The Supreme Court’s blessedly narrow decision about religion in the workplace, explained

In 2018, shortly before Justice Brett Kavanaugh’s confirmation shifted the Supreme Court drastically to the right, Democratic Justice Elena Kagan laid out her strategy to keep her Court from becoming too ideological or too partisan. The secret, she said, is to take “big questions and make them small.” Since then, Kagan and her Democratic colleagues have had mixed success persuading their colleagues to decide cases narrowly when they could hand right-wing litigants a sweeping victory. The Court has largely transformed its approach to religion, for example, though it does occasionally hand down religion cases that end less with a bang than with a whimper. Catholic Charities v. Wisconsin Labor and Industry Review Commission will likely be remembered as such a whimper. The opinion is unanimous, and it is authored by Justice Sonia Sotomayor, one of Kagan’s few fellow Democratic justices. The case could have ended in a sweeping decision that severely undermined the rights of many workers. Instead, Sotomayor’s opinion focuses on a very narrow distinction between how Wisconsin law treats some religious groups as compared to others. Catholic Charities involved a Wisconsin law that exempts some nonprofits from paying unemployment taxes. This exemption applies only to employers that operate “primarily for religious purposes.” Wisconsin’s state supreme court determined that a “religious purpose” includes activities like holding worship services or providing religious education, but it does not include secular services like feeding the poor, even if those secular activities are motivated by religion. The upshot is that Catholic Charities — an organization that is run by the Catholic Church but focuses primarily on secular charitable work — was not exempt from paying unemployment taxes. Sotomayor’s decision reverses the state supreme court, so Catholic Charities will now receive an exemption. The Court largely avoids a fight over when businesses with a religious identity can ignore the law In a previous era, the Court was very cautious about permitting religious organizations to claim exemptions, in part because doing so would give some businesses “an advantage over their competitors.” Such exemptions could also potentially permit employers with a religious identity to exploit their workers. In Tony and Susan Alamo Foundation v. Secretary of Labor (1985), for example, the Court considered a religious cult that operated a wide range of commercial businesses. These businesses paid no cash salaries or wages, although they did claim to give workers food, clothing, and shelter. The cult sought an exemption from minimum wage laws and similar workplace protections, but the Court disagreed. A too-broad decision in Catholic Charities could have potentially undermined decisions like Alamo Foundation, by giving some employers a broad right to ignore laws protecting their workers. But Sotomayor’s opinion reads like it was crafted to hand Catholic Charities the narrowest possible victory. Under the state supreme court’s decision in Catholic Charities, Sotomayor writes, a church-run nonprofit that does entirely secular charity work may not receive an exemption from paying unemployment taxes. But a virtually identical nonprofit that does the exact same work but also engages in “proselytization” or limits its services to members of the same faith would receive an exemption. This distinction, Sotomayor says, violates the Supreme Court’s long-standing rule that the government “may not ‘officially prefe[r]’ one religious denomination over another.” The state may potentially require all charities to pay unemployment taxes. But it cannot treat religious charities that seek to convert people, or that limit their services to members of one faith, differently from religious charities that do not do this. In Sotomayor’s words, an organization’s “eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists).” The crux of Sotomayor’s opinion is that the decision whether to try to convert people, or whether to serve non-Catholics, is an inherently “theological” choice. And states cannot treat different religious organizations differently because of their theological choices. Unfortunately, Sotomayor’s opinion, which is a brief 15 pages, does not really define the term “theological.” So it is likely that future courts will have to wrestle with whether other laws that treat some organizations differently do so because of theological differences or for some other reason. It’s not hard to imagine a cult like the one in Alamo Foundation claiming that it has a theological objection to paying the minimum wage. But the Catholic Charities opinion also does not explicitly undermine decisions like Alamo Foundation. Nor does it embrace a more sweeping approach proposed by dissenting justices in the Wisconsin Supreme Court, who argued that nonprofits whose “motivations are religious” may claim an exemption — regardless of what that nonprofit actually does. So the upshot is that Catholic Charities will undoubtedly spawn more litigation over what sort of choices by religious organizations are “theological” and what choices are just ordinary business decisions. But the case also leaves these questions to another day.

This moment demands more than headlines

The Supreme Court’s blessedly narrow decision about religion in the workplace, explained