curiae brief was filed by Jon P. Axelrod, J. Wesley Webendorfer, and DeWitt LLP, Madison; Howard Slugh (pro hac vice), and The Jewish Coalition for Religious Liberty, Washington, D.C., on behalf of Jewish Coalition for Religious Liberty. An amicus curiae brief was filed by Samuel Troxell Grover, Patrick C. Elliott, Madison, on behalf of Freedom From Religion Foundation. An amicus curiae brief was filed by David Earleywine, and Wisconsin Catholic Conference, Madison; Bradley G. Hubbard (pro hac vice), Elizabeth A. Kiernan (pro hac vice), Zachary Faircloth (pro hac vice), Jason J. Muehlhoff (pro hac vice), and Gibson, Dunn & Crutcher LLP, Dallas, TX, on behalf of Wisconsin Catholic Conference. An amicus curiae brief was filed by Jonathan Judge, and ArentFox Schiff LLP, Chicago, Charities USA. 3 IL, on behalf of Catholic An amicus curiae brief was filed by Ryan J. Walsh, John D. Tripoli, and Eimer Stahl LLP, Madison, on behalf of Wisconsin State Legislature. 4 2024 WI 13 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP2007 (L.C. No. 2019CV324) STATE OF WISCONSIN : IN SUPREME COURT Catholic Charities Bureau, Inc., Barron County Developmental Services, Inc., Diversified Services, Inc., Black River Industries, Inc. and Headwaters, Inc., Petitioners-Respondents-Petitioners, FILED v. State of Wisconsin Labor and Industry Review Commission, Respondent-Co-Appellant, MAR 14, 2024 Samuel A. Christensen Clerk of Supreme Court State of Wisconsin Department of Workforce Development, Respondent-Appellant. ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined with respect to ¶¶110-61 and 163-98. HAGEDORN, J., filed a dissenting opinion. REVIEW of a decision of the Court of Appeals. Affirmed. No. ¶1 ANN WALSH BRADLEY, J. The petitioners, 2020AP2007 Catholic Charities Bureau, Inc. (CCB) and four of its sub-entities, seek an exemption from having to pay unemployment tax to cover their employees. They assert that they are exempt from coverage under Wisconsin's Unemployment Compensation Act because they are operated primarily for religious purposes. ¶2 (Barron Accordingly, CCB together with the four sub-entities County Developmental Services, Inc., Diversified Services, Inc., Black River Industries, Inc., and Headwaters, Inc.) seek review of a court of appeals decision reinstating a decision of the Labor and Industry Review Commission (LIRC) concluding that CCB and the four sub-entities were not "operated primarily for religious purposes" and thus not exempt from making contributions to the state unemployment insurance system.1 The petitioners specifically contend that they are exempt from unemployment insurance contributions pursuant to Wis. Stat. § 108.02(15)(h)2. (2019-20),2 which exempts from the definition of "employment" covered by the Act those "[i]n the employ of an organization operated primarily for religious purposes and Cath. Charities Bureau, Inc. v. LIRC, 2023 WI App 12, 406 Wis. 2d 586, 987 N.W.2d 778 (reversing the order of the circuit court for Douglas County, Kelly J. Thimm, Judge). 1 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 2 2 No. 2020AP2007 operated, supervised, controlled, or principally supported by a church or convention or association of churches."3 ¶3 They assert that they are "operated primarily for religious purposes" because the Diocese of Superior's motivation is primarily religious, i.e., their charitable works are carried out to operationalize Catholic principles. The petitioners further argue that a contrary interpretation would run afoul of the First Amendment to the United States Constitution and that as a result it also would violate Article I, Section 18 of the Wisconsin Constitution.4 ¶4 On the other hand, LIRC advances that it is the organization's actual activities, and not its motivations, that are paramount in the analysis. Under this formulation, LIRC contends the petitioners do not fulfill the religious purposes Both parties agree that the first half of the statute is not at issue, that is that CCB is "operated, supervised, controlled, or principally supported by a church or convention or association of churches." 3 Although CCB and its sub-entities allege a violation of the Wisconsin constitution, they did not develop an argument apart from their assertions under the United States Constitution. They assert in a footnote that if the statute violates the First Amendment, then it must also violate the Wisconsin Constitution. It is true that "[t]he Wisconsin Constitution, with its specific and expansive language, provides much broader protections for religious liberty than the First Amendment." Coulee Cath. Schs. v. LIRC, 2009 WI 88, ¶66, 320 Wis. 2d 275, 768 N.W.2d 868 (citing State v. Miller, 202 Wis. 2d 56, 64, 549 N.W.2d 235 (1996)). However, any argument that Wis. Stat. § 108.02(15)(h)2. violates the state constitution specifically is undeveloped. We generally do not address undeveloped arguments, and we will not do so here. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶32 n.10, 397 Wis. 2d 431, 960 N.W.2d 384. 4 3 No. exemption because their activities are 2020AP2007 secular. Such an analysis, in LIRC's view, does not violate the First Amendment or Article I, Section 18 of the Wisconsin Constitution. ¶5 We determine organization within the examine is "operated meaning both organization. that the of in our inquiry primarily Wis. Stat. motivations for into whether religious purposes" § 108.02(15)(h)2., and the an activities we must of the Applying this analysis to the facts before us, we conclude that the petitioners are not operated primarily for religious purposes within the meaning of § 108.02(15)(h)2. We further conclude that the application of § 108.02(15)(h)2. as applied to the petitioners does not violate the First Amendment because the petitioners statute as applied to have failed them is to demonstrate unconstitutional that beyond the a reasonable doubt. ¶6 Accordingly, we affirm the decision of the court of appeals. I ¶7 Each Roman Catholic diocese in Wisconsin has a social ministry arm, referred to as Catholic Charities. As a whole, Catholic Charities' mission "is to provide service to people in need, to advocate for justice in social structures and to call the entire church and other people of good will to do the same." ¶8 The Catholic Charities entity at issue in this case is that of the Diocese of Superior, which we refer to as CCB. Its statement of philosophy indicates that it has "since 1917 been providing services to the poor 4 and disadvantaged as an No. 2020AP2007 expression of the social ministry of the Catholic Church in the Diocese of Superior" and that its "purpose . . . is to be an effective sign of the charity of Christ." In its provision of services, CCB assures that "no distinctions are made by race, sex, or religion in reference to clients served, staff employed and board members appointed." CCB aims to provide services that are "significant in quantity and quality" and not duplicative of services provided by other agencies. ¶9 Occupying the top position in CCB's organizational chart is the bishop of the Diocese of Superior, who exercises control over CCB and its sub-entities. The bishop serves as CCB's president and appoints its membership, whose function is to "provide[] essential oversight to ensure the fulfillment of the mission of Catholic Charities Bureau in compliance with the Principles of Catholic social teaching." CCB's code of ethics, which is "displayed prominently in the program office of all affiliate agencies," likewise sets forth the expectation that "Catholic Charities will in its activities and actions reflect gospel values and will be consistent with its mission and the mission of the Diocese of Superior." ¶10 Under separately operate "63 the umbrella incorporated programs of of CCB, there sub-entities. service . . . to are These those numerous sub-entities facing the challenges of aging, the distress of a disability, the concerns of children with special needs, the stresses of families living in poverty and those in need of disaster relief." 5 No. ¶11 first Four is sub-entities Barron County are involved Developmental in this 2020AP2007 case. Services, Inc. The (BCDS). BCDS contracts with the Department of Vocational Rehabilitation to provide services job to placement, assist job coaching, individuals employment in the community." with and an "array disabilities [to] of get Prior to December of 2014, BCDS was not affiliated with the Diocese of Superior, and in fact had no religious affiliation at all. At that time, BCDS reached out and requested to become an affiliate agency of the Diocese. It receives no funding from the Diocese. ¶12 The second sub-entity Industries, Inc. (BRI). at issue is Black River It provides services to people with developmental or mental health disabilities, as well as those with a limited income. community-based, and living services. These services facility-based include job home-based, training and daily Among BRI's offerings are a food services program, a document shredding program, and a mailing services program. BRI's funding comes largely from county and state government. It does not receive funding directly from the Diocese. ¶13 entity Diversified implicated opportunities to Additionally, DSI production work. Services, in this individuals hires It is Inc. appeal. with funded 6 is the It without by the third provides developmental individuals not (DSI) subwork disabilities. disabilities Diocese, for instead No. 2020AP2007 receiving its funding from Family Care, a Medicaid long-term care program,5 and private contracts. ¶14 Finally, the fourth sub-entity involved is Headwaters, Inc., which provides "various support services for individuals with disabilities," "training services related to activities of daily living," "employment related training additional employment-related support. services" and It also provides Head Start home visitation services, and at one time offered birthto-three aspect services of its before a different operations. Like entity the took other over that sub-entities, Headwaters is funded primarily through government contracts and does not receive funding from the Diocese. ¶15 among These four sub-entities are overseen by CCB, which, other things, provides management services and consultation; establishes and coordinates the missions of the sub-entities; and approves all capital expenditures, certain sales of real property, and investment policies of the subentities. In turn, the sub-entities themselves set organizational goals and make plans to accomplish those goals, employ staff, set program policies, enter into contracts, raise funds, and assure regulatory compliance. ¶16 Additionally, CCB's executive director supervises the operations of each of the sub-entities. However, neither those employed by nor those receiving services from CCB or the subentities are required to be of any particular religious faith. 5 See Wis. Admin. Code ch. DHS 10. 7 No. 2020AP2007 Individuals participating in the programs do not receive any religious training or orientation, and CCB and the sub-entities do not try to "inculcate the Catholic faith with program participants." ¶17 Relations In 1972, the Department of Industry, Labor and Human made a determination that CCB was subject to the unemployment compensation law after CCB submitted a form that self-reported the nature of its operations as "charitable," "educational," and "rehabilitative," not "religious."6 CCB has been making unemployment contributions since that time. ¶18 In 2015, the Douglas County Circuit Court determined that a sub-entity of CCB not involved in the present case was "operated primarily for religious purposes" and thus exempt from contributing to the state unemployment system.7 The following year, CCB and the sub-entities sought a similar determination that they qualified for the exemption, bringing their claim first to the Department of Workforce Development (DWD). ¶19 DWD denied the petitioners' request to withdraw from the state system. It stated: organizations supervised Catholic are Church, but it has "It has been determined these and not controlled been by established the Roman they are CCB and the sub-entities are exempt from federal income tax pursuant to 26 U.S.C. § 501(c)(3), which provides exemption to, among other entities, those "operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes." 6 Challenge Ctr., Inc. v. LIRC, Douglas County Case No. 2014CV384 (George L. Glonek, Judge). 7 8 No. operated primarily for religious purposes." 2020AP2007 CCB and the sub- entities appealed DWD's determination, and an administrative law judge (ALJ) reversed. Consequently, DWD petitioned LIRC for review, and LIRC reversed the ALJ, concluding consistent with the original DWD decision that the petitioners are not operated primarily services religious for may religious be purposes. religiously belief, a It motivated separate legal observed and that "while manifestations entity that of provides essentially secular services and engages in activities that are not religious per se . . . falls outside the scope of Wis. Stat. § 108.02(15)(h)2.," regardless of any affiliation the entity may have with a religious organization. ¶20 Subsequently, CCB and the sub-entities sought judicial review in the circuit court and the pendulum swung again, as the circuit court reversed LIRC's decision. DWD and LIRC appealed, and the court of appeals reversed, reinstating LIRC's decision that CCB and the sub-entities did not establish a religious purpose.8 Cath. Charities Bureau, Inc. v. LIRC, 2023 WI App 12, 406 Wis. 2d 586, 987 N.W.2d 778. The court of appeals concluded that "for an employee's services to be exempt from unemployment tax the organization must not only have a religious motivation, but the services provided——its primarily religious in nature." activities——must Id., ¶33. also be Such an analysis, in The court of appeals initially certified the appeal to this court, but we denied the certification. See Wis. Stat. § (Rule) 809.61; Cath. Charities Bureau, Inc. v. LIRC, No. 2020AP2007, unpublished certification (Wis. Ct. App. Dec. 7, 2021). 8 9 No. 2020AP2007 the court of appeals' view, does not violate either the federal or state constitution motivations and the because "focusing organization's on the activities stated allows the reviewing body to conduct an objective, neutral review that is 'highly fact-sensitive' without examining religious doctrine or tenets." Id., ¶54. ¶21 Applying this understanding, the court of appeals determined that "CCB and its sub-entities failed to meet their burden to establish that they are exempt from Wisconsin's unemployment insurance program and that LIRC properly determined that each of the employers was 'operated primarily to administer [or provide] social service programs' that are not 'primarily for religious purposes.'" Id., ¶55. CCB and the sub-entities petitioned for this court's review. II ¶22 In an appeal from a LIRC determination, LIRC's decision rather than that of the circuit court. we review Masri v. LIRC, 2014 WI 81, ¶20, 356 Wis. 2d 405, 850 N.W.2d 298. review is limited by statute. Our See Wis. Stat. § 108.09(7)(c)6. We may either confirm the commission's order or set it aside on one of three grounds: (1) if the commission acted without or in excess of its powers; (2) if the order was procured by fraud; or (3) if the commission's findings of fact do not support the order. Id. interprets LIRC acts outside of its power when it incorrectly a statute. DWD v. Wis. 2d 611, 914 N.W.2d 625. 10 LIRC, 2018 WI 77, ¶12, 382 No. ¶23 there 2020AP2007 We will uphold LIRC's findings of fact as long as is substantial and credible evidence to support them. Friendly Vill. Nursing and Rehab, LLC v. DWD, 2022 WI 4, ¶13, 400 Wis. 2d 277, conclusions, 969 i.e., N.W.2d 245. questions of We review law, LIRC's independently legal of the decisions rendered by the circuit court, the court of appeals, and the commission. Id.; Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21. ¶24 In Wisconsin question our review, statutes. of law we are Statutory that we called upon to interpretation review interpret presents independently of a the determinations of the circuit court, the court of appeals, and the commission. Greenwald Fam. Ltd. P'ship v. Village of Mukwonago, 2023 WI 53, ¶14, 408 Wis. 2d 143, 991 N.W.2d 356; Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶84. ¶25 Additionally, our review is informed by constitutional principles. The application of constitutional likewise presents a question of law. principles St. Augustine Sch. v. Taylor, 2021 WI 70, ¶24, 398 Wis. 2d 92, 961 N.W.2d 635. III ¶26 We unemployment begin with insurance a scheme short and summary then of address Wisconsin's the competing interpretations of "operated primarily for religious purposes" within the meaning of Wis. Stat. § 108.02(15)(h)2. In examining this question, we address first whether we must look to the purpose of the church in operating the organization or the purpose of the nonprofit organization itself in our analysis. 11 No. We address second whether the organization's 2020AP2007 motivations, activities, or both, drive the analysis of whether a purpose is "religious" within the meaning of § 108.02(15)(h)2. Next, we apply our interpretation of the statute to the facts before us. Finally, we examine the petitioners' assertion that such interpretation violates the First Amendment. A ¶27 The Wisconsin legislature passed the unemployment compensation law in the nation in 1932.9 now, the law evinces a strong compensating the unemployed. public policy in first Then, as favor of Operton v. LIRC, 2017 WI 46, ¶31, 375 Wis. 2d 1, 894 N.W.2d 426. ¶28 At a macro level, "[t]he system generally provides for collecting limited funds from a large number of employers, particularly during periods of stable employment, then paying out benefits during periods of high unemployment from the funds that have been accumulated." Wisconsin § 12-1 (Matthew Maynard G. Sautter, Employment in Bender 2023). The statutes were enacted "to avoid the risk or hazards that will befall those who, because of employment, are dependent upon others for their livelihood." Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 69, 330 N.W.2d 169 (1983). ch. 108 is "Consistent with this policy, Wis. Stat. 'liberally construed to effect unemployment See Daniel Nelson, The Origins of Unemployment Insurance in Wisconsin, 51 Wis. Mag. Hist. 109, 109 (1967); Operton v. LIRC, 2017 WI 46, ¶57, 375 Wis. 2d 1, 894 N.W.2d 426 (Abrahamson, J., concurring). 9 12 No. 2020AP2007 compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status.'" Operton, 375 Wis. 2d 1, ¶32 (quoting Princess House, 111 Wis. 2d at 62). ¶29 The unemployment legislature and the need has to recognized the share burden the unemployment. See Wis. Stat. § 108.01(1). in unemployment bad times is a heavy social cost of presented by "In good times and social affecting many thousands of wage earners. cost, directly Each employing unit in Wisconsin should pay at least a part of this social cost, connected with its own irregular operations, benefits for its own unemployed workers." ¶30 by financing Id. "Generally, any service for pay for a public, private, or nonprofit employer is employment [covered by ch. 108], but the service must be provided in Wisconsin or be provided for an employer with operations in Wisconsin." Peter L. Albrecht et al., Wisconsin Employment Law § 12.3 (8th ed. 2023). some services are statutorily exempt from the However, "employment" services addressed by the unemployment compensation law. E.g., Wis. Cheese Serv., Inc. v. DILHR, 108 Wis. 2d 482, 486, 322 N.W.2d 495 (Ct. App. 1982) (examining whether an individual is exempt from the unemployment system as an independent contractor); see Sautter, Employment in Wisconsin § 12-3. one of those exemptions, which we will refer to It is as the "religious purposes" exemption, that is at issue in the present case. ¶31 The religious purposes exemption is set forth as part of Wis. Stat. § 108.02(15)(h), which provides in full: 13 No. 2020AP2007 "Employment" as applied to work for a nonprofit organization, except as such organization duly elects otherwise with the department's approval, does not include service: 1. In the employ of a association of churches; church or convention or 2. In the employ of an organization operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches; or 3. By a duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order. ¶32 Specifically, CCB and the sub-entities seek exemption pursuant to subd. 2, which contains two conditions that both must be fulfilled in order for the exemption to apply. the subject religious organization purposes." must Second, be "operated the First, primarily organization must for be "operated, supervised, controlled, or principally supported by a church or convention or association of churches." It is undisputed that the second condition is satisfied, as CCB and the sub-entities controlled, Superior. or are without principally question "operated, supported" by the supervised, Diocese of Our inquiry thus focuses on the first condition only: "operated primarily for religious purposes." ¶33 In addressing the issue presented, we must answer the threshold question of whose purposes we must examine in our analysis——those of the Diocese or those of CCB and the subentities. To resolve this inquiry, we language of Wis. Stat. § 108.02(15)(h)2. 14 look first to the Sw. Airlines Co. v. No. 2020AP2007 DOR, 2021 WI 54, ¶22, 397 Wis. 2d 431, 960 N.W.2d 384 (citing State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110). ¶34 Like the court of appeals, our review of the plain language of Wis. Stat. § 108.02(15)(h)2. leads us to conclude that "the reviewing body is to consider the purpose of the nonprofit organization, not the church's purpose in operating the organization." ¶24. Cath. Charities Bureau, 406 Wis. 2d 586, There are several textual cues in this language that guide us to our conclusion. We look first to the sentence structure of Wis. Stat. § 108.02(15)(h)2. This structure indicates that the religious purposes exemption applies to "service . . . [i]n the employ" of an "organization," as opposed to service in the employ of a church. The way the sentence is structured, the phrase "operated primarily for religious purposes" modifies the word "organization," not the word "church." ¶35 Such an understanding is confirmed by a look to the surrounding provisions. See Belding v. Demoulin, 2014 WI 8, ¶15, 352 Wis. 2d 359, 843 N.W.2d 373. before the religious purposes The subdivision directly exemption, Wis. Stat. § 108.02(15)(h)1., exempts from the definition of "employment" for unemployment compensation purposes service "[i]n the employ of a church." § 108.02(15)(h)3., The exempts subdivision service "[b]y directly a commissioned or licensed minister of a church." by a church are thus addressed in duly after, ordained, Those employed subdivisions 1. and 3., indicating, as the court of appeals concluded, that "employees 15 No. 2020AP2007 who fall under subd. 2. are to be focused on separately in the statutory scheme from employees of a church." Cath. Charities Bureau, 406 Wis. 2d 586, ¶25. ¶36 Thus, a focus on the church's purpose rather than the organization's purpose would render a significant Wis. Stat. § 108.02(15)(h)2. surplusage. portion of See State v. Martin, 162 Wis. 2d 883, 894, 470 N.W.2d 900 (1991) ("A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect."). To explain, Wis. Stat. § 108.02(15)(h)2. contains two provisions that both must be fulfilled. In order to be exempt, a nonprofit organization must be "operated primarily for religious purposes" and "operated, supervised, controlled, or principally supported by a church." ¶37 § 108.02(15)(h)2. If we looked to the church's purpose in operating the organization only, then any religiously affiliated organization would always be exempt. nature, and including this any focus A church's purpose is religious by is reflected sub-entities it in all of If the oversees. its work, tax-exempt status of a nonprofit organization operating under the umbrella of a church church, an is predicated organization on the operated religious or purposes controlled by always will automatically satisfy the first condition. words, the second condition would subsume the first. of Wis. Stat. of a the church In other § 108.02(15)(h)2. This would cause the first requirement of the statute to be surplusage, a reading we cannot endorse. We therefore will examine the 16 purpose of the nonprofit No. 2020AP2007 organization, and not that of the church, in determining whether a nonprofit organization is "operated primarily for religious purposes." B ¶38 Having determined that we look to the purpose of CCB and the sub-entities, and not that of the Catholic Church in operating CCB and the sub-entities, we turn next to another methodological disagreement between the parties. sub-entities contend that in our inquiry into CCB and the whether an organization is "operated primarily for religious purposes" we must look primarily to the organization's motivations, while LIRC advances that the organization's activities are paramount.10 ¶39 court of Specifically, CCB and the sub-entities argue that the appeals incorrectly limited the religious purposes exemption to church-controlled entities with both purposes and Other jurisdictions have taken varying approaches to similar questions. For example, some jurisdictions have considered the activities of an organization in determining religious purpose. See, e.g., Samaritan Inst. v. Prince-Walker, 883 P.2d 3, 8 (Colo. 1994) (concluding that an organization does not "operate primarily for religious purposes" because the "services offered are essentially secular"); Cathedral Arts Project, Inc. v. Dep't of Econ. Opportunity, 95 So. 3d 970, 973 (Fla. Dist. Ct. App. 2012) (determining that although an organization's motivation may be religious, the organization's "primary purpose in operating . . . is to give art instruction to underprivileged children" and it is therefore not entitled to the exemption). Conversely, other jurisdictions have granted a religious purpose exemption based on the motivations of the organization. See, e.g., Dep't of Emp. v. Champion Bake-NServe, Inc., 592 P.2d 1370, 1373 (Idaho 1979) (concluding that a bakery operated by Seventh Day Adventist church was operated primarily for religious purposes despite a commercial aspect). 10 17 No. activities that are religious. 2020AP2007 They assert that the court of appeals' analysis fails to follow the statutory language because the statute refers only to a religious "purpose" and not religious "activities." ¶40 LIRC responds that looking at only an organization's motivation would allow the organization to determine its own status without consideration of its actual function. It advances that such an interpretation would run afoul of the maxim that tax exemptions are to be narrowly construed. In LIRC's view, the court of appeals correctly concluded that the term "operated," action or which appears activity." See in the Cath. statute, Charities "connotes Bureau, an 406 Wis. 2d 586, ¶31. ¶41 Again, we begin our analysis with the language of the statute, and in particular the language at the center of this case: "operated primarily for religious purposes." The court of appeals commenced its analysis by examining the key words "operated" and "purposes," and we do likewise. ¶42 perform, An oft-cited dictionary defines "operate" as "to work, or function, as a machine does." Operate, https://www.dictionary.com/browse/operate (last visited Feb. 27, 2024), see also Operate, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/operate (last visited Feb. 27, 2024) (defining "operate" as "to perform a function"). As the court of appeals concluded, this definition suggests an action being taken——in the context 18 of the statute at issue No. 2020AP2007 meaning "what the nonprofit organization does and how it does it." Cath. Charities Bureau, 406 Wis. 2d 586, ¶31. ¶43 for This same dictionary defines "purpose" as "the reason which something exists or is done, made, used, etc." Purpose, https://www.dictionary.com/browse/purpose (last visited Feb. 27, 2024). "motivation," The use of "reason" in this definition implies or as organization acts." the court of appeals put it, "why the Cath. Charities Bureau, 406 Wis. 2d 586, ¶31. ¶44 In examining the meaning of the statute, we must give reasonable effect to every word. State v. Rector, 2023 WI 41, ¶19, 407 Wis. 2d 321, 990 N.W.2d 213. whole. Belding, 352 We read the statute as a Wis. 2d 359, ¶15. Accordingly, "operated" and "purposes" must be given full effect. both In order to illustrate how to do this, we consider first the consequences if our analysis considered motivations only or activities only in determining whether an organization is operated primarily for religious purposes. ¶45 Considering purposes, i.e., motivations, alone would give short shrift to the word "operated." In this scenario, an organization could be exempt based purely on its stated reason for doing what it does, but its actual "operations" would not enter the calculus. Conversely, if we were to consider activities only, then "purposes" would be rendered surplusage. A singular focus on the "operations" of the organization at the expense of the "purpose" would 19 lead us to excise from the No. 2020AP2007 analysis the connection between the organization's activities and its religious mission that the statute requires. ¶46 Reading the statute as a whole, the text and structure of Wis. Stat. § 108.02(15)(h)2. indicate that both activities and motivations must be considered in a determination of whether an organization is "operated primarily for religious purposes." Such an interpretation is consistent with the unemployment compensation law's legislatively-recognized purpose. See Wis. Stat. § 108.01; Princess House, 111 Wis. 2d at 61 (explaining that in determining liability under the Unemployment Compensation Act, "the act itself should be put in perspective, and the underlying purpose of the act should be given paramount consideration"). The unemployment compensation law addresses an "urgent public problem" and does so by sharing "fairly" the economic burdens of unemployment. ¶47 Wis. Stat. § 108.01(1)-(2). In light of this, we have stated that the unemployment compensation law is "remedial in nature and should be liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to 20 No. their wage-earning status." 2020AP2007 Princess House, 111 Wis. 2d at 62.11 As a corollary to this principle, it follows that if a statute is liberally construed. construed, then exceptions must be narrowly McNeil v. Hansen, 2007 WI 56, ¶10, 300 Wis. 2d 358, 731 N.W.2d 273. ¶48 Correctly demonstrating a narrow construction of the exception, the court of appeals here concluded that looking at an organization's motivations in a vacuum "would cast too broad a net." Cath. Charities Bureau, 406 Wis. 2d 586, ¶37. Sole reliance on self-professed motivation would essentially render an organization's mere assertion of a religious motive Although the United States Supreme Court has in the past applied a similar principle of liberal construction of remedial statutes, see Peyton v. Rowe, 391 U.S. 54, 65 (1968), recent cases suggest a potential step back from this approach. See, e.g., Encino Motorcars, LLC v. Navarro, 584 U.S. __, 138 S. Ct. 1134, 1142 (2018). Nevertheless, we follow (and do not overrule) the Wisconsin approach to our Unemployment Compensation Act and our precedent regarding the interpretation of remedial statutes under the Act. See Operton, 375 Wis. 2d 1, ¶32; Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983); see generally Miller v. Hanover Ins. Co., 2010 WI 75, ¶31, 326 Wis. 2d 640, 785 N.W.2d 493; Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, ¶21, 308 Wis. 2d 103, 746 N.W.2d 762 (explaining that "remedial statutes must be liberally construed to advance the remedy that the legislature intended to be afforded"). The statutory text confirms the original intent of the legislature to provide broad coverage for unemployed workers that is "shared . . . fairly" among employers. See generally Wis. Stat. § 108.01. 11 21 No. dispositive.12 2020AP2007 See Living Faith, Inc. v. Comm'r of Internal Revenue, 950 F.2d 365, 372 (7th Cir. 1991) ("While we agree with Living Faith that an organization's good faith assertion of an exempt purpose is relevant to the analysis of tax-exempt status, we cannot accept the view that such an assertion be dispositive. Put simply, saying one's purpose is exclusively religious doesn't necessarily make it so."). ¶49 Although the motivations of an organization certainly figure into the analysis, allowing self-definition to drive the exemption would organizations open based the exemption entirely on a to a broad single spectrum assertion of of a religious motivation.13 This would run counter to the direction that exemption we construe the narrowly. Considering the The stopping point of the argument presented by CCB and the sub-entities is unclear. For example, at the administrative hearing in the present case, the Archbishop of Milwaukee testified that he is responsible for overseeing numerous grammar schools and high schools, 10 hospitals, and five colleges. Under the petitioners' argument, these entities' employees, numbering in the thousands, would seemingly lack coverage under the state unemployment system. 12 The argument advanced by the petitioners did not garner anywhere close to a majority vote when addressed by the United States Supreme Court. At oral argument, Justice Thomas's concurrences in both Hosanna–Tabor Evangelical Lutheran Church and Sch. v. Equal Emp. Opportunity Comm'n, 565 U.S. 171, 196-98 (2012) (Thomas, J., concurring) and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. __, 140 S. Ct. 2049, 2069-70 (2020) (Thomas, J., concurring, joined by Gorsuch, J.), were invoked to support the idea that courts must wholly defer to an organization's good-faith claims instead of examining the activities of the organization. However, this position was not supported by the majority in either case. 13 22 No. 2020AP2007 organization's activities in addition to its motivations is in line with the directive that we follow a narrow construction. ¶50 Our decision in Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, additionally buttresses our conclusion. whether a In that case, the court addressed an issue of teacher's position in a religious school is "ministerial" such that the First Amendment bars suit under the Wisconsin Fair Employment Act.14 ¶51 In examining this question, the court applied the two- part "primary duties" test. "The first step is an inquiry into whether the organization in both statement and practice has a fundamentally religious mission." Id., ¶48. Second, the court inquires "into how important or closely linked the employee's work is to the fundamental mission of that organization." Id., ¶49. ¶52 Although the legal issue and context were different in Coulee, we agree with the court of appeals that it "provides guidance in understanding the religious purposes exemption The "ministerial exception" recognizes "that the First Amendment protects houses of worship from state interference with the decision of who will teach and lead a congregation." Coulee Cath. Schs., 320 Wis. 2d 275, ¶39. Premised on the "idea that the 'introduction of government standards [in]to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state,'" the exception "recognizes that 'perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.'" Id. (quoting Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1168-69 (4th Cir. 1985)). 14 23 No. here." Cath. Charities Bureau, 406 Wis. 2d 586, 2020AP2007 ¶43. To explain, the first step of the primary duties test involves an inquiry into an organization's mission. In analyzing such a question, the Coulee court examined both the "statement" and "practice" of Wis. 2d 275, the ¶48. organization. See also Our Coulee Lady of Cath. Schs., Guadalupe Sch. 320 v. Morrissey-Berru, 591 U.S. __, 140 S. Ct. 2049, 2067-69 (2020). In other words, it analyzed both the professions and actions of the organization to determine the organization's "mission." ¶53 The "mission" inquiry in Coulee is analogous to the "purpose" analysis we conduct in the present case. Indeed, mission and purpose are even listed as synonyms by a popular thesaurus. Mission, https://www.thesaurus.com/browse/mission (last visited Feb. 27, 2024). The concepts are thus related, and the Coulee court's analysis of two factors, professions and operations, in its "mission" inquiry supports our examination of similar dual considerations in the "purpose" question in the present case. See also Our Lady of Guadalupe Sch., 140 S. Ct. at 2067-69. ¶54 Further, the Seventh Circuit's decision in United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981), lends support to the assertion that the organization's activities have a role to play in determining the organization's "purpose." In Dykema, which involved a determination of a pastor's tax liability, the Seventh Circuit observed that "religious purposes" is a "term of art in tax law" and that the IRS, in order to determine whether such a purpose is present, 24 must examine whether an No. organization's "actual activities 2020AP2007 conform to the requirements which Congress has established as entitling them to tax exempt status." Id. at 1101 (emphasis added). ¶55 The Dykema court also emphasized that its inquiry into religious purpose "enable the IRS statute without is to based make entering on the "objective criteria," determination into any required subjective which by inquiry the with respect to religious truth which would be forbidden by the First Amendment." Id. at 1100. It further charted "[t]ypical activities of an organization operated for religious purposes" as including: (a) corporate worship services, including due administration of sacraments and observance of liturgical rituals, as well as a preaching ministry and evangelical outreach to the unchurched and missionary activity in partibus infidelium; (b) pastoral counseling and comfort to members facing grief, illness, adversity, or spiritual problems; (c) performance by the clergy of customary church ceremonies affecting the lives of individuals, such as baptism, marriage, burial, and the like; (d) a system of nurture of the young and education in the doctrine and discipline of the church, as well as (in the case of mature and well developed churches) theological seminaries for the advanced study and the training of ministers. Id. We reproduce this list not to create any requirement for an organization to be determined to have a religious purpose, but merely as an illustration. The Dykema court's listed hallmarks of a religious purpose are by no means exhaustive or necessary conditions and the listed activities different faiths. 25 may be different for No. ¶56 2020AP2007 We do not adopt a rigid formula for deciding whether an organization is operated primarily for religious purposes. See Hosanna–Tabor Evangelical Lutheran Church and Sch. v. Equal Emp. Opportunity Comm'n, 565 U.S. 171, 190 (2012). agree with the Dykema court that an Instead, we examination of an organization's activities lends itself to an objective inquiry that does not lead us into a First Amendment quagmire, as will be discussed further below.15 ¶57 We therefore conclude that in determining whether an organization within examine the is "operated meaning both the of Wis. primarily Stat. motivations and for religious § 108.02(15)(h)2., the activities purposes" we must of the organization. Our examination of an organization's activities also finds support in a federal law utilizing the same language as the statute we examine here. See 26 U.S.C. § 3309(b)(1)(B). A report of the House Ways and Means Committee on that law sets forth an example of its application that focuses on an organization's activities: 15 Thus, the services of the janitor of a church would be excluded, but services of a janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes. H.R. Rep. No. 91-612, at 44 (1969). Congress thus envisioned that an examination of activities, and not merely motivations, would be undertaken given the language we examine in this case. 26 No. 2020AP2007 C ¶58 We turn next to apply our statutory interpretation to the facts before us. The burden to establish an exemption is on CCB and the sub-entities. See Princess House, 111 Wis. 2d at 66; Sw. Airlines, 397 Wis. 2d 431, ¶24 (explaining that "[t]he burden is on the party seeking the exemption to prove its entitlement" and "taxation is the rule and exemption is the exception"). ¶59 CCB and the sub-entities profess to have a religious motivation. Specifically, they state that their services "are based on gospel values and the principles of the Catholic Social Teachings." Indeed, it is part of CCB's mission to "carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church." We accept these statements at face value, and LIRC does not argue that these assertions of religious motivation are insincere, fraudulent, or otherwise not credible. Cf. Wis. 2d 139, Holy 155, 262 Trinity Cmty. N.W.2d 210 Sch., (1978) Inc. v. (indicating Kahl, 82 that the court is "obliged to accept the professions of the school" as to its affiliation and "to accord them validity without further inquiry" but the court may "look behind such decisions where there is evidence of fraud or collusion"). ¶60 However, accepting an organization's motivations does not end the inquiry as we must also examine its activities. We look for guidance from prior cases to further the analysis. In Dykema, the court's examination of activities focused on whether an organization participated in 27 worship services, religious No. outreach, ceremony, or religious education. 1100. 2020AP2007 Dykema, 666 F.2d at Here, such criteria weigh in favor of a determination that CCB's and the sub-entities' activities are not "primarily" religious in nature. The record demonstrates that CCB and the sub-entities, which are organized as separate corporations apart from the church itself, neither attempt to imbue program participants with the Catholic faith nor supply any religious materials to program participants or employees. Although not required, these would be strong indications that the activities are primarily religious in nature. ¶61 Our own precedent, albeit in another First Amendment context, further bolsters this conclusion. Schools, 320 Wis. 2d 275, religiously-affiliated homeless "another [that] has ¶48, organization only a we distinguished committed nominal religiously-affiliated In Coulee Catholic tie to organization to feeding religion" committed "one the from to feeding the homeless [that] has a religiously infused mission involving teaching, evangelism, and worship" for purposes of the ministerial exception. CCB and the sub-entities fit into the former category. Both employment with the organizations and services by offered the organizations are open to all participants regardless of religion. ¶62 CCB's and the sub-entities' activities are primarily charitable and secular. The sub-entities provide services to individuals with developmental and mental health disabilities. These activities include job training, placement, and coaching, as well as services related to activities of daily living. 28 CCB No. 2020AP2007 provides background support and management services for these activities——a wholly secular endeavor. ¶63 either Such services religious or can be secular See supra, ¶¶10-15. provided by motivations, provided would not differ in any sense. organizations and the of services This is illustrated by a historical look at one of CCB's sub-entities, BCDS. As noted by the court of appeals, BCDS was not under the CCB umbrella until 2014, religious before which organization. Wis. 2d 586, ¶59. it had See no Cath. affiliation Charities with any Bureau, 406 Yet the services provided before and after BCDS's partnership with CCB commenced were exactly the same. We agree with the court of appeals that "[t]he fact that the manner in which BCDS carried out its mission did not change after it became an affiliate of CCB supports our conclusion that BCDS' purpose and operations are not primarily religious." ¶64 Id. The other three sub-entities at issue offer services comparable to those offered by BCDS. In other words, they offer services that would be the same regardless of the motivation of the provider, a strong indication that the sub-entities do not "operate primarily for religious purposes." ¶65 This federal law. result is further supported with a look to We observe that Wisconsin's religious purposes exemption contains verbatim language to a provision of federal law, with which Wisconsin's law was enacted to conform. See 26 U.S.C. § 3309(b)(1)(B); 1971 S.B. 330 (noting that the proposed changes to Wisconsin law "will bring Wisconsin's law in line with the 1970 amendments to the federal unemployment tax act" 29 No. 2020AP2007 and that "[a]ny less coverage would cost federal tax credits"). A report of the House Ways and Means Committee on that federal law indicates that, identical to Wisconsin's law, it: excludes services of persons where the employer is a church or convention or association of churches, but does not exclude certain services performed for an organization which may be religious in orientation unless it is operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by a church (or convention or association of churches). H.R. Rep. No. 91-612, at 44 (1969). Importantly, the House Report continues and provides examples of employment that would and would not be entitled to the exemption: Thus, the services of the janitor of a church would be excluded, but services of a janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes. Id. (emphasis added). ¶66 Comparing the services offered by CCB and the sub- entities here to the listed examples, the "orphanage" or "home for the aged" is analogous. The services provided by a religiously run orphanage and a secular one do not differ in any meaningful sense. The same is true of a "home for the aged." And the same principle applies to the developmental services provided by the sub-entities at the center of this case. 30 No. ¶67 2020AP2007 Although CCB and the sub-entities assert a religious motivation behind their work, the statutory language indicates that this is not enough to receive the exemption. An objective examination of the actual activities of CCB and the sub-entities reveals that therefore their conclude activities that CCB are secular and the in nature. sub-entities We are not operated primarily for religious purposes within the meaning of Wis. Stat. § 108.02(15)(h)2. IV ¶68 the Finally, we examine the petitioners' assertion that above Amendment.16 statutory interpretation violates the First Specifically, they advance that such analysis and conclusion creates a conflict with the First Amendment to the United States Constitution by violating both the Establishment Clause and Free Exercise Clause. ¶69 Together Establishment entirety: and of thereof . . . ." evils: Free "Congress establishment ¶70 referred to as Exercise shall religion, the clauses make or Religion no prohibiting Clauses, provide law the in their respecting free the an exercise U.S. Const. amend. I. The Establishment Clause protects against three main sponsorship, financial support, and active involvement In full, the First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. 16 31 No. of the sovereign in religious activity. Jackson v. Benson, 218 Wis. 2d 835, 856, 578 N.W.2d 602 (1998) (citing Comm'n, 397 U.S. 664, 668 (1970)). to prohibit 2020AP2007 Walz v. Tax In other words, it operates the government from enacting laws that "aid one religion, aid all religions, or prefer one religion over another." Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216 (1963) (quoting Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947)). ¶71 state It further prohibits the excessive entanglement of the in religious entanglement doctrine. matters, a known as the St. Augustine Sch., 398 Wis. 2d 92, ¶42. Excessive entanglement occurs interpret church policies, law, principle "if or a court is required to practices." L.L.N. v. Clauder, 209 Wis. 2d 674, 687, 563 N.W.2d 434 (1997). inquiry is prohibited by the First Amendment. Id. Such an However, "a court may hear an action if it will involve the consideration of neutral principles of law." ¶72 "the Id. On the other hand, the Free Exercise Clause assures right to harbor religious beliefs" by "protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life." Dist., 597 U.S. 507, 524 (2022). Kennedy v. Bremerton Sch. It protects religious organizations' right "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Coulee Cath. Schs., 320 Wis. 2d 275, ¶37 (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)). 32 No. ¶73 2020AP2007 Both Religion Clauses inform a doctrine known as the church autonomy principle, which "is perhaps best understood as marking a boundary between two separate polities, the secular and the religious, and acknowledging the prerogatives of each in its own sphere." 2013). Korte v. Sebelius, 735 F.3d 654, 677 (7th Cir. "The church-autonomy doctrine respects the authority of churches to doctrines, select resolve their their own own leaders, disputes, define and run institutions free from governmental interference." source omitted). In other words, it their own their own Id. (quoted protects religious institutions from "secular control or manipulation." Kedroff, 344 U.S. at 116. ¶74 The Religion Clauses are inherently in tension with each other. v. Yoder, We acknowledged this complicated interplay in State 49 Wis. 2d 430, 444, 182 N.W.2d Wisconsin v. Yoder, 406 U.S. 205 (1972). Clauses are "not Constitution." the most precisely Walz, 397 U.S. at 668. in absolute terms," 539 (1971) aff'd Indeed, the Religion drawn portions of the Both clauses are "cast id., and therefore have the tendency to "overlap, can conflict, and cannot always be squared on any strict theory of neutrality." ¶75 Yoder, 49 Wis. 2d at 444. The United States Supreme Court has also acknowledged these tensions, instructing that "[a]dherence to the policy of neutrality" is paramount to prevent "the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice." 33 Walz, 397 No. U.S. at 669-70. 2020AP2007 At the same time, it emphasizes that strict adherence is not always feasible: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Id. at 669. ¶76 A religious institution's First Amendment rights are not unlimited. Just as there are limitations on First Amendment free speech, i.e., the proverbial prohibition of yelling "fire" in a crowded theater,17 so too are there limitations here. The challenge are is to balance the competing interests. We assisted in achieving this balance by a review of precedent, and by a review of how other jurisdictions have navigated the challenge. ¶77 An as-applied challenge, such as that brought by CCB and the sub-entities, requires an assessment of the merits of the challenge by considering the facts of the particular case in 17 See Schenck v. United States, 249 U.S. 47, 52 (1919). 34 No. front of the court.18 2020AP2007 State v. Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785. For an as-applied challenge to succeed, the challenger must demonstrate that the challenger's constitutional rights were actually violated. State v. Roundtree, 2021 WI 1, ¶18, 395 Wis. 2d 94, 952 N.W.2d 765. If such a violation occurred, the operation of the law is void as to the facts presented for the party asserting the claim. Id. We presume that the statute is constitutional, and the party raising a challenged constitutional statute has challenge been applied manner beyond a reasonable doubt. must in prove an that the unconstitutional Id.; State v. Christen, 2021 WI 39, ¶32, 396 Wis. 2d 705, 958 N.W.2d 746; State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. ¶78 With this standard in mind, we turn now to the petitioners' constitutional claims to determine whether CCB and There are two major types of constitutional challenges: facial and as-applied. State v. Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765. A party challenging a law as unconstitutional on its face must show that the law cannot be constitutionally enforced under any circumstances. Id. In contrast, in an as-applied challenge, the court assesses the merits of the challenge by considering the facts of the particular case before it. Id., ¶18. The parties' briefing was not particularly clear regarding which type of challenge CCB and the sub-entities bring here. Both LIRC and the court of appeals interpreted the petitioners' challenge to be an as-applied challenge, and we do the same. See Cath. Charities Bureau, 406 Wis. 2d 586, ¶47 ("[W]e note that the parties do not argue that the statute itself violates the First Amendment, meaning that CCB does not assert a facial constitutional challenge."). In any event, the standard for a facial challenge is more stringent, and if an as-applied challenge fails, then a facial challenge will also necessarily fail because the law can be constitutionally applied in at least one circumstance. 18 35 No. 2020AP2007 the sub-entities have made the requisite showing that Wis. Stat. § 108.02(15)(h)2. has been unconstitutionally applied to them beyond a reasonable doubt. LIRC's statutory CCB and the sub-entities claim that interpretation leads to a violation of the Establishment Clause and the Free Exercise Clause in three ways: (1) by causing an excessive state entanglement with religion, (2) by violating the church autonomy principle, and (3) by discriminating "against religious entities with a more complex polity" and "penalizing CCB for its Catholic beliefs regarding how it must serve those most in need." We address each argument in turn. A ¶79 CCB and the sub-entities assert initially that LIRC's interpretation of Establishment entanglement the Clause with statutory by exemption occasioning religion. an Specifically, violates excessive they the state argue that examination of an organization's activities "requires Wisconsin courts (and government officials) to conduct an intrusive inquiry into the operations of religious organizations that seek the religious purposes exemption." ¶80 Clause However, the protection provided by the Establishment is not a blanket protection against any type of governmental inquiry into a religious organization. There are certain including instances determining tax exemption. investigations that require liability See into Walz, some or 397 the U.S. tax-exempt 36 investigation, applicability at status 675-76. are of In consistent a tax fact, with a No. long-standing tradition equally under the law. of treating religious See id. at 680. 2020AP2007 organizations Indeed, both taxation of churches and exemption "occasion[] some degree of involvement with religion." ¶81 Id. at 674. The Establishment Clause does not treat religion as a third rail that courts cannot touch. Rather, it ensures that the inevitable "degree of involvement" in such a determination does not cross into an evaluation of religious dogma. The Supreme Court, in fact, has "upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing religion," Am. Legion v. Am. Humanist Ass'n, 588 U.S. __, 139 S. Ct. 2067, 2092 (2019) (Kavanaugh, J., concurring). ¶82 Although government with such an religious inquiry necessarily organizations, "some involvement" does not offend the First Amendment. links degree the of Walz, 397 U.S. at 674; see also id. at 697 n.1 (Harlan, J., concurring). An inquiry evaluating "the scope of charitable activities in proportion to doctrinal pursuits may be difficult," but such difficulty "does not render it undue interference with religion" as long as it "does not entail judicial inquiry into dogma and belief." ¶83 Id. at 697 n.1 (Harlan, J., concurring). The truth or falsity of a religious belief is not a proper matter for us, or any other court to decide, but courts still must answer "delicate question[s]" to avoid "allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." 37 Yoder, 406 No. U.S. at 215-16. 2020AP2007 The key is for any inquiry a court undertakes to remain on the right side of the line and not involve an examination into the religious beliefs, practices, or dogma of an organization. 49. Cf. St. Augustine Sch., 398 Wis. 2d 92, ¶¶47- For example, in St. Augustine School, we observed that an examination of "a school's professions that are published on its public website or set forth in filings with the state does not necessarily require any investigation or surveillance into the practices of the school." "professions" without organization's practices any Id., ¶48. surveillance are consistent Consideration of of an with whether a particular religious dogma ensures that the inquiry remains on the right side of the line. ¶84 Id., ¶49. Such is our challenge here. again looking at the statute at issue. language of Wis. Stat. We begin the inquiry by As set forth above, the § 108.02(15)(h)2. dictates that we examine both the organization's motivations and activities to determine whether the organization is "operated primarily for religious purposes" and thus is entitled to exemption from unemployment tax. ¶85 Examining both the motivations and activities of the organization requires minimal judicial inquiry into religion, as there is no examination of whether CCB's or the sub-entities' activities doctrine. are consistent or inconsistent with Catholic A court need only determine what the nature of the motivations and activities of the organizations are——not whether they are "Catholic" enough to qualify for the exemption. 38 No. ¶86 Again, this inquiry involvement" with religion. requires "some 2020AP2007 degree See Walz, 397 U.S. at 674. of But rather than necessarily creating a constitutional problem, such an inquiry is inherent in any statutory scheme that offers tax exemption to religious entities. no genuine nexus religion."). between tax Id.; see id. at 675 ("There is exemption and establishment of 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. See St. Augustine Sch., 398 Wis. 2d 92, ¶5 (concluding that a "neutral and secular inquiry" into a religious organization is constitutional); Dykema, 666 F.2d at 1100 (applying "objective criteria" to an investigation into a religious organization's activities.) ¶87 Our conclusion is consistent with those of other courts that have examined similarly "delicate" questions. example, in Dykema, organization's ("Objective actual the Seventh activities, criteria for activities . . . enable Circuit just as examination of the IRS to we make examined an here. Id. do an the For organization's determination required by the statute without entering into any subjective inquiry with respect to religious truth which would be forbidden by the First Amendment."). Our examination of the motivations and actual activities of an organization here is akin to our consideration of a school's corporate documents, professions with regard to self-identification and affiliation, and website to which we gave a constitutional 39 seal of approval in St. No. Augustine secular" dogma. School. inquiry 398 does Wis. 2d 92, not intrude ¶5. This on questions history strongly 2020AP2007 "neutral of and religious See id. ¶88 Further, a look to supports our consideration of an organization's activities, to which CCB and the sub-entities establishes First, two that object. As essential an detailed principles inquiry into for below, this our purposes "purpose" that history here. examines an organization's actual activities has long been established in statutory enactments and the common law, and second, that courts have embraced, rather than shunned, a judicial inquiry into an organization's actual activities in order to make a determination of "purpose" to inform whether the organization qualifies for exemption. Our decision here is thus consistent with court's historical treatment of similar questions. ¶89 Religious tax exemption has been traced from ancient times through the British common law. Tax Exemption and Churches: See John W. Whitehead, A Historical and Constitutional Analysis, 22 Cumb. L. Rev. 521, 524-36 (1992). British common law, and certain colonial legislatures, widely granted property tax exemptions Exemption of to Church church property. Property: John Historical Witte, Anomaly Jr., or Tax Valid Constitutional Practice?, 64 S. Cal. L. Rev. 363, 372-74 (1991). The law of equity, on the other hand, also accorded tax exemption to church properties, but only to those which were devoted to "charitable uses." Id. at 375. Thus, there has historically been some examination of a property's actual use, 40 No. 2020AP2007 not just reliance on an organization's religious character. In other words, courts have long placed import on what a religious organization does, and not just on what it says. ¶90 As these exemptions evolved, statutory likewise focused on an organization's "purpose." language Indeed, from the earliest statutory enactments regarding tax exemption for religious entities, an examination of an organization's activities has been part and parcel of the inquiry. ¶91 For instance, the Wilson-Gorman Tariff Act of 1894, one of the earliest tax statutes that referenced an exemption for religious income tax. purposes, provided a tax exemption to a flat It stated: "[N]othing herein contained shall apply to . . . corporations, companies, or associations organized and conducted solely for charitable, religious, or educational purposes, including fraternal beneficiary associations." Though the law was declared unconstitutional by the Supreme Court in 1895, the exemption language contained in the act would provide the cornerstone for tax legislation involving charitable organizations for the next century. Paul Arnsberger, et al., A History of the Tax-Exempt Sector: An SOI Perspective, IRS Stat. of Income Bull. 105, 106-07 (Winter 2008), www.irs.gov/pub/irs-soi/tehistory.pdf. Similarly, a subsequent enactment, the Revenue Act of 1909, granted exemption to "any corporation or association organized and operated exclusively for religious, charitable, or educational purposes, no part of the net income of which inures to the benefit of any 41 private stockholder or individual." Id. at No. 2020AP2007 107 (emphasis added). ¶92 The ubiquity of religious tax exemptions and the analytical consequences of such exemptions have been recognized by the United States Court observed that Supreme Court. "Congress, Specifically, the from its earliest Walz days, has viewed the Religion Clauses of the Constitution as authorizing statutory real estate tax exemption to religious bodies," noting several examples from the early 1800's. Walz, 397 U.S. at 677. As stated above, however, the Walz court also emphasized that "some degree consequence of of involvement" offering tax with religion exemption to is a necessary religious entities. Id. at 674. ¶93 Tax exemptions for entities with a religious "purpose" being well-established in historical enactments, it is paramount that there be a mechanism for determining if an organization qualifies. See Ecclesiastical Order of Ism of Am, Inc. v. Chasin, 653 F. Supp. 1200, 1205 (E.D. Mich. 1986) ("Without [an examination of religious activities], it would be difficult to see how any church could qualify as a tax exempt organization 'for religious purposes.'"). Such an endeavor inherently requires judicial inquiry and has on many occasions throughout the history of both federal and state law resulted in denial of 42 No. 2020AP2007 tax exemption where religion is claimed as the basis of the exemption.19 ¶94 For the above reasons, we conclude that CCB and the sub-entities doubt an have failed to unconstitutional demonstrate entanglement beyond with a reasonable religion. The motivations and activities framework dictated by the language of Wis. Stat. § 108.02(15)(h)2. does not require the court to stray from a neutral and secular inquiry to an impermissible examination of religious dogma. B ¶95 CCB and the sub-entities contend next that interpretation violates the church autonomy principle. they argue that the church autonomy principle is LIRC's Namely, violated because LIRC's interpretation penalizes the choice CCB made to structure itself and its sub-entities as corporations separate from the church itself. the church autonomy CCB and the sub-entities advance that principle is violated by "divid[ing] religious bodies according to secular principles." up They point See, e.g., Gibbons v. District of Columbia, 116 U.S. 404, 407 (1886); All Saints Par. v. Inhabitants of Town of Brookline, 59 N.E. 1003, 1004 (Mass. 1901); Trinity Church v. City of New York, 10 How. Pr. 138, 140-41 (N.Y. Sup. Ct. 1854); In re City of Pawtucket, 52 A. 679, 679 (R.I. 1902); Frederick Cnty. Comm'rs v. Sisters of Charity of Saint Joseph, 48 Md. 34, 43 (Md. 1878); see also Waushara County v. Graf, 166 Wis. 2d 442, 462-63, 480 N.W.2d 16 (1992); Midtown Church of Christ, Inc. v. City of Racine, 83 Wis. 2d 72, 73-74, 264 N.W.2d 281 (1978); John W. Whitehead, Tax Exemption and Churches: A Historical and Constitutional Analysis, 22 Cumb. L. Rev. 521, 545 n.184 (1992) (collecting cases both upholding and disallowing property tax exemptions for churches and other religious organizations). 19 43 No. to Kedroff, thereby 344 U.S. "interfering 94, with to assert the that Church's the 2020AP2007 government internal is governance," which adversely affects the faith and mission of the church itself. ¶96 Kedroff illustrates the type of ecclesiastical governance matters protected by the church autonomy principle. At issue in Kedroff was an inter-church controversy over the right to use a Russian Orthodox cathedral in New York City. at 96-97. Id. The controversy arose between the North American Russian Orthodox churches, which claimed the right to use the cathedral belonged to an archbishop elected by them, and the Supreme Court Authority, which claimed the right belonged instead to an archbishop appointed by the patriarch in Moscow. Id. New York's highest court ruled in favor of the North American churches, based on a state law requiring every Russian Orthodox church in New York to recognize the determination of the governing authoritative. ¶97 body of the North American churches as Id. at 99 n.3. The Kedroff Court concluded that the state statute at issue was unconstitutional because it allowed the "power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment" by "displac[ing] one church administrator with another . . . [thereby] pass[ing] the control of matters strictly authority to another." cathedral was ecclesiastical Id. at 119. determined ecclesiastical government." to be one church The right to acquire the "strictly Id. at 115. 44 from a matter of No. ¶98 In contrast to the New York statute at 2020AP2007 issue in Kedroff, Wis. Stat. § 108.02(15)(h)2. neither regulates internal church governance nor Section 108.02(15)(h)2. purposes of mandates defines unemployment what insurance any activity. employment without is for the to any reference religious principles or any attempt to control internal church operations. Put simply, it does not concern matters that are "strictly" or even remotely "ecclesiastical," which belong to the church alone. ¶99 motives CCB and penalizes See id. and the sub-entities activities their separate "choice to claim from be that viewing those of 'structured the as their church separate corporations'——a religious decision grounded in church polity and internal governance." On the contrary, the claim that in order to receive the exemption the church is now required to structure itself as a single entity rather incorporated subsidiaries is unpersuasive. than separately The statute at issue dictates that it is the motivation and activities of the nonprofit that determine its tax-exempt status, not its corporate structure. ¶100 It is not difficult to imagine a non-profit organization structured as a separate sub-entity of a church that is "operated primarily for religious purposes," that is, with both motivations and activities that are religious. example, this case if one of partook the in religiously-motivated activities such as sub-entities those cited by For in the Dykema court as indicative of a religious purpose, see supra, 45 No. ¶55, it would incorporated have a stronger separately from a argument that, religious 2020AP2007 despite institution, being it is nevertheless "operated primarily for religious purposes" within the meaning of Wis. Stat. § 108.02(15)(h)2.20 Thus, CCB and the sub-entities have failed to demonstrate that the church autonomy principle has been violated beyond a reasonable doubt because the statute does not interfere with its internal governance or any ecclesiastical matters. C ¶101 Next, proposed CCB and interpretation the as sub-entities applied to claim them that LIRC's abandons "[the] bedrock principle of neutrality among religions" and violates the Free Exercise Clause in at least two ways. the sub-entities advance that it violates First, CCB and the principle of neutrality because "it discriminates against religious entities with a more complex polity." In other words, CCB and the sub- entities contend that the Catholic Church is penalized under LIRC's interpretation for "organizing itself as a group of See also Schwartz v. Unemployment Ins. Comm'n, 895 A.2d 965, 970 (Me. 2006) (concluding that a nonprofit organization which, in part, provides healthcare to island communities, is operated primarily for religious purposes because of its religious motivations and activities including bringing pastors to island communities, offering Christmas programs, and employing clergy members); Peace Lutheran Church v. State, Unemployment Appeals Comm'n, 906 So. 2d 1197, 1199-1200 (Fla. Dist. Ct. App. 2005) (determining that a child care center located at a church was operated primarily for religious purposes because it provided outreach for the church and its "religious purposes pervade all aspects of the school/day care center."). 20 46 No. separate corporate entities that bodies——in include a contrast variety of to 2020AP2007 other ministries as religious part of a single incorporated or unincorporated body." ¶102 Second, CCB and the sub-entities claim that LIRC's interpretation is not neutral because it penalizes them "for [their] Catholic beliefs regarding how [they] must serve those most in need." They point to LIRC's and the court of appeals' decisions as "identifying [certain21] characteristics of CCB's ministry as factors favoring denial of an otherwise-available exemption." Such an interpretation, in the petitioners' view, "flies in the face of Catholic beliefs about care for the poor" and "favors religious groups that require those they serve to adhere to the faith of that group or be subject to proselytization." ¶103 As a threshold matter, a party making a free exercise challenge must demonstrate that the challenged law burdens their religious exercise in a constitutionally significant way. "[T]he Free Exercise Clause does not require an exemption from a governmental program program actually religious rights." unless, burdens the at a minimum, claimant's inclusion freedom to in the exercise Tony and Susan Alamo Found. v. Sec'y of LIRC and the court of appeals observe that CCB does not engage in any of the following activities: inculcating Catholic faith; teaching the Catholic religion; evangelizing or participating in religious rituals or worship services; requiring employees, participants or board members to be of Catholic faith; requiring attendance at religious training, orientation, or services; and disseminating religious materials. 21 47 No. 2020AP2007 Labor, 471 U.S. 290, 303 (1985); see also Sch. Dist. of Abington Twp., 374 U.S. at 223 ("[I]t is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion."). If such a burden has been shown, then the analysis proceeds to the second step, where a party may carry its burden of proving a free exercise violation by showing that a governmental entity has burdened a sincere religious practice pursuant to a policy that is not "neutral" or "generally applicable." Bremerton, 507 U.S. at 525. ¶104 Importantly for our Free Exercise analysis, LIRC asserts that CCB and the sub-entities have not shown that "the unemployment insurance system burdens their religious beliefs." In LIRC's view, "[i]nclusion in the unemployment program is not a constitutionally significant burden." LIRC's argument continues: "The commission's interpretation does not prohibit the Diocese or the employers from engaging in any activity. The employers have participated in the State unemployment insurance program for many years and do not contend that their participation was a significant or substantial burden on their religious practices or beliefs." ¶105 A look to United States Supreme illustrates that LIRC's position is correct. Court precedent "[T]o the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, significant." any such burden is not constitutionally Jimmy Swaggart Ministries v. Bd. of Equalization 48 No. of Cal., 493 U.S. 378, 391 (1990). 2020AP2007 "[T]he very essence of such a tax is that it is neutral and nondiscriminatory on questions of religious belief." Id. at 394; see Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699-700 (1989) (concluding that the burden imposed by a provision of the Internal Revenue Code governing charitable deduction was "no different from that imposed by any public tax or fee" and that even a "substantial burden would maintaining be a justified sound tax by the system,' 'broad free of public interest 'myriad in exceptions flowing from a wide variety of religious beliefs.'") (quoted source omitted); accord Coulee Cath. Schs., 320 Wis. 2d 275, ¶65 ("General laws related to building licensing, taxes, social security, and the like are normally acceptable."). ¶106 Such is the nature of the unemployment tax at issue here. CCB and the sub-entities have not identified how the payment of unemployment tax prevents them from fulfilling any religious function or engaging in any religious activities. As the United States Supreme Court said, the decrease in the money available for religious or charitable activities that comes with paying a generally significant burden. CCB and the applicable tax is not a constitutionally Jimmy Swaggart Ministries, 493 U.S. at 391. sub-entities thus cannot surmount inquiry to demonstrate a Free Exercise violation. the threshold Because CCB and the sub-entities have failed to demonstrate that the statute imposes a constitutionally significant burden on their religious practice, we need not address the petitioners' argument that the statute violates principles of neutrality. 49 No. 2020AP2007 ¶107 Accordingly, we conclude that CCB and the sub-entities have therefore not met their burden under their Free Exercise claim to show that the law as-applied to them is unconstitutional beyond a reasonable doubt.22 V ¶108 In sum, we determine that in our inquiry into whether an organization is "operated primarily for religious purposes" within the examine meaning both organization. the of Wis. Stat. motivations § 108.02(15)(h)2., and the activities we must of the Applying this analysis to the facts before us, we conclude that the petitioners are not operated primarily for religious purposes within the meaning of § 108.02(15)(h)2. We further conclude that the application of § 108.02(15)(h)2. as applied to the petitioners does not violate the First Amendment because the petitioners statute as applied to have them failed is to demonstrate unconstitutional that beyond the a reasonable doubt. ¶109 Accordingly, we affirm the decision of the court of appeals. By the Court.—The decision of the court of appeals is affirmed. To the extent that CCB and the sub-entities argue that Wis. Stat. § 108.02(15)(h)2. is facially unconstitutional, such a challenge also fails. For a facial challenge to be successful, it must be demonstrated that the law cannot be constitutionally enforced under any circumstances. Roundtree, 395 Wis. 2d 94, ¶17. Our conclusion that § 108.02(15)(h)2. can be constitutionally enforced under the present circumstances necessarily precludes such an argument. 22 50 No. ¶110 REBECCA GRASSL BRADLEY, J. 2020AP2007.rgb (dissenting). "Render therefore unto Caesar the things which Caesar's; and unto God the things that are God's." are Matthew 22:21 (King James). ¶111 The State of Wisconsin gives a tax exemption to any nonprofit organization "operated primarily for purposes and operated . . . by a church . . . ." 108.02(15)(h)2. religious Wis. Stat. § Catholic Charities Bureau, Inc. and four of its sub-entities (collectively, "Catholic Charities") are operated primarily for a religious purpose——fulfillment of the command of Jesus Christ himself to serve others——and operated by the Roman Catholic Diocese of Superior, Wisconsin. The majority rewrites the statute to deprive Catholic Charities of the tax exemption, rendering unto the state that which the law says belongs to the church. ¶112 Impermissibly entangling the government in church doctrine, the majority astonishingly declares Catholic Charities are not "operated primarily for religious purposes" their activities are not "religious in nature." ¶60. because Majority op., The statute, however, requires only that a nonprofit be operated primarily for a religious reason. "The statute is neutral as to the type of service an organization provides; it speaks only in terms of the purpose of the organization." Cathedral Arts Project, Inc. v. Dep't of Econ. Opportunity, 95 So. 3d 970, 975 (Fla. Dist. Ct. App. 2012) (Swanson, dissenting in part, and dissenting from the judgment). 1 J., No. ¶113 The majority's misinterpretation of 2020AP2007.rgb the exemption renders the statute in violation of the First Amendment of the United States Constitution Constitution. engages in majority By focusing activities transforms preference exclusion for of a as on well whether that are broad exemption Protestant Catholicism, as a Judaism, Wisconsin nonprofit "religious religions the in into and Islam, a a primarily nature," the denominational discriminatory Sikhism, Hinduism, Buddhism, Hare Krishna, and the Church of Latter Day Saints, among others. such religious The First Amendment forbids the government from discrimination and commands neutrality among religions in the provision or denial of a government benefit. ¶114 The majority's misinterpretation also excessively entangles the government in spiritual affairs, requiring courts to determine what religious practices are sufficiently religious under the majority's unconstitutional test. The majority says secular entities provide charitable services, so such activities aren't religious Charities. at all, even when performed by Catholic The majority's determination directly contradicts Catholic Charities' faith: The [Catholic] Church's deepest nature is expressed in her three-fold responsibility: of proclaiming the word of God (kerygma-martyria), celebrating the sacraments (leitourgia), and exercising the ministry of charity (diakonia). These duties presuppose each other and are inseparable. For the Church, charity is not a kind of welfare activity which could equally well be left to others, but is a part of her nature, an indispensable expression of her very being. 2 No. Pope Benedict XVI, Deus Caritas Est, ¶25 (2005).1 be uncomfortable judging matters of faith. 2020AP2007.rgb Courts should Not only does the constitution forbid the exercise, but courts are susceptible to mischaracterizing deeply religious activities, which for some faith traditions meal, as amicus include curiae, dancing, Bhakti-yoga, International and Society sharing for a Krishna Consciousness and the Sikh Coalition, informs this court. The majority instead looks through a seemingly Protestant lens to deem works of accompanied by charity worthy proselytizing——a of the exemption combination only if forbidden by Catholicism, Judaism, and many other religions.2 ¶115 The majority mangles Wis. Stat. § 108.02(15)(h)2. to reflect its policy preferences, supplanting the law actually enacted by the people's representatives in the legislature. majority's activism renders the exemption unconstitutional. The I dissent.3 https://www.vatican.va/content/benedictxvi/en/encyclicals/documents/hf_ben-xvi_enc_20051225_deuscaritas-est.html. 1 Amicus Br. Professors Douglas Laycock & Thomas C. Berg, at 15-16 (internal citations omitted) ("Many evangelical Christians view conversion and overt worship as indispensable elements of their charitable activities. But Catholics and Jews view service itself as a distinct mode of worship that should remain separate from proselytizing."). 2 Continuing its telling trend, the majority refuses to address any arguments against its desired result. Clarke v. Wis. Elections Comm'n, 2023 WI 79, ¶206, 410 Wis. 2d 1, 998 N.W.2d 370 (Rebecca Grassl Bradley, J., dissenting) (noting the majority "pretend[ed] the respondents made an argument that [was] easier for the majority to dismiss" instead of addressing the parties' actual argument). This dissent details the majority's analytical blunders, which lead the majority to absurdly conclude Catholic Charities are purely secular. 3 3 No. I. ¶116 Every Roman 2020AP2007.rgb BACKGROUND Catholic diocese in Wisconsin has a Catholic Charities entity, which is its social ministry arm. Catholic Charities Bureau, Inc. (CCB) is the Catholic Charities entity for the Diocese of Superior, Wisconsin. The purpose of CCB "is to be an effective sign of the charity of Christ" by providing services according to an "[e]cumenical orientation," meaning the organization makes no distinction on the basis of race, sex, or religion regarding those served, employed, or who serve on its board. CCB has separately incorporated entities, four of which are parties in this dispute. sub- The bishop of the Diocese of Superior oversees CCB's programs and services Justice Brian Hagedorn also dissents, questioning why the majority reads the exemption narrowly in the face of constitutionally protected religious freedom. If the majority sincerely stands behind its analysis, it should explain where the dissents go astray. As Justice Antonin Scalia put it, When I have been assigned the opinion for the Court in a divided case, nothing gives me as much assurance that I have written it well as the fact that I am able to respond satisfactorily (in my judgment) to all the onslaughts of the dissents or separate concurrences. The dissent or concurrence puts my opinion to the test, providing a direct confrontation of the best arguments on both sides of the disputed points. It's a cure for laziness, compelling me to make the most of my case. Antonin Scalia, The Dissenting Opinion, 1994 J. Sup. Ct. Hist. 33, 41 (1994). Pitifully, the majority does not make the most of its case. Generally, when a party fails to respond to the legal arguments advanced in a case, the court considers the arguments conceded. United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (citing Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994)). By refusing to offer a word of rebuttal in response to the dissents, the majority concedes its analysis lacks legal merit. 4 No. and is in charge of Catholic Charities. 2020AP2007.rgb It is uncontested that Catholic Charities are operated for a religious reason. ¶117 In 2016, Catholic Charities asked to withdraw from the Wisconsin unemployment tax system. Development appealed, decision. (DWD) and an The denied the The Department of Workforce request. administrative Labor and Catholic law Industry judge Review Charities reversed Commission DWD's (LIRC) reversed the administrative law judge's decision. ¶118 LIRC determined Catholic Charities are not "operated primarily for religious § 108.02(15)(h)2. LIRC purposes" decided under "[t]he Wis. activities, Stat. not the religious motivation behind them or the organization's founding principles, determine whether an exemption from participation in the unemployment insurance program is warranted." Although "[Catholic Charities'] services may be religiously motivated and manifestations Charities' of religious activities are belief," not LIRC "religious decided per Catholic se." LIRC determined "the provision of help to the poor and disabled" is "essentially secular," and therefore denied Catholic Charities the exemption. The circuit court reversed LIRC's decision. The court of appeals then reversed the circuit court. ¶119 The court of appeals decided Catholic Charities do not operate primarily for religious purposes——holding that Catholic Charities' activities are not as . . . inherently religious." sufficiently "viewed Cath. Charities Bureau, Inc. v. LIRC, 2023 WI App 12, ¶45, 406 Wis. 2d 586, 987 N.W.2d 778. The court of appeals held that to receive the exemption under Wis. 5 No. Stat. § 108.02(15)(h)2., religious motivation Catholic Charities must engage primarily in and "religious in nature." 2020AP2007.rgb Id., ¶34. have a activities According to the court of appeals, "a religious motivation does not, by itself, mean that the organization is operated primarily for religious purposes." Id., ¶62. the It is "the type of religious activities engaged in by organization" exemption. that Id., determines ¶45. The its court eligibility of appeals for the acknowledged Catholic Charities have a religious motivation for conducting their charitable activities. Id., ¶¶56-57. court of appeals activities "are decided neither Catholic inherently Nevertheless, the Charities' or primarily charitable religious activities": CCB and its sub-entities do not operate to inculcate the Catholic faith; they are not engaged in teaching the Catholic religion, evangelizing, or participating in religious rituals or worship services with the social service participants; they do not require their employees, participants, or board members to be of the Catholic faith; participants are not required to attend any religious training, orientation, or services; their funding comes almost entirely from government contracts or private companies, not from the Diocese of Superior; and they do not disseminate any religious material to participants. Nor do CCB and its sub-entities provide program participants with an "education in the doctrine and discipline of the church." Id., ¶58 (quoting United States v. Dykema, 666 F.2d 1096, 1100 (7th Cir. fulfill the 1981)). Catechism "While of [Catholic the Charities'] Catholic Church to activities respond in charity to those in need, the activities themselves are not primarily religious in nature." Id., ¶59. 6 The court of appeals No. 2020AP2007.rgb held any "spreading of [the] Catholic faith accomplished" by Catholic Charities' activities is only "indirect." The court of appeals concluded that although Id., ¶61. "the Catholic Church's tenet of solidarity compels it to engage in charitable acts, the religious motives of CCB and its sub-entities appear to be incidental to their primarily charitable functions." Id., ¶62. II. STATUTORY INTERPRETATION ¶120 The Wisconsin Unemployment Compensation Act provides temporary benefits to eligible unemployed workers. contribute to a government account via a tax. Employers In 1972, the state exempted certain religious nonprofits from paying the tax. See ch. 53, Laws of 1971. Currently, the law says, "'Employment' as applied to work for a nonprofit organization . . . does not organization include operated service . primarily . . for [i]n the religious employ of purposes an and operated, supervised, controlled, or principally supported by a church or convention or association of churches[.]" Wis. Stat. § 108.02(15)(h)2. ¶121 To receive an exemption under Wis. Stat. 108.02(15)(h)2., a nonprofit must meet two requirements: the organization purposes" and must (2) be the "operated primarily organization must for be § (1) religious "operated, supervised, controlled, or principally supported by a church or convention or association of churches[.]"4 Cf. St. Martin Evangelical Lutheran Dakota, 451 U.S. 772, 782 n.12 (1981). 4 7 The parties agree Church v. South No. Catholic Charities are "operated, principally supported by a church." Catholic Charities purposes." An unencumbered by are "operated examination the of majority's supervised, 2020AP2007.rgb controlled, or The parties dispute whether primarily the policy for statute's agenda shows religious language Catholic Charities are operated for religious purposes and entitled to the exemption. ¶122 The goal of statutory interpretation is to ascertain a law's objective meaning. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Bruno v. Milwaukee Cnty., 2003 WI 28, ¶25, 260 Wis. 2d 633, 660 N.W.2d 656); see Friends of Black River Forest v. Kohler Co., 2022 WI 52, ¶39, 402 Wis. 2d 587, 977 N.W.2d 342 (stating the meaning," not Kalal what framework involves "ascertaining statutory the legislature or "statute 'intended'"). Courts are supposed to focus on the text of the statute to derive "the fair meaning [from] the text itself." Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶11, 400 Wis. 2d 417, 970 N.W.2d 1 (citing Kalal, 271 Wis. 2d 633, ¶¶46, 52); Friends of Black River Forest, 402 Wis. 2d 587, ¶28 n.13 (In a "textually driven analysis . . . the language of the cited statutes drives the inquiry . . . ."). ordinary, and "Statutory language is given its common, accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." (citations omitted); see also Kalal, 271 Wis. 2d 633, ¶45 Wis. Stat. 8 § 990.01(1). If a No. statute's meaning is plain, the interpretive 2020AP2007.rgb process ends. Kalal, 271 Wis. 2d 633, ¶45 (citations omitted). ¶123 To this court consults the text, context, and structure of the statute. Brey, 400 Wis. 2d determine 417, ¶11 the meaning (citing of a Milwaukee statute, Dist. Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d 153). grammar Canons of construction, dictionaries, and the rules of "serve as statute's meaning. 'helpful, neutral guides'" to determine a James v. Heinrich, 2021 WI 58, ¶23 n.12, 397 Wis. 2d 517, 960 N.W.2d 350 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 61 (2012)); State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998) (first citing Wis. Stat. § 990.01(1); and then citing Swatek v. Cnty. of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995)) ("For purposes of statutory interpretation or construction, the common and approved usage of words may be established by consulting dictionary definitions."); Scalia & Garner, supra, at 140 ("Words are to be given the meaning that proper grammar and usage would assign them."); Neil M. Gorsuch, A Republic, If You Can Keep It 132 (2019) (noting the rules of grammar "play no favorites" in statutory interpretation). Application of the traditional tools of statutory interpretation inexorably leads to the unremarkable conclusion that a nonprofit is "operated primarily for religious purposes" if it is managed primarily for religious reasons. Ascertaining the meaning of the religious exemption's first requirement ("operated primarily 9 No. 2020AP2007.rgb for religious purposes") requires a proper understanding of two words——"operated" and "purposes." A. ¶124 LIRC argues the perform, or function." "connotes" activity. Operated word "operated" means "to work, According to LIRC, the word "operate" The majority agrees. Majority op., ¶42. Catholic Charities argue the word means "managed" or "used." A textual analysis reveals the word "operated," as used in Wis. Stat. § 108.02(15)(h)2., means "managed." Basic grammar verifies the correctness of this interpretation. ¶125 "Although speakers, sometimes drafters, like all other perpetrate linguistic blunders, presumed to be grammatical in their compositions. presumed to be unlettered." (footnotes omitted). writers they and are They are not Scalia & Garner, supra, at 140 Courts are supposed to prefer interpretations in accord with the rules of grammar over nongrammatical readings. See Indianhead Motors v. Brooks, 2006 WI App 266, ¶9, 297 Wis. 2d 821, 726 N.W.2d 352 (rejecting an interpretation that "defie[d] the rules of grammar"). The word "operated" appears twice in Wis. Stat. § 108.02(15)(h)2. 10 Each No. time, "operated" "organization" is as a its transitive direct verb,5 object. interpreted in its transitive sense. 2020AP2007.rgb taking "Operated" the word should be See State ex rel. DNR v. Wis. Ct. of Appeals, Dist. IV, 2018 WI 25, ¶29, 380 Wis. 2d 354, 909 N.W.2d 114. "Managed" is a common definition of "operated" when used as a transitive verb. Dictionary 1966) manage of the (defining or English "operate" use"; "[t]o E.g., Operate, The Random House Language in the put or 1009 (1st transitive unabridged sense as keep . . . working ed. "[t]o or in operation"; and "[t]o bring about out, effect, or produce, as by action or the exertion of force or influence"). Other textual clues confirm "operated" means "managed." ¶126 The whole text of Wis. Stat. § 108.02(15)(h)2. must be considered when interpreting the word "operated." "Statutory interpretation centers on the 'ascertainment of meaning,' not the recitation of words in isolation." ¶13 (citation omitted). Brey, 400 Wis. 2d 417, "Context is a primary determinant of meaning." Scalia & Garner, supra, at 167; see Clarke v. Wis. In its brief, LIRC insists "operated" is an intransitive verb with no direct object. The majority agrees, citing internet dictionary definitions of "operate" in the intransitive sense. See majority op., ¶42. LIRC and the majority are wrong; "operated" is a transitive verb in Wis. Stat. § 108.02(15)(h)2. It is the "organization"——the direct object——that is "operated"— —transitive verb——"primarily for religious purposes" and "operated"——transitive verb——"by a church or convention or association of churches[.]" § 108.02(15)(h)2. Section 108.02(15)(h)2. has a passive construction. See generally Bryan A. Garner, Garner's Modern English Usage 676 (4th ed. 2016). "[O]nly transitive verbs can appear in the passive voice." C. Edward Good, A Grammar Book for You and I . . . Oops, Me! 33 (2002). 5 11 No. 2020AP2007.rgb Elections Comm'n, 2023 WI 79, ¶198, 410 Wis. 2d 1, 998 N.W.2d 370 (Rebecca Grassl Bradley, J., dissenting) (citing Eisner, 245 U.S. 418, 425 (1918)). twice in § 108.02(15)(h)2.: purposes and supported The word "operated" is used "operated primarily for religious operated, supervised, controlled, or principally by churches[.]" Towne v. a church or convention (Emphasis added.) clues to the contrary[,]" or association of "[A]bsent textual or structural we presume a word used multiple times in a statute bears the same meaning throughout. DNR, 380 Wis. 2d 354, ¶30 (citations omitted); DaimlerChrysler v. LIRC, 2007 WI 15, ¶29, 299 Wis. 2d 1, 727 N.W.2d 311 (quoting Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 663, 539 N.W.2d 98 (1995)) ("It is a basic rule of construction that we attribute the same definition to a word both times it is used in the same statute or administrative § 108.02(15)(h)2. rule."). confirm The the word text and "operated" structure bears the of same meaning in both uses. Section 108.02(15)(h)2. uses the word "operated" the twice within same sentence, providing evidence the word means the same thing in both instances. strong Miss. ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 171 (2014) (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)) ("[T]he 'presumption that a given term is used to mean the same thing throughout a statute' is 'at its most vigorous when a term is repeated within a given sentence.'"). Additionally, the word "operated" is a transitive verb in both uses, sharing the same direct object: word "operated," "organization." which is used 12 It is not credible that the twice in the same sentence, No. 2020AP2007.rgb sharing the same direct object, means something different in each use. (1941) See United States v. Cooper Corp., 312 U.S. 600, 606 ("It is hardly credible that Congress used the term 'person' in different senses in the same sentence."). ¶127 In its second appearance in Wis. Stat. § 108.02(15)(h)2., the word "operated" is followed by the verbs "supervised, controlled, [and] principally supported." It is a basic principle of statutory interpretation that the meaning of words should be understood "by reference to their relationship with other associated words or phrases." State v. Popenhagen, 2008 WI 55, ¶46 n.25, 309 Wis. 2d 601, 749 N.W.2d 611. When words "are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar. The [associated-words canon] especially holds that 'words grouped in a list should be given related meanings.'" Scalia & Garner, supra, at 195 (citing Third Nat'l Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 322 (1977)). for both "managed" "Managed" is a definition of "operated" that works uses has of a the word related "operated" meaning [and] principally supported." to in the statute, "supervised, § 108.02(15)(h)2. and controlled, The majority's proffered interpretation of "operated"——"to work, perform, or function, as a machine does[,]" majority op., ¶42 (quoted source omitted)——is utterly principally supported." unlike "supervised, § 108.02(15)(h)2. controlled, [and] Because "operated" means "managed" in its second appearance, it most likely means "managed" in its first appearance as well. 13 No. 2020AP2007.rgb ¶128 The text, its context, and the canons of construction all support the conclusion that "operated" means "managed" in Wis. Stat. § 108.02(15)(h)2. The definition of "operated" advanced by LIRC and adopted by the majority simply does not work. Both define "operated" to mean "to work, perform, or function . . . ." treat "operated" interpretation Majority op., ¶42 (citations omitted). as a synonym unsupported by for the the word statutory Both "activity"——an text. Treating "operated" as a stand in for the noun "activity" either assigns "operated" two different senses in the same sentence, or gives "operated" a meaning oddly dissimilar to the words surrounding it in its second use. nonprofit to be See § 108.02(15)(h)2. "operated, supervised, (requiring the controlled, or principally supported by a church or convention or association of churches"). "activity" Additionally, transmogrifies "activity." The violates a verb, majority's the defining "operated" "operated," interpretation "fundamental rule into to mean a noun, of "operated" of textual interpretation . . . that neither a word nor a sentence may be given a meaning that it cannot bear." Scalia & Garner, supra, at 31. B. Purposes ¶129 The majority correctly concludes the word "purposes" means the reasons for which something is done. ¶43 (quoting (last visited Dictionary of Majority op., Purpose, https://www.dictionary.com/browse/purpose Feb. the 27, English 2024)); purpose, Language 14 1167 The (1st Random House unabridged ed. No. 2020AP2007.rgb 1966) (defining "purpose" as "the reason for which something exists or is done, made, used, etc."); see also Brown Cnty. v. Brown Cnty. Taxpayers Ass'n, 2022 WI 13, ¶38, 400 Wis. 2d 781, 971 N.W.2d 491 (internal quotation marks omitted) (quoting Purpose, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/purpose (last (the "purpose" "common something definition" is done something"). or of used" or visited "the is aim Feb. 14, "the reason or 2022)) why intention of To be "primarily operated for religious purposes," the nonprofit must be managed primarily for a religious reason. ¶130 LIRC "purposes," resists insisting this common-sense "purposes" means understanding "[t]he business activity, objectives, goals and ends." of employers' LIRC argues this court should not consider the reasons why a nonprofit is operated. Dictionary LIRC cites a legal dictionary——purpose, Black's Law 1493 (11th ed. 2019)——for "purposes" means "business activity." its conclusion that Because "purposes" is an ordinary term,6 however, we should use ordinary dictionaries to In its brief, LIRC tepidly argues the term "religious purposes" is a term of art in tax law, citing United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981). The majority gestures at (but does not commit to) the same argument, likewise relying on Dykema. Majority op., ¶54. While Dykema deemed "religious purposes" a "term of art in tax law," 666 F.2d at 1101, it did not cite any authority to support its contention; it also failed to explain why it believed the phrase is a term of art. No cases support Dykema's assertion; only two parroted it. The only cases to treat "religious purposes" as a term of art are Dykema, 666 F.2d at 1101, Living Faith, Inc. v. Commissioner, 950 F.2d 365, 376 (7th Cir. 1991), which cited Dykema, and Catholic Charities Bureau, Inc. v. LIRC, 2023 WI App 12, ¶39, 406 Wis. 2d 586, 987 N.W.2d 778, the court of appeals decision in this case, which cited only Dykema. In reaching its conclusion, the Dykema court interpreted 26 U.S.C. § 501(c)(3), 15 6 No. aid our search for its meaning. 2020AP2007.rgb See Sanders v. State of Wis. Claims Bd., 2023 WI 60, ¶14, 408 Wis. 2d 370, 992 N.W.2d 126 (lead opinion) common and (internal approved citations usage, we omitted) consult ("To determine dictionaries. To determine the meaning of legal terms of art, we consult legal dictionaries."); see majority op., ¶43 (quoted source omitted). Unless a word or phrase is a legal term of art or statutorily defined, words and phrases are given their "common, ordinary, and accepted meaning." Kalal, 271 Wis. 2d 633, ¶45. "Business activity" is anything but the ordinary meaning of "religious purposes." LIRC's assertion that "purposes" means "objectives, goals and ends" does not logically lead to considering only Catholic Charities' activities, activities are inherently religious. cannot be divorced from motives. much less whether those An objective, goal, or end "Purposes" means the reason something is done, the motivation underlying the action. As a matter of simple logic, "purposes" does not mean the action itself. which exempts entities operated exclusively for "religious, charitable, scientific, testing for public safety, literary, or educational purposes." Federal regulations undermine Dykema's characterization of "religious purposes" as a term of art. Regulations define what "charitable," "educational," "testing for public safety," and "scientific" mean. 26 C.F.R. § 1.501(c)(3)-1(d)(2)-(5). Conspicuously absent is any definition of what "religious" means under the statute. Dykema's representation that "religious purposes" is a term of art in tax law is also severely undermined by divergent interpretations of "operated primarily for religious purposes" embraced by state courts. See majority op., ¶38 n.10 (collecting a sample of cases). Neither Dykema, LIRC, nor the majority have provided any basis for construing "religious purposes" as a term of art. 16 No. C. 2020AP2007.rgb Applying the Plain Meaning of Wis. Stat. § 108.02(15)(h)2. ¶131 As a matter of statutory construction, common usage of ordinary terms, and religious purposes" reasons. See, basic grammar, means managed e.g., Czigler v. "operated primarily Adm'r, Ohio the only reason the Charities is religious. Catholic Church for for religious Bureau Servs., 501 N.E.2d 56, 58 (Ohio Ct. App. 1985). that primarily of Emp. No one disputes operates Catholic See majority op., ¶59; see also Cath. Charities Bureau, 406 Wis. 2d 586, ¶47 ("[N]either DWD nor this court dispute that the Catholic Church holds a sincerely held religious belief as its reason for operating CCB and its subentities."). It's no surprise the issue is Catholic Charities' raison d'être is religious. accept a religious religious beliefs entity's motivate good an furthers a religious mission. faith operation uncontested—— A court must representations and the that operation Holy Trinity Cmty. Sch., Inc. v. Kahl, 82 Wis. 2d 139, 154-55, 262 N.W.2d 210 (1978); See United States v. Lee, 455 U.S. 252, 257 (1982); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, judgment) 342 (1987) ("Determining furtherance of (Brennan, that J., certain an concurring activities organization's in the are in religious mission . . . is . . . a means by which a religious community defines itself."); See also Kendall v. Dir. of Div. of Emp. Sec., 473 N.E.2d 196, 199 (Mass. 1985); Hollis Hills Jewish Ctr. v. Comm'r of Lab., 461 N.Y.S.2d 555, 556 (N.Y. App. Div. 1983) (stating that an employer's statement 17 that its operation No. 2020AP2007.rgb furthers a religious objective, "made in good faith, must be accepted by civil courts"). That should end the inquiry, and Catholic Charities should receive the tax exemption. Regardless of whose motivations are relevant——Catholic Charities' or the Diocese of Superior's——Catholic Charities are managed primarily for religious reasons. D. Whose Purposes ¶132 Because it is undisputed that the only reason Catholic Charities are operated is religious (no matter whose purposes are relevant under Wis. Stat. § 108.02(15)(h)2.) the majority need not decide whose purposes are relevant. majority answers the question, botching Nevertheless, the the analysis. answer should be obvious from the statutory text: of the entity that operates purposes under the statute. the nonprofit The The purposes are the relevant When trying to figure out why a nonprofit exists, ask the manager, not those managed. ¶133 The majority comes to the opposite conclusion, deeming the nonprofit's subjective motivations relevant. ¶34. The majority's rationale is Majority op., unconvincing. As a preliminary matter, the majority relies on a false dichotomy. The majority asks whether——in all cases——the analysis focuses on the church's motivations or the nonprofit's motivations. See id., two ¶33. options. Not all cases, however, will present those The text of Wis. Stat. § 108.02(15)(h)2. indicates it is the operator's motivations that are relevant. could operate itself. association of A nonprofit Alternatively, a "church or convention or churches" could 18 operate the nonprofit. No. § 108.02(15)(h)2. As a operate the nonprofit. third option, a 2020AP2007.rgb third party could The statute's language contemplates that a nonprofit may be operated by a third party and the exemption will be available if the nonprofit is "operated primarily for religious purposes" and "supervised, controlled, or principally supported by churches[.]" a church or convention or association of § 108.02(15)(h)2. ¶134 With the majority's false dichotomy discredited, the majority's conclusion collapses. textualist reading. When a There is no surplusage under a church operates a nonprofit, focusing on the church's motivations for doing so will not lead to every religiously receiving an affiliated exemption religious by nature." is self-operated church, the requirement religious or purposes" because "[a] operated has by a third primarily force.7 for The requirement is "automatically" church's See majority op., ¶37. "operated still organization is When a nonprofit party other religious "operated not purpose than purposes" primarily "pointless," a for Scalia & Garner, supra, at 176, if the relevant motives are that of the nonprofit's operator, which could be the nonprofit itself or a third party other than a church. The surplusage canon applies only if an interpretation renders a word or phrase meaningless The majority's surplusage argument is additionally flawed because it relies on the false assumption that a church's purposes are by definition religious. Id., ¶37. While that sounds reasonable, it is not universally true. Nothing precludes a church from taking an action for a nonreligious reason. Similarly, it is not true that a school's motivations are by definition educational. 7 19 No. or redundant. See id. 2020AP2007.rgb That is not the case under a fair reading of Wis. Stat. § 108.02(15)(h)2. ¶135 The nonprofit's services majority also motivations of the because employees Majority op., ¶34.8 argues we the of a should exemption nonprofit, focus on the relates to the not church. a But whose services are exempt under the statute does not indicate whose purposes are relevant under Wis. Stat. § 108.02(15)(h)2. The majority's doesn't follow from its premises. conclusion simply The majority persists with its fallacious analysis, arguing the nonprofit's motivations are always the relevant motivations because "the phrase 'operated primarily for religious purposes' modifies the word 'organization,' not the word 'church'" in § 108.02(15)(h)2. No one denies it is the nonprofit that must be Id. operated primarily for religious purposes, not the church. But that doesn't mean the nonprofit's motivations control the application of the statute. ¶136 If (as the majority agrees) "purposes" means one's subjective reason for doing something, then in determining why a nonprofit is being operated, it is the operator's motives that matter. According determine the without to the subjective examining the majority, reason motives why of however, a the the nonprofit entity court is can operated operating the The majority similarly argues that "[t]hose employed by a church are . . . addressed in subdivisions 1. and 3. [of Wis. Stat. § 108.02(15)(h)], indicating . . . that 'employees who fall under subd. 2. are to be focused on separately in the statutory scheme from employees of a church.'" Id., ¶35 (quoting Cath. Charities Bureau, 406 Wis. 2d 586, ¶25). 8 20 No. nonprofit. The majority's conclusion 2020AP2007.rgb refutes itself. Apparently the majority would ask a car why it is being operated rather than asking the driver. If the majority's analysis seems ridiculous, that's because it is. E. The Majority's Test ¶137 The majority affirms LIRC's denial of the exemption under Wis. Stat. § 108.02(15)(h)2. using a two-prong test: A nonprofit must (1) operate primarily for a religious reason and (2) primarily nature." engage in activities Majority op., ¶¶59-67. that are "religious in The majority's test, however, is unmoored from the text of § 108.02(15)(h)2. The majority insists its test is the only way to "give reasonable effect to every word" in the statute because considering purposes alone would "give short shrift to the word 'operated.'" But the majority's unreasonable reformulation interpretation of of the text Id., ¶¶44-45. relies on § 108.02(15)(h)2., an while impermissibly adding words to the statute. ¶138 The transmuting majority offends "operated," a basic rules of grammar transitive verb, into a by noun—— "activity." It does not address what "operated" means in its second in use majority twice, Wis. completely employing Stat. ignores a § 108.02(15)(h)2.; the fact that divide-and-conquer the method instead, word of interpretation this court has rebuked many times. is the used statutory E.g., Brey, 400 Wis. 2d 417, ¶13 (citing Kalal, 271 Wis. 2d 633, ¶47); see also Scalia & Garner, supra, at 167; King v. Burwell, 576 U.S. 473, 500-01 (2015) (Scalia, 21 J., dissenting) ("[S]ound No. 2020AP2007.rgb interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters."). ¶139 The majority completely reimagines the statute. Compare the statute's actual language to the majority's remaking of it: Wisconsin Stat. § 108.02(15)(h)2.: applied to work for "'Employment' as a nonprofit organization . . . does not include service . . . [i]n the employ of an organization operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches[.]" Majority's interpretation: "'Employment' as applied to work for a nonprofit organization . . . does not include service . . . [i]n the employ of an organization operated that has primarily for religious purposes religious and primarily performs in nature, which activities that are is and operated, supervised, controlled, or principally supported by a church or convention or association of churches[.]" The majority's interpretation violates the "cardinal maxim . . . that courts should not add words to a statute to give it a certain meaning." State v. Hinkle, 2019 WI 96, ¶24, 389 Wis. 2d 1, 935 N.W.2d 271 (quoting State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165) (internal quotation marks omitted); State v. Neill, 2020 WI 15, ¶23, 390 Wis. 2d 22 No. 248, 938 N.W.2d 521 Rosendale, 149 1989)). Instead rearranging the "'interpret the law.'" Wis. (quoting 2d of Fond 326, 334, reading words to words the Du 440 words meet Lac a Cnty. N.W.2d into v. 818 the desired legislature 2020AP2007.rgb Town (Ct. App. statute result, actually of and we must enacted into Neill, 390 Wis. 2d 248, ¶23 (quoting Fitzgerald, 387 Wis. 2d 384, ¶30). ¶140 Troublingly, the majority's redefinition of "operated" to mean "activities" does not require a nonprofit to primarily engage in majority activities fails to that are identify the "religious in source its of nature." "religious nature" requirement; it simply declares it and moves on. The in The majority also fails to explain where——in the text——the majority derives the factors it uses to deny Catholic Charities the exemption. ¶141 With no support for its interpretation in the text of Wis. Stat. "buttress[] § 108.02(15)(h)2., [its] conclusion" Coulee Catholic Schools. the with majority this attempts court's Majority op., ¶50. decision to in But that decision concerned the ministerial exception under the First Amendment, not the statute at issue in this case. Coulee Cath. Schs. v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868. Because Coulee Catholic Schools has nothing to say about the meaning of § 108.02(15)(h)2., the case is irrelevant. The majority baldly asserts the decision "'provides guidance in understanding the religious purposes exemption here[,]'" majority op., ¶52 (quoting Cath. Charities Bureau, 406 Wis. 2d 586, ¶43), but 23 No. 2020AP2007.rgb fails to explain how Coulee Catholic Schools sheds any light on the meaning of § 108.02(15)(h)2., a statute it never mentions. ¶142 The majority also mistakenly relies upon federal cases interpreting 26 U.S.C. § 501(c)(3), which exempts from taxation "[c]orporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes . . . ." exemption do Cases not support interpreting the and majority's applying conclusion this that an exemption under Wis. Stat. § 108.02(15)(h)2. is available only if (1) a nonprofit's motivations are primarily religious and (2) the actual activities engaged in by the nonprofit are primarily "religious in nature." Seventh Circuit, The majority relies on a case from the United States v. Dykema. But the majority misunderstands Dykema and other federal cases interpreting 26 U.S.C. § 501(c)(3). ¶143 To the extent federal courts evaluate an organization's activities, they do not delve into whether the organization's majority does. activities are "religious in nature," as the Instead, some federal courts use activities as evidence of motive in cases interpreting and applying 26 U.S.C. § 501(c)(3). Dykema is not an exception. As the court in Dykema explained, "it is necessary and proper for the IRS to survey all the activities of the organization, in order to determine whether what the organization in fact does is to carry out a religious mission or to engage in commercial business." 666 F.2d at 1100 (emphasis added). 24 No. 2020AP2007.rgb ¶144 The Seventh Circuit later verified the limited role an organization's activities might play in the inquiry. As the Seventh Circuit explained in Living Faith v. Commissioner, in evaluating "whether [an organization] is 'operated exclusively' for exempt purposes within the meaning of § 501(c)(3)" "[the court] focus[es] on 'the purposes toward which an organization's activity are directed, and not the nature of the activities." 950 F.2d 365, 370 (7th Cir. 1991) (quoted source omitted). The activities and the "particular manner in which an organization's activities are conducted" are simply "evidence" used to "determin[e] whether an organization has a substantial nonexempt purpose" because "an organization's from its manner of operations." purposes may be inferred Id. at 372; accord Presbyterian & Reformed Publ'g. Co. v. Comm'r, 743 F.2d 148, 156 (3d Cir. 1984) (stating the "inquiry must remain that of determining the purpose to which the . . . activity is directed"); B.S.W. Grp., Inc. v. Comm'r, 70 T.C. 352, 356-57 (1978) (citation omitted) ("[T]he purpose towards which an organization's activities are directed, and not the nature of the activities themselves, is ultimately dispositive of the organization's right to be classified as a section 501(c)(3) organization exempt from tax under section 501(a)."); Golden Rule Church Ass'n v. Comm'r, 41 T.C. 719, 728 (1964) (first citing Trinidad v. Sagrada Orden, 263 U.S. 578, 582 (1924); and then citing Unity Sch. of Christianity, 4 B.T.A. 61, 70 (1926)) ("The statute requires, in relevant part, that the committee exclusively for religious purposes. 25 be organized and operated In this requirement, the No. statutory language organization's treats activity, but activity is undertaken."). indicia of Faith, 950 the as rather at 372.9 touchstone, the end for not the which that Activities serve only as "useful organization's F.2d a 2020AP2007.rgb purpose or Dykema's purposes." list of Living "[t]ypical activities"10 in which an organization operated for religious See also 26 C.F.R. § 1.501(c)(3)-1(c)(1) (stating "[a]n organization will be regarded as operated exclusively for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of such exempt purposes specified in section 501(c)(3). An organization will not be so regarded if more than an insubstantial part of its activities is not in furtherance of an exempt purpose"). 9 10 Dykema provided the following list: (a) corporate worship services, including due administration of sacraments and observance of liturgical rituals, as well as a preaching ministry and evangelical outreach to the unchurched and missionary activity in partibus infidelium; (b) pastoral counseling and comfort to members facing grief, illness, adversity, or spiritual problems; (c) performance by the clergy of customary church ceremonies affecting the lives of individuals, such as baptism, marriage, burial, and the like; (d) a system of nurture of the young and education in the doctrine and discipline of the church, as well as (in the case of mature and well developed churches) theological seminaries for the advanced study and the training of ministers. Dykema, 666 F.2d at 1100. It is unclear why the majority relies on Dykema's list as heavily as it does. Dykema did not cite any legal authority supporting its list of typical religious activities. See id. The court simply made it up. Moreover, Dykema's list is not used by other courts. The only published opinions having relied on its list are the court of appeals, below, and this court——in this very case. Moreover, Dykema's list was meant to serve only as a list of "[t]ypical activities" done for a religious purpose. Id. Nothing in Dykema suggests a nonprofit is 26 No. 2020AP2007.rgb purposes might engage is just that——a list of typical religious activities. 666 F.2d at 1100. Courts interpreting and applying 26 U.S.C. § 501(c)(3) have acknowledged that religious purposes might be unorthodox or resemble secular purposes. E.g., Golden Rule Church Ass'n, 41 T.C. 719 (holding a commercial enterprise was operated for religious purposes because it was created as an illustration of the applicability of a church's teachings in daily life); accord Dep't of Emp. v. Champion Bake-N-Serve, Inc., 592 P.2d 1370 (Idaho 1979) (holding a bakery was "operated primarily for religious purposes" under state law because the students at issue worked at the bakery as a part of their religious training); see Amos, 483 U.S. at 344 (Brennan, J., concurring in the judgment) (noting "[c]hurches often regard the provision of [community services] as a means of fulfilling religious duty and of providing an example of the way of life a church seeks to foster"). ¶145 Federal cases interpreting 26 U.S.C. § 501(c)(3) do not support the majority's bifurcated purpose-activities test, under which courts must determine religious or secular in nature. whether an activity is At most, the federal cases support examining an organization's activities as evidence of "operated primarily for religious purposes" only if the organization engages primarily in activities that are "religious in nature," as the majority requires. The majority also wrongly asserts that the Dykema court "examined an organization's actual activities." Majority op., ¶87. The Dykema court did no such thing. The court reversed a district court decision denying the enforcement of an IRS summons that called for 14 categories of records belonging to a church. 666 F.2d at 1098, 1104. 27 No. motive. reason 2020AP2007.rgb Because both LIRC and the majority concede that the Catholic precedent Charities supplies no are operated support for is religious, federal the majority's faulty conclusion. ¶146 It is unsurprising that no other court has adopted the majority's approach; it is incoherent. The majority's bifurcated purpose-activities test falls apart upon the faintest scrutiny. Most separated from obviously, religious religious purposes. activities It is cannot the be underlying religious motivation that makes an activity religious. See, e.g., Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 715-16 (1981); Univ. of Great Falls v. N.L.R.B., 278 F.3d 1335, 1346 (D.C. Cir. 2002). For example, anyone——religious or irreligious——could use peyote,11 kill animals,12 grow a 1/2–inch beard,13 or use Saturday as a day of rest.14 One could read the Bible for secular or religious reasons. Cf. Locke v. Davey, 540 U.S. 712, 734-35 dissenting) that "the study religious (2004) of devotion (Thomas, theology or faith" J., does not since it (explaining necessarily may be done implicate "from secular perspective as well as from a religious one"). a One Emp. Div., Dep't of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990). 11 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 12 Holt v. Hobbs, 574 U.S. 352 (2015) (holding a prison's refusal to allow a Muslim to grow a 1/2-inch beard violated the Religious Land Use and Institutionalized Persons Act of 2000). 13 14 Sherbert v. Verner, 374 U.S. 398 (1963). 28 No. 2020AP2007.rgb could erect a cross to promote a Christian message or honor fallen soldiers. ___, 139 S. religious See Am. Legion v. Am. Humanist Ass'n, 588 U.S. Ct. 2067, activities 2082 (2019). if motivated only Such by activities religious are beliefs. See Holt v. Hobbs, 574 U.S. 352, 360-61 (2015); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014); Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) ("A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, belief."). the Unable claims to must divorce be rooted religious in religious activities from religious motivations, the majority's activities prong swallows the majority's purposes prong. The only activities that are "religious in nature," according to the majority, are activities that presuppose a religious purpose——e.g., teaching one's religious doctrine. proselytizing and Majority op., ¶¶55, 60. The majority's purposes prong is superfluous. ¶147 whether The an majority's activity "religious in religious; religious The majority is nature." activities religious, But no motivation actually prong it asks activities makes inquires doesn't an whether activities are stereotypically religious. simply whether it ask is are inherently activity religious. Catholic Charities' Nothing in the text of Wis. Stat. § 108.02(15)(h)2., however, prompts the court to determine what stereotypical. religious activities are sufficiently The majority never explains what an inherently 29 No. religious activity is, leaving it up to 2020AP2007.rgb courts to determinations of religiosity on an ad hoc basis. inherently religious will simply reflect what What is an judge subjectively regards as religious enough. does not demand this exercise, constitution bars such an inquiry. ¶148 Further highlighting and more make individual The statute importantly the Infra, ¶¶163-97. the deficiencies of the majority's test, the majority fails to explain why the factors it furnishes nature." make an activity more or less "religious in For example, why does offering a service to those of a different faith tradition make the activity less "religious in nature"? See majority op., ¶61. with majority's the statements Doesn't this factor conflict that religious evangelism are "religious in nature"? asserts that "religious between activities in nature." secular and resembling Id., the District of secular Columbia 66. conduct religious conduct any less religious. for Id., ¶60. ¶¶63-64, religious outreach The majority ones But does and are the not less overlap make the As the Court of Appeals Circuit explained, "[t]hat a secular university might share some goals and practices with a Catholic actions or of other the religious latter any institution less cannot religious." render Univ. of the Great Falls, 278 F.3d at 1346. ¶149 Incoherency aside, the majority's primarily-religiousin-nature-activities manipulation. requirement is highly susceptible to "[T]he definition of a particular program can always be manipulated" such that the inquiry may be "'reduced to 30 No. a simple semantic exercise.'" 2020AP2007.rgb See Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 215 (2013) (quoting Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001)). The activities of Catholic Charities can be characterized as the provision of characterized charitable as social services. "providing services They to the can also poor be and disadvantaged as an expression of the social ministry of the Catholic Church in the Diocese of Superior" and acting as "an effective sign of the charity of Christ." A religious activity can be described narrowly, making it sound more secular, or described broadly, making it sound more religious. Baking sounds secular while religious training sounds religious; both characterizations could fit the activities at issue in a case. See Champion Bake-N-Serve, Inc., 592 P.2d 1370. entitled to the exemption under Wis. Stat. Whether one is § 108.02(15)(h)2. cannot turn on word games. ¶150 The court makes meager effort to explain why it considers activities like proselytizing and teaching religious doctrine more religious than religiously motivated charitable services. Many religions consider charity a central religious practice. As one amicus——the Jewish Coalition for Religious Liberty ("the Jewish Coalition")——explains, it believes each of the commandments in the Torah is a divine obligation.15 One of the obligations is charity, which the Jewish Coalition explains 15 Amicus Br. Jewish Coalition for Religious Liberty, at 7. 31 No. 2020AP2007.rgb is sometimes connected to religious rituals and sometimes not; regardless, both equally express the Jewish commandments.16 ¶151 The activities majority's are not conclusion religious charitable is unsupportable. that because Catholic their Charities' activities are In this case, there is no daylight between religious activities and charitable activities. See St. Augustine's Ctr. for Am. Indians, Inc. v. Dep't of Lab., 449 N.E.2d 246, 249 (Ill. Ct. App. 1983) (quoting St. Vincent DePaul Shop v. Garnes, No. 74AP-76, 1974 WL 184313, *3 (Ohio Ct. App. Sept. 17, 1974) (unpublished opinion)) (alterations in original) ("[T]he terms 'charitable' and 'religious' are not mutually exclusive and . . . 'the fact that an organization is charitable does not preclude it from being religious.'"). In their briefs, Catholic Charities explain that charity is a religious activity for Catholics, Diocese of in which Superior's Catholic social Charities ministry engages arm. as According the to Catholic Charities, "[c]harity is 'the greatest' of the Catholic Church's theological 'constitutive element virtues . . . . of the Charity . . . is Church's mission indispensable expression of her very being.'" and a an Consistent with Catholic doctrine——as documented in the briefs——"[t]he Catholic Church 'claims works of charity as its own inalienable duty and right.'" Catholic Charities explains that according to the Catholic faith, charity is a religious duty they must fulfill in an impartial manner, without proselytizing. As Catholic Charities inform us, "'the Church's missionary spirit is not 16 Id. at 7-8. 32 No. about proselytizing, but the testimony of 2020AP2007.rgb a life illuminates the path, which brings hope and love.'" that Catholic Charities "carr[y] on [the Diocese of Superior's] good work by providing programs and services that are based on gospel values and principles of the Catholic Social Teachings." The purpose of Catholic Charities "is to be an effective sign of the charity of Christ[.]" a religious traditions. Multiple amici similarly confirm that charity is activity in each of their respective faith As one court observed, "the concept of acts of charity as an essential part of religious worship is a central tenet of all major religions." W. Presbyterian Church v. Bd. of Zoning Adjustment of D.C., 862 F. Supp. 538, 544 (D.D.C. 1994). For example, one of the five Pillars of Islam——the fundamental ritual requirements of worship, including ritual prayer——requires Muslims of sufficient means to give alms to the poor and other classes of recipients. Also, Hindus belonging to the Brahmin, Ksatriya, and Vaisya castes are required to fulfill five daily obligations of worship, one of which is making offerings to guests, symbolized by giving food to a priest or giving food or aid to the poor. The concept finds its place in Judaism in the form of tendering to the poor clothing for the naked, food for the hungry, and benevolence to the needy. Id. (internal understanding, agency citations an Illinois determination that omitted). court17 an recently organization Reflecting reversed was not a this state primarily operated for religious purposes, holding the agency "erred by recharacterizing [the provision of meals, homework help, and Illinois courts consider the activities of a nonprofit in cases under the Illinois equivalent of Wis. Stat. § 108.02(15)(h)2. E.g., Concordia Ass'n v. Ward, 532 N.E.2d 411 (Ill. Ct. App. 1988). 17 33 No. literacy improvement] organization as "characterized secular [those exercises" of the organization. 2020AP2007.rgb activities" activities] when as the religious By The Hand Club for Kids, NFP, Inc. v. Dep't of Emp. Sec., 188 N.E.3d 1196, ¶52 (Ill. Ct. App. 2020). The same is true in this case. Catholic Charities' charitable activities are a part of their religious exercise, which means belittles those activities are Catholic Charities' faith——and traditions——by mischaracterizing religious. their many This court other faith religiously motivated charitable activities as "secular in nature," majority op., ¶67— —that is, not really religious at all. ¶152 Ultimately, obliquely saying the the majority activities demolishes the majority its will own test, consider inherently religious "may be different for different faiths." Id., ¶55. might be If what constitutes an inherently religious activity different for different faiths, the majority must explain why religiously motivated charity is not an inherently religious activity for Catholics. ¶153 The majority's It never does. erroneous interpretation and application of Wis. Stat. § 108.02(15)(h)2.——which produces the demeaning conclusion that the social ministry arm of the Diocese of Superior is inherently secular——would be baffling but for the majority's admissions of its results-oriented approach. According to the majority, a plain reading of the statute would be "'too broad'" a policy, so the majority adopts a contorted construction instead. Id., ¶48 (quoting Cath. Charities Bureau, 406 Wis. 2d 586, ¶37). The majority anxiously speculates a 34 No. plain reading might (gasp) hospitals. exempt Catholic Id., ¶48 n.12.18 colleges, 2020AP2007.rgb schools, and This court has neither the authority nor competency to decide how broad or narrow a policy should be. The legislature decided how broadly the exemption sweeps, and it is not for this court to second-guess that policy decision. WI 57, Friends of Frame Park, U.A. v. City of Waukesha, 2022 ¶96, 403 Wis. 2d 1, 976 N.W.2d 263 (Rebecca Grassl Bradley, J., concurring) ("The people of Wisconsin elect judges The majority's footnote expressing indignation at the prospect that religious colleges, schools, and hospitals might be exempt under Catholic Charities' reading of the exemption appears to prejudge issues not before this court. Amicus curiae, Maranatha Baptist University, et al., comprises a collection of faith-based nonprofits that primarily provide education. Its brief notes that a number of its members currently qualify for the exemption under Wis. Stat. § 108.02(15)(h)2., but would likely lose that exemption if this court upholds the court of appeals. Amicus Br. Maranatha Baptist University, et al., at 5-6. Amicus argues "[t]he federal government has long counted religious schools as being operated primarily for religious purposes." Id. at 9 n.1 (citing Unemployment Insurance Program Letter No. 28-87, U.S. Dept. of Labor (June 10, 1987)) ("'The second category of services exempt from the required coverage are those performed in the employ of religious schools and other entities . . . .'"). The majority simply ignores this argument. 18 Curiously, the majority's assumption that Catholic colleges and schools cannot qualify for the exemption exists in tension with the cases upon which it relies. The majority analogizes its test to cases applying the ministerial exception under the First Amendment. In each of the cases the majority cites, however, the religious school received the exception. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049 (2020); Coulee Cath. Schs. v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868; see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012). The majority neglects to explain why Catholic colleges and schools receive such radically different treatment under the test it employs in this case. 35 No. 2020AP2007.rgb to interpret the law, not make it."); See also Scalia & Garner, supra, Federal at 21; Courts Antonin and Scalia, the Law 20 A Matter (1997) of Interpretation: ("Congress can enact foolish statutes as well as wise ones, and it is not for courts to decide which is which and rewrite the former."). decide what the law is, not what it should be. "Courts In the course of executing this judicial function, we neither endorse nor condemn the legislature's policy choices." 370, ¶44. See Sanders, 408 Wis. 2d Judges have no authority to advance their favored policies by expanding or narrowing a statute's text beyond what the fair meaning of the statute contemplates. ¶154 To employs the construed mask its policy-driven shibboleth and that exemptions discredited maxim that legitimate, textual reasoning, remedial are pawns statutes narrowly are majority liberally construed——a judicial interpretation. the activism See CTS long- off as Corp. v. Waldburger, 573 U.S. 1, 12 (2014) (stating the remedial statute canon is not "a substitute for a conclusion grounded in the statute's text and structure"). The majority's unabashed reliance on the remedial statute canon is troubling given the immense criticism the so-called canon has received. The majority makes clear it is aware of these criticisms, but uses the maxim anyway, without defending it. Majority op., ¶47 n.11. The majority should not employ the maxim so thoughtlessly, since it has been severely criticized and abandoned by many jurists espousing a wide range of judicial philosophies. E.g., Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1195 (11th Cir. 2019) 36 No. (expressly refusing to apply the so-called 2020AP2007.rgb remedial statute canon because of its "dubious value"); Dir., Off. of Workers' Comp. Programs, Dep't of Lab. v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135 (1995) (calling the maxim the "last redoubt of losing causes"); Keen v. Helson, 930 F.3d 799, 805 (6th Cir. 2019) (describing the maxim as the least useful of the interpretive tools a judge might use); see also E. Bay Mun. Util. Dist. v. U.S. Dep't of Com., 142 F.3d 479, 484 (D.C. Cir. 1998) ("express[ing] . . . general doubts about the canon"). Antonin Scalia once compared the canon's use to Chinese water torture, in which "one's intelligence [is] strapped down helplessly" as the maxim is repeated as a "ritual error[]." Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 581 (1989) [hereinafter Assorted Canards]. ¶155 Judges have discarded the remedial because it has three critical flaws. "indeterminate coverage." Regions statute canon The first is the canon's Bank, 936 F.3d at 1195. Jurists have been unable to agree on what constitutes a remedial statute. Scalia, Assorted Canards, supra, at 583-86; Ober United Travel Agency, Inc. v. U.S. Dep't of Lab., 135 F.3d 822, 825 (D.C. Cir. 1998) ("Although courts have often used the maxim[,] . . . it is not at all apparent just what is and what is not remedial legislation."). This is unsurprising, considering "almost every statute might be described as remedial in the sense problem." that all statutes are designed to remedy some CTS Corp., 573 U.S. at 12; accord Scalia & Garner, 37 No. supra, at 364 ("Is any statute not remedial? 2020AP2007.rgb Does any statute not seek to remedy an unjust or inconvenient situation?"); Keen, 930 F. 3d at 805 (noting that the canon's "trigger——a 'remedial statute'——is hopelessly vague"). ¶156 Second, what constitutes construction is unanswerable. a "liberal" or "strict" Scalia & Garner, supra, at 365. As Antonin Scalia noted, the canon "lay[s] a judicial thumb" "of indeterminate weight" "on one or the other side of the scales" in statutory interpretation. at 582. Id. Scalia, Assorted Canards, supra, "How 'liberal' is liberal, and how 'strict' is strict?" No one can say. ¶157 Finally, the maxim is "premised on two mistaken ideas: (1) that statutes have a singular purpose and (2) that [the legislature] wants statutes to extend as far as possible in service of that purpose. purposes, these competing purposes by negotiating and crafting statutory text." Keen, 930 F.3d at and 805 [the Instead, statutes have many competing (citing legislature] Newport balances News, 514 U.S. at 135-36); CTS Corp., 573 U.S. at 12 (quoting Rodriguez v. United States, 480 U.S. 522, 525–26 emphasized that (1987) 'no (per legislation curiam)) pursues ("[T]he its Court purposes at has all costs.'"); Encino Motorcars, LLC v. Navarro, 584 U.S. ___, 138 S. Ct. 1134, 1142 (2018) (citations omitted). explained, the maxim objectives" and "ignore[s] legislative process interest groups, is and, whose "unrealistic the more clashes 38 role of As Richard Posner about compromise fundamentally, blunt legislative the the thrust in role of the of many No. legislative initiatives." Richard A. 2020AP2007.rgb Posner, Statutory Interpretation——in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 808-09 (1983). The maxim ignores that "limiting provisions . . . are no less a reflection of the genuine 'purpose' of the statute than the operative provisions, and it is not the court's function to alter the legislative compromise." Scalia & Garner, supra, at 21. Those who employ the maxim rarely appreciate that "[t]oo much 'liberality' will undermine the statute as surely as too literal an interpretation would." In re Erickson, 815 F.2d 1090, 1094 (7th Cir. 1987). ¶158 In fact, the remedial statute "canon" is not a canon at all. It is "an excuse" to reach a desired result. Keen, 930 F.3d at 805; Scalia, Assorted Canards, supra, at 586 (stating the maxim "is so wonderfully indeterminate" it can always be used to "reach[] the result the court wishes to achieve"). Its vagueness makes it "an open invitation" to ignore the statute's text and "engage in judicial improvisation" to reach the judge's preferred outcome. Scalia & Garner, supra, at 365-66. This court should abandon the maxim and return to deciding cases based upon the fair meaning of the text. exemption strictly, "the court need Instead of reading the only determine 'how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.'" United Am., LLC v. DOT, 2021 WI 44, ¶44, 397 Wis. 2d 42, 959 N.W.2d 317 (Rebecca Grassl Bradley, Garner, supra, at 33). J., dissenting) (quoting Scalia & The majority violates the rule that a "strict construction" cannot be "an unreasonable construction." 39 No. 2020AP2007.rgb Sw. Airlines Co. v. DOR, 2021 WI 54, ¶25, 397 Wis. 2d 431, 960 N.W.2d 384 (citing Covenant Healthcare Sys., Inc. v. City of Wauwatosa, 2011 WI 80, ¶32, 336 Wis. 2d 522, 800 N.W.2d 906); see also McNeil v. Hansen, 2007 WI 56, ¶10, 300 Wis. 2d 358, 731 N.W.2d 273 (quoting 82 C.J.S. Statutes § 371 (2006)) (stating exemptions to remedial statutes "'should be strictly, and reasonably, construed and extend only as far as their language fairly warrants'"). To the extent the maxim delivers any value, it is not even applicable in this case because the statute is unambiguous. State of Wis. Dep't of Just. v. DWD, 2015 WI 114, ¶32, 365 Wis. 2d 694, 875 N.W.2d 545 (quoting Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 207 (2012) (Roberts, J., dissenting)). ¶159 The majority compounds its errors by using legislative history to contradict (rather than confirm) the plain meaning of Wis. Stat. § 108.02(15)(h)2. Kalal, 271 Wis. 2d 633, ¶51; State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991). Legislative history is not the law, and it cannot override the law's clear meaning. See State v. Grandberry, 2018 WI 29, ¶55, 380 Wis. 2d 541, 910 N.W.2d 214 (Kelly, J., concurring) ("[W]e give effect only to what the legislature does, not what it tried to do."). In this case, the majority does not even cite state legislative history; instead, it relies upon federal legislative history to contravene the plain meaning of a state law. In so doing, the majority makes another "law's history superior to the law itself[.]" Wis. 2d 386, Clean Wis., Inc. v. DNR, 2021 WI 71, ¶91, 398 961 N.W.2d 346 40 (Rebecca Grassl Bradley, J., No. dissenting). Using long-discredited 2020AP2007.rgb methodologies, the majority's interpretation discards the statutory text, ignores its plain meaning, and triggers constitutional quandaries. III. THE MAJORITY'S INTERPRETATION VIOLATES THE FIRST AMENDMENT AND THE WISCONSIN CONSTITUTION ¶160 The legislating majority's from the decision bench. It is an takes egregious a simple twists its language to narrow its sweep. example statute of and In so doing, the majority engages in religious discrimination and entangles the state with religion in violation of the First Amendment.19 Courts sometimes——though inappropriately——warp a statute's fair meaning to save it from unconstitutionality. See St. Augustine Sch. v. Taylor, 2021 WI 70, ¶112, 398 Wis. 2d 92, 961 N.W.2d 635 (Rebecca Grassl Bradley, J., particularly egregious example). dissenting) (discussing a In this case, the majority bends over backwards to alter the statute's meaning and create a constitutional violation, turning the canon of constitutional avoidance on its head. State v. Stenklyft, 2005 WI 71, ¶8, 281 Wis. 2d 484, 697 N.W.2d 769 (quoting Panzer v. Doyle, 2004 WI 52, ¶65, 271 Wis. 2d 295, 680 N.W.2d 666); Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431, 439, 312 N.W.2d 45 (1981) (quoting Niagara of Wis. Paper Corp. v. DNR, 84 Wis. 2d 32, 50, Any constitutional issues arising from a plain-meaning interpretation of Wis. Stat. § 108.02(15)(h)2. are not before the court. Similarly, the constitutionality of the second prong of § 108.02(15)(h)2., requiring the nonprofit to be "operated, supervised, controlled, or principally supported by a church or convention or association of churches[,]" is not before the court. See, e.g., Christian Sch. Ass'n of Greater Harrisburg v. Commonwealth, Dep't of Lab. & Indus., 423 A.2d 1340, 1346-47 (Pa. 1980). 19 41 No. 2020AP2007.rgb 268 N.W.2d 153 (1978)); Baird v. La Follette, 72 Wis. 2d 1, 5, 239 N.W.2d 536 (1976) constitutionality, we ("Where must look there to is see serious whether doubt there of is a construction of the statute which is reasonably possible which will avoid the constitutional question."). ¶161 The First Amendment declares: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. The Religion Clauses of the First Amendment apply to the states via the Fourteenth Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).20 Catholic Charities claim an inquiry into Justice Clarence Thomas of the United States Supreme Court has questioned whether the Establishment Clause properly applies to states. Zelman v. Simmons-Harris, 536 U.S. 639, 67879 (2002) (Thomas, J., concurring); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45, 49-51 (2004) (Thomas, J., concurring in the judgment); Van Orden v. Perry, 545 U.S. 677, 692-93 (2005) (Thomas, J., concurring); Town of Greece v. Galloway, 572 U.S. 565, 604-07 (2014) (Thomas, J., concurring in part and concurring in the judgment); Am. Legion v. Am. Humanist Ass'n, 588 U.S. ___, 139 S. Ct. 2067, 2095 (2019) (Thomas, J., concurring in the judgment); Espinoza v. Mont. Dep't of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 2263-64 (2020) (Thomas, J., concurring). Justice Thomas has argued the Establishment Clause is a "federalism provision," Newdow, 542 U.S. at 45 (Thomas, J., concurring in the judgment), which merely prohibits Congress "from establishing a national religion" and "interfer[ing] with state establishments." Id. at 50. It does "not protect any individual right." Id. Under this theory, the Establishment Clause, "resists incorporation." Id. at 45. "[A]n incorporated Establishment Clause would prohibit exactly what the text of the Clause seeks to protect: state establishments of religion." Am. Legion, 139 S. Ct. at 2095 (Thomas, J., concurring in the judgment) (citation omitted). Scholars have debated whether the Establishment Clause was meant to be incorporated through the Fourteenth Amendment. Compare Vincent Philip Muñoz, The Original Meaning of the Establishment Clause and the 42 20 No. 2020AP2007.rgb whether their activities are "religious in nature" violates the First Amendment by discriminating against their religious practices and excessively entangling the government in religious affairs. ¶162 The majority improperly stacks the deck against Catholic Charities' claims under the Religion Clauses from the outset, requiring Amendment Majority rights op., Catholic are ¶77. Charities violated "The to "beyond United a States prove their reasonable Supreme First doubt." Court has abandoned the beyond-a-reasonable-doubt standard for assessing the constitutionality of statutory law[,]" and this court must follow the Court's pronouncements on issues of federal law. Winnebago Cnty. v. C.S., 2020 WI 33, ¶65, 391 Wis. 2d 35, 940 N.W.2d 875 (Rebecca Grassl Bradley, J., dissenting) (citing Edward C. Dawson, Adjusting the Presumption of Constitutionality Based on Margin of Statutory Passage, 16 U. Pa. J. Const. L. 97, 109 (2013)). "No United States Supreme Court case since 1984 Impossibility of Its Incorporation, 8 J. Const. L. 585 (2006), and William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L. Rev. 1191 (1990), with Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. State L.J. 1085 (1995), and Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75-84 (2023). Regardless, the Court has held the Establishment Clause applies to the states, and we are duty bound to apply the Court's decisions interpreting and applying the Establishment Clause. State v. Jennings, 2002 WI 44, ¶¶1819, 252 Wis. 2d 228, 647 N.W.2d 142; cf. Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) ("[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."). 43 No. has applied a strong presumption challenges to federal statutes." of 2020AP2007.rgb constitutionality in Mayo v. Wis. Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶78, 383 Wis. 2d 1, 914 N.W.2d 678 (Rebecca supra, at Grassl 109 Bradley, n.43). J., Instead, concurring) the Court (citing "will Dawson, strike down statutes upon a 'plain showing' of their unconstitutionality, or when their unconstitutionality is 'clearly demonstrated.'" Id., ¶80. rule "This court continues to reflexively apply the without any acknowledgement of the United States Supreme Court's reformulation of the standard." Id. (citations omitted). Conforming to the standards articulated by the Court would end the absurdity standard. of applying the beyond-a-reasonable-doubt The majority does not hold Catholic Charities' First Amendment rights are not violated by its interpretation of Wis. Stat. § 108.02(15)(h)2.; instead, it merely holds Catholic Charities failed to prove their rights are violated "beyond a reasonable doubt." See C.S., 391 Wis. 2d 35, ¶67 of Wis. (Rebecca Grassl Bradley, J., dissenting). A. ¶163 The Religious Discrimination majority's interpretation Stat. § 108.02(15)(h)2. violates the First Amendment's Free Exercise Clause and Establishment religious faiths. Clause by discriminating among The majority sidesteps the issue of religious discrimination by declaring Catholic Charities failed to show the law burdens their free exercise of religion. ¶¶105-07. The majority, however, Majority op., misapprehends Catholic Charities' alleged burden, causing it to erroneously conclude 44 No. there is no burden on their free exercise at all. 2020AP2007.rgb Contrary to the majority's assertions, Catholic Charities do not allege that paying the tax itself burdens their free exercise of religion. See Id.21 Catholic Charities never argued the Free Exercise Clause guarantees them an exemption from paying the unemployment tax. Instead, Catholic Charities assert that discriminatorily denying them the exemption under § 108.02(15)(h)2. burdens their free exercise of religion. ¶164 Catholic Charities are correct.22 Supreme Court has long held that The United States withholding a benefit or privilege based on religious status or activity may constitute a burden on the free exercise of religion. Sherbert v. Verner, 374 U.S. 398, 404 (1963); Trinity Lutheran Church of Columbia, Inc. v. requiring Comer, a 582 U.S. religious 449, 466 institution (2017) to (holding renounce its expressly religious character in order to receive a public benefit imposes a penalty The majority exclusively relies upon cases in which the litigant argued the Free Exercise Clause required the state to provide an exemption from a generally applicable tax. Majority op., ¶105 (first citing Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 391 (1990); and then citing Hernandez v. Comm'r, 490 U.S. 680, 699-700 (1989)); see also United States v. Lee, 455 U.S. 252 (1982) (rejecting that the Free Exercise Clause requires an exemption from paying social security taxes even if the payment of such taxes violates one's sincerely held religious beliefs). 21 The Free Exercise Clause would not, absent Wis. Stat. § 108.02(15)(h)2., require the state to exempt Catholic Charities from paying the tax. After it creates a religious exemption, however, the state cannot discriminate against certain religions or religious practices in applying the exemption. See Carson v. Makin, 596 U.S. 767, 785 (2022); Golden Rule Church Ass'n v. Comm'r, 41 T.C. 719, 729 (1964). 22 45 No. 2020AP2007.rgb on the free exercise of religion); Espinoza v. Mont. Dep't of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 2260 (2020) (quoted source omitted) (noting "precedents have 'repeatedly confirmed' the straightforward rule that . . . [w]hen otherwise eligible recipients are because their of scrutiny"); disqualified Carson religious v. from a public character,' Makin, 596 we U.S. benefit must 767, 'solely apply strict 786-88 (2022) (holding religious status or activity cannot be the basis for denying a benefit or privilege); Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988). As the Supreme Court said long ago, "[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege." Sherbert, 374 U.S. at 404 (citations omitted). ¶165 Supreme Court precedent has focused on the denial of a "generally available" benefit to those with a religious status or who engage in certain religious activities. at 780. Carson, 596 U.S. For example, in Sherbert, an employer fired a member of the Seventh-day Adventist Church because she would not work on Saturdays, and the state later denied her otherwise generally available unemployment religious beliefs benefits were not "good employment. 374 U.S. at 400. denying unemployment her because cause" it determined to reject her other The Supreme Court held that benefits because of her religious practices placed a burden on her free exercise of religion: Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling 46 No. 2020AP2007.rgb forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Id. at 404. As the court concluded, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." Id. at 406.23 ¶166 In Trinity Lutheran, a state offered grants to nonprofits to help finance the purchase of rubber playground surfaces. several 582 U.S. at 454. religiously neutral The program awarded grants based on criteria, such as the level of poverty in the surrounding area and the applicant's plan to promote recycling. Id. at 455. However, the state denied Trinity Lutheran Church Child Learning Center a grant it was otherwise qualified to receive because of the state's policy to deny grants to any applicant owned or controlled by a church, sect, or religious entity. Id. at 455-56. The Court held that denying Trinity Lutheran the otherwise available grant burdened See also Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707 (1981) (holding that failure to provide a Jehovah's Witness unemployment benefits because he quit his job due to his religious objections to making armaments burdened his free exercise); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987) (holding that failure to provide a member of the Seventh-day Adventist Church unemployment benefits because she was fired after refusing to work from sundown on Friday to sundown on Saturday in accordance with her religious beliefs burdened her free exercise of religion). 23 47 No. Trinity Lutheran's reasoned a free denial exercise based on of 2020AP2007.rgb religion. religion The penalizes Court religious exercise: [T]he Department's policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church . . . . But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, . . . the State has punished the free exercise of religion: "To condition the availability of benefits . . . upon [a recipient's] willingness to . . . surrender[] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties." Id. at 462 (some alterations in original) (quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion)). acknowledged the state's policy coercion over religious exercise. did not The Court constitute Id. at 463. direct But withholding an otherwise available benefit based on religious status creates constitutionally intolerable indirect penalty on, religious exercise. 450) ("[T]he Free Exercise coercion over, and a Id. (quoting Lyng, 485 U.S. at Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'"). ¶167 In parents who operate a Carson, lived secondary a in state school school. provided districts 596 U.S. tuition that at assistance were 773. unable Under to to the program, parents chose the school they wanted their child to attend school. and the state school Id. at 773-74. administrative units paid the In order for a private school to 48 No. receive the payment, requirements under the the school state needed compulsory 2020AP2007.rgb to meet education basic law, like offering a course on the history of the state. Id. at 774. State the law excluded "sectarian" reimbursement program. Id. schools from tuition The petitioners wished to send their children to schools that were, but for the "nonsectarian" requirement, eligible to receive the tuition assistance. Id. at 776. ¶168 The Court held the program's "nonsectarian" requirement violated the Free Exercise Clause because the law "'effectively penalize[d] the free exercise' of religion" by conditioning the tuition assistance on the school's religious character. Id. at 780. The state argued that lesser scrutiny should apply because it was not discriminating against religious status, but withheld certain religious state funds activities. if Id. the at school engaged 786-87. The in Court rejected the status-activities distinction, noting that "[a]ny attempt to give effect to such a distinction by scrutinizing whether mission and how a religious would . . . raise school pursues serious its concerns educational about state entanglement with religion and denominational favoritism." Id. at 787 (citations omitted). ¶169 The religiously exemption affiliated § 108.02(15)(h)2. in this case is institutions. (requiring the nonprofit available See to only Wis. be to Stat. "operated, supervised, controlled, or principally supported by a church or convention or association of churches" in order to receive the 49 No. tax exemption). Nonetheless, the 2020AP2007.rgb principles underlying Sherbert, Trinity Lutheran, and Carson have equal force when the alleged discrimination occurs among religious institutions, rather than between religious and secular entities. ¶170 The Sherbert-Trinity Lutheran-Carson line of cases prohibit indirect coercion and penalties on religious exercise. E.g., Carson, 596 U.S. at 778 (quoting Lyng, 485 U.S. at 450); Thomas, 450 U.S. at 717-18 ("Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, provide a burden benefit, religiously because a of "condition[s] which affiliated its the upon religion is otherwise entity, religious to a status availability exists."). of available religious or [a] Failure any institution religious benefit[] to to activities upon [its] willingness to violate a cardinal principle of [its] religious faith[,] effectively penaliz[ing] constitutional liberties." a benefit is available the free exercise of Sherbert, 374 U.S. at 406. only to religiously [its] Even if affiliated organizations, the denial of the benefit still pressures the entity to forego its religious practices, forcing the entity to "choose between following the precepts of [its] religion and forfeiting benefits." Id. at 404. As in Sherbert, Trinity Lutheran, and Carson, such a choice burdens the free exercise of religion. 50 No. ¶171 At their government from beginning, this core, the Religion Clauses among religions. discriminating nation's conception of 2020AP2007.rgb prohibit the "From the religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference." Univ. v. Weaver, Historically, 534 England F.3d 1245, privileged 1257 the Colo. Christian (10th Church Cir. of 2008). England penalized non-established religions and practices. and In the 16th century, Parliament enacted the Thirty-nine Articles of Faith, which determined the tenets of the Church of England and the liturgy for religious worship. Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious (2023). Additionally, "[t]he Acts of Uniformity of 1549, 1559, and 1662 Diversity required all and Freedom ministers to of Conscience conform to 12-13 these requirements, making the Church of England the sole institution for lawful public worship." Id. at 13. "There were also specific 'Penal Acts' suppressing the practice of faiths whose tenets were thought to be inimical to the regime." Id. at 14. The practice of establishing churches "of the old world [was] transplanted America." and . . . thrive[d] in Everson, 330 U.S. at 9. the soil of the new In the American colonies religious dissenters were often penalized for their heterodox religious practices. For example, in Connecticut in the 1740s, religious dissenters were fined and imprisoned for preaching and meeting. (2002). Philip Hamburger, Separation of Church and State 90 In Virginia, laws "fin[ed] 'scismaticall persons' who 51 No. refused to have their children Quakers, and baptized, outlaw[ed] 2020AP2007.rgb prohibit[ed] immigration of Quaker assemblies." Chapman & McConnell, supra, at 17. the religious ¶172 "During the Revolution, American establishments lost their severity," and states tended to abandon direct penalties on non-established religions and religious practices while retaining privileges for the established religion and religious practices of the state. time the First Hamburger, supra, at 89-90. Amendment was written, "at least By the ten of the twelve state constitutional free exercise provisions required equal religious preferences." treatment and prohibited denominational Colo. Christian Univ., 534 F.3d at 1257 (citing Arlin M. Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. Pa. L. Rev. 1559, 1637–39 (1989)). One of the "essential legal elements of disestablishment" in the states was denominational equality. Chapman & McConnell, supra, at 57. The principle that the government cannot prefer one religion over another has "strong historical roots and is often considered one of the most fundamental guarantees of religious freedom." Jeremy Patrick-Justice, Strict Scrutiny for Denominational Preferences: Larson in Retrospect, 8 N.Y.C. L. Rev. 53, 54-55 (2005). The constitutional bar on religious discrimination among faiths emanates from both Religion Clauses. Larson v. Valente, 456 U.S. 228, 245 (1982); Colo. Christian Univ., 534 F.3d at 1257. ¶173 The central Supreme principle that Court has government 52 unwaveringly cannot prefer affirmed one the religion No. over another: is that 2020AP2007.rgb "The clearest command of the Establishment Clause one religious preferred over another." denomination cannot be officially Larson 456 U.S. at 244; Everson, 330 U.S. at 15 (stating that under the Establishment Clause, a state cannot "pass another."); laws Cutter which v. . . . Wilkinson, prefer 544 one U.S. religion 709, 720 over (2005) (stating religious exemptions must be "administered neutrally among different faiths"); Zorach v. Clauson, 343 U.S. 306, 314 (1952) ("The government must be neutral when it comes to competition between sects."); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 707 (1994) ("[I]t is clear that neutrality as among religions must be honored."); Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968) ("Government in our democracy . . . must be neutral in matters of religious theory, doctrine, and promote one practice. It religion may or not . . . aid, religious foster, theory or against another . . . ."); see also Dunn v. Ray, 139 S. Ct. 661, 662 (2019) (Kagan, vacate stay) J., dissenting (describing from grant denominational of application neutrality Establishment Clause's core principle"). as to "the "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits religious reasons." conduct because it is undertaken for Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (citations omitted); Emp. Div., Dep't of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990). State laws and practices 53 "which happen to have a No. 'disparate resulting impact' from upon secular different religious criteria do 2020AP2007.rgb organizations" not amount to a denominational preference or religious discrimination, but laws that do not religions merely or incidentally religious discriminate practices receive against strict certain scrutiny. Larson, 456 U.S. at 246 n.23; Smith, 494 U.S. at 878; Colo. Christian Univ., 534 F.3d at 1257. ¶174 The majority's primarily-religious-in-nature- activities test necessarily and explicitly discriminates among certain majority religious faiths construes Wis. and religious Stat. practices. § 108.02(15)(h)2., As the religious institutions that do not perform sufficiently religious acts to satisfy the court's subjective conceptions of religiosity will be denied the exemption. The government cannot "discriminate between 'types of institutions' on the basis of the nature of the religious practice these institutions are moved to engage in." Colo. Christian Univ., 534 F.3d at 1259. ¶175 While the application of secular criteria that leads to disparate treatment of religions is not religious discrimination, the relevant criteria under the majority's test are not secular. The majority denies the exemption to institutions if they do not primarily engage in activities the court deems "religious in nature"——a criterion that can only be described as religious. See Church of Lukumi, 508 U.S. at 533 ("A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context."). It includes only 54 a small, and ill-defined, No. subset of religious activities. The majority employs factors that are similarly not secular. whether a nonprofit ceremonies, serves participants engages only with the 2020AP2007.rgb For example, the majority asks in worship services, co-religionists, nonprofit's or religious imbues faith. Such program criteria certainly sound religious, not secular. ¶176 The majority declares Catholic Charities ineligible for the exemption because Catholic Charities do not participate in worship religious services, engage ceremonies, in provide religious religious outreach, perform education, "imbue program participants with the Catholic faith[,] []or supply any religious Majority exemption materials op., on to ¶60. the program participants Additionally, non-secular and the or majority discriminatory Catholic Charities employ and serve non-Catholics. employees." denies the basis that Id., ¶61. In the majority's view, Catholic Charities' religious practices resemble secular social services too much. Id., ¶¶63-64, 66. The majority's "test" compares the nonprofit's activities to an arbitrary determine Id., ¶100 list of whether stereotypical the (explaining activities that religious are activities activities sufficiently like those to religious. listed in Dykema are more likely to be "religious in nature" in the eyes of the court). ¶177 The majority's test overtly discriminates against Catholic Charities because they follow Catholic doctrine. Catholic Charities explain, Catholic doctrine commands As they engage in charity without limiting their assistance to fellow 55 No. Catholics and bars charitable acts. them from proselytizing 2020AP2007.rgb when conducting Under the Free Exercise Clause, the state cannot condition a benefit upon the abandonment of religious practices. The majority puts Catholic Charities to a choice: They may receive the tax exemption by violating their religious beliefs or they can conduct their operations in accordance with their faith and forgo the exemption. Conditioning a benefit in this manner burdens the free exercise of religion. Trinity Lutheran, 582 U.S. at 462. ¶178 The majority's primarily-religious-in-nature- activities test poses a particular danger for minority faiths. The majority's conception of what constitutes activities that are "religious in nature" reflects religious practice looks like. this court explaining how a a narrow view of what Many amici submitted briefs to test like the majority's will discriminate against minority faiths. ¶179 The brief Consciousness and of the the International Sikh particularly illuminating. Coalition Society ("the for Krishna Coalition") is It notes that government officials are less likely to be familiar with minority faith traditions, and therefore may perceive minority religious practices as less "religious in religions.24 their faiths nature" than the activities of majority The Coalition identifies many activities central to but likely to fail the majority's test, which compares a nonprofit's activities to a list of stereotypical Amicus Br. International Society Consciousness and the Sikh Coalition, at 11. 24 56 for Krishna No. 2020AP2007.rgb (and largely Protestant) religious activities, because the list is derived from a "Western" understanding of religion.25 For example, adherents of Hare Krishna have a religious practice called "Prasadam," during which adherents prepare food, offer it to their deity, and distribute it to the general population.26 Sikhs have a religious practice of providing a community kitchen, "serving free meals and allowing people of all faiths to break bread together."27 According to the Coalition, this practice to is "foundation[al] the Sikh way of life; it represents the principle of equality among all people regardless of religion . . . ."28 The Coalition rightly worries that these religious practices will be characterized by courts as "secular in nature" under the majority's test. ¶180 State actors cannot treat one faith's religious practices as "religious in nature" and another's practices as "secular in nature." Cf. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) ("To call the words which one minister speaks to his congregation a sermon, immune from regulation, and the words of another minister an address, subject to regulation, is merely an indirect way of preferring one religion over another."). United States Supreme Court subjects discrimination to strict scrutiny. 25 Id. at 11-13. 26 Id. at 12-13. 27 Id. at 13. 28 Id. 57 such overt The religious See, e.g., Espinoza, 140 S. No. Ct. at 2278 (Gorsuch, J., concurring) 2020AP2007.rgb (stating "any discrimination against religious exercise must meet the demands of strict scrutiny"). A government policy satisfies strict scrutiny only if it "advances 'interests of the highest order' and is narrowly tailored to achieve those interests." Fulton v. City of Philadelphia, 593 U.S. 522, 541 (2021) (quoting Church of Lukumi, 508 U.S. at 546). "That standard 'is not watered down'; it 'really means what it says.'" Tandon v. Newsom, 593 U.S. 61, 65 (2021) (per curiam) (quoting Church of Lukumi, 508 U.S. at difficult 546). As scholars to imagine the have noted, however, circumstances under "'[i]t which is the government would have a compelling need to prefer some religions over others." Establishment Liberty, and Richard F. Duncan, The Clearest Command of the Clause: Public Denominational Scholarships Preferences, that Classify Religious Religions, 55 S.D. L. Rev. 390, 392 (2010) (alteration in original) (quoting Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure 14 (3d ed. 1999)); see also Church of Lukumi, 508 U.S. at 578-80 (Blackmun, J., concurring in the judgment) (arguing a law that discriminates against religion automatically fails strict scrutiny because such a law in not narrowly tailored "by definition"). ¶181 LIRC does not even suggest the state has a compelling interest in denying § 108.02(15)(h)2. in various faiths. Catholic Charities' a LIRC, the exemption manner like asserted Wis. that discriminates the majority, burden 58 under on the Stat. among the misunderstands free exercise of No. their religion. tax. 2020AP2007.rgb LIRC believes the asserted burden is paying a In response to this misconception of Catholic Charities' claim, LIRC asserts the whole of Wis. Stat. ch. 108 is justified by the compelling interest in "providing insurance access to workers . . . ." is narrowly tailored because "it broad unemployment LIRC then argues the law is impossible to construct workable tax laws that account for the 'myriad of religious beliefs.'" scrutiny, LIRC's LIRC arguments needed to miss the provide a mark. Under compelling justifying the discrimination between religions. strict interest See Fulton, 593 U.S. at 541; Colo. Christian Univ., 534 F.3d at 1269. failed to do so. LIRC This court cannot invent justifications for the state to save the statute from unconstitutionality. See Colo. Christian Univ., 534 F.3d at 1268 ("We cannot and will not uphold a right on . . . ."); statute the that basis Redeemed abridges of a an enumerated factitious Christian Church of constitutional governmental God (Victory interest Temple) Bowie v. Prince George's Cnty., 17 F.4th 497, 510-11 (4th Cir. 2021) (citation omitted) ("To survive strict scrutiny review, the government must show that pursuit of its compelling interest was the actual reason for its challenged action."); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 543 n.8 (2022) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)) (noting "'justification[s]' for interfering with First Amendment rights 'must be genuine, not hypothesized response to litigation'"). or invented post hoc in In the absence of any compelling interest to justify the state's discrimination among religions, 59 No. § 108.02(15)(h)2., as interpreted by the 2020AP2007.rgb majority, cannot survive strict scrutiny. ¶182 This case illustrates the interconnection between the right to free exercise and the Constitution's bar on religious establishments. Citizens are inhibited from freely practicing their faiths when the government doles out benefits or imposes penalties on the basis of religious practice. As Justice Neil Gorsuch explained: The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person's heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all. Espinoza, 140 S. Ct. at 2277 (Gorsuch, J., concurring). The "free the competition between religions" protected by Establishment Clause requires "that every denomination . . . be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference." Larson, 456 U.S. at 245. The Religion Clauses "make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary" by "sponsor[ing] an attitude on the part of government that shows no partiality to any one group 60 and that lets each flourish No. 2020AP2007.rgb according to the zeal of its adherents and the appeal of its dogma." Zorach, 343 U.S. at 313. "Free exercise thus can be guaranteed only when legislators——and voters——are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations." Larson, 456 U.S. at 245. ¶183 While the Free Exercise Clause does not require the state to provide a tax exemption to religious nonprofits, "[w]hat benefits the government decides to give, whether meager or munificent, it religious conduct." concurring). must give without against Espinoza, 140 S. Ct. at 2277 (Gorsuch, J., In our constitutional order, there are no second- class religions or religious practices. bar discrimination discrimination practices: against "Eliminating religious [religious] The Religion Clauses status, beliefs, discrimination and means eliminating all of it." See Students for Fair Admissions, Inc. v. of President (2023). & Fellows Harvard Coll., 600 U.S. 181, 206 The majority errs by inventing and operationalizing a test that discriminates against Catholic Charities' religious practices——and those of many faith traditions going forward. ¶184 The protection against religious preferences embodied in the First Amendment is even more explicit in the Wisconsin Constitution, which bars the state from giving "any preference . . . by law worship."29 to religious establishments or modes of Wis. Const. art. I, § 18; Coulee Cath. Schs., 320 Article I, provides in full: 29 any section 18 of 61 the Wisconsin Constitution No. Wis. 2d 275, ¶60 (explaining the Wisconsin 2020AP2007.rgb Constitution "provid[es] expansive protections for religious liberty" beyond what the First Amendment provides). Weiss, Article I, section 18 of As this court proclaimed in the Wisconsin Constitution, sometimes called the No Preference Clause,30 "probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization, or society than any other state in the Union." State ex rel. Weiss v. Dist. Bd. of Sch. Dist. No. 8 of City of Edgerton, 76 Wis. 177, 208, 44 N.W. 967 (1890) (Cassoday, J., concurring).31 ¶185 The majority's interpretation of Wis. Stat. § 108.02(15)(h)2. blatantly violates the No Preference Clause. In Weiss, worship" this is court capacious, explained embracing worshiping the Almighty God." that "any the phrase and Id. at 211-12. every "modes of mode of It includes The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries. King v. Vill. of Waunakee, 185 Wis. 2d 25, 61, 517 N.W.2d 671 (1994) (Heffernan, C.J., dissenting). 30 While the discussion appears in the concurring opinion of Justice Cassoday, it was on a subject expressly reserved for his consideration, which makes it the opinion of the court. State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 165 n.3, 115 N.W.2d 761 (1962). 31 62 No. 2020AP2007.rgb "'the performance of all those external acts, and the observance of those rites and ceremonies, in which men engage with the professed and sole view of honoring God.'" additional dictionary definitions). Id. at 212 (listing Because the statute, under the majority's interpretation, provides benefits for religiously affiliated nonprofits that engage in activities the court deems "religious in nature," it prefers some modes of worship over others. Catholic Charities explained that charitable works are a form of worship for Catholics, who may not proselytize while engaged in acts of charity. The majority denies the exemption to Catholic Charities because they did not engage in other modes of worship, like proselytizing. The majority's test prefers some types of worship (e.g., proselytizing) over others (e.g., religiously motivated charity). ¶186 Instead of addressing the Wisconsin Constitution's impact on this case, the majority dodges the issue, dismissing it in a footnote as "undeveloped." that is not true. thoroughly employed the But The Wisconsin Legislature, as amicus curiae, explains by Majority op., ¶3 n.4. in its majority brief why a violates the No test like Preference the one Clause. That clause "operate[s] as a perpetual bar to the state . . . giving . . . any preference by law to any religious sect or mode of worship." Weiss, 76 Wis. 63 at 210-11. The majority's No. 2020AP2007.rgb preference for some religious practices over others violates the Wisconsin Constitution.32 B. ¶187 The make no law Religious Entanglement Establishment Clause respecting establishment an provides, of "Congress shall religion," U.S. Const. amend. I, and "prohibits the excessive entanglement of the state in religious matters." St. Augustine Sch., 398 Wis. 2d 92, ¶42 (citing L.L.N. v. Clauder, 209 Wis. 2d 674, 686, 563 N.W.2d state 434 (1997)). from making The Establishment "intrusive judgments Clause regarding questions of religious belief or practice." Univ., 534 F.3d. at 1261. precludes the contested Colo. Christian "[T]he Religion Clauses protect the right of churches and other religious institutions to decide matters of faith and doctrine without government intrusion . . . and any attempt by government to dictate or even to influence such matters . . . constitute[s] one of the central attributes of an establishment of religion." Morrissey-Berru, 591 U.S. ___, Our Lady of Guadalupe Sch. v. 140 S. Ct. 2049, 2060 (2020) (internal citations and quotations marks omitted). ¶188 Civil questions; theological they courts lack questions. may any answer authority Presbyterian only or factual competency Church in and legal to answer U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, Because the majority dodges the religious discrimination issues presented by its test, litigants likely will bring such claims in the future, forcing the majority to admit its error. "This decision might as well be written on the dissolving paper sold in magic shops." Fulton v. City of Philadelphia, 593 U.S. 522, 551 (2021) (Alito, J., concurring in the judgment). 32 64 No. 445-47, 449-50 (1969). As James Madison 2020AP2007.rgb explained in his Memorial and Remonstrance, the idea that a "Civil Magistrate is a competent Judge pretension" Madison, that of Religious has Memorial been and truth . . "falsified" . by Remonstrance is an arrogant history. Against James Religious Assessments, reproduced in Everson, 330 U.S. at 67 (appendix to dissent of Rutledge, Madison's thesis. J.). The majority's opinion proves The majority's interpretation of Wis. Stat. § 108.02(15)(h)2. not only encourages excessive entanglement with religion, it compels such entanglement. ¶189 The majority's requirement that a nonprofit's activities be primarily "religious in nature" forces courts to answer debatable theological questions courts have no authority to answer. The majority's test requires courts to decide what activities are sufficiently religious to qualify as "religious in nature." The First Amendment bars the government from ranking activities on a scale from least to most religious. Thomas, 450 'religious' U.S. at belief 714 or ("The practice determination is difficult and delicate task . . . . more of often what than See is a not a However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."). "Courts are not arbiters of scriptural interpretation," and this court cannot choose which religiously motivated actions are, in their essence, religious. Id. at 716. 65 A court cannot decide No. 2020AP2007.rgb whether an organization primarily conducts activities that are "religious in nature" without violating the First Amendment. ¶190 Determining whether an organization's activities are primarily activities prove "religious in nature" performed by nonprofits, whether sufficiently their will religiously religious. "What lead which to will motivated makes examining the be the forced activities application to are of a religious-secular distinction difficult is that the character of an activity is not self-evident. As a result, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable government entanglement in religious affairs." ongoing Amos, 483 U.S. at 343 (Brennan, J., concurring in the judgment); Espinosa v. Rusk, 634 F.2d 477, 481 (10th Cir. 1980), aff'd, 456 U.S. 951 (1982). ¶191 For defend the religious examinations, more. example, nature fieldtrips, "[T]his implications religious sort of of in-class of schools will textbooks, employees, detailed be class students, inquiry examinations to instruction, parents, into and forced the other and subtle teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments." York v. Cathedral Acad., 434 U.S. 125, 132 (1977). New "The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional establishment . . . ." guarantee against religious Id. at 133; accord Presbyterian Church 66 No. 2020AP2007.rgb in U.S., 393 U.S. at 449 ("First Amendment values are plainly jeopardized resolution doctrine when . . . litigation by civil and courts of practice."). is made to controversies The turn over intrusive majority's test demands may recur. on the religious inquiries the While a court initially may deem a nonprofit's activities primarily "religious in nature," the nonprofit may later lose its exempt status. Comm'n, 397 exemption U.S. is not 664, 673 perpetual (1970) or See Walz v. Tax ("Qualification immutable[.]"). for The tax majority gives the state license to monitor whether nonprofits fail to hit the proper ratio of activities that are "religious in nature" to "secular in nature." "'[P]ervasive monitoring' for 'the subtle or overt presence of religious matter' is a central danger against which Clause guards." (1989) Court has] held the Establishment See Hernandez v. Comm'r, 490 U.S. 680, 694 (citations repeatedly [the omitted). satisfy the To state force that religious their entities activities to are "religious in nature" is anathema to the First Amendment. ¶192 The activities majority's test puts constitutionally state tenuous primarily-religious-in-natureofficials position and of courts in the second-guessing the religious significance and character of a nonprofit's actions. Catholic activities Charities are Nevertheless, understanding strenuously religious this of the court and maintain central rejects religious their to their Catholic significance charitable of faith. Charities' their own activities, insisting those activities are actually "secular in 67 No. nature." 2020AP2007.rgb The First Amendment forbids such second-guessing and recharacterization of Catholic Charities' activities. Lyng, 485 U.S. at 457-58 ("[T]he dissent's approach would require us to rule that some religious religious beliefs. adherents misunderstand their own We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play."); Thomas, 450 U.S. at 716 ("[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith."). ¶193 The entanglement occasioned by the impermissible second-guessing of sincere religious claims is compounded by the majority's claim that what constitutes an activity that is "religious in nature" "may be different for different faiths." Majority op., ¶55. The majority has already made clear it will not take nonprofits at their word that their activities are "religious in nature." For what constitutes an activity that is "religious in nature" to change from religion to religion, the court must study the doctrines of the various faiths and decide for itself what religious practices are actually religious. Constitution bars spiritual affairs. civil courts from such intrusions The into Jones v. Wolf, 443 U.S. 595, 602 (1979) (stating civil courts are barred from "resolving . . . disputes on the basis of religious doctrine and practice"). "Plainly, the First Amendment forbids civil courts from" "determin[ing] matters at the very core of a religion——the interpretation of 68 No. particular church doctrines doctrines to the religion." U.S. at 450. and the 2020AP2007.rgb importance of those Presbyterian Church in U.S., 393 The majority opinion strikes at the heart of religious autonomy. ¶194 The majority denies Catholic Charities the exemption under Wis. Stat. § 108.02(15)(h)2. in part because they employ and serve those criterion. of other religions. This a lawful "[W]ho or what is Catholic . . . is an inquiry that the government cannot make." 2d at 150-51. Holy Trinity, 82 Wis. Deciding who is and is not a co-religionist is with entanglement problems. practicing a faith co-religionists? 2069. not Courts are not allowed to determine who is and is not a co-religionist. plagued is Who decides? Are those no longer Our Lady, 140 S. Ct. at "Would the test depend on whether the person in question no longer considered himself or herself to be a member of a particular faith? whether the faith tradition in person as a member in some sense?" Or would the test turn on question Id. still regarded the "What characteristics, professions of faith, or doctrinal tenets render a [person] part of a particular denomination? The statute doesn't tell us, and it would be unconstitutional for any state actor, including a court, to resolve the question." 2d 92, ¶138 constitutes question. (Rebecca a Grassl co-religionist St. Augustine Sch., 398 Wis. Bradley, is a J., dissenting). religious, not Who legal, Colo. Christian Univ., 534 F.3d at 1264-65 (noting such a question "requires [the state] to wade into issues of religious contention"). 69 No. 2020AP2007.rgb ¶195 Whether a nonprofit engages in religious education or "imbue[s] program participants with the Catholic faith" presents additional entanglement problems. Majority op., ¶60. The court must decide what constitutes religious education and evangelism— —religious faith. of questions whose answers will vary from faith Does conducting charity as an illustration of the love one's deity count? What about engaging in a commercial enterprise to illustrate one's faith applied to daily life? Golden Rule Church Ass'n, 41 T.C. 719. or to logic can be brought to bear to See "What principle of law contradict a believer's assertion that a particular act" educates others about his faith and acts as a form of proselytizing or evangelism? 494 U.S. at education]' 887. or Whether mere activities 'education' are depends as See Smith, "'[religious much on the observer's point of view as on any objective evaluation of the educational 1263. to activity." Colo. Christian Univ., 534 F.2d. at "The First Amendment does not permit government officials sit as judges of the 'indoctrination' quotient" of a nonprofit. Id. Similar problems abound with the majority's declaration that activities religious ceremonies are involving more worship "religious in services nature." and See Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 633-34 (2d Cir. 2020) ("The assumptions majority's government about what criteria must normally religious invite the refrain worship state from making requires."). and courts to The make religious determinations and second-guess the sincere assertions of religiosity of those operating nonprofits. 70 No. ¶196 The church and majority state, does but not simply deny its asserts 2020AP2007.rgb inquiry that the entangles entanglement occasioned by its misreading of Wis. Stat. § 108.02(15)(h)2. is "inherent in any statutory scheme that offers tax exemption to religious entities"33——a majority's failure to preposterous properly claim interpret in the light of statute, which simply requires the nonprofit's motivations be religious.34 majority primarily believes performs its consideration activities of "religious whether in a nature" the The nonprofit does not unduly entangle government and religion because its inquiry is a "neutral and secular Majority op., ¶86. inquiry based on objective criteria." But there is nothing neutral, secular, or objective about the majority's test for whether activities are "religious in nature." The majority's test asks whether the activities are similar——in some undefined and arbitrary way——to stereotypical religious activities listed in a Seventh Circuit decision, which made the list up from whole cloth. See id., ¶100 (stating that "if one of the religiously motivated subentities in this case partook in activities such as those cited by the Dykema court as indicative of a religious purpose" the court would be more likely to decide it is operated primarily 33 Majority op., ¶86. The majority claims that without an examination of a nonprofit's activities, it wouldn't be possible for a nonprofit to qualify for a tax exemption premised on a "religious purposes" requirement. See id., ¶93 (citing Ecclesiastical Order of Ism of Am, Inc. v. Chasin, 653 F. Supp. 1200, 1205 (E.D. Mich. 1986)). Of course, the court could simply accept Catholic Charities' sincere claims that they operate for religious purposes. 34 71 No. for religious purposes). 2020AP2007.rgb The test does not "rel[y] exclusively on objective, well-established concepts of . . . law familiar to lawyers and judges." Jones, 443 U.S. at 603. Instead, it relies upon each justice's subjective sense of what is genuinely religious and what is not. ¶197 While the majority does not ask "whether [Catholic Charities] are 'Catholic' enough to qualify for the exemption," majority op., ¶85, the majority improperly entangles itself with religion by asking whether Catholic Charities' religious activities are sufficiently religious. concededly The majority's protestation that its decision doesn't "intrude on questions of religious dogma"35 is dystopian——"a manner of Orwellian newspeak by which 'religious' means something other than 'religious.'" St. Augustine Sch., 398 Wis. Bradley, J., dissenting). 2d 92, ¶141 (Rebecca Grassl The majority doesn't simply answer "'delicate' questions," majority op., ¶87, it treads where the Constitution forbids the judiciary from intruding. IV. ¶198 The overreach majority's of the CONCLUSION decision judicial power. constitutes The a profound majority radically transforms Wis. Stat. § 108.02(15)(h)2., which provides a tax exemption reason for "and supported by churches[.]" nonprofits operated, a managed supervised, church or primarily for controlled, convention or or a religious principally association of Finding the exemption too broad as a matter of policy, the majority excludes nonprofits it deems insufficiently 35 Id., ¶87. 72 No. religious. Amendment As newly interpreted, the statute violates the First and the Wisconsin Constitution. primarily-religious-in-nature-activities unlawful preference for some discriminates against others. answer purview. 2020AP2007.rgb theological questions religious test The majority's embodies practices and an thereby The test also requires courts to well beyond the judiciary's The majority exercises the power of the legislature, rewriting § 108.02(15)(h)2., and proclaims itself the arbiter of what is and is not religious. Whatever authority the majority believes it possesses to assume these roles is not found in the Wisconsin Constitution. I respectfully dissent. ¶199 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins ¶¶110-61 and ¶¶163-98 of this dissent. 73 No. ¶200 BRIAN HAGEDORN, J. (dissenting). 2020AP2007.bh Although I would not reach the constitutional questions and do not sign onto every point in the analysis, I agree with the construction of the statute dissent. majority's in Justice Rebecca Grassl Bradley's thoughtful I also agree with the excellent discussion of the misplaced reliance on the remedial statute Justice Rebecca Grassl Bradley's dissent, ¶¶154-58. canon. There is no particular reason to assume a statutory exemption in an area like religious freedom——a constitutionally protected category to which the law regularly gives wide latitude——should be construed narrowly. I respectfully dissent. 1 No. 1 2020AP2007.bh
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
