Josh Kaul’s Crusade to Bureaucratize Religion

Mr. Dunce goes to Washington, In Two Acts

Wisconsin attorney general Josh Kaul—who is not so much the state’s top cop as he is a professional litigator of progressive pieties—has decided that if the U.S. Supreme Court won’t let him discriminate against Catholic Charities when it comes to a religious tax exemption, then he’ll take a wrecking ball to the tax exemption itself.

Everyone old enough to coherently remember last summer—this of course leaves out Joe Biden and, come to think of it, maybe the entire deranged progressive left—recalls that our state attorney general, as well as the progressives on the state Supreme Court, were embarrassed beyond belief when they lost 9–0 at the U.S. Supreme Court (SCOTUS) in their bid to punish Catholic Charities Bureau (CCB) by denying it a religious exemption from the state’s unemployment tax.

Somehow, the progressive justices and the attorney general reasoned that the CCB’s practice of its religion wasn’t religious—they delivered social services without proselytizing and without demanding denominational fidelity—an idea the high court swatted down without so much as batting an eye.

Not surprisingly, the Wisconsin Supreme Court, which is controlled by progressives, had adopted this argument in a squeaker 4–3 ruling. Then came the U.S. Supreme Court’s blowtorch. Justice Sonia Sotomayor, no one’s idea of a conservative warrior, wrote for the unanimous court that Wisconsin violated CCB’s First Amendment rights.

“It is fundamental to our constitutional order that the government maintain ‘neutrality between religion and religion,’” Sotomayor opined. “There may be hard calls to make in policing that rule, but this is not one. When the government distinguishes among religions based on theological differences in their provision of services, it imposes a denominational preference that must satisfy the highest level of judicial scrutiny. Because Wisconsin has transgressed that principle without the tailoring necessary to survive such scrutiny, the judgment of the Wisconsin Supreme Court is reversed.”

That was The Dunce Goes to Washington, Act I.

Encore, Encore

Turns out, there’s another act over there at the Department of Justice (DOJ), and Kaul is back starring in his well-deserved role as The Dunce. After the high court ruling, he now wants to punish every faith-based nonprofit in Wisconsin for his humiliation.

True, Kaul could argue that he was dragged into the first act kicking and screaming by the state labor and industry review commission and the Department of Workforce Development, which actually denied the exemption, but his eagerness to enter the dunk tank a second time belies that argument.

Predictably, in a remedial brief before the state Supreme Court this past week, Kaul wants to end the statutory unemployment-tax exemption for everybody. To come up with this idea took some creative duncery, I have to admit. The SCOTUS fix was so simple that SCOTUS didn’t even have to say it out loud. CCB argued that it qualified for the exemption—the only issue before the court—and the court agreed. So the obvious fix was to give it to them.

But Kaul has now reasoned that that isn’t actually the correct remedy to be made, after all. Rather, the state must either egregiously expand the universe of such exemptions to ensure equal treatment of all religious nonprofits or end the exemption altogether. The latter is the best remedy, Kaul maintains.

No fuss, no muss.

Of course, this is retaliation disguised as a remedy. Having lost his bid to declare Catholic ministries “not religious enough,” Kaul now advocates leveling the entire field with a bulldozer so that no religion gets religious protections.

SCOTUS has already told Wisconsin, unanimously, that religious neutrality is not optional. Kaul, with the apparent lucidity of a sheep asleep in the middle of the village road, now argues that neutrality requires punishing everyone because he failed in his bid to punish one.

It’s a targeted political attack. And worse, it’s a bureaucratic rewrite of religious life—an attempt to shoehorn sacred institutions into secular configurations so as to homogenize them and scrub them of their souls.

No doubt his collaborators in idiocy at the state Supreme Court will agree with him again, and so likely it will be back to Washington for all of them, for another round of humiliation.

This will be The Dunce Goes to Washington, Act II.

Christmas Morning

Josh Kaul loves lawsuits like a child loves Santa Claus.

To the attorney general, every case is like a present under the Christmas tree. The more the merrier, and he loves to loudly proclaim his latest filed brief or complaint, like children showing their glitzy toys to all their family and friends: Look what I got!

He dispenses press releases like wrapping paper, colorful works of political art, begging everyone to look inside at the wondrous progressive package inside. According to Isthmus, the DOJ had already issued more than 60 press releases attacking Trump administration policies or joining court decisions way back in August. This month alone, his office has taken credit for filing briefs defending the Federal Reserve, opposing National Guard deployments, defending the Voting Rights Act, challenging Trump over FoodShare funding, and blocking U.S. Department of Education cuts to school mental health spending.

Yet, for all this self-promotion, the attorney general made his request last week to eliminate the unemployment insurance religious tax exemption in complete silence. No press release. No chest-thumping. No bragging. The corporate media also pretty much ignored the story.

That’s because, this time, the story will offend the faithful of all political persuasions and of those who stand by the First Amendment regardless of political party. Not to mention, it’s an absurd hill to die on, and will fail again at the nation’s high court. (Unless, of course, the sheep on the state court miraculously wake up and wander off the highway in the nick of time, leaving Kaul to perish there alone.)

It’s offensive because Kaul demands that religion be practiced in the way the government demands that it be practiced, that it must be organized in the way the government decrees that it be organized, and the CCB doesn’t oblige. It doesn’t ask for baptismal records at the door. It feeds the hungry, cares for the disabled, and shelters the vulnerable without doctrinal demands.

Doctrinal faith cannot be permitted to behave is such a way, Kaul lectures, it must look and talk like what the government thinks religion should look and talk like. It must wear the red letter ‘R’ on its chest.

At the Supreme Court, in a concurring opinion, justice Clarence Thomas drove the central point home: the First Amendment, Thomas asserted, protects the institutional life of the church, including its service ministries, not just its brick-and-mortar representations and certainly not just its business structure; the state cannot redefine the nature of religious mission simply because its work looks like mercy rather than sermon.

“The First Amendment guarantees to religious institutions broad autonomy to conduct their internal affairs and govern themselves,” Thomas wrote. “This guarantee, which we have called the ‘church autonomy doctrine,’ provides that a religious institution is not defined by the corporate entities it chooses to form.”

The unanimous SCOTUS ruling should have hit Kaul between the eyes like a two-by-four of reality in this nation of religious liberty and independence. Somehow he has managed to miss it.

And so he now argues that the state can “cure” discrimination by eliminating the religious exemptions for everyone. Kaul’s logic is a form of progressive logic: equal misery is preferable to equal benefit. Becket, the law firm that represents Catholic Charities, correctly says this defiance of the Supreme Court is nothing short of farcical.

“Rather than accepting defeat, the state is now trying to punish all religious groups in Wisconsin, not just Catholic Charities,” Eric Rassbach, vice president and senior counsel at Becket, said. “Doubling down on excluding religious people makes a mockery of both our legal system and religious freedom.”

The idea that a Catholic ministry serving those in need isn’t religious was always absurd, Rassbach said.

“That’s why the Supreme Court unanimously rejected Wisconsin’s arguments and protected Catholic Charities,” he said. “Trying to wriggle out of a 9-0 loss is even more absurd. The state should take the L and move on.”

Not only that, Rassbach said, but if Kaul is successful, it would have significant consequences, harming not only Catholic Charities but also churches, synagogues, mosques, and other ministries that depend on the same exemption.

Can Kaul count to 10?

Joshua Kaul—otherwise known as Surely You’re Just Joshin’ Around Kaul—has recently seemed to lose track of just how many Trump Derangement Syndrome (TDS) lawsuits he’s filed, or, to be fair, maybe he’s just entangled in progressive math, which could confuse Euclid himself.

But Catholic Charities’ attorneys are schooled in regular math, and they have counted all the ways Kaul is wrong in this case—10 reasons, at least, why the state has jumped the shark.

For one thing, the attorneys assert, SCOTUS already said Catholic Charities wins:

Then, too, Becket argues in the CCB brief, the law of remedies requires that, as a general rule, an injunction can’t bind those who were not a party to the case.

“Eliminating tax exemptions for a host of entities other than Catholic Charities would run afoul of that rule,” the brief states. “Rather, in a constitutional case like this one, the remedy must be narrowly tailored to the injury complained of—here, the imposition of a tax on Catholic Charities.”

In addition, the brief continues, Wisconsin long ago forfeited any claim to request that Catholic Charities’ remedy should be anything other than receiving the exemption because Wisconsin should have raised that issue well before reversal and remand by SCOTUS.

And then there’s Kaul’s logic, which was—the lawyers were too kind to say it but I’m not—fat-brained because remedies must help the injured party; this would hurt everyone else while not changing anything for CCB.

Yes, this is brain-shaming, but it is well deserved.

“[A] judicial decree expanding the unemployment tax to a wide range of previously exempted religious employers would do nothing to remediate Catholic Charities’ injuries—its obligation to pay an unemployment tax (and its payment of an unconstitutional tax for almost a decade),” the brief stated. “Instead, Catholic Charities would remain in the same status quo from before the litigation (despite winning an appeal at the U.S. Supreme Court), and in fact, religious employers across the state, including the Diocese of Superior, would be worse off.”

Making it up as he goes

In Kaul’s brief—which was like a wish list for Santa, and why not, given the progressive Santa Clauses on the court, all eager to please him—the attorney general offered up this gotcha. It was the legislature’s intent to deny the tax exemption, he argued, claiming that, in 1971, the legislature began limiting exemptions from unemployment insurance for nonprofits and has narrowed that exemption steadily.

“In short, ever since 1971, the Legislature has demonstrated its preference for expanding—not contracting—nonprofit employers’ participation in the unemployment insurance system,” Kaul wrote. “Expanding the exemption would conflict with the Legislature’s clear preference.”

Nice try, but, as CCB’s attorneys observed, there was no need to speculate about legislative intent by reading the tea leaves of legislative history; all Kaul had to do was look at the briefs in the case before him because there, like Rudolph leading the sleigh, was a brightly lit legislative brief stating its intent explicitly.

“Indeed, we don’t have to speculate regarding what the Legislature would have wanted had it been apprised of the situation,” the CCB brief stated. “Instead, we know: as amicus curiae in this Court and at the U.S. Supreme Court, the Legislature made clear that it favored extending the exemption to Catholic Charities. As their amicus brief explained, ‘the fact that an organization practices charity should never disqualify it from a religious tax exemption. If anything, charity is a typical religious act.’”

So Kaul is pitting his interpretive mind-reading against the legislature’s own explicitly written statement of intent. In real life, this is called “making things up.”

Not least, CCB’s attorneys argue, eliminating exemptions would create new constitutional violations.

“If this Court eliminates the religious exemption, but fails to eliminate secular exemptions from the statute, it would substitute one constitutional violation with another,” the brief stated. “A law is not generally applicable—and therefore must face strict scrutiny—‘if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.’”

Indeed, the brief points out, the Unemployment Compensation Act exempts more than 40 forms of ‘employment,’ including work done by nonresident aliens performing certain types of work; certain categories of agricultural labor; and work done by golf caddies, insurance salesmen, and taxi drivers. All of those exemptions undermine Wisconsin’s stated interest of avoiding “the heavy social cost of depriving the unemployed of benefits,” CCB argues.

“Of course, that interest is not implicated by exempting Catholic Charities, since the Catholic Church provides Catholic Charities’ employees access to a more efficient church-run unemployment program,” the brief stated. “Nor would any other citizens of the state be burdened by Catholic Charities’ departure from Wisconsin’s system, since Catholic Charities and its sub-entities reimburse Wisconsin only for the benefits their employees actually receive.”

And even if Wisconsin’s purported interest were triggered by exempting Catholic Charities, CCB added, that same interest is undermined far more by exempting members of the judiciary, nonresident aliens, golf caddies, insurance salesmen, and taxi drivers, who may have no alternatives.

To avoid jeopardizing the entire statute, CCB argued, the court would have to strike down not just the religious purposes exemption but every comparable secular exemption from the statute.

“But taking such a sledgehammer to so many other tax exemptions held by unrelated parties, all just to keep excluding Catholic Charities, would be the height of discrimination,” CCB argued.

CCB contends, too, that Kaul’s proposed rule would result in unconstitutional religious targeting.

“Wisconsin has demonstrated a longstanding intention to exclude Catholic Charities and other entities like it,” the brief states. “Having violated the Constitution, Wisconsin cannot now act as if its new proposal has nothing to do with that history or that it has not targeted Catholic Charities for exclusion from the very beginning. Indeed, if the ‘object of a law is to infringe upon or restrict practices because of their religious motivation,’ then it immediately triggers strict scrutiny under the Free Exercise Clause.”

Finally, Kaul argued that allowing the CCB exemption would have unintended consequences, namely that any nonprofit asserting a religious motivation would become eligible, including, most prominently, the religiously affiliated hospitals and clinics that employ thousands of workers in Wisconsin.

“The State could no longer ‘exclude religious organizations’ based on their decisions not to perform ‘worship, proselytization, or religious education when performing charitable work,’” Kaul’s remedial brief states.

That leaves only subjective motivations, Kaul asserted, impossible to quantify.

That argument is so flawed that it needs to be quickly shoved into the basement with all the DOJ’s other abandoned Christmas toys. Hospital exemptions are based on IRS standards, governance, and religious control—making for case-by-case determinations. The tax code already knows how to distinguish actual religious institutions from major medical systems wearing that ‘R’ on their sleeve.

Specifically, if a nonprofit is “supervised, controlled, or principally supported by a church,” it qualifies. Can large hospital systems actually make that claim and prove it? The point is, nonprofit exemptions for hospitals need to be broadly re-examined anyway, but hospitals seeking the exemption would find tough sledding.

At the end of the day, this is not just a case about progressives hating the free exercise of religion, nor is it a case about free speech only. It is those, but it’s also about another freedom foundational to our way of life.

It is about freedom from government’s bureaucratization of life and faith itself.

Bureaucratic collectivism is a poisonous anti-religion all its own. It is not structured by belief in service to God or by the need to build institutions to serve God’s purposes, or, for that matter, any purpose other than its own survival.

It is structured by faith in itself, in bureaucracy for bureaucracy’s sake. Bureaucratic institutions serve only their own purposes; they are ends in themselves.

In this DOJ mission, Kaul seeks to redefine religious practice according to secular bureaucratic categories. Under his logic, religious work counts as religious only if it primarily serves co-religionists (or members of the Borg, to the bureaucrat) or proselytizes in the name of the collective identity.

Its institutions must walk and talk just like government institutions, and adhere to the same standards, just like the government demands that all schools walk and talk like government schools.

This idea is profoundly dangerous. It rewards rigid conformity and blind homogeneity. It worships institutions over people. It posits divinity not in God but in government, which is Kaul’s real point.

The state isn’t just misdefining religion. It’s bureaucratizing it. When it does so, it seeks to build heavenly institutions on earth only to deliver institutional hell.