The infinite value of Christian charity took center stage at the Supreme Court Monday morning as the justices heard oral argument in Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission. 

As I explained in a commentary for the Register, the court is considering whether Wisconsin’s refusal to grant Catholic Charities Bureau, an independently incorporated nonprofit organization wholly controlled by the bishop of the Diocese of Superior, an exemption as an organization operated primarily for a religious purpose from the state’s unemployment-compensation program violates the First Amendment. 

Wisconsin’s Supreme Court ruled that Catholic Charities could be denied an exemption because it hires and serves people who are not Catholic and does not proselytize recipients of its services. 

Oral argument Monday morning included contributions not just from the parties but also the Trump administration’s Solicitor General’s Office. While I hate to make predictions on how the Court may rule in any given case, a majority of the justices appear to be inclined to rule in Catholic Charities’ favor. 

Let’s take a quick look at what the different advocates said as well as the justices’ reactions: 

Eric Rassbach, vice president and senior counsel at Becket, argued before the high court Monday morning on behalf of Catholic Charities Bureau. 

“This case is not complicated,” he announced in his opening remarks. Rassbach then deftly answered a number of questions from each of the nine justices. 

When Justice Clarence Thomas asked whether Wisconsin could “impose any limits on the exemptions,” Rassbach answered plainly, “Absolutely,” adding that they are only asking that it “not discriminate along theological lines” and that there are “constitutional guardrails” that demand that exemptions be “applied evenhandedly.” 

Justice Elena Kagan followed up, asking whether that means that “any group that comes in and says, ‘We are a religious group doing religious activities for religious purposes’ qualifies, sort of no matter what, that there’s no looking behind that at all?” 

Rassbach reasonably responded that he was not advocating “limitless exceptions,” but instead that the state already relies on other conditions, such as whether an organization is controlled by a church and whether the activity is undertaken for a sincere religious purpose. 

Chief Justice John Roberts presented an interesting hypothetical involving a religious group that considered it a “sin” to eat meat and opened up a vegan restaurant to promote meatless dining. Denying an exemption based on the commercial nature of such an enterprise, explained Rassbach, would not be “discrimination along theological lines.” 

When Justice Amy Coney Barrett asked whether the church-autonomy doctrine recognizes a difference between “telling a church what to do or interfering in its internal affairs and incentivizing the church to do certain things,” Rassbach quoted Chief Justice John Marshall, who in the 1819 decision of McCulloch v. Maryland observed that “the power to tax involves the power to destroy.” 

Rassbach added that the fact that different parts of the same church body find different treatment — some are exempt, while others are not — impacts the long-term governance of the church. 

An interesting back-and-forth ensued between Rassbach and Justice Samuel Alito regarding the difference between evangelizing and proselytizing. While the former for Catholics, Rassbach aptly observed, involves “sharing the Catholic faith with someone else … to help them understand what someone believes,” the latter has a more “coercive effect.” 

Justice Neil Gorsuch shared his opinion that the “simplest” argument for Catholic Charities is based on discrimination. Treating those religious entities that proselytize more favorably than those like Catholic Charities that do not is a form of discrimination. He added that a ruling on that basis would “break no new ground in our case law.” 

When Barrett circled back with Rassbach on the factors that Wisconsin can legitimately look at when evaluating a request for an exemption, namely where there is a sincerely held religious, as opposed to a philosophical, purpose, Rassbach noted that it involves thinking about “what is religion.” Barrett’s response was classic: “It’s kind of a big question, right?” While the Supreme Court doesn’t need to answer the question to resolve this case, Rassbach pointed to the belief in a transcendent, supernatural authority that offers binding truth to govern one’s behavior and noted the scholarship of Stanford Law professor Michael McConnell. Shortly after argument ended, Georgetown Law professor Stephanie Barclay followed up on X with additional suggestions from case law and colleagues in the legal academy. 

Deputy Solicitor General Curtis Gannon contributed to Monday’s argument on behalf of the federal government. His presence was helpful, as the Wisconsin religious exemption is phrased identically to the exemption allowed under the Federal Unemployment Tax Act. 

Gannon offered a “saving” interpretation of the federal law, but recognized that sending the case back to the Wisconsin Supreme Court with such a correction would likely mean the constitutional issues would be before the Court again. 

Barrett asked, “Couldn’t we just say Wisconsin has interpreted its statute this way, drop a footnote, you know, the solicitor general of the United States has represented that the federal government statute is interpreted differently?” Gannon, mindful to guard against a decision that the federal law is unconstitutional, agreed to Barrett’s suggestion.  

When Justice Ketanji Brown Jackson asked Gannon whether motivation is different from purpose, Gannon answered that the purpose of something can be the “ends” to which a particular activity is directed, adding that the purpose of Catholic Charities’ work is “to be an effective sign of the charity of Christ.” 

Colin Roth, assistant attorney general for the state of Wisconsin, struggled to persuade any of the justices with the reasons why it should affirm the decision of the Wisconsin Supreme Court. 

Roth’s assertion that an organization’s religious motivation is insufficient left the state to rely on issues like whether the entity engages in worship or proselytization as indicators of religious purpose. Kagan had the perfect response: “I thought it was pretty fundamental that we don’t treat some religions different than others.” 

Gorsuch added the rhetorical question: “Isn’t it a fundamental premise of our First Amendment that the state shouldn’t be picking and choosing between religions, between evangelical sects, and Judaism and Catholicism on the other, for example? And doesn’t it entangle the state tremendously when it has to go into a soup kitchen, send an inspector in, to see how much prayer is going on?” 

Roth’s attempt to rehabilitate the state’s position by claiming that using these factors to determine what groups get exemptions furthers an “anti-entanglement” interest simply fell flat when he acknowledged that all Catholic Charities would have to do to get an exemption would be to come directly under the Catholic Church itself. 

Toward the end of Roth’s time at the podium, Gorsuch pushed back, saying, “You gave that away” by saying Catholic Charities would be eligible for an exemption if it were part of “Catholic Church, Inc.”

Despite almost an hour-and-a-half oral argument, I have to agree with Becket’s Rassbach: “This case is not complicated.” Denying Catholic Charities Bureau an exemption because the ministry, which is wholly controlled by the bishop of Superior, reaches non-Catholics and does not condition outreach on a recipient’s conversion or participation in worship or prayer interferes both with the autonomy of the Church and discriminates among religions. 

It was refreshing to hear that most of the Court seems to agree. A decision is expected by the end of June.