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Saving Religion from Incoherence

There once was a time when religion was listed alongside politics, sex, and money as unsuitable for discussion in polite company. Religion may be the only one of this quartet of etiquette taboos left standing. It still feels improper, awkward, uncomfortable. These dynamics can lead people just to avoid it, perhaps with a dismissal along these lines:

“Religion is an entirely personal matter.”

“Religion is subjective and indefinable.”

“Religion is something only you can feel and only you can choose.”

“Nobody can tell you whether you are religious or not. Only you can decide that.” 

It should not be surprising that this set of attitudes has found its way into American constitutional law. It has been accepted and even promoted by jurists and scholars who embrace very different methodological commitments, originalist and otherwise. The consensus persists even though the historical record at the founding suggests, as Professor Vincent Phillip Muñoz has argued, a comparatively narrow, but well-defined set of criteria concerning the worship of God and relating to, as James Madison put it, “the duty which we owe to our Creator and the manner of discharging it.”

Over time, religion has come to mean a great deal more than this in American law, so much more that we have lost sight of what it is. The Supreme Court has not helped. It has been persistently, even perversely, obscure on the subject. In fact, since the mid-twentieth century, it has steadily dissolved religion’s legal meaning. From a cultural condition in which religion had a recognizable legal core in America’s common, Christian-influenced historical and creedal life, the term has become a stand-in for subjectively held, eccentric, and altogether inscrutable beliefs. As the Court put it in 1981, religion “need not be acceptable, logical, consistent, or comprehensible” to anybody at all, including the claimant.

But it is not clear why unacceptable, illogical, inconsistent, and incomprehensible phenomena should be constitutionally protected. And though some of the Court’s cases once vaguely hinted in dicta at harder criteria, the modern understanding of religion lives on, as the justices praise the protection of “strange and bewildering” religion, “idiosyncratic” religion, and even “abhorrent” religion. Just being religious (that is, sincerely feeling religious) is what counts. Religion as self-created identity has replaced religion as belief in, and practice of, certain substantive creeds. Add to this the arrival of federal statutes that grant religion in prison special national solicitude, reinforcing the sense that to be religious is to be utterly estranged from the American project, and you have the makings of religion as a species of alienated madness.

This new conception of religion—solipsistic, irrational, changeable, unintelligible, outlandish, supplicant to state power—contributed to a new cultural situation in which the American state could no longer look upon religion as a source of common strength, no longer as a partner in the sustenance of American civic life. Religion instead became a peculiar problem afflicting deeply unusual sorts, just “the strange doings of odd people,” as Professor Christian Smith has aptly put it. And there is something else, and something worse. The hypertrophy of religion has given rise to the accusation—sometimes unfair, but not always—that “religion” (notice the quotes) is cynically invoked as a tactical ploy, a power play to wage cultural warfare by proxy. That was the charge of some skeptics during the COVID-19 years, and new strategic deployments are multiplying today. But the reality is that you get an advantage in litigation by framing your claim as religious. Why not do so?

Catholic Charities: Religious or Not?

Enter Catholic Charities Bureau, Inc. v. Wisconsin, a case the Supreme Court recently agreed to hear that involves these problems and gives the justices a chance to begin to clarify what religion is and what it is not. It concerns the exercise of works of charity in Roman Catholicism, which, one might have thought, is unambiguously religious. But the Wisconsin Supreme Court did not think so. And its mistakes have, in part, to do with the incoherence of the prevailing legal conception of religion.

The case is about whether a branch of Catholic Charities, a network of nonprofit, social service organizations operated by the Catholic Church, is entitled to exemption from Wisconsin’s unemployment compensation tax. The law exempts employers who “operate primarily for religious purposes,” and the charitable activity here involves the provision of certain types of healthcare for developmentally disabled persons. Catholic Charities argues that it operates primarily for religious purposes because its intentions are religious—“providing services to the poor and disadvantaged” with the “purpose . . . to be an effective sign of the charity of Christ.” The state contends that, motives aside, Catholic Charities’ activities are primarily secular, because neither its employees nor the recipients of its services are required to be of any faith, nobody who participates in its programs receives any religious training, and the principal services that it provides are not religious in nature. In 1972, the state determined that Catholic Charities was subject to the law and Catholic Charities made contributions until 2016, when it sought a determination that, like the Catholic Diocese of Superior, Wisconsin, it qualified for exemption.

The Wisconsin Supreme Court agreed with the state. It held that under the statute, both intentions and activities are relevant to whether an organization “operates primarily for religious purposes.” “Religious purpose,” it said, must mean something more than mere self-identification. That something might include many things—corporate worship services; pastoral counseling and comfort to members facing adversity; performance by the clergy of customary church ceremonies such as baptism, marriage, burial, and so on; educating and nurturing the young in the doctrine and discipline of the church; and various other possibilities. The court accepted Catholic Charities’ profession of religious intention as sincere, but nevertheless ruled that it was engaged in primarily secular activities:

[Plaintiffs] provide services to individuals with developmental and mental health disabilities. These activities include job training, placement, and coaching, as well as services related to activities of daily living. Such services can be provided by organizations of either religious or secular motivations, and the services provided would not differ in any sense.

The court pointed out that one of the sub-entities had provided precisely the same services before it partnered with Catholic Charities as it did afterward. How could identical activities suddenly change from secular to “primarily religious” because of the mere change in association with Catholic Charities? Just as, the court thought, the services of a religiously operated orphanage and a secular orphanage “do not differ in any meaningful sense,” so, too, for Catholic Charities’ activities here.

Finally, the court concluded that its decision did not violate the Establishment Clause’s prohibition on “excessive entanglement” between government and religion, because “the Establishment Clause does not treat religion as a third rail that courts cannot touch,” and some type of “neutral, secular” “investigation” by courts about the claim of religiosity is necessary. It also rejected the plaintiffs’ church autonomy and Free Exercise Clause claim that the decision discriminates against certain religious corporate structures and certain religious activities, such as care for the poor, that did not fall into the state’s procrustean categories. Inclusion in the program was not, in the court’s view, a “substantial burden” on Catholic Charities’ religious exercise, because paying the tax does not “prevent [plaintiffs] from engaging in any religious function or engaging in any religious activities.”

The Incoherence of Legal Religion

My own view is that Catholic Charities should prevail in this case. The provision of charitable works and relief for the poor, sick, and needy is an essential feature of the exercise of the Catholic faith and always has been. As Pope Benedict XVI explained in his encyclical, Caritas in Veritate

Charity is at the heart of the Church’s social doctrine. Every responsibility and every commitment spelt out by that doctrine is derived from charity which, according to the teaching of Jesus, is the synthesis of the entire Law (cf. Mt 22:36-40). It gives real substance to the personal relationship with God and with neighbor; it is the principle not only of micro-relationships (with friends, with family members or within small groups) but also of macro-relationships (social, economic and political ones).

From the very beginning, as Pope Benedict earlier put it in Deus Caritas Est, the “exercise of charity became established as one of [the Church’s] essential activities, along with the administration of the sacraments and the proclamation of the word: love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Church] as the ministry of the sacraments and preaching of the Gospel.” (emphasis mine) That ministry, and some form of exemption from state imposts for the performance of these vital civic functions, have been recognized at least since the time of Constantine.

But the question is why Catholic Charities should win according to the current legal doctrine, which puts Catholic believers in the ridiculous position of explaining their orthodoxy on identitarian, therapeutic, conceptually incoherent grounds. The Supreme Court should begin to change that, carefully clarifying what it means to be religious without imposing undue restrictions.

Here is a not-so-good reason to rule in favor of Catholic Charities: “By focusing on whether a nonprofit primarily engages in activities that are “religious in nature,” the majority transforms a broad exemption into a denominational preference for Protestant religions and a discriminatory exclusion of Catholicism.” It appears in the dissent in the Wisconsin Supreme Court case, but it is mistaken, and in a way that illustrates the illogic of the present regime. A requirement of doing religious things does not “discriminate” (if this grossly overused word is to have any useful meaning) against those who claim to be religious. What people do matters and should matter for the law. If you claim an exemption from the law on religious grounds, you should be prepared to explain why you deserve it on the basis of the religious activities you engage in—that is, on the basis of your “religious exercise”—not just what you experience yourself to be. It cannot be that any inquiry at all into whether an activity is “religious in nature” ipso facto violates the US Constitution, either because it impermissibly “entangles” the government in religion or because it unlawfully discriminates against religions. The constitutional category is itself “religion.” Some very distinguished scholars argue that the court’s decision must be reversed because it “prefer[s] one religion over another,” but all laws pick out relevant from irrelevant criteria, and in this sense “prefer” some things to others. That is what the First Amendment does for religion. To require that claimants satisfy some religious criteria, any criteria, is not legal discrimination anybody should object to. It is following the law.

It certainly does not discriminate against Catholics, whose activities in the world (charitable and otherwise) matter greatly. Indeed, it makes a mess of Catholicism to employ arguments about discrimination in this fashion. I suppose there are “Catholics” who claim that it makes no difference what they do in this life, that it is irrelevant whether they behave sinfully or not, and that it is nobody’s business whether they conduct themselves as Catholics or not, because all that matters is how they regard themselves. But as C. S. Lewis wrote in Mere Christianity, this conception of Christianity has “every amiable quality except that of being useful.” This is, unfortunately, the confused legal framework within which Catholics (and other orthodox) must now explain their faith.

It also is absurd to expect the state to exempt religious entities from taxation on these assumptions about religion. Tax exemption for religious organizations was sensible under two conditions: 1) the size of government, and the scope of its role in American social life, were smaller than they are today, thereby both necessitating and making room for the involvement of religious institutions; and 2) the conviction that these religious institutions should play a role in shaping civil society in accordance with their own senses of the political and moral good, senses that the state could understand and approve even if it did not itself embrace them. The conditions were mutually reinforcing and mutually dependent. As government became larger, both the need and the space for religious institutions shrank, as did the perception they might have something of value to say. The breakdown of condition #1 would not necessarily mean the disappearance of religious groups from their public ministry, because the increase in government’s size and scope might necessitate their greater involvement. But if the government’s commitments came to differ sharply from those of the religious organizations, whatever public or private arrangements existed after the fall of condition #1 could not continue to operate under the premises of condition #2.

The collapse of these two conditions spells trouble for tax exemption for religious institutions. But that trouble increases by orders of magnitude under the present conception of religion. Just why should the government exempt religious groups in circumstances when religion simply concerns one’s self-authenticating, sincere feelings? What is it about tax exemption for religious institutions, so conceived, that is “deeply embedded in the fabric of our national life,” as then-Justice Rehnquist put it in Walz v. Tax Comm’n in 1970? Religious organizations were given tax exemptions because historically the state deemed them beneficent from a civic point of view. They undertook civically useful activities, including relief for the poor and the sick, greatly reducing the government’s burden. Very early in the Church’s history, the late Roman Empire came to rely on the Church to succor the weak and the helpless in the face of the ravages of the barbarian invasions of the fourth and fifth centuries. Today, however, the state has assumed greater responsibility for these activities, so religious entities now must explain why they continue to merit tax exemption. But they are stymied by a conception of religion that defies rationality.

The Supreme Court has an opportunity to reconnect religion with reality by restoring the role of reason in matters of religion.

 

A Chance for a Modicum of Clarity

The Supreme Court has an opportunity to reconnect religion with reality by restoring the role of reason in matters of religion. To do so, it need not decree religious doctrine, scrutinize religious propositions, or embroil itself in theological controversy. But it does need to offer some rules for what religion means in the law, rules that ought to be generous and broad-minded, but rules nevertheless. The mistake of the Wisconsin Supreme Court majority resulted precisely from the untenability of the present dispensation. Left adrift by the Supreme Court’s doctrine, the Wisconsin majority came up with criteria of its own. The criteria were crude, but one should sympathize with the court for the impossible position in which the current law places it.

The answer is not to insist that no rules are admissible, that any definition is “discrimination,” or that any inquiry at all is a per se violation of the Constitution. A holding like that would exacerbate the problems of incoherence that plague the law. Under cultural conditions in which religious status comes with tax advantages, and in light of the fraying public/private partnerships described above, one needs reasons to grant that advantage amounting to more than “because I really feel religious.” Re-entrenching the vacuous conception of religion in American law simply will compel lower courts to come up with their own (probably bad) rules, because the operative texts and doctrines (the Religion Clauses, RFRA, Title VII, countless federal and state statutes like the one in this case, and so on) refer to “religion” and therefore require courts to define it in some fashion. The vacuous conception of religion threatens religion’s very intelligibility in all of these areas, as courts will fumble about, asking (as the court did here for the operation of orphanages) why they should “privilege” religion over what is incorrectly thought to be comparable secular conduct. Furthermore, the vacuous conception, and the virtually limitless right it creates, give courts too much power to overturn the people’s judgment about what is in the common interest.

Far better for the Supreme Court to lay down some law. Some suggestions: first, the Court might make clear that intentions partly define action, just as they do in other areas of law. In criminal law and tort law, for example, as Oliver Wendell Holmes, Jr., pointed out long ago, we distinguish the act of kicking from the act of stumbling over on the basis of intention. The same should be true for the law of religion, where the intentions of those who operate orphanages, soup kitchens, and hospitals partly define those activities.

Second, the Court could rely on and develop the concept of what it called a “deeply embedded” practice in Walz. It could look to the established and enduring documents, doctrines, and practices of the religion at issue, to see whether the free exercise being claimed in a given case is consistent with those traditions. It has adopted this sort of approach in many other cases, looking to “tradition” when filling out the content of constitutional law. Why not here, too? That sort of inquiry would rapidly have disposed of this case long before it had reached a state supreme court, for there is no question about the religious pedigree of charitable activity in the Catholic Church. Indeed, these “activities” (in the language of the Wisconsin statute)—education, child welfare, orphanages, hospitals, and so on—were for many centuries the activities of the Church, not the state. That ought to matter in defining a religious tradition and its exercise.

Third, resurrecting some of its own dicta, the Court could impose some loose collective or communal requirement, some associational standard. To scholars who suggest that such a rule would privilege older and more organized groups over newer and more scattershot “DIY” religion, the response should be, yes, it would. And so much the better. As Professor Mark Movsesian has argued, no definition, of religion or anything else, can include every feature of what it describes. No definition can be neutral—unaffected by any culturally specific criteria. That does not mean we can dispense with all definition in the law. A rule like this need not mean the exclusion of all new religions, but it would go some small way toward rectifying the present disorder.

Finally, here is a slightly more aggressive possibility: the Court could look to older case law at the founding of the Republic when religion had a discernible core more nearly reflecting the Madisonian conception. Consider People v. Philips, an 1813 New York state court case recognizing the priest-penitent privilege in the law of evidence. For a unanimous court, Judge De Witt Clinton held that such a privilege existed because “[i]t is essential to the free exercise of a religion that its ordinances should be administered—that its ceremonies as well as its essentials should be protected.” Taking a page from Judge Clinton, the Court might inquire as to the ordinances, ceremonies, and essentials (circumscribed generously) of religion in evaluating matters of free exercise as the duty which we owe to our creator.

These reforms, or others the Supreme Court might consider, would leave a great deal of freedom for religious groups to define themselves as they wish. But they would also give lower courts essential rules for administering a system of ordered liberty. It is past time to restore some semblance of order to the law of religion.

Image by bbourdages and licensed via Adobe Stock.

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