Above: Chief Justice John Roberts
This essay first appeared in the June 13, 2025 Epoch Times.
Media reports sometimes suggest that the Supreme Court is sharply divided between three liberals and six conservatives. As explained below, the facts are otherwise. Illustrative is the court’s June 5 ruling in Catholic Charities Bureau v. Wisconsin.
The Catholic Charities case applied the First Amendment to reverse a decision by Wisconsin state authorities whom the justices concluded had discriminated on the basis of religion. Justice Sonia Sotomayor (generally identified as a liberal) wrote the opinion for the court. The decision was unanimous.
The Facts of the Case
The Catholic Church in Wisconsin operates a range of charities, employing several corporate entities for doing so. These entities hire employees. Wisconsin normally requires employers to pay a tax for unemployment benefits, but the Catholic Church has its own unemployment insurance plan. Under Wisconsin law, religious organizations may obtain an exemption from the unemployment insurance tax for activities “operated primarily for religious purposes.”
The church applied for such an exemption, but Wisconsin state officials denied it. They argued that the church’s charitable services were not “operated for religious purposes.” They said the church would qualify if it limited charitable services to Catholics or accompanied its benefits with attempts to proselytize. However, in accordance with Catholic doctrine, the church does neither of these things. Instead, it offers charity to all who need it, and it does not accompany charity with recruitment speeches.
The Catholic Church had to undergo a lot to get to the U.S. Supreme Court. There were five hearings at the state level, two of which it won and three of which it lost.
The First Amendment
The First Amendment protects six itemized freedoms. The portion pertaining to religion states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The words before the comma comprise the Establishment Clause; the words after the comma comprise the Free Exercise Clause.
Observe that the language of the First Amendment restricts only Congress—not other branches of the federal government. The rest of the Bill of Rights limits all parts of the federal government, but the First Amendment does not. As I explain in my book “The Original Constitution,” the amendment’s drafters and ratifiers likely had good reasons for limiting the First Amendment’s restrictions to Congress.
However, during the 20th century, the Supreme Court wandered very far from the Constitution’s text and meaning. One way the court did so was by applying the First Amendment to the executive and judicial branches of the federal government.
Moreover, the 20th century Supreme Court also used the First Amendment to restrict state governments. (This is called “incorporating the amendment against the states.”) The court’s justification for doing so was weak, although some writers make a somewhat stronger case for “incorporation.” In any event, this is why the justices could impose on the State of Wisconsin a provision that seems to apply only to Congress.
The Establishment Clause
The 20th century Supreme Court also ruled that the Establishment Clause required that both the federal and state governments maintain a “strict separation between church and state.” The effect of this standard was to force government to remain distant from religion and sometimes even to discriminate against religion and religious people.
However, over the last few decades the court has been correcting itself. It now applies a version of the Establishment Clause closer to its original meaning.
Properly understood, the Establishment Clause does not require government to distance itself from religion. In some ways, government may even favor it. But government may not erect tax-supported churches, prescribe religious doctrine, or favor some faiths over others.
The Decision in Catholic Charities Bureau v. Wisconsin
Wisconsin denied that the Catholic Church’s charitable activities were religious in nature. The court was not impressed: Charity is, of course, a duty mandated not just by Catholicism, but by other Christian denominations as well as by faiths such as Judaism and Islam.
Wisconsin also argued that if the church limited its charitable services only to Catholics or if it mixed its services with proselytization—as some denominations do—then it would have qualified for an unemployment tax exemption. However, Catholic doctrine requires that charitable services be available to all, and not mixed with proselytization. Thus, the court ruled that denying the church an exemption based on its religious doctrine was to discriminate against Catholicism in violation of the Establishment Clause. Justice Sotomayer recited a sentence made famous from previous cases: “The clearest command of the Establishment Clause is that the government may not officially prefer one religious denomination over another.”
Although all of Justice Sotomayor’s colleagues agreed with her, two of them also wrote separate opinions. Justice Clarence Thomas explained that whether activities were under church control did not depend on their corporate structure. Justice Ketanje Brown Jackson examined competing meanings of the word “purposes” in the statutory phrase, “operated primarily for religious purposes.” She argued that “purposes” referred to the nature of the activity undertaken, not the religious motivation for undertaking it.
Later cases might test Justice Jackson’s conclusion. Charity is acknowledged universally to be a religious activity. But what of the stores and other businesses operated by the (“Mormon”) Church of Jesus Christ of Latter-Day Saints? If a state decides that these stores are not religious activities but the Mormons claim that religious doctrine compels the church to own them, is the state unconstitutionally discriminating against the Mormon faith? That question remains open.
Conclusion
As I have explained elsewhere, the media’s characterization of the current Supreme Court as split into panels of six conservatives and three liberals is seriously misleading. While the three liberals generally agree on their philosophy, the other six justices actually are traditional judges rather than “conservatives.” Moreover, they differ in their judicial philosophies, and in hard cases they frequently split among themselves.
Yet in many cases, all nine justices are on the same page. Catholic Charities Bureau v. Wisconsin is one example.