After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.
After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, this is another late-night recording session. We're sneaking one in on a Sunday night. For those who were hoping that meant we were going to catch you up on extremely timely events, that's not the case. We're actually just following up on a case that we had been meaning to talk about for a couple episodes and had prepared already but never got around to because our episodes always run long. So, sorry. The court has released a bunch of opinions in the last few days. We will be talking about precisely zero of them today.
Will: This is the 20th most timely case.
Dan: Okay.
Will: According to the website, it was opinion number 37 and there have now been 57.
Dan: Wow, that's even further back than I realized.
Will: Well, like four or five of those are in the same day, so 15.
Dan: Okay.
Will: Anyway.
Dan: So, we will get to that case in a minute. That case is Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission. So, I didn't want to keep people in suspense. We will get there in a few minutes. Any other follow up stuff to talk about? I'm going to say right now the Divided Argument inbox is overwhelming me right now. I am going to apologize, but I think I'm going to declare email bankruptcy on the inbox because as of right now, I'd say there's 20 or 30 very nice, interesting, well considered comments questions in the old inbox. And every time I open my email program, I'm a little overwhelmed by the daunting task of giving people the responses that they deserve. So, I may not get to some of those for which I apologize.
Will: Well, I will say that's my relationship to my inbox at all times. Not just the Divided Argument inbox, but more generally. So, I'm not letting that deter me. I'll try to respond to some.
Dan: You're very conflict avoidant. When I try to get you to do something you don't want to do, you just don't respond.
Will: If I know I don't want to do it, I can say no. But if it's a close call or if it's something I feel guilty about not doing, then it just sits in my inbox for me to think about it. And then if it drifts off the first page of my inbox, I'll only think about it if I get back above water again.
Dan: Okay, well, if anybody invites Will to do something and he doesn't get back to you, it means that he either is not sure or he feels very guilty about saying no. So, don't take it personally. [crosstalk] If anything, it's a compliment.
Will: One thing I also did for the last episode, I put a post up on our blog, blog.dividedargument.com, linking to the episode and also that way creating the comment section as a place for folks to talk about the episode if they want to. I realize that's no substitute for emailing us directly, and sometimes we respond, but if you have thoughts and you feel like we haven't been engaged with them enough and you want other smart listeners to engage with them, that is another possible forum out there.
Dan: Yeah, we could really build a listener community. Looks like we've only got a few comments on there, already three comments, so maybe that’s happening.
Will: Yeah, and I may engage in those comments as well. We got much, much email about our Skrmetti episode. Much of it very good. And the pieces of one email I got from a, I think a friend of the show who wants to remain nameless and has a lot of thoughts about the Skrmetti litigation. The email is long and has four headers which I'll summarize here. “Point one, the case wasn't doomed. Good grief, the trans lobby had won in every single district court before the stay in the Sixth Circuit and a different Sixth Circuit panel have given the stay.” Goes on to describe all the reasons that it was not inevitable that the case get to where it got to in Sixth Circuit.
“Point two, The New York Times long form article is also dumb and littered with errors. Point three, the United States seeking cert was insane, yes, but it's not clear the court was going to take the case in a preliminary injunction posture to affirm when there had already been a stay. Point four, Curtis Gannon's letter explains why the court could still rule, and it's totally plausible.” Anyway, there's much more analysis in there and we've got many more emails with lots of different analyses, hypos, takes on the Sotomayor-Roberts hypo. I'm not sure when I'll be able to get to all of the comments, but I appreciate the pushback, sometimes, the agreement, and the thought-provoking correspondence.
Dan: Yeah. I mean it's interesting if it is true that the Times article which I referenced briefly last time, got some of the facts wrong. I mean, I think in the larger question about strategy there in terms of trans rights advocates bringing the case. I mean, I do think you always have to think about this with the backdrop of the Supreme Court. When you're bringing impact litigation, you have to expect there's some chance that the issue is going to ultimately get before the Supreme Court. And if you are fairly confident that court is not going to be super receptive to your interests, you have to think pretty carefully about whether it's the right time. But those are interesting points.
Will: I do know some folks who bring impact litigation and think about these kinds of problems. And one thing they sometimes do is almost bifurcate it into two questions. Can we win in the lower courts? And then can we win in the lower courts in a way that the Supreme Court will not grant cert.
Dan: Yeah.
Will: So, you might sometimes actually have a ground that's less in some ways, less precedent setting, but better to win on because it's one that won't be so precedent setting-- [crosstalk]
Dan: Narrow, fact bound.
Will: Yeah.
Dan: But sometimes you need those other arguments in there too. So, sometimes some people are definitely thinking about how to do those things. It could well be the folks litigated these cases had a good strategy ex ante and it just didn't pay off ex post.
Dan: Yeah.
Will: Here we are.
Dan: But here we are because it is a pretty decisive loss in the sense that we don't have true majority answering the question but makes it extremely unlikely that transgender status will be recognized as a protected class at any point in the future.
Will: I do think that's unlikely.
Dan: One other thought about that, our blog, which you mentioned a second ago, blog.dividedargument.com had a really interesting post from not just friend of the show, now collaborator on the blog of the show, Richard Re, pointing out a pretty interesting tension in the way the justices in Skrmetti talked about the way the equal protection clause works and how it works in practice, which is there's this tension between focusing on groups versus focusing on classifications. As he points out, Justice Barrett's concurrence is all about groups. Are the transgender individuals a suspect class? And asks all sorts of traditional questions about subordination. But in terms of how equal protection doctrine works, it typically is focused on classifications. We no longer say, “Okay, does the equal protection clause protect black people, are they a suspect class?” We say, “No race is a suspect classification.”
And it's interesting, I glossed over that when reading the opinions. I thought that was something I read that changed the way I thought about it. I don't know what to do with it. It's a really interesting observation. I don't know if you have an instinct on which question is the right question to ask. Maybe they are different versions of the same question. I'm not sure.
Will: I think they're definitely not exactly the same question. I think one of these reflects what people often call the anti-subordination approach to equal protection doctrine. Where you ask, is there some group that's practically been subordinated? And in some ways the suspect class Carolene Products framework is anti-subordination framework. But the court mostly doesn't have anti-subordination framework anymore. They mostly have anti classification framework. There are just not even the right factors for that.
Dan: Yeah, because in the former, you're focused on harm to disempowered groups. And so that might suggest you don't care as much about discrimination that harms majority groups that anti-subordination vision is a vision pushed by defenders of race based affirmative action, for example.
Will: Right. Often there will be a classification such that one side of the classification has historically been discriminated against, but the other side of the classification has not. So, African Americans were historically discriminated against, white people historically were not. Even though they are both on opposite sides of the same classifying rule. I think the way it formally works is once you have a suspect class one side or the other, then the criteria that establish the suspect class become a suspect classification such that all discrimination the basis of that classification are forbidden, even though only one direction of it actually was a suspect class. There's no reason it should work that way. I just think descriptively that's what we could really do.
Dan: I mean, that certainly seems right, but it seems not obvious that it should work that way. If all the questions you're asking about, does this discrete group of people deserve constitutional protection because they need help in the political process, etc., therefore, anytime someone draws classifications based on that trait, even if it's one designed to reduce subordination of the same group, then it's bad.
Will: Right. I think there are two rationales you could get to for that. One of which would be something, like, once one group has made suspect class status, the classification has become tainted such that just any use that classification is now tainted with a bad history of the creation of that one suspect class. And maybe a more practical spin on that, a second version would be something like, “Yes, we're aware people will sometimes come in and claim, now we're using the suspect classification for benign reasons that help the suspect class.” But in practice, there have been lots of attempts to claim that forms of discrimination were benign that were actually malign.
And so, it's a good decision rule for the courts to say, once we've gotten to this point of saying this is a suspect class, the history of discrimination, we just don't trust any of it. That's, I think, what some justices say about race. For instance, they say, once somebody comes in claiming, “Oh, this time it's the benign form of race discrimination,” we should just recognize that it may not be true. Justice Thomas has written about why he thinks that racial preferences meant to help African Americans may actually hurt them in the long run and so on. But I don't think either of these things is really well linked up in the doctrine, which is interesting.
Dan: Well, I don't know if we'd be likely to get another case answering these really fundamental questions about how equal protection doctrine works in terms of identifying new suspect classes. I don't know if there's anything coming down the pipe in the coming years that would ask a different version of that question. Anything you can think of.
Will: So, there were some cases in the lower courts about whether Batson extends to sexual orientation.
Dan: Okay.
Will: I think most lower courts have held that it does because sexual orientation is a suspect classification. So maybe they're supposed to be-- [crosstalk]
Dan: But the Supreme Court has never said that it's a suspect classification.
Will: Exactly. But if the Eleventh Circuit or the Fifth Circuit were to hold that it's not, and that Batson does not extend its sexual orientation, I think that would create a circuit split with at least the Ninth Circuit, that's plausible to imagine the court taking. Now, I don't know whether the Batson context is different for various reasons, but that would be one way you might get into it.
Dan: Yeah. That's interesting.
Will: Yeah.
Dan: So, you just gave the Fifth Circuit an idea. I think [Will laughs] to a research project.
Will: I'm sure the Fifth Circuit had lots of ideas of its own and doesn't like my ideas.
Dan: My sense, just from teaching in that area, is that the sexual orientation Batson claims come up much more rarely than the race claims. But maybe there will be a case that one of those courts will address. Then we'll get the next set of answers. Next, data points on this question. So, lots of other stuff in the inbox. I have one trivial one. Well, depends on what you think is trivial, what you think isn't. But we had that debate a couple episodes ago about the pronunciation of the Laboratory Corporation, the LabCorp. And I was talking to persistent friend of the show, Kannon Shanmugam. By the way, I ran into him on the streets of DC the other day. I was walking in DC, I was there for a couple of days for a clerkship reunion and I was on my way to a liquor store, which is the only place I'm aware of where you can buy yellow and green chartreuse since the Carthusian monks decided they were working too hard and wanted to retreat from the world and get back to being monks, ran into him on the street. So, can't get away from Kannon. But he wrote in a while back telling me about this. He found an article about this which actually there was an interview with the CEO of LabCorp seven years ago and it talks about a bunch of different things and at the very end there's a very short excerpt in the short bit of the interview.
It says this, “Before ending his interview with WRAL TechWire, King explains an issue that perplexes and divides many people, including LabCorp's own employees. How to pronounce the company's name. That is one of the great controversies of all time, he says with a laugh. Technically, The P in LabCorp should be pronounced because “Corp” is an abbreviation of corporation, he concedes. However, King and many others pronounce the name with a silent p as in “LabCor.” It appears to be a rare technicality that King's compliance focused legal mind is willing to let slide.”
Will: That's amazing.
Dan: Yeah, it's disappointing that even the people who run this company don't have enough pride to pronounce it correctly. I take these things personally. Maybe you don't, but when I read a brief or someone just doesn't get the little stylistic things right, I just think, “How can you do that? Aren't you ashamed of yourself?” [Will laughs] But maybe you get less worked up about that stuff.
Will: No, I worked on about some of it. When I was in high school, I once wrote a 20-to-40-page political fiction novella thing, largely because I was sufficiently upset about the fact that people called the Solicitor General a “General.”
Dan: [laughs] So, you were deep into Supreme Court punditry.
Will: This was more like Miss Manners and William Sapphire and etiquette and language punditry.
Dan: Fair, but it's also Supreme Court punditry adjacent.
Will: Right. But I'm just saying I was into it because “general” is an adjective. The Solicitor General is the Solicitor. The Attorney General is an attorney. What kind of attorney? What kind of solicitor, the General one? So, I created this whole character a lawyer so that eventually he could have a confirmation hearing for Solicitor General in which they could address him as “General.” So, I guess it would be a confirmation here after he was already Solicitor General, which he could address him as “General” and then he could correct the person and say, “No, I'm just a solicitor.”
Dan: Was this novella published?
Will: [laughs] No. No, no, no.
Dan: Wasn't the point of it to persuade?
Will: It was not very good.
Dan: Okay, but I mean, you were hoping that it would be good and then it would be published.
Will: I didn't even think that far ahead. No, I just-- [crosstalk]
Dan: You were that worked up?
Will: I had a bee in my bonnet about it. Yeah.
Dan: Okay. All right. I like that.
Will: It still bothers me.
Dan: One of our many emails sitting in the inbox, I think mentioned this.
Will: Yeah, it reminded me of this.
Dan: Yeah.
Will: Yeah.
Dan: That's one of those things. I'm aware of that too, but it just seems like we have to let that one go. What is the origin of the word “general” in the military? Does that also- could we trace that even further back? And is it originally an adjective?
Will: Oh, I don't know. That's too late for that one.
Dan: Well, I know, but doesn't that bear on this question of whether we should treat it as an error? I mean, if the same thing happened with the noun general in the military, maybe then we should just accept it happening for the SG. So, I don't know the answer to that question. I imagine one or more of our readers do. If you do, send that in, I can't promise I'll respond, but I will read it.
Will: Me too.
Dan: All right. That was my only piece of follow up and it was not a big one.
Will: Well, at the risk of having too much chit chat, we should probably talk about a case.
Dan: Was that chit chat? I felt like it was kind of substantive. All the Skrmetti stuff was substantive, right?
Will: That's true too.
Dan: I threw in a few off-topic things.
Will: That's true.
Dan: Not too many. Okay, “Catholic Charities.” So, I've now read this opinion three times. I first read it right when it came down because I think we were going to record about it and then I reread it, I don't know, last week when we were going to record and you hadn't told me it was your birthday. And then I just reread it now because I find that I have to have read them right before we record to have all the little moving pieces in my head. So, I've spent a fair amount of time with this opinion. I think it's interesting. I cannot say that the time I've spent with it has led me to any deep conclusions about it, but let's talk it through.
Will: Okay. So tell me what you think is interesting about it, other than the fact that it involves Justice Sotomayor ruling for a religious freedom claim.
Dan: Well, one of the things I find interesting about it is the concurring opinion by Justice Thomas. But maybe we should wait to get to that until we've gone through the majority to explain what the case is about.
Will: Okay.
Dan: So, Wisconsin has a state unemployment insurance program, as I think, at least most probably all states do. All employers have to pay into it. But then it has exemptions. And one exemption that it has is for nonprofits, “Operated primarily for religious purposes and controlled, supervised, or principally supported by a church.” So those nonprofits, rather, get an exemption from the general obligation to pay into the state unemployment system.
Will: Okay. And we think they don't have this exemption. They could just require everybody to pay them?
Dan: I think so. Although maybe there would be some ministerial limit, ministerial exception.
Will: Okay.
Dan: I mean, certainly the state couldn't have a law that says, “Priests can sue for wrongful discharge if they're removed from ministry by the bishop.”
Will: Right.
Dan: So, this isn't that. I'm just trying to reason backwards. And so, would there be some argument that is having to pay unemployment insurance for priests somehow raises the same concerns. I don't think so, but I'm just throwing that out there. Yeah, I think they probably could do that.
Will: Okay. But nonetheless, Wisconsin's religious exemption is now in trouble because it does not extend to the Catholic Charities Bureau.
Dan: Well, I mean, is it in trouble or is it maybe getting bigger?
Will: Well, fair enough. In trouble as it was written.
Dan: Yes. It seems like there's a problem. And the problem is, there's a nonprofit that is challenging this rule, the Catholic Charities Bureau. It serves as the social ministry arm of the Roman Catholic Diocese of Superior, Wisconsin. That's got to be near you, right, Will.
Will: Superior, Wisconsin. We're near Lake Michigan.
Dan: Okay. Is Superior on Lake Superior? It must be, right?
Will: I would hope, if there's any logic or justice in the world.
Dan: Okay. Yeah. That would be confusing if it were not. And so, this nonprofit carries out charitable works on behalf of the church. So, I think it is agreed that the church directs this nonprofit, the church controls it. And it is also I think, agreed that at least in some broader sense, the church is engaging in this activity for religious reasons. Is it fair to say that is agreed upon? I know that's veering a little bit into the question we have to ask here, but--
Will: Yeah.
Dan: Okay, that seems that nonprofit should get the exemption. We definitely controlled supervisor, principally supported by church. And then other thing has to be operated primarily for religious purposes. Okay. And the church is running this. And their church is doing it because they think it's important to, in the nonprofit's, own words, to carry on the redeeming work of our Lord. Okay, so why is this an issue? Why would this Catholic Charities bureau not get the tax exemption?
Will: Well, there's a more specific statutory definition of what it means to be operated really for religious purposes.
Dan: Okay, so what does that mean?
Will: Okay, so at least as construed by the Wisconsin Supreme Court, where the case comes from, operating primarily for religious purposes requires essentially that you be either trying to proselytize people to join your faith or be restricting your services to the faithful, right?
Dan: So, why are those the only legitimate religious purposes?
Will: Well, so do they need to be the only legitimate religious purposes or is this a way-- I mean, so may go back to what is the purpose of the exemption? If they have some intuition that there's some set of internal churchy stuff that they don't want to get into, we're going to leave aside. We're not going to tax—proselytizing. We're not going to tax things like the internal charity of a church. The church takes a tithe for some purposes and then provides services whoever pays the tithes. Those are things that we don’t want to-- I think there's too much of a risk of entanglement, of getting into for whatever reason, we don't want to get into those. Can they just say that? Can they just say we don't want to reach some religious activities?
Dan: So, I guess under this opinion, it's going to depend a little bit on how that's written. Now, the problem the court is going to identify here is the specific definition of religious purposes that the state has adopted via judicial decision, judicial interpretation is discriminatory…picks and chooses among religions because the organization is only primarily religious in nature if it participates in worship services, religious outreach, ceremony or religious education. And the court is going to say that the problem with that is some religions don't do stuff like that. So, some versions of Christianity provide charitable services while proselytizing and/or restricting the services to people that are members of the underlying faith. Catholics don't do that. They're actually not allowed to do that under church law. You can evangelize, but you cannot proselytize when you're running a organization like this, a charitable organization, and you have to serve everybody.
Will: Sorry. And what is the evangelize-proselytize distinction?
Dan: Proselytization is more coercive. Evangelize is just like sharing, it's like, “Hey, this is my faith.” Proselytizing is, “Hey, join my faith.”
Will: [laughs] Okay, is it about the tone of voice? “Hey, this is my faith. It's pretty cool. You might like it.” Is that evangelizing?
Dan: I don't know where the line becomes-- If it's like you might like it, or if it's just like you show off how cool your religion is and you hope other people come around to joining it. I imagine that there's extensive kind of like Canon law rulings on that question and encyclicals and papal bulls and stuff. I don't know. I'm just making stuff up.
Will: “Dan, I am worried that you're going to hell. And I care about you, and that's really terrible. Now, of course, it's a free country, and our religion is based on free choice. So, if you want to go to hell, God be with you. But I think that's really bad. And I think you should consider not going to hell.” Is that evangelizing or proselytizing?
Dan: You're asking me questions that I no basis of knowledge on which I can rely.
Will: I mean, I have less basis of knowledge than you do. This is the blind leading the blind here.
Dan: Yeah, all my kids are in Catholic school, I'll see if their teachers know the answer to this question. It is interesting. I was not aware of that fine grained distinction. Okay, back to the case. Now that you've revealed my fundamental ignorance of the fine details of Canon law. Back to the case.
Will: All right, so the problem is there's a relatively well-established doctrine, especially the establishment clause, that the government can't officially prefer one religious denomination over another. There are debates about when you can exempt religion and when you can acknowledge religion and when you can have monuments. But the one thing that everybody agrees you can't do is pick some religions over others.
Dan: So, you couldn't have an exemption that said, “All charities run by monotheistic churches are tax exempt and polytheistic ones are not.”
Will: Right. You couldn't have a law that says the drug laws exist, but there's an exception to the Native American church. If you have an exception for the Native American church, you got to have one for the Rastafarians and for the church that wants, the Brazilian church of Centro, that wanted that hallucinogenic tea, all the others. Now, at the same time, the court does say, Larson v. Valente is the case that establishes this, that the court does say, now, of course, you can still have secular criteria that have a disparate impact on religion. So, if you say we have drug laws and there's an exemption for anybody who has a religious use of the drug, and then somebody else comes in and says, “Well, my religion doesn't do drugs. My religion wants an exemption from the pasteurized cheese laws. Why can't I have an exemption from the pasteurized cheese laws?”
I think the government's allowed to say, “Well, look, we just have secular criteria. We think it's okay to make exemptions from drugs, but not from pasteurized cheese for whatever reason.” As long as we have a secular reason for differentiating between them, then that's okay. So, it depends on whether the discrimination between religions is religious or secular.
Dan: Yeah. And there, in that hypo, the discrimination between religions, it's just that one religion gets one an exception, and other religions want exceptions for other stuff.
Will: Right. And again, they just said, “Look, if your religion doesn't do drugs, you don't need an exception for the drug laws.” That's not discrimination, that's the exception we have. So, I take it the question here is which one is going on here? Like when we say we're willing to make an exception to our unemployment taxes for proselytizing charitable activities, but not non-proselytizing charitable activities, is that like saying we have an exception to the drug laws for religions to do drugs, but not exception to the cheese laws for religions that eat cheese, they said, “Look, if the Catholic Church doesn't believe in proselytizing during their charity,” that's fine. It's just that's not the thing we're interested in accommodating. I take it they can't say that.
Dan: Yeah, well, the court rejects that argument. The court says basically this is drawing the government into theological questions.
Will: Why?
Dan: I think the theory is that it's saying only certain things count as religious.
Will: The two things I wonder is how much of this is a problem that these criteria exist to define religious purposes. Like if the state had just said, it's not about religious purposes, we understand everybody has religious purposes. We just want to say that we have a state policy of not getting involved in anything involving proselytizing. And so, we're just going to leave that alone. No tax laws. Whether that would be enough. And it's not to deny that non proselytizing can also be religious. That's not the thing we're interested in accommodating or whether still the point is that when we prefer one religion to another, it can't be on the basis of things like, do you proselytize or how do you teach or any of your religious-y stuff. We could prefer one religion to another because one does drugs and one doesn't.
Dan: Yeah, that's really interesting.
Will: I couldn't tell after reading this opinion. Not three times, but maybe one and a half times.
Dan: Yeah. And maybe nobody's really thinking about it in that way.
Will: So, I have a student who just wrote a paper about this exception for Social Security taxes. There's a Supreme Court case where the court holds there's not a First Amendment right to an exception for Social Security taxes, but there's apparently a part of the tax regs that say you don't have to pay the Social Security taxes if you're part of a religion that's been established for more than 75 years and has a tradition of providing old age care to your own members and four other things, basically like the Amish.
Dan: I was not familiar with that.
Will: Maybe one other religion. And so, one of the things my student asks is-- I mean, as he wrote it before Catholic Charities came down, but does this discriminate between religions? If I have a new religion that also objects to Social Security taxes, but I don't have the 75-year track record that the Amish do, is it discriminatory not to give me an exemption as well? Or if I have a religion that doesn't have a history of track record of providing care to my own elders but we only let in people who are really rich, so they don't need Social Security. You can imagine all the different variations.
Dan: Yeah, that's interesting. That seems maybe less problematic than this in the sense that the length of time that the religion has been established is not an inquiry at all into theological disputes.
Will: Yeah, but it still does differentiate between two religions in a way that they can't totally control and of course it could force the government into theological, like suppose I have a new group that claims to be a sect of the Amish.
Dan: Yeah, okay, that's fair.
Will: And so, then there's a dispute on whether my religion existed for 75 years or not. And I say, “Yeah, sure. [chuckles] The Amish existed for a long time and we're just Amish.” But everybody else thinks, “No, you just made that up.”
Dan: Yeah, okay. I mean, maybe these problems are just unavoidable anytime you try to start providing any kind of religious exemptions.
Will: Well, that's what I worry about. And at the same time that the court is on the verge of overruling or limiting Smith and therefore making religious exemptions constitutionally compelled. If we also then say once you write religious exemptions, they're going to be constitutionally flyspecked to see if they're the right kind of religious exemption. I don't totally know how this is going to work yet. I mean, maybe this law was self-defeating because it labeled itself wrong or used criteria that make no sense or something.
Dan: But do you think that it's possible that if we just took the law, okay, let's take the Wisconsin Supreme Court's opinion, copy the language it used to elucidate the standard, and then just pasted that into the actual law on top of the place where it currently says “religious purposes,” you think that might have been okay? So, any nonprofit that engages in proselytization?
Will: I guess the proselytizing one is still going to get in trouble. But I think if they said we make an exception for any nonprofit that is entirely limited to one faith. So, they're internal religiously internal nonprofits. On the other factor, I'm not sure why that would be unconstitutional.
Dan: Yeah. And I wonder, are there legitimate reasons a state would want to draw some distinctions? So, if a church controls some nonprofit that just does a bunch of impact litigation or something, is that just getting too far afield of what the state was trying to do with its exemptions, which is really just protect churches themselves and stuff that is very adjacent to them.
Will: Right. So, for instance, what about Georgetown? I think Georgetown is some kind of Catholic university, it's probably a nonprofit.
Dan: Jesuit, I believe.
Will: Yeah. So, what criteria would Georgetown need to have to suddenly become a religious organization for these purposes and get to exempt everybody there from unemployment taxes? If you imagine Wisconsin applies there or want to be very Chicago about it, nonprofits pay whatever a certain number of dollars total in unemployment taxes. Could they just take that money, divide it in half and give half the money to some Church to own them for [laughs] religious purposes and then keep the other half. I take it no. At some point, we have a sincerity check or something that isn't really for religious purposes.
Dan: Because the state is allowed to-- It cannot inquire into the truth of religious doctrine, but it can inquire into-- is someone actually doing this for religious reasons or are they just pretending to have this religion or whatever. That's the sincerity question.
Will: Right. Although I'm not sure whose purpose it is that matters. Suppose it really is true that the Catholic Church believes in all these different kinds of charities. And I go to them and say, “Hey, would you like to become the parent company of my nonprofit which does these good works?” And they say, “Yes,” that supports our mission, sincerely.”
Dan: Yeah.
Will: And now it's a win for both of us because they get me to support their mission and I get to keep a lot of money.
Dan: Yeah. I mean, you would have to give up, at least under this law, you'd have to cede control to the church.
Will: Well, do you?
Dan: Controlled, supervised, or principally supported?
Will: So, suppose I was asked to supervise but not to control.
[laughter]
Dan: All right, so we did the difference between proselytization and evangelization. Now we have to figure out the distinction between control and supervision.
Will: Yeah. Anyway, again, this may be one of those cases where it's an easy case on its own facts and on the way the state has interpreted its own laws and not designed to settle all these questions in the future. But I left this case with more questions about how.
Dan: Okay, that's unfortunate. I don't know. Do you think that's more likely to happen in unanimous decisions? So, this was a unanimous opinion by Justice Sotomayor. We've got a couple concurrences, but everybody's on board that they're going to gloss over these hard issues. Do you think that's more likely in divided decisions?
Will: That's a good question. I'm not sure. I mean, on the one hand, unanimous decisions have an incentive to focus on the easy thing. Like, okay, the lower court's wrong with this. We don't have to get into all the other stuff. And sometimes opinions have a [chuckles] need to play a little fast and loose to keep the coalition together.
Dan: Okay. So, we didn't get a lot of answers there. So, the court, just to close the loop on the analysis, went through this inquiry and concluded that the law does impose a denominational preference. And then at that point, it triggers strict scrutiny. And the state didn't have great arguments that would justify why it needed to draw the distinction in exactly this way. And so, this law fails strict scrutiny.
Will: Yeah.
Dan: And so, is this clearly an Establishment Clause opinion?
Will: I think so. I think it's clearly Establishment Clause.
Dan: Yeah. I mean, the Court mentions the Establishment Clause.
Will: So, at 2A it says, “The clearest command of the Establishment Clause is that the government may not officially prefer one religion over another.” But then it says, “The Establishment Clause's prohibition of denominational preferences is inextricably connected with the continuum of vitality of the Free Exercise Clause too.”
Dan: So, it is kind of both things are tied up together.
Will: Yeah. I mean, I guess the ministerial exception is now famously in this. Like it's both.
Dan: Yeah.
Will: I had read this more as like, it's the Establishment Clause and maybe the Free Exercise Clause too. Like it's clearest of the Establishment Clause.
Dan: Yeah. Although I feel like the Court went out of its way to not be 100% clear on that. So, if you look at the opening paragraphs of the decision, so the question here is whether this provision, as applied to petitioners by the Wisconsin Supreme Court violates the First Amendment. The First Amendment mandates government neutrality between religions and subjects any state sponsored denominational preference to strict scrutiny. So, do you think the Court is glossing over this in part because-- as we'll talk about in a second, there's maybe some disagreement among the Justices about where exactly you would situate this.
Will: Yeah, I guess if you want it to be a unanimous opinion, then you have to make it not entirely an Establishment Clause decision because I guess, let's just talk about it. As Justice Thomas has written before, Justice Thomas doubts that the Establishment Clause is incorporated against the states because it's a structural provision, not a privilege or immunity of citizenship. But Justice Thomas writes in footnote one of his opinion which is mostly about something else, that church autonomy is a free exercise doctrine in addition to Establishment Clause case. And this is I guess related to the church autonomy doctrine. And so, he's willing to join because it's not just an Establishment Clause case.
Dan: Yeah. So, it seems like that doctrine is somehow situated between both of those religion clauses. Okay, so yeah, let's get to his concurring opinion. So, he says there's basically two issues here. “The Wisconsin Supreme Court had two holdings or there are two steps to its analysis. First, the Court held that the relevant organization is Catholic Charities in each of its sub entities, not the broader Catholic Diocese of Superior of which it is a part. Second, it held that the purposes of Catholic Charities and its sub entities are primarily secular, not religious.” And so, he's taking on that first part, this idea that the state is saying the organization is Catholic Charities and not the diocese. Why? Why is that a problem?
Will: So, he thinks it's a problem because the church autonomy doctrine provides that a religious institution is not defined by secular corporate law. That what is the church is not the same thing as what is the corporation.
Dan: So, under this view, you would just basically ask the church, is this nonprofit you or is it separate, and that would be the end of the inquiry?
Will: I don't know whether it's just a matter that you would ask. So, he goes fairly deeply into church law to explain why, as a matter of church law, Catholic Charities and its sub entities are in arm of the Diocese of Superior.
Dan: Which is interesting, right? If the whole point of some of these doctrines is to avoid the government having to get deep into religious theological disputes, it's interesting that he does that here to prove his point.
Will: Yes. Now, I think he might be doing that just to prove that the claim is sincere and plausible. So it might be that you ask them, is this you? And there is some kind of sincerity test. So, if you say, “Yes, this is us,” when constantly in other documents you are saying it's not us, we're more suspicious or something.
Dan: But it can't require the court to look at religious texts and Vatican I and stuff like that, that can't be actually what's required of this doctrine, because it would be self-defeating if so?
Will: Yes, I think it's clear that would be unconstitutional. There are cases indeed where the court says, the strength of the religious claim can't depend on the judge's reading of religious doctrine. There's an old case, Thomas v. Review Board, where somebody, maybe a Jehovah's Witness, some kind of pacifist, is not willing to work on one part of the tank factory because it's too close to the actual guns in the tank, but he's willing to work in a different part of the tank factory. And the Indiana Supreme Court says that's ridiculous. That doesn't make any sense under your religion. And the court's like, “Look, it's his religion. He gets to say if that makes sense.” And more colorfully, there's a more recent prisoner claim.
I think the court summarily reverses… Justice Alito writes something where a Jewish prisoner wanted to meet with other Jews to read Torah together. And the judge was like, well, “According to the Torah, you need 10 Jews to have a minion, and we don't have 10 Jews in the prison. Therefore, you can't meet with any of them [laughs] because we can't give you the thing your religion requires.” And the prisoner's like, “Look, I would take three.” [laughs] That would better than zero.” And the Supreme Court says, “Yes, you can't deny somebody's claim because you've read the Torah and claim you understand their religion better than them.”
Dan: So, I mean, I think for that reason, then in actually operationalizing this rule, if it is to be the rule, you would have to be fairly differential to what the church itself says about its own structure.
Will: Yeah.
Dan: Without getting deep into the documents.
Will: So, how could this be the rule, though? Why isn't the rule--? Look, the church may well be one giant entity that is not bounded by corporate law. We take no position on that. But we need a secular criterion for our exemptions. And our secular criteria is based on Wisconsin corporate law. And if you want to be one big corporation for purposes of Wisconsin corporate law, go for it. But if you don't, then we're going to follow Wisconsin corporate law.
Dan: I mean, that's certainly my intuition. I had some other questions about this. Does this mean that plaintiffs, let's say Catholic Charities commit some tort. Let's say somebody employed by Catholic Charities does something terrible and the Catholic Charities get sued by the plaintiff who was injured. Does that mean that the state courts can pierce the corporate veil? They can say, “Well, we have to disregard corporate structure. And yes, normally the diocese would be protected from liability by the corporate structure because we have very strong rules against corporate veil piercing, which is a very strong norm for a hard thing to do.”
But the church says, “It is the charity, so therefore the church can be sued too,” right?
Will: Well, maybe the rule only applies if it helps the organization and not otherwise.
Dan: Well, that seems dumb.
Will: Well, it doesn't violate-- [crosstalk]
Dan: It seems kind of just-- I mean, should the church get the benefit of separate incorporation and then not have to share any of the burdens of doing so, doesn't that seem problematic?
Will: I mean, it does, but one path is to say, “Look, you have an incorporation law, and the church is entitled to as applied First Amendment exceptions where it thinks the corporate law principles burden their religion.” I'm not saying you have to go that route. Justice Thomas seems to think there's something more special about this case. Like at page 10 of his concurrence the paraphrase that begins, “In short, the corporation is made for the church, not the church for the corporation.” He concludes “The government may not use such entities as a means of regulating the internal governance of religious institutions.” So, I take it, it's only a complaint about the use of Wisconsin corporate law when that's a means of regulating internal governance.
Dan: Yeah, but I'm not really sure if that's what it's doing here.
Will: I agree.
Dan: That it's regulating internal governance. I mean, it's just taking internal governance as it’s presented. It's presented as a separate corporation. I mean, it's not going in and saying you need to structure your church in a different way. It's just saying, “Look, it's separating corporations. We're going to look at it as if it's a separate thing.”
Will: Although what it is doing is taxing it for having a separate corporation.
Dan: Because otherwise if it was just run by the church, then there would be no problem.
Will: If it was just from the church, then they'd be entitled to tax exemption. I mean, other than the other prong. And so, by choosing to incorporate separately, we're now requiring you to pay a tax.
Dan: Yeah. Although you're also getting benefits from separate incorporation.
Will: Yeah.
Dan: It’sInteresting that he, in this opinion, he quotes Jesus famously saying, “Render unto Caesar the things which are Caesar's and unto God the things that are God's” which sort of thought the point of that is “Pay your taxes.” Right?
Will: Some of them are Caesar's.
Dan: Yes. I mean like Caesar's, the one who, Caesar's face is on the coin, right? And so, and yet the rest of this is to say, “Yeah, you don't actually have to render unto Caesar your dollars.”
Will: Right. So, I do know there is a long religion and scholarship, there is a whole literature on these, especially these 19th century church autonomy cases that Justice Thomas is relying on. And one position is, it's all just secular application of common law rules. But there are other positions like, “Secular application of common law rules doesn't work and that sometimes you have to apply those rules differently to give due deference to the religion's own views, how they work.” So, it may be that there's some upstream theoretical construct that makes better sense of this concurrence, that if we were as well read as Justice Thomas, we would understand it possible.
Dan: Possible. But, yeah, it does seem like it's potentially quite sweeping.
Will: Yeah.
Dan: Now I wonder if a church owns a for-profit corporation which would normally be taxed, and the church says, “Well, that's us.” Does that for-profit corporation suddenly become tax exempt?
Will: Yeah.
Dan: Under this theory?
Will: I don't know.
Dan: Okay, so there's that. And then we have another concurrence by Justice Jackson. I feel like, I say this too often, I was a little puzzled by this one. It took me a minute to figure out why she had written this. And I guess the point of it is she's trying to argue that even if this law is unconstitutional, there's a federal law, the Federal Unemployment Tax Act, which looks very similar textually, but she's got a theory as to why it's different and in her view, would not be unconstitutional. She's trying to save that law even though the constitutionality of that law is not actually presented by the case.
Will: Yes. So, I think this relates to where we started, is she's trying to provide this narrow reading of the Wisconsin Supreme Court/Wisconsin screwed up their exemptions by doing them in a particularly problematic way. But that shouldn't, in general, cast doubt on these limited exemptions for religious purpose organizations under unemployment tax laws.
Dan: Yeah. So, her narrower interpretation of the futah is, in her view, going to avoid that problem by interpreting the word purposes, the phrase religious purposes, a little differently. And so, she's got this passage on page five. She says, “Look, statute doesn't define the term religious purposes. The word ‘purposes’ admits of several possible meanings. Sometimes, it can mean intent. It can also mean an end or aim to be kept in view in any plan, measure, exertion, or operation, or the object which one has in view, or the object for which anything is done or made or for which it exists.” Okay, so I was a little confused by that because all of those sounded similar to me. Yeah. They all sounded like the thing you're trying to do, right? Am I missing something?
Will: Well, no, I take what she's trying to say--
Dan: Your inner aim to be kept in view. So, I'm keeping this inner aim in view. That's my intent. I'm trying to do that thing.
Will: Well, I think the idea is that some of them are purpose in the subjective sense, like the thing you're thinking about. And some of them are purpose and some are objective or stipulated sense.
Dan: Yeah, I guess that's a nice way to put the distinction. Okay, but so then she's going to interpret it not in a subjective sense, but in a functional sense. So, what does that look like? So, basically, it's going to make this much narrower. So, she seems to say this means that a charity is not operated primarily for religious purposes if it's a workforce program or a hospital or a soup kitchen or a homeless shelter, which are a lot of things that religious organizations do for religious reasons. And yet she thinks that shouldn't be covered.
Will: Right. So, it's mostly going to be a theological seminary or a house of study and training or things like that, right?
Dan: Okay. Does that create the same problem-
Will: Well.
Dan: -that's the law that you're choosing, you're privileging religions that have seminaries?
Will: I think, I guess you need a secular reason for privileging religions that have seminaries.
Dan: Well, I mean, would you need to pass strict scrutiny?
Will: No, but I think if it's a secular criterion, then it's not discrimination on the basis of religion.
Dan: Okay, but I mean, it's not a secular criterion by definition because definitionally what she's looking for is something that defines what counts as religious, right?
Will: Well, I think definitionally what she's looking for is nonprofits that have service to the church itself as their main objective. The church as the organization. That's what those exempt things have in common and what the orphanage, the home for the aged, etc., don't. And so, what she's trying to say is, “Look, if your religion wants you to help people outside of the church, that's great, but then you just should be treated like everybody else.” It's just that sort of church promotion activities are untaxed.
Dan: Yeah. So, what do you think? Do you think that holds up?
Will: I'm not confident it will. I think it should.
Dan: You think under the logic of the majority, it's okay?
Will: Well, the majority doesn't really resolve this. I think this is back to the fundamental incoherence of Larsen in the first place. But if we're going to try to have any sensible regime where we say, “Yes, you can have exemptions that don't cover everything, exemptions from drug laws and nut cheese laws and so on, then I would think saying we're not going to tax especially internal church activities can be okay. And that doesn't then open you to have to not tax all church activities.
Dan: Yeah. Or [laughs] any organization owned by a church.
Will: Yeah.
Dan: If you accept the Justice Thomas view.
Will: Well, owned by a church. Not even owned because owned is a secular concept.
Dan: Yeah. I mean, owned, controlled by the church under its own internal conceptions.
Will: Right.
Dan: So, I think under his view, if the state provides that churches are tax exempt and a church buys In-N-Out Burger and they say, “Well, yeah, it's a separate corporation, but the archbishop controls the burgers, then I think In-N-Out Burger becomes tax exempt.”
Will: Yeah. And maybe they also say, “Look, our religion believes in enterprise, as many religions do, and gainful activities and adding to commerce.” And that's a big part of our Calvinist or LDS or whatever principles. So, this enterprise is a core part of our religious activities, just like feeding the hungry is for the Catholics.
Dan: All right, so again, I feel like most of the cases we read, we end up with more questions than answers. So, I don't know if what we're doing here is particularly helpful to people, but hopefully the journey is entertaining, if nothing else.
Will: Do you think this reflects on us, Dan? [laughs]
Dan: [laughs] I mean, yes, [chuckles] I mean, clearly, but we are who we are. Not much we can do about that.
Will: Are we the Catholic Church?
Dan: As compared to what? [Will chuckles] Are we the Catholic Church of Catholic Church, of podcast?
Will: No, I just meant, what is the Catholic Church? I'm still baffled by that.
Dan: From this opinion.
Will: Yes.
Dan: Are you still hung up on proselytization and evangelization or just everything?
Will: Everything. All right, so let me take one more. Is it possible that part of the reason the court had to grant and reverse this case is just because when you ask, is the Catholic Charities Bureau of Wisconsin a religious organization, the answer is obviously yes. And it seems like if the Wisconsin Supreme Court concluded the answer to that question is no, they must have lost the plot. That's obviously a core thing we understand as religious. And as part of what the Catholic Church does, they have these services. And so, for instance, if it happened to a different organization that people had less strong intuitions about, it might not have come out the same way.
Dan: Yeah, that's quite possible.
Will: Which is itself, of course, if true, a form of nonracial discrimination.
Dan: Oh, that's interesting. Yeah. And obviously it gets said a lot, but there are six Catholics on the court, six and a half. Gorsuch is a little, apparently was Catholic and seems to be Protestant now.
Will: I never said that.
Dan: What do you mean?
Will: You said it gets said a lot. I'm just saying I don't take a view on the number of Catholics on the Supreme Court. I don't think it's relevant.
Dan: Well, I mean, lots of things aren't. I mean, it's a fact, right?
Will: They get really mad when you talk about that Dan.
Dan: Oh, they do?
Will: Yes.
Dan: Are you in particular?
Will: No.
Dan: Yeah, well, I'm not saying that-
Will: I don’t talk about it--
Dan: [crosstalk] -controls it. You can talk about the fact that other people talk about it, can't you? Or you're not even allowed to talk about that. [Will laughs] Don't you think people are going to talk about that in a case like this, I'm sure people are going to talk about that. We're allowed to acknowledge that, right? We're not endorsing that. We can't even mention it. [Will laughs] Do we need to delete this? Are you okay? [laughs] Will has completely lost it in the video.
Will: Okay.
Dan: [Will continues laughing] Is that staying in or not? [Will laughs] You got to decide. If it's up to me, it's staying in.
Will: Sure.
Dan: Okay. All right. Keep it in. All right. I thought I had one more thing to say about that one. Oh, I was going to say just generally it looked like maybe this was going to be a blockbuster religion term. This case first got granted. Maybe it could have been a bigger case. We had Oklahoma Statewide Charter School Board v. Drummond. I don't even know if we've mentioned what happened in that case. This is the case about religious charter schools. That case went away because it was affirmed by an equally divided court. Justice Barrett was recused and presumably she would have been needed to break the tie in the case. So, that went away. That issue presumably will recur at some point in the future in a case in which Justice Barrett is not recused.
So, two potentially bigger religion cases either dealt with narrowly or completely off the docket. We've still got Mahmoud coming, which is a question about basically parents’ rights vis-a-vis religious objections to particular kinds of material their children are being taught in public schools. That one I expect to be bigger. But to the extent that there's this perception that the court is really on the warpath for advancing religious liberty, there's maybe less of that this term than there might have been.
Will: I'm not expecting Mahmoud to be any bigger than Catholic Charities.
Dan: You think it'll be 9-0?
Will: I think there'll be some concurrences, but, yeah, I think everybody will be on the same place in the judgment line.
Dan: In saying what that the public schools do have to provide an opt out?
Will: Yes. Maybe not Justice Jackson, she might do her own thing, I guess.
Dan: You think it'll be 8-1?
Will: Yeah.
Dan: That's certainly possible.
Will: It's just from listening to the argument. The argument sounded like the water was flowing downhill.
Dan: Yeah, could be. It looks like it's going to be one of the final cases we really are down to just this week, I think. And so, the longer it goes, the more divided it looks. But in fairness, it was a case argued very late in the term in April, and so it's not particularly delayed at this point. So, yeah, that could be. We'll find out.
Will: This opinion also was one of the first ones with a correction. Did you see that?
Dan: No. What's the correction?
Will: On page six of Justice Jackson's concurrence, they changed this superfluidity problem to this superfluity problem.
Dan: [laughs]Yeah, superfluidity would be like being really fluid.
Will: Yeah. In other words, the “id” in superfluidity was superfluous.
Dan: [laughs] Nicely done.
Will: Thank you.
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