Recent Articles of Interest

From SSRN:

• Patrick E. Reidy, C.S.C., Churching NIMBYs: Creating Affordable Housing on Church Property, (Yale Law Journal, Vol. 133, No. 4, 2024).
• Nelson Tebbe, Does Dobbs Reinforce Democracy?, (Iowa Law Review, Vol. 108, No. 2363, 2023).
• Galym Zhussipbek, Assyltay Tasbolat & Zhanar Nagayeva, Interdisciplinary Approach to Overcoming the Persistence of Patriarchal Islamic Interpretations: Gender Equality, the Development of Empathy and Children’s Rights, and Insights from the Reformist Eurasian Scholars of Early Twentieth Century (February 8, 2024).
• Elicabeth Sepper, The Return of Boy Scouts of America v. Dale, (St. Louis University Law Journal, Vol. 68, 2024).
• Linda C. McClain, Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Elenis, (68 Saint Louis University Law Journal, 2024).
• Andrew M. Koppelman, The Supreme Court’s Gay Rights-Religious Liberty Contortions,  (Northwestern Public Law Research Paper No. 24-05 (2024)).
• Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, (Yale Law Journal, Forthcoming).
• Rachel F. Moran, Affirmative Action, Religious Liberty, and The Freedom to Discriminate, (Canopy Forum On the Interactions of Law & Religion, March 2024).
• Lewis A. Grossman, Criminalizing Transgender Care, (March 19, 2024).
• Michael L. Smith, Social Media Regulation in the Wake of 303 Creative v. Elenis, (February 25, 2024).
• Adam Jay Hirsch,Beyond Privity of Blood: Intestacy and Charity, (UC Law Journal vol. 76, no. 2 (2025) (formerly Hastings Law Journal), Forthcoming).
  
  

From SmartCILP:

• Antony Barone Kolenc, Veritatis Splendor and State Accommodation of Religious Freedom, 21 Ave Maria Law Review 55-63 (2023).
• Stephen L. Mikochik, John Locke and John Paul II on the Nature of Work, 21 Ave Maria Law Review 64-70 (2023).
• Marianna Orlandi, The Age of No-Fault Divorce, the Jeweler's Shop, and the Need for Natural Marriage, 21 Ave Maria Law Review 71-95 (2023).
• Ronald J. Rychlak, John Paul II, the United Nations, and the Quest for Freedom, 21 Ave Maria Law Review 96-107 (2023).
• Stephen McLoughlin, Don't Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students, 49 BYU Law Review 117-176 (2023).

Court Enforces Arbitration Award Requiring Husband to Furnish Jewish Bill of Divorce

In S.I. v. M.I., (NJ App., March 22, 2024), a New Jersey state appellate court held that a husband was required to comply with an arbitration agreement he had signed that required him to accept Rabbi David Twersky's decision on his obligation to give his wife a get (Jewish bill of divorce). The rabbi ordered giving of a get, but the husband refused to comply. The trial court declined to confirm the arbitration award because it concluded that it could not order a party to carry out a religious act.  The court of appeals reversed, saying in part:

Here, confirmation of the award can be granted under neutral principles of law and without interpretation of religious doctrine.  We therefore conclude the Establishment Clause is not violated because the parties' arbitration agreement regarding a get serves the "purpose of enforcing the parties' contractual obligations" and "encouraging divorce litigants to resolve disputes by negotiating and entering" into marital agreements....

Additionally, enforcement does not infringe on the Free Exercise Clause as the parties voluntarily entered into the MOU arbitration provision and agreement....

Confirmation of the award strictly required a determination of defendant's contractual obligation.

New Indiana Law Strengthens Parents' Right to Have Children Attend Released-Time Religious Instruction

Last week, Indiana Governor Eric Holcomb signed House Bill 1137 (full text) which strengthens parents' rights to have their children attend up to two hours per week of released-time religious instruction. Previously Indiana law permitted, but did not require, a public school to honor parents' requests for their children to attend up to two hours per week of religious instruction provided by a church or other religious educational organization. As amended, the law now requires the principal to allow attendance at up to two hours of religious instruction when a parent has requested it. The law calls for the principal, the parent and the religious school to work cooperatively in finding the least disruptive time for the religious instruction. ADF issued a press release on the new legislation.

7th Circuit: Refusal to Dismiss Under Church Autonomy Doctrine Is Not Appealable Interlocutory Order

 In Garrick v. Moody Bible Institute, (7th Cir., March 18, 2024), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that that an order refusing to dismiss a Title VII employment discrimination case under the church autonomy doctrine is not an appealable interlocutory order. The suit was brought by a former communications instructor who claimed sex discrimination.  According to the Bible Institute, the instructor's firing resulted from her disagreement with the Institute's doctrine that only men should serve as clergy. Plaintiff contended that this was merely a pretext for sex discrimination. In denying appealability, the court said in part:

... Moody’s argument that it will experience irreparable harm without immediate review and reversal of the district court’s order is unavailing. Religious autonomy to shape and control doctrine will not be threatened. Within its discretion to manage discovery, the district court should limit discovery to instances of discriminatory treatment in situations not implicated by Moody’s complementarian beliefs.

Judge Brennan dissented, arguing that the interlocutory dismissal order should be appealable. Americans United issued a press release announcing the decision.

Satanic Temple Sues School Board Over Discriminatory Rental Fees for Satan Club

The Satanic Temple filed suit this week in a Tennessee federal district court complaining that the Memphis-Shelby County School Board is placing hurdles in the way of its renting space for use by an After-School Satan Club. The complaint (full text) in The Satanic Temple, Inc. v. Shelby County Board of Education, (WD TN, filed 3/19/2024), alleges in part:

160. ... MSCS has demonstrated a widespread custom and practice of unnecessarily delaying approval or denial of the Satanic Temple’s rental applications....

169. ... MSCS is unconstitutionally discriminating against the Satanic Temple on the basis of its disfavored viewpoint and the content of its speech by charging the Temple a discriminatory hourly rental rate for its monthly ASSC meetings and ... an arbitrary and exorbitant security fee while not charging the same rates or security fees to the Good News Club....

170. ... MSCS’s discriminatory actions are ... arising from disagreement with, and hostility toward, the viewpoint and/or content of the Satanic Temple’s speech, as well as hostility towards the Satanic Temple’s religion by school board members, MSCS administrators, MSCS officials, community members and others....

196. The Satanic Temple’s before- and-after school clubs are a vital part of its religiously motivated mission to provide a safe, inclusive, and welcoming club for students whose parents are members of the Satanic Temple, as well as other students who may not feel welcomed or comfortable at other available before- or after-school religious clubs.

197. MSCS’s widespread custom and practice of discriminating against the Satanic Temple and attempting to constructively block and deter the ASSC from meeting ... substantially burdens the Satanic Temple’s exercise of its sincerely held non-theistic religious belief.

Freedom From Religion foundation issued a press release announcing the filing of the lawsuit.

4th Circuit: Inmate's Claim for Religious Diet Should Move Forward

In Pendleton v. Jividen, (4th Cir., March 20, 2024), the U.S. 4th Circuit Court of Appeals held that a West Virginia federal district court should not have dismissed a RLUIPA religious diet claim brought by an inmate who follows the Sufi Original Traditions of Islam. Those Traditions allow him to only eat fruit, vegetables and certain fish. The court said in part:

In 2014 ... prison officials introduced a new diet program for those with religious dietary restrictions. Under that program, a single “religious special diet” is served—one designed to meet the needs of all faiths by following the rules of the most diet-restrictive ones. With all forms of meat off the table, the diet uses soy as its primary protein source....

Although Pendleton’s religious beliefs do not forbid consumption of soy as such, the complaint alleges that Pendleton experiences vomiting, abdominal pain, constipation, and other digestive issues when he does so. And this, the complaint asserts, is of “religious significance” to Pendleton because his inability to properly digest soy renders such foods "Haram" for him....

Defendants insist that Pendleton could obtain a meat-free and soy-free diet by obtaining test results showing he has a medically significant allergy to soy. And, the defendants continue, because Pendleton has refused to submit to allergy testing ... he has not plausibly alleged a substantial burden on his religious practice. That argument fails too. Pendleton need not produce documentation of his alleged soy allergy to survive a motion to dismiss.... Even if Pendleton took an allergy test and that test was negative, it would not eliminate his religiously based objections to eating soy.  For that reason, Pendleton has plausibly alleged a substantial burden on his religious practices, and the district court erred in concluding otherwise.

Christian Food Ministry Sues to End City's Attempts to Close It Down

 Last week, a Yuma County, Arizona Baptist church filed suit in an Arizona federal district court challenging actions the city of San Luis has taken to close down the church's food distribution ministry which it has operated for 23 years. The complaint (full text) in Gethsemani Baptist Church v. City of San Luis, (D AZ, filed 3/13/2024), says that with the election of a new mayor in 2022, the city ended its prior support for the food ministry and used zoning rules to attempt to end its operations. The city contends that the growth of the church's Food Ministry has changed it sufficiently that it may no longer rely on its prior treatment as a legal non-conforming use. The church alleges that the city's actions violate RLUIPA, the Free Exercise Clause, and Arizona's Free Exercise of Religion Act. First Liberty issued a press release announcing the filling of the lawsuit.

Montana Supreme Court Says AG Wrongly Rejected Language of Reproductive Rights Initiative

In Montanans Securing Reproductive Rights v. Knudson,(MT Sup. Ct., March 18, 2024), the Montana Supreme Court held that the state Attorney General was incorrect in in concluding that a proposed reproductive rights ballot initiative violates the separate vote requirement of the Montana Constitution. It also held that the Attorney General lacked authority to append a fiscal statement to the initiative. The court ordered the Attorney General to prepare a ballot statement for the initiative and forward it to the Secretary of State. 

Justice McKinnon filed a concurring opinion. Justice Rice filed a dissenting opinion, saying in part:

I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.

(See prior related posting.) Montana Free Press reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Indiana Governor Vetoes Antisemitism Bill for Omitting Examples in Widely-Adopted Definition

As previously reported, earlier this month the Indiana legislature passed House Enrolled Act 1002 which would amend the state Education Code to specifically protect against antisemitism in public schools and colleges. The bill adopts the International Holocaust Remembrance Alliance's Working Definition of Antisemitism, but, in a controversial compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism. As reported by JNS, that exclusion led Jewish groups to encourage Governor Eric Holcomb to veto the bill, which he did on Monday. His veto message (full text) said in part:

While I applaud the General Assembly's effort to address and define antisemitism, I cannot agree with the outcome. The language that emerged in the final days of the session fails to incorporate the entire International Holocaust Remembrance Alliance ("IHRA") definition and its important contemporary examples. Additionally, the confusing language included in the bill could be read to exclude those examples....

However, I also refuse to leave a void as to Indiana's stance on antisemitism. That is why I am happy to share that I have also signed a proclamation reiterating that Indiana condemns all forms of antisemitism and ensures we join numerous states and countries by supporting the entire IHRA definition with its inextricable examples....

The Governor's lengthy (full text) says in part:

Whereas, the Working Definition provides a clear, comprehensive and non-legally binding definition that can be used to determine contemporary manifestations of antisemitism.... 

The State of Indiana condemns antisemitism and stands in solidarity with the Jewish community in the face of this pernicious and insidious hatred.

While the Proclamation makes clear that its embrace of the IHRA Working Definition includes its examples, the Proclamation makes no explicit mention of criticism of Israel.

Pharmacist Violated Sex Discrimination Ban in Refusing to Fill Prescription for Emergency Contraceptive

 In Anderson v. Aitkin Pharmacy Services, LLC, (MN App., March 18, 2024), a Minnesota state appellate court held that a pharmacist violated the Minnesota Human Rights Act that prohibits intentionally refusing to do business with a person because of the person's sex. The pharmacist refused to dispense plaintiff's prescription for the emergency contraceptive ella because of his conscientious objection to dispensing any medication that prevents the implantation of a fertilized egg. The statute defines sex discrimination as including discrimination because of pregnancy. The court said in part:

Badeaux refused to dispense Anderson’s valid prescription because Badeaux believed she may have been pregnant.  Thus, pregnancy was a substantial causative factor in Badeaux’s refusal to dispense ella....

Badeaux did not assert a constitutional defense in district court and does not argue that the MHRA actually violates his constitutional rights.  Instead, he argues on appeal that the sex-discrimination language in the MHRA should be interpreted to avoid a constitutional conflict.... But we do not apply the constitutional-avoidance canon to a party’s proposed interpretation of a statute if the interpretation is contrary to the plain language of the statute.

The court however refused to reverse the jury's finding that the Pharmacy, as opposed to the individual pharmacist, did not violate the sex discrimination ban. The court said in part:

The evidence shows that Aitkin Pharmacy wanted to fill all valid prescriptions and had a pharmacist on staff who was willing to dispense emergency contraception.  The evidence also shows that, when Badeaux called Anderson on January 21, he communicated both that he was unwilling to dispense ella and that there was another pharmacist scheduled to work who was willing to dispense her prescription.... [T]here is a reasonable theory of the evidence to support the verdict that Aitkin Pharmacy did not intentionally refuse to do business with Anderson...

The court also concluded that, because of erroneous jury instructions, plaintiff should have been granted a new trial on her claim that the pharmacy violated the state's public accommodation law that bans denial of the full and equal enjoyment of goods and services in places of public accommodation because of sex. Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

European Court: Turkey Violated Rights of Conscientious Objector

In Kanatli v. Turkey, (ECHR, March 12, 2024) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkey had violated Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights when it convicted a military reservist who had subsequently become a conscientious objector for refusing to serve a one-day reserve duty call-up. The reservist, who had become an activist on the European Bureau for Conscientious Objection, was convicted of violating Turkey's Mobilization Act and fined the equivalent of 167 Euros. He refused to pay the fine and was therefore sentenced to ten days in prison. An English language press release from the Court summarizes its holding, saying in part:

The relevant national legislation – which provided for compulsory military service in the armed forces, including as a reservist – made no provision for potential conscientious objectors to perform an alternative form of service....

The Court had previously found that a system which provided for no alternative service or any effective and accessible procedure for the examination of a claim of conscientious objection could not be seen as having struck a fair balance between the general interest of society and that of conscientious objectors. No convincing arguments having been put forward by the Government, the Court saw no reason to depart from its case-law in the present case....

The Court held that Türkiye was to pay the applicant 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,363 in respect of costs and expenses.

Catholic Bishops Mobilize Special Prayer Efforts for Supreme Court's Decision on Abortion Pill Availability

On March 26, the U.S. Supreme Court will hear oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine and a companion case Danco Laboratories, LLC v. Alliance for Hippocratic Medicine. (SCOTUSblog case page.) At issue are challenges to the Food and Drug Administration's relaxation of restrictions on the administration and use of the abortion drug mifepristone. (See prior posting.) On March 14, the U.S. Conference of Catholic Bishops issued a letter (full text) calling for the recitation of a special prayer beginning the day before oral arguments and daily until the date in June when the case is decided.  The letter reads in part:

The USCCB Committee on Pro-Life Activities is inviting Catholics to join a focused effort of prayer for the end of abortion and the protection of women and preborn children, beginning on March 25, the eve of the oral arguments, and the anniversary of St. John Paul II’s landmark, pro-life encyclical, The Gospel of Life (Evangelium vitae). In particular, we will invoke the intercession of St. Joseph, Defender of Life....

The Tablet and Catholic World Report both report on the Bishops' Nationwide Invitation to Prayer.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Air Pollution Did Not Violate City Residents' Free Exercise Rights

In Dancer v. United States, (WD MI, March 15, 2024), residents of Kalamazoo, Michigan sued a variety of governmental and private parties alleging injuries from airborne pollution, chemical discharges and odors from a nearby paper mill. Among the 34 separate claims in the lawsuit was a claim that the city's failure to deal with air quality problems caused pollution and odors that interfered with plaintiffs' ability to attend congregational worship services. The Michigan federal district court said in part:

The city’s alleged failure to improve the air quality of its residents does not give rise to a free exercise claim because that failure impacts city residents without regard to their religion.... Ordinarily, a policy or practice that is “neutral, generally applicable, and ‘incidentally burdens religions practices’” does not give rise to a free exercise claim.... Those are the circumstances here.

7th Circuit: Zoning Denial for Catholic School Athletic Field Lights Did Not Violate RLUIPA

In Edgewood High School of the Sacred Heart v. City of Madison, Wisconsin, (7th Cir., March 15, 2024), the U.S. Court of Appeals for the 7th Circuit upheld the denial of zoning approval for a Catholic high school to install lights in its athletic field for nighttime games. The court rejected the school's claims that the denial violated the "equal terms" and "substantial burden" provisions of the Religious Land Use and Institutionalized Persons Act, saying in part:

... [W]e remain doubtful that the hosting of nighttime athletic competitions constitutes “religious” activity.... We can put our doubts to the side, though, because the City effectively conceded on appeal that the hosting of games at Edgewood’s athletic field constitutes religious activity. We accept that concession for purposes of this appeal. 

It would be a bridge too far, however, to conclude that Edgewood’s inability to host nighttime competitions at its field imposes a “substantial burden” on its Catholic mission.... [W]e have examined the term in the land-use context and concluded that the availability of other adequate properties to host religious activities may defeat a substantial burden claim....

The alternative venues in this case are in the same general community within the City of Madison as Edgewood and, according to the evidence developed during discovery, remain available to host nighttime events. Given these alternative sites, we cannot see how the City’s zoning decisions imposed a substantial burden on Edgewood’s religious mission. Indeed, the high school has never hosted nighttime competitions on its athletic field but has carried out its religious mission all the same for over 100 years.

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & Lindsay Freeman Wiley, The Religious Liberty Challenges to American-Style Social Insurance, (UC Davis Law Review, Vol. 58, 2024).
• Dustin N. Sharp, Comparative Frameworks for a Human Rights-Based Approach to Psychedelics, (March 8, 2024).
• Barkha Singh, Normalization of the Exceptional State Under Unlawful Activities and Prevention (Amendment) Act, 2019 – Umar Khalid V. Union of India, (February 17, 2024).
• Robin S. Maril, Originalism and Democratic Decline, ( Maryland Law Review, Forthcoming).
• Howard Wasserman & Charles W. (Rocky) Rhodes, 303 Creative, Exclusive Private Enforcement, and Blue-State Revenge, (Florida International University Legal Studies Research Paper No. 24- (2024).

From SmartCILP:

• David Smolin, Beyond Apologies: Children, Mothers, Religious Liberty, and the Mission of the Catholic Church, 53 Cumberland Law Review 101-172 (2022).

Denial of Temporary Religious Worker Visa Upheld

In Calvary Albuquerque Inc. v. Blinken, (D NM, March 13, 2024), a New Mexico federal district court dismissed challenges to the denial of an R-1 (Temporary Religious Worker) visa for Stefen Green, a South African citizen who was to be hired as Calvary Church's Worship Director. At issue was the fact that Green received honoraria and allowances from Calvary Church while in the United States on a B-1 visitor's visa before the R-1 visa was approved. Green and Calvary Church both contended that the denial violated their rights under the Religious Freedom Restoration Act. Denying Green's claim, the court said in part:

Because the doctrine of consular nonreviewability is a long-standing “no trespass rule” for judicial review, and Congress has not expressly provided for judicial review of consular visa decisions, this Court may not infringe upon the consular officer’s decision to deny Mr. Green’s visa except where the constitutional rights of an American citizen are implicated....

Moving on to the RFRA claim by the Church, the court said in part: 

Calvary Church is a United States church making a free exercise claim under RFRA, so this Court must next determine whether the consular officer’s visa denial was made for a facially legitimate and bona fide reasons....

Here, the consular officer cited a valid statutory reason for denial.... [T]he consular officer made a factual determination that Mr. Green willfully misrepresented the purpose of his April 9, 2022, visit to a border official as commensurate with a B-1/B-2 visa and then violated that status by intending to engage in unauthorized employment for hire as an independent contractor at Calvary Church within 90-days of his entry into the United States.

Japanese Appellate Court Says Failure to Recognize Same-Sex Marriage Is Unconstitutional

In Japan yesterday, the Sapporo High Court-- an intermediate appellate court-- held that Japan's refusal to recognize same-sex marriages is unconstitutional.  Japan Today reports on the decision:

The Sapporo High Court upheld the lower court's landmark verdict in 2021 that said non-recognition of same-sex marriage violates the right to equality protected under the Constitution but rejected a total of 6 million yen ($40,600) in damages sought by three same-sex couples in Hokkaido against the state for emotional distress.

The plaintiffs said they will appeal the ruling to the Supreme Court.

The ruling, the first by a high court among six lawsuits filed at five district courts questioning the current laws' unacceptance of same-sex marriage, said the provisions violate not only Article 14 on the right to equality but also Article 24, which says marriage shall be only on the mutual consent of "both sexes."

The court stated for the first time that Article 24 can be understood as also guaranteeing marriage between individuals of the same sexes.

The clause did not anticipate same-sex marriages when the Constitution was enacted but "it should be interpreted against the background where respect for individuals is more clearly considered," Presiding Judge Kiyofumi Saito said in handing down the ruling.

Several district (trial level) courts have ruled on the issue, including a ruling yesterday by a district court in Tokyo saying that lack of some sort of recognition of same-sex couples is "a deprivation of a key part of their personal identity." However, the court said that the Diet has many options for recognizing same-sex partnerships.

Custody Order Barring Father from Taking Child to His Church Upheld

In Bardonner v. Bardonner, (IN App., March 12, 2024), the Indiana Court of Appeals held that a father's free exercise rights were not infringed in any way by a provision in a custody order that gives his former wife custody of their child and the sole right to determine the child's religious training.  At issue is a trial court order that provides in part:

Father shall NOT permit the child to attend any All Saints Orthodox Church service, Sunday school, social event, any event located at the church, any event sponsored in whole or in part by All Saints Orthodox Church; nor any private events hosted by a member of All Saints Orthodox Church....

The court said in part:

The bottom line is that Mother has the exclusive authority to dictate Child’s religious training, and she has decided that Child shall not participate in Father’s church. Mother does not need to explain her reasons or justify her decision in any way.

Finally, we note that it was Father’s own violations of previous court orders, which were less restrictive on this issue, that led the trial court to impose the current prohibition against taking Child to even private functions hosted by members of Father’s church. Given the trial court’s broad discretion in family matters, we decline Father’s invitation to find an abuse of that discretion here. 

In sum, the trial court’s order does not violate Father’s First Amendment rights; nor is it erroneous for other reasons.

Wisconsin Supreme Court Says Catholic Charities Not Exempt from Unemployment Comp Law

 In Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission, (WI Sup. Ct., March 14, 2024), the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law.  The statute exempts nonprofit organizations "operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches." The court concluded that under the statute, what is important is the purpose of the nonprofit organization, not the purpose of the church which controls it. The court said in part:

... [I]n determining whether an organization is "operated primarily for religious purposes" within the meaning of Wis. Stat. § 108.02(15)(h)2., we must examine both the motivations and the activities of the organization....

CCB and the sub-entities profess to have a religious motivation.... However, accepting an organization's motivations does not end the inquiry as we must also examine its activities....

 Here, such criteria weigh in favor of a determination that CCB's and the sub-entities' activities are not "primarily" religious in nature.  The record demonstrates that CCB and the sub-entities, which are organized as separate corporations apart from the church itself, neither attempt to imbue program participants with the Catholic faith nor supply any religious materials to program participants or employees.  Although not required, these would be strong indications that the activities are primarily religious in nature....

CCB's and the sub-entities' activities are primarily charitable and secular.  The sub-entities 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.  CCB provides background support and management services for these activities——a wholly secular endeavor....  

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 also concluded that neither this inquiry nor the required payment of unemployment tax violates the Free Exercise or Establishment Clauses.

Justice Bradley, joined in part by Chief Justice Ziegler, filed a lengthy dissenting opinion, saying in part:

 Impermissibly entangling the government in church doctrine, the majority astonishingly declares Catholic Charities are not "operated primarily for religious purposes" because their activities are not "religious in nature."... The statute, however, requires only that a nonprofit be operated primarily for a religious reason.

Justice Hagedorn also filed a brief dissenting opinion.

AP reports on the decision, as does Courthouse News Service,