The Wisconsin Supreme Court Race Should Turn On Principle Not Politics

Authored by Jonathan Turley,

Today, the voters of Wisconsin go to the polls in what may be the single most expensive and important judicial race in modern history. 

Both parties are spending millions with the balance of the state Supreme Court in the balance. 

If liberal Susan Crawford wins, the expectation is that she will vote with the Democratic majority to approve a gerrymandering of congressional districts to guarantee the loss of two Republicans and possibly flip control of the House of Representatives to the Democrats.

The raw political pitch in the election is disturbing. It assumes that both candidates will blindly support the objectives of their respective parties. The real reason to cast a vote today should be on judicial ideology. Ironically, the United States Supreme Court made that plain in an important Wisconsin case argued just the day before the state election.

The case is Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission.

In the decision below, the Democratic-controlled Wisconsin Supreme Court ruled that Catholic Charities could not benefit from a religious exemption to the state’s unemployment tax because its charitable work was not sufficiently religious.

Catholic Charities is one of the world’s oldest and most respected charities. However, the church believes that it has a duty to help people of every faith who are in need. Thus, the church does not proselytize in offering such aid and services.

A state labor commission ruled that the charity’s lack of such religious expression and prayer makes it secular, even if it has religious motivations.

The Wisconsin Supreme Court agreed and ruled that the charity is not operated primarily for religious purposes because it does not “attempt to imbue” beneficiaries “with the Catholic faith nor supply any religious materials to program participants or employees.” In other words, the fact that Catholic Charities helps everyone and does not proselytize worked against it. The Wisconsin Supreme Court essentially argued that it needs to pray more to offer such charity as a church.

It is a disturbing ruling that would allow the state to choose between religions in weighing their relative manifestations of faith.

Even liberal justices cried foul over the standard.

Justice Elena Kagan suggested it was “pretty fundamental that we don’t treat some religions better than others. And we certainly don’t do it based on the content of the religious doctrine that those religions preach.”

Kagan noted, “Some religions proselytize. Other religions don’t. Why are we treating some religions better than others based on that element of religious doctrine?” 

She noted that the standard “basically puts the state on the side of some religions with some doctrine versus other religions with a different doctrine.”

Justice Ketanji Brown Jackson suggested that the Wisconsin Supreme Court was asking the wrong questions about what it means to be an organization “operated primarily for religious purposes.”

Justice Neil Gorsuch virtually mocked the standard of the Wisconsin Supreme Court, asking if Catholic Charities have to require the people receiving their services to “repent.” He then asked: “is mandatory church attendance versus optional church attendance, that’s the line?”

Gorsuch then delivered the haymaker:   

“Isn’t it a fundamental premise of our First Amendment that the state shouldn’t be picking and choosing between religions, between certain evangelical sects, and Judaism and Catholicism on the other, for example?”

The case shows that there are far more important issues dividing these candidates on judicial philosophy that should drive this election. I am not a fan of state elected judges and justices precisely because of the raw political element to these contests. 

The Catholic Charities case shows that the Wisconsin Supreme Court is divided along more than just a party line.

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Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”