The Supreme Court on Monday debated how to define religion as it considered a case on a faith-based tax break.
The justices generally seemed to think the government officials involved had adopted the wrong approach, but they struggled to identify how best to ensure that only sincere religious actors and organizations can access exemptions.
The Supreme Court’s eventual ruling in the case, which is expected by early July, could reshape religious exemptions nationwide by disrupting how government leaders assess the groups seeking to be treated like a religion in the eyes of the law.
The attorney fighting for narrow exemptions during arguments on Monday warned against “radical” expansion of faith-based tax breaks, while the attorneys on the other side of the case said our religiously pluralistic society is best served by broad, “generous” exemptions.
Here are three key takeaways from the debate.
The Supreme Court is skeptical of Wisconsin’s approach to religious exemptions
The case on religious exemptions came to the Supreme Court from Wisconsin, where the state Supreme Court ruled that a nonprofit called Catholic Charities Bureau and a few of its subentities are ineligible for a religious exemption to Wisconsin’s unemployment tax system.
To receive the faith-based tax break, groups must show they operate “primarily for religious purposes.” Wisconsin officials and the Wisconsin Supreme Court said the Catholic organizations fail that test, in large part because they don’t attempt to convert people to Catholicism as they feed the hungry, house homeless people and serve people with disabilities, as the Deseret News previously reported.
Colin Roth, an assistant attorney general for Wisconsin, said the ruling reflected that the state’s religious exemption is meant to be narrow and available to only those groups that the government would struggle to oversee without getting entangled with religion.
“The exemption is limited to employers that are the most likely to draw the state into doctrinal disputes,” he argued.
Several justices challenged that claim on Monday, arguing that hinging the exemption on proselytization is just as problematic as getting involved in doctrinal disputes.
“Isn’t it a fundamental premise of our First Amendment that the state shouldn’t be picking and choosing between religions? Doesn’t it entangle the state tremendously to go into a soup kitchen, to send an inspector in to see how much prayer is going on?” Justice Neil Gorsuch asked.
The justices seem interested in crafting a simple, straightforward ruling
Compared to Roth, attorneys for Catholic Charities Bureau and the Trump administration, which supports the Catholic groups’ case, faced much less pushback.
The justices asked them about which religious freedom issues the court’s ruling should focus on and spent little time trying to challenge their claims.
Eric Rassbach, vice president and senior counsel for Becket, which represents the Catholic groups, said the justices need to make it clear that government officials can’t discriminate between religious groups by basing exemptions on certain types of religious practices.
He said a ruling in favor of the Catholic groups could focus on the discrimination present in Wisconsin’s current approach to the tax break or on church autonomy principles, which say government officials can’t pressure religious organizations into changing their structure or programs.
Curtis Gannon, U.S. deputy solicitor general, did not challenge Rassbach’s characterization of the case, but he urged the court to keep the ruling focused on Wisconsin’s interpretation of its statute rather than only the phrasing of the statute, which is drawn from federal policy.
A ruling that challenges the phrase “primarily for religious purposes” could create confusion nationwide, Gannon said.
The Supreme Court is wrestling with big religion questions
The Supreme Court is unlikely to settle the question “What counts as religion?” once and for all with its ruling in this case.
But that didn’t stop several justices from reflecting on the challenge of defining religion during Monday’s oral arguments and asking attorneys to weigh in.
Justice Amy Coney Barrett asked whether government officials should simply try to evaluate a group’s sincerity or if deeper questions need to be asked.
“What should the opinion say if we try to articulate a test to separate religion from non-religion?” she asked.
Rassbach said the test should involve looking for whether an individual or group feels a sense of duty to some kind of God or gods.
“There are nontheistic religions. ... But overall, there’s typically something transcendent or supernatural that you are feeling obligated by,” he said.
When it was his turn to answer a similar question, Gannon said the question of what counts as a religion should focus on sincerity and whether religion is the principle or fundamental reason that the work is being done.
“The court has repeatedly said that it’s OK to decide if (beliefs) are sincerely held,” Gannon said.