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 United States

___________

CATHOLIC CHARITIES BUREAU, INC., ET AL.,

Petitioners,

v.

WISCONSIN LABOR & INDUSTRY REVIEW

COMMISSION, ET AL.,

Respondents.

_________________________________

On A Writ of Certiorari to

the Supreme Court of Wisconsin

_________________________________

BRIEF OF AMICUS CURIAE

CITY ON A HILL LEGAL MINISTRY

SUPPORTING PETITIONERS

_________________________________

DINO L. LAVERGHETTA *

BRIAN M. TRUJILLO

MACKENZI J.S. EHRETT

ALEC J. SILVESTER

SIDLEY AUSTIN LLP

JORGE R. PEREIRA

1501 K Street, N.W.

SIDLEY AUSTIN LLP

Washington, D.C. 20005

1001 BRICKELL BAY DRIVE

(202) 736-8000

MIAMI, FL 33131

dlaverghetta@sidley.com

MIKAYLA CULBERTSON

SIDLEY AUSTIN LLP

2021 MCKINNEY AVE

DALLAS, TX 75201

Attorneys for Amicus Curiae

February 3, 2025

* Counsel of Record

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ..................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT

...................................................................................... 2

ARGUMENT ................................................................ 4

I. AN ACT IS RELIGIOUS IF IT IS MOTIVATED BY

RELIGIOUS PURPOSES ............................................... 4

A.

RELIGIOUS GROUPS ENJOY WIDE DEFERENCE AND

AUTONOMY TO PRACTICE THEIR BELIEFS FREE

FROM GOVERNMENTAL INTRUSION ..................... 4

B.

RELIGIOUSLY MOTIVATED CHARITABLE

ACTIVITIES ARE ENTITLED TO FIRST AMENDMENT

PROTECTION ....................................................... 9

II. THE ERROR OF THE WISCONSIN SUPREME COURT IS

NOT UNIQUE AND HAS BURDENED RELIGIOUS

LIBERTIES IN OTHER STATES AND OTHER CONTEXTS 13

A.

COURTS IN STATES WITH SIMILAR EMPLOYMENT

STATUTES ARE QUICK TO DISREGARD THE

RELIGIOUS PURPOSE BEHIND A RELIGIOUS

ORGANIZATION’S ACTIVITIES ............................. 13

B.

COURTS HAVE ALSO IMPROPERLY APPLIED

“RELIGIOUS PURPOSE” PROVISIONS IN OTHER

CONTEXTS ........................................................ 17

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

CASES

Page

Bishop of Protestant Episcopal Diocese

in N.H. v. Town of Durham,

151 A.3d 945 (N.H. 2016) ..................................... 20

Cathedral Arts Project, Inc. v. Dep’t of

Economic Opportunity,

95 So. 3d 970 (Fla. Dist. Ct. App.

2012).......................................................... 15, 16, 17

Catholic Charities Bureau, Inc. v. Wis.

Lab. & Indus. Rev.,

3 N.W.3d 666 (Wis. 2024) ............................... 11, 14

Christ Church Pentecostal v. Tenn. State

Bd. of Equalization,

428 S.W.3d 800 (Tenn. Ct. App. 2013)................. 20

Christian Sch. Ass’n of Greater

Harrisburg v. Commonwealth Dep’t

of Lab. & Indus.,

423 A.2d 1340 (Pa. Cmmw. Ct. 1980) .................. 12

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) .............................. 9, 11, 13, 21

Cmty. Lutheran Sch. v. Iowa Dep’t of Job

Serv.,

326 N.W.2d 286 (Iowa 1982) ................................ 12

Concordia Ass’n v. Ward,

532 N.E.2d 411 (1988) .......................................... 17

iii

Corp. of Presiding Bishop of Church of

Jesus Christ of Latter-Day Saints v.

Amos,

483 U.S. 327 (1987) .......................................... 9, 13

Dep’t of Emp. v. Champion Bake-NServe, Inc.,

592 P.2d 1370 (Idaho 1979).................................. 14

Du Page Cnty. Bd. of Rev. v. Dep’t of

Revenue of Ill.,

790 N.E.2d 918 (Ill. Ct. App. 2003) ...................... 21

Hernandez v. Comm’r of Internal

Revenue,

490 U.S. 680 (1989) ................................................ 9

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C.,

565 U.S. 171 (2012) ......................................... 8, 23

In re Appeal of Church of Yahshua,

584 S.E.2d 827 (N.C. Ct. App. 2003) ................... 21

Jesus Ctr. v. Farmington Hills Zoning

Bd. of Appeals,

544 N.W.2d 698 (Mich. Ct. App.

1996)...................................................................... 12

Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in N. Am.,

344 U.S. 94 (1952) .............................................. 5, 6

Kendall v. Dir. of Div. of Emp. Sec.,

473 N.E.2d 196 (Mass. 1985) ............................... 13

iv

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................................ 5

Kreshrik v. Saint Nicholas Cathedral,

363 U.S. 190 (1960) ................................................ 5

LeBoon v. Lancaster Jewish Cmty. Ctr.

Ass’n,

503 F.3d 217 (3rd Cir. 2007) ................................ 21

Masterpiece Cakeshop v. Colo. Civ.

Rights Comm’n,

584 U.S. 617 (2018) ................................................ 9

Our Lady of Guadalupe School v.

Morrissey-Berru,

591 U.S. 732 (2020) ................................................ 8

Samaritan Inst. v. Prince-Walker,

883 P.2d 3 (Colo. 1994) ......................................... 18

Schwartz v. Unemployment Ins.

Comm’n,

895 A.2d 965 (Me. 2006) ....................................... 14

Seattle’s Union Gospel Mission v. Woods,

142 S. Ct. 1094 (2022) ............................................ 8

Serbian E. Orthodox Diocese for the U.S.

& Can. v. Milivojevich,

426 U.S. 696 (1976) .......................................... 6, 10

Simon v. Bd. of Rev., Dep’t of Lab. &

Workforce Dev.,

No. A-1972-15T4, 2017 WL 6398900

(N.J. Super. Ct. App. Div. Dec. 14,

2017)...................................................................... 18

v

Terwilliger v. St. Vincent Infirmary Med.

Ctr.,

804 S.W.2d 696 (Ark. 1991) ........................... 17, 18

Thomas v. Rev. Bd. of Ind. Emp. Sec.

Div.,

450 U.S. 707 (1981) .......................................... 9, 13

Trs. of New Life in Christ Church v. City

of Fredericksburg, Va.,

142 S. Ct. 678 (2022) ............................................ 10

United States v. Ballard,

322 U.S. 78 (1944) ................................................ 10

Unity Christian Sch. Of Fulton, Ill. v.

Rowell,

6 N.E.3d 845 (Ill. App. Ct. 2014).......................... 18

Watson v. Jones,

80 U.S. 679 (1871) .................................................. 6

OTHER AUTHORITIES

Wis. Stat. § 108.02 (2024) ............................................ 7

1

INTEREST OF THE AMICUS CURIAE 1

City on a Hill Legal Ministry, Inc., (“City on a Hill”)

is a religious, non-profit organization that has been

serving South Florida since 2022. Its mission is deeply

rooted in the teachings of Jesus Christ, emphasizing

compassion, generosity, and commitment to the

foreigner.

City on a Hill offers free legal services and assistance

to immigrants in the Miami metropolitan area as an

expression of its religious commitment to aid the weak,

the poor, and the vulnerable. This ministry is a direct

manifestation of its interpretation of Biblical

scripture, including passages such as: Ephesians 2:19–

20; Matthew 25:35; Deuteronomy 10:19; Exodus 23:9;

and Leviticus 19:33–34, which call for the caring of

immigrants as central tenets of the Christian faith.

See, e.g., Leviticus 19:33–34 (NIV) (“When a foreigner

resides among you in your land, do not mistreat them.

The foreigner residing among you must be treated as

native-born. Love them as yourself, for you were

foreigners in Egypt. I am the Lord your God.”).

City on a Hill’s efforts to assist low-income

immigrants are an expression and exercise of its

commitment to glorify God and show the love of Jesus

Christ. It sincerely believes it has a religious

obligation to address the legal and spiritual needs of

the poor and needy in its community, especially

immigrants, through practical and legal wisdom, the

power of God’s Word, and the transforming grace of the

Gospel. By providing free legal, educational and

community support services to immigrants, City on a

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

part, and no entity or person, aside from amici and their counsel,

made any monetary contribution toward the preparation or

submission of this brief.

2

Hill actively adheres to and demonstrates Christian

values of compassion, generosity, and service.

City on a Hill’s interest in this case arises from its

mission to practice and express its religious beliefs

through acts of charity and service. The outcome of

this case will have significant implications as to

whether governments can deem its religious

expression in caring for the needy as possessing an

insufficiently “religious purpose” to secure First

Amendment protections. By participating as amicus

curiae, City on a Hill aims to provide the Court with a

perspective that underscores the essential nature of

safeguarding charitable acts’ status as a form of

religious expression.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has long recognized that the First

Amendment affords religious groups wide deference in

matters of belief, theology, and doctrine. Religious

adherents—free from government interference—have

the right to decide for themselves what their God

requires. Determinations of faith belong solely to the

faithful.

The Wisconsin Supreme Court’s decision below

ignores this fundamental principle, improperly

entangles the courts in matters of faith, and burdens

Petitioner’s free exercise of religion. The court held

that whether an organization can be properly said to

be organized for a “primarily religious purpose”—

relevant for the purposes of a tax-exemption benefit—

turns not on whether that charitable work was

religiously motivated but instead on whether that

activity itself is “primarily religious in nature.”

Relevant to that analysis, the court reasoned, is

whether that activity is also done by secular groups

3

and whether that activity attempts to “imbue program

participants” with matters of faith or “supply any

religious materials to program participants or

employees.” In other words, if it doesn’t look religious,

it can’t be religious. But that is not how religion works

in America. The First Amendment does not permit

courts to second-guess what constitutes an act of faith.

This Court has long recognized that religious

organizations have the autonomy to decide for

themselves what their religion commands and how to

exercise their faith. The government is not competent

to make such determinations and the Court has

warned of the consequences of doing so. To that end,

the Court has consistently refused to insert itself in

determining what is or is not sufficiently ‘religious’ to

deserve First Amendment protections.

Contrary to the decision below, it is the faith

motivating the believer’s action that that makes the

act religious. Secular overlap does not dissolve

religious purpose; rather, religious motivation

transforms that which is secular into something

sacred. Accordingly, this Court and others have

repeatedly recognized that religiously-motivated acts

fall within the protections of the Free Exercise clause,

even though those same types of activities are

routinely done in secular contexts. Serving bread and

wine is a common secular activity, but it becomes a

holy sacrament when done to fulfill the

commandments of God. Animals are slaughtered every

day for food and clothing, but the activity becomes a

sacred sacrifice when done to fulfill religious beliefs.

Religious purpose springs from the religious

motivation underlying the act, not the act itself.

This Court should reverse the Wisconsin Supreme

Court’s decision and hold that, in analyzing “religious

purpose” provisions, the determinative question must

4

be whether the activity is motivated by a sincerely held

religious belief. To hold otherwise would improperly

entangle the government in matters of faith and

threaten to undermine the free exercise of religion.

The Court’s decision in this case will not only have farreaching impact on how the government applies

similar employment tax statutes, but also on how

courts apply “religious purpose” provisions in

numerous other statutory frameworks throughout the

country.

ARGUMENT

I. AN ACT IS RELIGIOUS IF IT IS

MOTIVATED BY RELIGIOUS PURPOSES

A. Religious groups enjoy wide deference

and autonomy to practice their beliefs

free from governmental intrusion.

Determinations of faith belong to the faithful, not

the state. Accordingly, the Court’s precedent makes

clear that the government should not—as the lower

court did below—entangle itself in ecclesiastical

affairs.

The “most important work” of the Free Exercise

Clause is “protecting the ability of those who hold

religious beliefs of all kinds to live out their faiths in

daily life[.]” Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 524 (2022). In cases stretching back to the 1800s,

this Court has repeatedly recognized that the First

Amendment “radiates . . . a spirit of freedom for

religious organizations” and grants them the “power to

5

decide for themselves, free from state interference,

matters of . . . faith and doctrine.” Kedroff v. St.

Nicholas Cathedral of Russian Orthodox Church in N.

Am., 344 U.S. 94, 116 (1952). This means that, to

safeguard religious autonomy, no branch of

government—legislative, executive, or judicial—may

dictate how religious organizations choose to exercise

their beliefs or carry out their religious mission. See

id.; see also Kreshrik v. Saint Nicholas Cathedral, 363

U.S. 190, 191 (1960) (per curiam).

The anchoring principle in the Court’s Free Exercise

jurisprudence is religious autonomy: “[T]he full and

free right to entertain any religious belief, to practice

any religious principle, and to teach any religious

doctrine which does not violate the laws of morality

and property, and which does not infringe personal

rights[.]” Watson v. Jones, 80 U.S. 679, 728 (1871). The

Court has time and again underscored the importance

of allowing religious organizations the autonomy to

carry out their religious principles without state

interference. See Kedroff, 344 U.S. at 116; Serbian E.

Orthodox Diocese for the U.S. & Can. v. Milivojevich,

426 U.S. 696, 713 (1976).

In Kedroff, for example, the Court was asked to

adjudicate a property dispute between two branches of

the Russian Orthodox Church, one of which was based

in the United States, the other based in Russia. 344

U.S. at 95–97. The dispute concerned which branch of

the Church was permitted to use the St. Nicholas

Cathedral in New York City as their primary place of

worship and as a residence for its archbishop. Id. at

96. The New York legislature enacted a statute which

purported to transfer the St. Nicholas Cathedral from

the Russian Orthodox Church to the Russian Church

In America. Id. at 107. This, the Court held, violated

the First Amendment because it constituted improper

6

governmental “control over churches.” Id. at 110. To

uphold the statute, the Court held, would allow the

legislature to improperly inject itself into a “decision[]

of the church custom or law,” id. at 120, circumventing

the First Amendment’s “spirit of freedom for religious

organizations,” id. at 116.

The Court reaffirmed this core principle in Serbian

Eastern Orthodox. There, a state court waded into a

dispute between the Serbian Orthodox Church in

North America and a former bishop, whom the Church

had defrocked. Id. at 698, 702–08. The state court

questioned and attempted to invalidate the Church’s

internal regulations. Id. at 698. This Court promptly

reversed the state court’s clear legal error, chastising

the state court for undertaking a judicial inquiry “into

the procedures that canon or ecclesiastical law

supposedly requires [a] church judicatory to follow” as

“exactly the inquiry that the First Amendment

prohibits.” Id. at 713. By purporting to resolve the

dispute between the Church and the bishop on civil

law grounds, the state court had “unconstitutionally

undertaken the resolution of quintessentially religious

controversies” trampling the Church’s religious

autonomy in the process. Id. at 720.

Earlier in the history of this case, the Wisconsin

Court of Appeals explicitly noted that “the result in

this case would likely be different if CCB and its subentities were actually run by the church, such that the

organizations’ employees were employees of the

church.” Catholic Charities Bureau, Inc. v. Wis. Lab. &

Indus. Rev. Comm’n, 987 N.W.2d 778, 780 (Wis. Ct.

App. 2023) (citing Wis. Stat. § 108.02(15)(h)1 (2024)).

That distinction may be embedded within the

Wisconsin statute, but it finds no support in the First

Amendment. The First Amendment’s guarantee of

religious autonomy is not limited to churches. As this

7

Court’s opinions make clear, the First Amendment

guarantees “religious groups”—not only houses of

worship—the autonomy to “shape [their] own faith

and mission.” Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C., 565 U.S. 171, 188 (2012).

Secular authorities have no role to play in shaping the

group’s faith or mission, or how they may go about that

work. In reaching its holding in Hosanna-Tabor, the

Court looked to the First Amendment’s “special

solicitude to the rights of religious organizations.”

Hosanna-Tabor, 565 U.S. at 189. The decision is

framed around “religious groups” writ large, and

rejects out of hand the “remarkable view that the

Religion Clauses have nothing to say about a religious

organization’s freedom.” Id. Most recently, the Court

adopted similar reasoning in Our Lady of Guadalupe

Sch. v. Morrissey-Berru, affirming “[t]he independence

of religious institutions” including “their autonomy

with respect to internal management decisions that

are essential to the institution’s central mission.” 591

U.S. 732, 746 (2020).

The Court’s holdings lead the an inescapable

conclusion: the guarantees of the Free Exercise clause

extend not only to Churches, but also to “religious

schools, and religious organizations engaged in

charitable practices” such as “homeless shelters,

hospitals, soup kitchens, and religious legal-aid clinics

. . . among many others.” Seattle’s Union Gospel

Mission v. Woods, 142 S. Ct. 1094, 1096 (2022)

(statement of Alito, J., respecting denial of certiorari).

To allow the government to interfere in such

organizations’ internal religious affairs would “would

undermine not only the autonomy of many religious

organizations but also their continued viability.” Id.

Time and again the Court has affirmed that, when it

comes to matters of faith, the state should keep its

8

hands off. See, e.g., Masterpiece Cakeshop v. Colo. Civ.

Rights Comm’n, 584 U.S. 617, 6321 (2018) (“[A]

member of the clergy who objects to gay marriage on

moral and religious grounds could not be compelled to

perform the ceremony without denial of his or her

right to the free exercise of religion. This refusal would

be well understood in our constitutional order as an

exercise of religion.”); Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)

(“Although the practice of animal sacrifice may seem

abhorrent to some, religious beliefs need not be

acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.”

(internal quotation omitted)); Hernandez v. Comm’r of

Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not

within the judicial ken to question the centrality of

particular beliefs or practices to a faith, or the validity

of particular litigants’ interpretations of those

creeds.”); Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,

450 U.S. 707, 714 (1981) (“The determination of what

is a ‘religious’ belief or practice is more often than not

a difficult and delicate task . . . . [R]esolution of that

question is not to turn upon a judicial perception of the

particular belief or practice in question[.]”(footnote

omitted)); Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336

(1987) (“[I]t is a significant burden on a religious

organization to require it . . . to predict which of its

activities a secular court will consider religious. . . .

[A]n organization might understandably be concerned

that a judge would not understand its religious tenets

and sense of mission.”); United States v. Ballard, 322

U.S. 78, 87 (1944) (“With man’s relations to his Maker

and the obligations he may think they impose . . . no

interference can be permitted[.]” (citing Prince v.

Massachusetts, 321 U.S. 158 (1944))).

9

In the words of Justice Gorsuch, “[t]he First

Amendment does not permit bureaucrats or judges to

‘subject’ religious beliefs ‘to verification.’ About this,

the Court has spoken plainly and consistently for

many years.” Trs. of New Life in Christ Church v. City

of Fredericksburg, Va., 142 S. Ct. 678, 679 (2022)

(Gorsuch, J. dissenting from denial of certiorari).

“Absent proof of insincerity or fraud, a church’s

decisions ‘on matters purely ecclesiastical, although

affecting civil rights, are accepted in litigation before

the secular courts as conclusive.” Id. (emphasis added)

(quoting Milivojevich, 426 U.S. at 729). “In this

country, we [do] not subscribe to the ‘arrogant

pretension’ that secular officials may serve as

‘competent Judge[s] of Religious truth.’” Id. (citation

omitted). Instead, the faithful themselves, free from

state interference, are the sole arbiters of their faith.

Id.

B. Religiously

motivated

activities

are

entitled

Amendment protection.

charitable

to

First

The court below erred in wading into ecclesiastical

determinations that belong squarely to the faithful,

not the government. Central to this error is the court’s

holding that it should look beyond the religious

motivations underlying the organization’s charity

work—which are unquestioned—and determine

instead whether or not the activities themselves are

“primarily religious in nature.” Catholic Charities

Bureau, Inc. v. Wis. Lab. & Indus. Rev.,

3 N.W.3d 666, 682 (Wis. 2024). Using that standard,

the court held that the organization is not run

primarily for religious purposes because, among other

things, its charitable activities “can be provided by

organizations of either religious or secular

motivations.” Id at 683. Such an approach to the free

10

exercise of religion finds no support and would lead to

absurd results.

Drinking wine can be a secular act, but it is

indisputably an act of faith when imbibed as a part of

Holy Communion. See Luke 22:19 (NIV). It is the faith

motivating the believer’s action that that makes the

act religious. The opinion below is precisely

backwards. Secular overlap does not dissolve religious

purpose; rather, religious motivation transforms that

which is secular into something religious.

The courts have repeatedly recognized that

religiously-motivated acts fall within the protections of

the Free Exercise clause, even though those same

types activities are routinely done in secular contexts

as well. For example, in various circumstances, the

courts have recognized that:

•

Animal sacrifices are protected as religious

acts, despite that killing animals is a

common secular activity. See Lukumi

Babalu, 508 U.S. at 535–36 (ordinance

“prohibits the sacrifice of animals, but

defines sacrifice . . . [to] exclude[] almost all

killings of animals except for religious

sacrifice, . . . . The net result of the

gerrymander is that few if any killings of

animals are prohibited other than Santeria

sacrifice, which is proscribed because it

occurs during a ritual or ceremony and its

primary purpose is to make an offering to

the orishas, not food consumption.”).

•

Operating a homeless shelter is a protected

expression of faith, notwithstanding

existence of secular organizations that also

provide shelter services. Jesus Ctr. v.

Farmington Hills Zoning Bd. of Appeals,

11

544 N.W.2d 698, 703 (Mich. Ct. App. 1996)

(“The Jesus Center’s argument that its

shelter program is an expression of its faith

is certainly not unique or otherwise difficult

to believe. The Bible . . . is replete with

passages teaching that the God of the Bible

is especially concerned about the poor, that

believers must also love the poor, and that

this love should result in concrete actions to

deal with the needs of the poor.”) (RFRA

decision).

•

Managing a school is a religious act, even

though schools are commonly secular. Cmty.

Lutheran Sch. v. Iowa Dep’t of Job Serv., 326

N.W.2d 286, 289–91 (Iowa 1982) (a school

operates for a “religious purpose” when the

reason the school is operated is faith-based)

(decided on state statutory grounds); see

also Christian Sch. Ass’n of Greater

Harrisburg v. Commonwealth Dep’t of Lab.

& Indus., 423 A.2d 1340, 1345 (Pa. Cmmw.

Ct. 1980) (“[A]ttempt[s] to dichotomize the

religious and secular aspects of church

schools is not a fruitful method for

determining their primary purpose.”).

•

Operating a mental health training center is

a religious act, despite fact that mental

health counseling is often secular. Kendall

v. Dir. of Div. of Emp. Sec., 473 N.E.2d 196,

199 (Mass. 1985) (courts must be “quite

cautious in attempting to define, for tax . . .

purposes, what is or is not a ‘religious’

activity . . . for obvious policy and

constitutional reasons” (quoting Cmty.

Renewal Soc. v. Dep’t of Lab., 439 N.E.2d

12

975, 978 (Ill. App. Ct. 1982)) (decided on

state statutory grounds).

Secular authorities should not second-guess what

charitable work a religious organization considers

religious activity. See, e.g., Amos, 483 U.S. at 336;

Thomas, 450 U.S. at 714. Rather, they should defer to

the religious organization’s determination as to the

faith-based nature (or not) of their activities. This

Court has long looked to the motivation behind the act,

not the act itself, to determine religious purpose. See

Lukumi Babalu, 508 U.S. at 532 (“[T]he protections of

the Free Exercise Clause pertain if the law at issue

discriminates against some or all religious beliefs or

regulates or prohibits conduct because it is undertaken

for religious reasons.”). This is because the First

Amendment protects all acts that are an expression of

faith, not simply “objective” or “typical” ones such as

religious ceremony or proselytizing. See Catholic

Charities Bureau, Inc., 3 N.W.3d at 681 (identifying

these as exemplar “hallmarks of religious purpose”).

Consequently, when done as an expression of faith,

charitable activities like feeding the hungry or

operating legal aid clinics are protected religious

conduct, even though such activities are frequently

engaged in by secular organizations. Proper

application of this Court’s precedent requires court to

analyze the motivation animating the charitable

activity, not focus on the inherent nature of the

activity itself. The inescapable conclusion then, is that

when a charitable endeavor is operated by a religious

organization and animated by religious motivation,

the charitable endeavor itself is also rendered

religious. See, e.g., Dep’t of Emp. v. Champion Bake-NServe, Inc., 592 P.2d 1370, 1372 (Idaho 1979) (rejecting

idea that “commercial aspects coexistent with the

primary

religious

purpose”

undermine

the

13

fundamental religious purpose of an activity);

Schwartz v. Unemployment Ins. Comm’n, 895 A.2d

965, 971 (Me. 2006) (“The fact that the Mission

provides health care to islanders and an afterschool

program for students does not diminish its continuing

religious purpose.”).

II. THE

ERROR

OF

THE

WISCONSIN

SUPREME COURT IS NOT UNIQUE AND

HAS BURDENED RELIGIOUS LIBERTIES

IN

OTHER

STATES

AND

OTHER

CONTEXTS.

Unfortunately, the error made by the Wisconsin

Supreme Court is not unique, nor is it cabined to the

realm of employment tax statutes. Across the country

“religious purpose” statutory provisions have been

used by courts as an invitation to scrutinize and

second-guess religious beliefs. The Court can—and

should—prevent this unconstitutional, widespread

injustice from continuing.

A. Courts in states with similar employment

statutes are quick to disregard the

religious purpose behind a religious

organization’s activities.

Just like the Wisconsin Supreme Court, state courts

repeatedly construe “religious purpose” exemptions in

unemployment tax statutes as an invitation to probe

whether an religious ministry’s acts are sufficiently

religiously motivated to constitute “religious purpose.”

A few examples serve to illustrate the folly of this state

of affairs.

In Cathedral Arts Project, Inc. v. Department of

Economic Opportunity, an Episcopalian ministry in

Florida created an outreach ministry, the Cathedral

Arts Project, that provided fine arts education to

underprivileged children. 95 So. 3d 970, 972 (Fla. Dist.

14

Ct. App. 2012). As part of this ministry, art teachers

selected art for use in the program because they

“associate [it] with the Gospel of Jesus Christ.” Id. The

state Department of Revenue determined that the

ministry did not qualify for a religious tax exemption,

and therefore owed over $20,000 in unemployment

tax. Id. The ministry challenged the tax

determination, and a state agency concluded that the

ministry’s “primary purpose” was to “promote and

support the arts” and was therefore not “operated

primarily for religious purposes.” Id. The ministry

appealed, and the court affirmed, over a vigorous

dissent. Id. at 972–73. The court reasoned that

although the ministry’s “motivation may be religious

in nature, its primary purpose in operating . . . is to

give art instruction to underprivileged children.” Id. at

973. In other words: preaching the Gospel through fine

arts was not religious enough to demonstrate the

ministry’s religious purpose.

The dissent highlighted the fundamental flaw in the

majority’s opinion:

Rather than focus on the “primary purpose” of

the organization, the majority takes a nontextual approach in focusing solely upon the

service delivered. The statute is neutral as to

the type of service an organization provides; it

speaks only in terms of the purpose of the

organization. The legal question under the

statute's language is “why” the organization

provides the service (i.e., its purpose) and not

“what” the organization provides (i.e., arts

instruction, food bank, etc.).

...

The majority opinion is inconsistent in finding

the Church controls Cathedral Arts, but that

15

Cathedral Arts does not operate with a

primarily religious purpose. Control is the

channel marker for purpose. Cathedral Arts, as

an outreach ministry, is an arm of the Church

with a purpose that is no less religious than that

of the Church itself.

Id. at 975–76 (emphasis added).

Another example comes from Illinois. In

Concordia Ass’n v. Ward, an intermediate appellate

court found that the “religious purpose” of a

corporation established by Lutheran churches for the

purpose of operating and maintaining a cemetery for

Lutherans and their family members was “secondary”

to its “primary purpose” of operating a cemetery. 532

N.E.2d 411, 412–14 (1988). To be buried in the

cemetery, the deceased, (or one of their family

members) had to be Lutheran. Id. at 412–13. Burial

services had to be Christian, and most were performed

by Lutheran ministers. Id. Nevertheless, the court

dismissed the organization’s “history, . . . ongoing

activities, [and] . . . connection with the Lutheran

congregations which make up the association” as

“secondary” and therefore insufficient to demonstrate

a primarily religious purpose. Id. at 414. As a result,

the Concordia Association was, like Petitioners,

required to pay taxes into the state’s unemployment

insurance program. Id.

The Supreme Court of Arkansas similarly held

that a Catholic hospital did not qualify for a religious

exemption from the state’s unemployment tax because

(i) religion was too small a percentage of the hospital’s

budget, (ii) no proselytizing took place, and (iii) except

for employees working in the hospital’s chapel,

hospital employees were not required to be Catholic.

Terwilliger v. St. Vincent Infirmary Med. Ctr., 804

16

S.W.2d 696, 699 (Ark. 1991). The church was a “wing”

of the Catholic Church, owned and operated by the

Sisters of Charity of Nazareth, and viewed itself as a

“conduit for the mission of service to the sick.” Id. at

697. Unconvinced, the court reasoned that “although

the sole motivation may be religious in nature[,]” the

hospital “operated primarily for the purpose of

providing health care.” Id. at 699 (emphases added).

Thus, the court concluded that the evidence did not

establish that “religion pervades the operation of the

[hospital].” Id. It is unclear what kind of religious

organization could meet the court’s enigmatic

standard, if they could not be met by a hospital owned

and operated by the Roman Catholic Church to fulfill

its religious mandates.

The foregoing are just a handful of examples of

how courts have burdened religious liberty through

interpretations of “religious purpose” provisions in the

employment tax context. There are far more. See, e.g.,

Samaritan Inst. v. Prince-Walker, 883 P.2d 3, 5, 8, 9

(Colo. 1994) (institute which aids and establishes

pastoral counseling centers in “provid[ing] services in

the context of religious faith” did not qualify for a

religious purposes exemption because the institute’s

activities was “essentially secular”); Unity Christian

Sch. Of Fulton, Ill. v. Rowell, 6 N.E.3d 845, 851 (Ill.

App. Ct. 2014) (Christian school was not operated for

primarily religious purposes notwithstanding “the

school’s Bible instruction, inculcation of Christian

values and glorification of God were integral parts of

the educational mission”); Simon v. Bd. of Rev., Dep’t

of Lab. & Workforce Dev., No. A-1972-15T4, 2017

WL 6398900, at *2 (N.J. Super. Ct. App. Div. Dec. 14,

2017) (denying a Jewish school a religious purposes

exemption even though “religious education was a

significant part of the curriculum, and petitioner was

17

unaware of any non-Jewish students at the school”). In

these cases, and many others, courts around the

country have inappropriately put a thumb on the scale

of religious belief. All too often, the result has been

that religious organizations’ activities—although

clearly religiously motivated—are not “religious

enough” to be deserving of protection.

B. Courts have also improperly applied

“religious purpose” provisions in other

contexts.

Outside of the employment tax context, courts have

similarly used “religious purpose” to second-guess the

religious nature of faith-based activities.

For example, in Needham Pastoral Counseling

Center., Inc. v. Board of Appeals of Needham, a

Massachusetts state court made the remarkable

determination that a pastoral counseling center’s

application to remodel part of its building—located

inside a church—to make room for a spiritual

counseling center should be denied, because it did not

qualify for the statutory “religious purpose”

exemption. 557 N.E.2d 43, 46 (Mass. App. Ct. 1990).

The center’s counselors were ordained clerics and

trained theologians, who employed “psychological

training” and “therapeutic techniques” in their

counseling sessions. Id. at 46. Despite acknowledging

the religious nature of the center’s activities, the court

determined that “[s]ome theological . . . content does

not automatically imbue an activity with religious

purpose[.]” Id. The court reasoned that the center’s

activity was not primarily religious because its clerical

counselors provided services to non-parishioners and

non-believers, and did not proselytize to its clients. Id.

at 46–47. Brushing aside the First Amendment, the

court described its protections as “academic” because

the activity “is not in its essential nature a religious

18

use[.]” Id. at 47. That is to say, the court found that the

First Amendment could not apply because the activity

at issue was primarily secular, a conclusion that

required the court to disregard the clear religious

motivations of the counseling and instead decide for

itself what are and are not religious activities.

A similar issue arose in Tennessee. Christ Church

Pentecostal v. Tenn. State Bd. of Equalization, 428

S.W.3d 800 (Tenn. Ct. App. 2013). The Christ Church

Pentecostal constructed a multi-million dollar family

life center, which housed worship and classroom areas,

offices, and the church’s “For His Glory” bookstore. Id.

at 804. The church operated the bookstore “to reach

out to the community and minister to their needs”

because that was “a direct purpose of the Church.” Id.

at 808. Nevertheless, the court denied the church’s

request for a religious purpose tax exemption for the

bookstore, concluding that it was “nothing short of a

retail establishment housed within the walls” of the

church’s family life center, id. at 813, and “was not

reasonably necessary to accomplish [the church’s

outreach] mission,” id. at 818–19.

The foregoing examples are not unique. Courts

across the country have tied themselves in knots

trying to delineate which types of activities have a

constitutionally protected “religious purpose.” See,

e.g., Bishop of Protestant Episcopal Diocese in N.H. v.

Town of Durham, 151 A.3d 945, 948 (N.H. 2016)

(denying a church’s request for a religious purpose tax

exemption for use of its parking lot); In re Appeal of

Church of Yahshua, 584 S.E.2d 827, 829‒30 (N.C. Ct.

App. 2003) (denying church’s request for religious

purpose tax exemption because the land did not yet

have any buildings); Du Page Cnty. Bd. of Rev. v. Dep’t

of Revenue of Ill., 790 N.E.2d 918, 923-24 (Ill. Ct. App.

2003) (denying property tax exemption for home

19

owned by Lutheran church, where teacher at parishschool was required to live because only the home

office was used for religious purposes). The Third

Circuit, for example has employed a nine factor test to

determine whether a corporation’s “purpose and

character are primarily religious.” LeBoon v.

Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226

(3rd Cir. 2007). That is an overcomplicated approach.

Instead, this Court should make clear that any activity

born out of religious belief or done as an expression of

faith is imbued with religious purpose. See Lukumi

Babalu, 508 U.S. at 542. That test would allow courts

to make straightforward determinations about the

nature of an organization’s activities without

improperly entangling themselves in ecclesiastical

affairs.

*****

Narrow and inconsistent judicial interpretations of

“religious purpose” have inflicted tangible harm on

religious organizations, undermining their ability to

fulfill their missions and violating their First

Amendment rights. Courts repeatedly fail to give

ample weight to the intrinsic religious motivations

animating religious organizations to action. Instead,

they focus on the nature of the actions themselves,

routinely concluding that because the religious

organization is doing something that a secular

organization does too, the religious organization’s

charitable activities lack “religious purpose.” This

jeopardizes the autonomy of religious groups and sets

a dangerous precedent for future interpretations of

religious exemptions.

Acts of charity performed by Christian organizations

are imbued with religious purpose, and thus

constitutionally protected. Indeed, the Bible calls

20

Christians—including amicus—to perform acts of

“secular” benevolence:

35 For I was hungry and you gave me something

to eat, I was thirsty and you gave me something

to drink, I was a stranger and you invited me

in, 36 I needed clothes and you clothed me, I was

sick and you looked after me, I was in prison

and you came to visit me.

37 Then the righteous will answer him, “Lord,

when did we see you hungry and feed you, or

thirsty

and

give

you

something

to

drink? 38 When did we see you a stranger and

invite you in, or needing clothes and clothe

you? 39 When did we see you sick or in prison

and go to visit you?”

40 The

King will reply, “Truly I tell you,

whatever you did for one of the least of these

brothers and sisters of mine, you did for me.”

Matthew 25:35–40 (NIV).

Religious organizations fulfill these commandments

when they operate programs to feed the hungry,

welcome the stranger (immigrant), clothe the poor, or

otherwise assist widows and orphans, the elderly,

disabled, and those in need of disaster relief. Religious

groups perform these acts of service in fulfillment of

the divine command to “love your neighbor as

yourself,” not out of transactional proselytization.

Matthew 22:39 (NIV); see also 1 Thessalonians 3:12

(NIV) (“May the Lord make your love increase and

overflow for each other and for everyone else”). Courts

should not take it upon themselves to parse, for

instance, which act of feeding bread to the hungry is

secular (i.e., a Church-operated food pantry), and

which is religious (i.e., serving Holy Communion). To

21

do so impermissibly places courts in the role of

deciding how a religious organization should carry out

its “faith and mission” and violates basic First

Amendment protections. Hosanna-Tabor, 565 U.S. at

190.

22

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

DINO L. LAVERGHETTA *

MACKENZI J.S. EHRETT

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

dlaverghetta@sidley.com

BRIAN M. TRUJILLO

ALEC J. SILVESTER

JORGE R. PEREIRA

SIDLEY AUSTIN LLP

1001 BRICKELL BAY DRIVE

MIAMI, FL 33131

MIKAYLA CULBERTON

SIDLEY AUSTIN LLP

2021 MCKINNEY AVE

DALLAS, TX 75201

Attorneys for Amici Curiae

February 3, 2025

* Counsel of Record