WI Supreme Court starts term with cases on adoption, religious exemptions to unemployment law

By: - September 12, 2023 5:45 am

Wisconsin Supreme Court chambers. (Baylor Spears | Wisconsin Examiner)

After nearly six weeks of controversy as Wisconsin Republicans reacted to the ideological flipping of the state Supreme Court and its potential decisions in high profile cases, the body met Monday to hear arguments on the state’s rules for adoptions and how the state’s unemployment insurance rules apply to religious organizations. 

The two sets of oral arguments occurred as Wisconsin Republicans continue to weigh impeaching newly sworn-in Justice Janet Protasiewicz because of comments she made during her campaign this spring in which she characterized the state’s legislative maps — which are widely considered to be some of the most gerrymandered in the country —  as “rigged.” Shortly after Protasiewicz was sworn in, two lawsuits seeking to have the maps thrown out were filed, threatening Republicans’ near-supermajority hold on power in the Legislature. 

Ahead of the term, the threat of impeachment and the conservative reaction to losing power has consumed the Court, yet on Monday the court heard the arguments in the two decidedly less straightforwardly political cases without any issue. Protasiewicz, hearing her first cases as a member of the Court, was quieter than many of the other justices, but weighed in occasionally to ask questions of the presenting attorneys. 

“Step-parent” adoption law

In the adoption case, the Court is weighing the constitutionality of state laws that say a child with a single parent cannot be adopted by that parent’s partner if the couple isn’t married. The case involves an Ashland County man who is trying to legally adopt his partner’s daughter. The Ashland County judge who initially heard the case said that adoption was probably in the child’s “best interest” but that state law prevents it. 

The attorneys for the family argued that the statute is “infringing on someone’s right to marry” or choose not to get married by requiring the parents in “step-parent adoptions” to be married. One of the family’s attorneys, Carla Smith, said the result of the statute is that a child is punished because of her mother’s relationship decisions. 

“This is government overreach into the private lives of individuals,” Smith said. “Saying you’re only going to have one parent until your mother decides to marry is unconstitutional.” 

Yet both conservative and liberal justices appeared skeptical that they could grant the relief the family is seeking. Conservative Justice Rebecca Bradley said that the members of the Court might as people all be sympathetic to the family’s cause, but the question the body needs to answer is whether or not the Legislature, when writing this law, made a policy decision with a “reasonable basis.” She also noted that no state or federal court in the country has ever recognized a “right to adoption.” 

While liberal Justice Rebecca Dallet said that there are lots of places in state law where married couples receive benefits not accessible to single people — most notably in the tax code. So, she asked, if the Court agrees with the family and states that the Legislature can’t differentiate between types of couples, wouldn’t that affect all those other areas of the law in which couples are differentiated? 

“Don’t we do that with other statutes?” Dallet asked. “I don’t see where it ends.” 

Wisconsin Department of Justice Assistant Attorney General Lynn Lodahl, who defended the law on behalf of the state, said that the justices could agree or disagree with the policy choice the Legislature made, but the question is whether the Legislature had a “reasonable” reason for making it. In this case, she said, it was because of statistics showing that children with married parents are more stable and have access to more benefits from the state. 

Liberal Justice Jill Karofsky, adding that she herself is a single mother, said she was “struggling with how rational” the legislative reasoning still is. She said that as a circuit court judge she heard lots of family law cases involving domestic violence with mothers “trapped in marriages,” which isn’t offering more stability to those children. She also questioned the circular logic of the state saying it’s better to have married parents because the state offers those married parents more tax benefits. 

“You’re telling me you’re better off with a married couple because we’re going to add these other benefits?” she said. 

Lodahl returned to the statement that the justices can disagree with the Legislature’s reasoning, but that it can’t overturn the law simply because of that disagreement. 

“It’s still a quintessential legislative question,” she said. 

Religious exemptions to unemployment law 

In the second arguments of the day, the Court considered how statutory exemptions to the state’s unemployment insurance laws should apply to subsidiaries of a religious organization. The case involves four nonprofit organizations operated by the Catholic Charities Bureau of the Catholic Diocese of Superior. 

Under state law, organizations operated for religious purposes are not required to pay unemployment insurance. The diocese is trying to have the court declare that the subsidiaries are operated for religious purposes and therefore exempt. 

The state’s Labor and Industry Review Commission has denied the exemption to the subsidiaries, arguing that even though they’re operated by the church, they aren’t doing expressly religious work. The subsidiaries provide a number of social services to northern Wisconsin residents, whether or not those residents are Catholic. 

“You’re supposed to be looking at purposes, not beliefs,” said Jeffrey Shampo, attorney for the LIRC. “Their purpose is to provide these social services.” 

Shampo said that explicitly religious actions such as “proselytizing or evangelizing” would count as religious purposes, but Bradley questioned how the state could say whether or not the provision of social services is religious or not. She noted that in many faiths, including Catholicism, it’s a central tenet to provide charity regardless of whether or not the recipient is also Catholic. 

“Your test would violate Catholic doctrine,” she said, adding that she thinks this reading would result in the state discriminating against different religions because some, such as certain Protestant faiths, focus on evangelization while others don’t.

Eric Rassbach, an attorney for the diocese, said that the LIRC is setting too high of a standard. 

“According to [the state], every activity in the world is secular unless it’s unique to religion,” he said, adding that from different perspectives, eating bread and drinking wine can be secular, but it can also be distinctly Catholic or Jewish. 

But the liberal justices questioned how broadly this would apply if the diocese were to win. Dallet asked about how this would apply to the state’s religious colleges and hospitals, wondering if an interpretation siding with the church would prevent the thousands of employees of those organizations from receiving unemployment benefits because their employer is operated by a religious group and providing a service that generally falls within the beliefs of a religion as broadly as “healing the sick” or “educating the young.” 

“These are some pretty broad principles,” she said. “Where is the line?”


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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.