Amicus Curiae Brief — Catholic Charities Bureau, Inc., et al., Petitioners v. Wisconsin Labor & Industry Review Commission, et al.

No. 24-154

IN THE

Supreme Court of the Anited States

CATHOLIC CHARITIES BUREAU, INC., ET AL.,

Petitioners,

V.

WISCONSIN LABOR & INDUSTRY REVIEW COMMISSION,

ET AL.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF OF THE JEWISH COALITION FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS AND

REVERSAL

JOSH BLACKMAN YAAKOV M. ROTH

JOSH BLACKMAN LLC Counsel of Record

1303 San Jacinto St. ETHAN D. BECK

Houston, TX 77079 JONES DAY

(202) 294-9003 51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

yroth@jonesday.com

Counsel for Amicus Curiae

INTEREST OF THE AMICUS CURIAE!

The Jewish Coalition for Religious Liberty is a

nonprofit organization comprised of lawyers, rabbis,

and professionals who practice Judaism and defend

religious liberty. Representing members of the legal

profession and adherents of a minority religion, the

Coalition has an interest in ensuring the flourishing

of diverse religious viewpoints and _ practices.

Accordingly, the Coalition advocates for people of faith

who practice their faith in religious services, in

schools, and in the public square.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Under the First Amendment, “no official, high or

petty, can prescribe what shall be orthodox in...

religion.” W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943). Nor can those officials act to

“disfavor” some religions, including “because of [their]

religious ceremonies.” Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). The

Wisconsin Supreme Court’s ruling in this case violates

these cardinal prohibitions. It effectively installs

courts as the final authority over what activities are

“objective[ly]” “religious.” Pet.App.27a. And, in doing

so, the decision burdens religious minorities, such as

Jewish Americans, who engage in less recognizable or

well-known religious activities.

1 No party or counsel for a party authored this brief in whole

or in part, and no entity, aside from Amicus and its counsel, made

any monetary contribution toward the preparation or submission

of this brief.

Thetis,

Would the court style itself the arbiter of these

religious disputations? This is a task that courts are

neither permitted to undertake nor capable of

pursuing.

For all these reasons, the State’s religious litmus

test will harm Jews and other religious minorities,

both by violating their constitutional rights and by

gerrymandering religious minorities outside the scope

of its tax exemption for typical religious activities.

This Court should reverse.

ARGUMENT

I. THE STATE’S RELIGIOUS LITMUS TEST VIOLATES

THE FIRST AMENDMENT.

The First Amendment protects religion from

government control, interference, and discriminatory

preferences. Pet. 23-31; Pet. Br. 19-24. Of particular

relevance, the First Amendment bars governments

from answering theological questions, Burwell uv.

Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014)

(describing the reasonableness of religious belief as a

“question that the federal courts have no business

addressing’), and prevents States from treating some

religions more favorably than others, Carson v.

Makin, 596 U.S. 767, 787 (2022) (explaining that

“scrutinizing whether and how a religious [entity]

pursues its [particular] mission would raise serious

concerns about state entanglement with religion and

denominational favoritism”).

The Wisconsin Supreme Court’s decision defining

the tax exemption’s scope violates these principles. By

requiring courts to decide what conduct is sufficiently

“religious,” the State attempts to resolve core

questions of religious doctrine. See New York v.

Cathedral Acad., 434 U.S. 125, 138 (1977) (describing

question of “what does or does not have religious

meaning” as “the very core of the constitutional

guarantee against religious establishment”). And by

deeming certain practices “secular” and others

“religious,” the State disfavors religions with practices

it deems atypical. See Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 2038, 216-217 (19638) (explaining

that Establishment Clause bars “governmental

preference of one religion over another”). Such

judicial attempts to define “what is or is not a

‘religious activity” present “obvious” constitutional

errors. Kendall v. Dir. of Div. of Emp. Sec., 473 N.E.2d

196, 199 (Mass. 1985).

For the reasons further explained by Petitioners—

with which Amicus fully agrees—the Wisconsin

Supreme Court decision offends the First Amendment

and should be reversed.

II. THE STATE’S RELIGIOUS LITMUS TEST HARMS

RELIGIOUS MINORITIES.

Amicus submits this brief principally to expand on

how the Wisconsin Supreme Court’s test threatens

religious minorities. The decision gives courts the

final say on whether an activity is “religious in nature”

or “secular in nature.” See Pet.App.29a, 32a. But

courts are ill-suited to apply a _ religious-secular

distinction, particularly in light of the diversity of

religious views in America.

A. Courts Cannot Objectively Distinguish

Religious and Secular Acts, Especially

for Minority Faiths Like Judaism.

The Wisconsin Supreme Court asserted that

courts can objectively determine whether activities

are truly religious. Pet.App.32a. As that court saw it,

the inquiry is simple: Courts “need only” decide what

the “activities of the organization are” and whether

they are “secular in nature.” Pet.App.32a, 40a.

That approach is flawed from the _ outset.

Applying a “religious-secular distinction” is taxing

and prone to error because “the character of an

activity is not self-evident.” Corp. of Presiding Bishop

of Church of Jesus Christ of Latter-day Saints v. Amos,

483 U.S. 327, 3438 (1987) (Brennan, J., concurring in

the judgment); see id. at 336 (majority op.) (agreeing

“t]he line is hardly a bright one”). Recognizing that

courts cannot evaluate what constitutes religious

activity as an objective matter, federal courts instead

ask only whether the activity stems from a sincere

religious belief. E.g., United States v. Seeger, 380 U.S.

168, 185 (1965) (limiting inquiry to whether person’s

beliefs “are sincerely held and whether they are, 1n his

own scheme of things, religious”); Hobby Lobby, 573

U.S. at 718 (“Congress,” in enacting protections for

religion, “was confident of the ability of the federal

courts to weed out insincere claims.”). The Wisconsin

Supreme Court, by contrast, eschews “reliance on selfprofessed motivation” in favor of judicial adjudication

of what is religious and what is secular. Pet.App.28a.

That approach “understandably” provokes

“concern[s]” that a “secular court” will “not

understand [the] religious tenets” of a religious

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court’s test would be impermissibly attempting to

squeeze Judaism into the framework of other faiths

with which the court is more familiar.

To provide another example, Judaism contains a

commandment to comfort the sick, known as bikur

cholim. See Eliezer Wenger, Bikur Cholim,

Chabad.org, https://tinyurl.com/4r2cc86b. Visiting a

sick person to lead him in prayers is no more religious

than visiting to provide him solace or company. While

both fulfill the commandment of bikur cholim, the

State’s approach would have courts distinguish

between the two on the ground that solace “can be

provided by organizations of either religious or

secular motivations.” Pet.App.30a. Similarly, visiting

someone during the period of mourning for a deceased

family member “is a great mitzvah.” Menachem

Posner, Shiva 101, Chabad.org,

https://tinyurl.com/5jpsv672. Courts cannot tell a

Jewish person leaving a house of mourning that,

contrary to his sincere beliefs, he was just engaged in

a secular activity.

The decision below contains yet another example.

The Wisconsin Supreme Court declared that training

for individuals with developmental disabilities is “a

wholly secular endeavor.” Pet.App.30a. That would

surprise Jewish organizations like Yachad, which

provides vocational training for individuals with

developmental disabilities. See Clinical Services,

Yachad, https://tinyurl.com/y8utf9j7. Yachad engages

in these activities because it is “guided by Torah

values” and recognizes “that every person is made

B’Tzelem Elokim—in G-d’s Image.” About Yachad,

Yachad, https://tinyurl.com/yvcuzdbf; see Genesis

1:26. When Yachad offers services like these, it

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engages in religious activity. Aside from its ipse dixit

and conception of what is typical, the court offered no

reason to conclude that such charitable work is any

less religious than teaching religious doctrine.

There is no shortage of other divinely ordained acts

in Judaism that a court might mistakenly view as

secular. From ensuring that clothing does not contain

a prohibited mixture of wool and linen, see Tzvi Rosen,

Getting into the Fabric of Shatnez, StarK.org,

https://tinyurl.com/3298jn6p, to cleaning a pantry to

remove leaven, see Yitzchak Berkovitz, Passover

Cleaning, Aish.com, https://tinyurl.com/bdh4f97j, to

putting a fence around a flat roof, see Deuteronomy

22:8—the religious requirements of mitzvot pervade

Jewish life in a way courts are not equipped to

comprehend.

In sum, G-d’s commandments—not outward

appearances—determine what actions hold religious

value in Judaism. Allowing courts to gauge religious

acts by their own lights will arbitrarily exclude Jewish

organizations that act to fulfill mitzvot apart from

typical or judicially recognized religious rituals.

B. Allowing Courts to Decide What

Constitutes Religious Acts Will Harm

Jewish Americans.

Courts are neither empowered nor qualified to

decide religious questions. H.g., Watson v. Jones, 80

U.S. 679, 733 (1871) (recognizing that courts have “no

jurisdiction” over theological issues). They regularly

err while engaging in these inquiries. And such errors

often redound to the detriment of religious minorities

such as Jews. The Wisconsin Supreme Court’s

misadventure will prove no different.

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obligation, would not. See Interest-Free Loans,

Chabad.org, https://tinyurl.com/3yr2pmbn.

Further reflecting a Christian perspective, the list

elevates “corporate worship services” or “church

ceremonies’ to the pinnacle of religious observance.

Pet.App.26a—27a. For some religions, the site where

worship occurs may occupy the highest rung of

sanctity, yet it is not so in Judaism. Although the

Jewish place of worship—a synagogue—is a very

sacred location, the consensus of traditional Judaism

is that its sanctity 1s either equaled or exceeded by a

location hosting communal Torah study—a yeshiva.

See Maimonides, Mishneh Torah, Hilchot Tefilah

(Moznaim Publishing Corp. 1989); 3 Encyclopedia

Talmudit 210 (Talmudic Encyclopedia Publ. Ltd.

1963). Accordingly, and contrary to the Wisconsin

appellate court’s suggestion below, an organization

that teaches Torah—such as a bet medrash—cannot

become more sacred or more religious through

connection with a_ synagogue. See App.166a

(acknowledging that “the result in this case would be

different if [the Catholic Charities] were actually run

by the church”).?

2 Wisconsin is not alone in this misunderstanding that comes

so easily when secular governments attempt to decide which

institution has greatest importance to a religious community. In

implementing the Affordable Care Act, for example, federal

agencies exempted houses of worship from the contraceptive

mandate while other religious entities had to apply for less

favorable accommodations. See 78 Fed. Reg. 39,870, 39,873—-75

(July 2, 2013). That bifurcated system rested on a generalization

that churches were “more likely” to be wholly religious than

other entities. Id. at 39,874; see Josh Blackman, Gridlock, 130

Harv. L. Rev. 241, 251 (2016). But, as just explained, Judaism

falls outside that supposed bell curve.