Over the past 3 years, the business lobby in Wisconsin bought and paid for the successful elections of two activist conservative Supreme Court Justices. What was supposed to tilt the scales of justice to a more corporate friendly court has also heralded in a conservative religious legal vision of a Christian America. Let’s call it what it is; Legislating from the bench. In a jaw dropping ruling, these two questions have finally been answered:
Does “age” have anything to do with religion? According to the zealot “activist” conservative Wisconsin Supreme Court, it does.
Does legal precedent and establish “primary duties” tests mean anything to activist State Supreme Court Justices? No. If anything, these activist Justices aren’t shy about instituting brand new standards that appear to legislate from the bench, with no legal justification.
The Wisconsin Supreme Court Tuesday came down on the side of religious freedom ... The court ruled that teachers in religious schools who lose their jobs cannot sue for age, (gender and racial discrimination,) -as they could if they worked for a public school system. The court basically ruled that a judge cannot impose hiring or firing standards because it would interfere with religious freedom. This ruling ignored:
… rulings in lower courts over the years, the verdict comes as a disappointment to Wendy Ostlund. Just a few facts: Coulee Catholic Schools argued that Ostlund’s teaching position was “ministerial.” (An) administrative law judge concluded under the “primary duties” test that Ostlund’s job was not “ministerial” because the majority of her day involved teaching secular disciplines. The Labor and Industry Review Commission (LIRC) affirmed this ruling as did the circuit court and the court of appeals. In a dissenting opinion....Justice Patrick Crooks says the decision in effect gives religious schools the right to discriminate against their employees. The vote in the court was 4-3 decision … in favor of the Diocese. According to the State Bar of Wisconsin web site:
Dissenting justices argued that the court’s policy preferences, not any legal principle, justified abandoning the old test used in Wisconsin for many years.
So the conservative Justices created a new test, legislation from the bench.
The majority opinion criticized the “primary duties” test used by the agency and lower courts for its “qualitative approach,” which merely adds up the time spent on religious activities. “What the quantitative approach means as a practical matter is that the state can interfere with the hiring and firing of the leaders of religious organizations and houses of worship,” the court said … (The Justices settled on) a “functional” approach that focuses on the overall function of the employee, not only the enumerated tasks themselves. The court majority explicitly stated its decision stands on independent state grounds, precluding review by the U.S. Supreme Court.
In dissent, “[T]he majority and I appear to agree that a fair application of the primary duties test, as our courts and a majority of others have applied it, yields only one sensible result: that Ostlund’s position is not ‘ecclesiastical,’” Justice Crooks wrote. “Yet, rather than accept that result, the majority opts to gild the primary duties test with a functional analysis that produces a significantly broader approach and to apply the facts selectively to that approach.”
Crooks charged that the majority had failed to identify a principle in Wisconsin law that justified reworking the “primary duties” test. The new test, he said, has little or no support from other jurisdictions and “appears to be merely a matter of preference for the majority.
Crooks said that the court’s rationale risked undermining the constitutionality of the Milwaukee Parental Choice Program (MPCP) established in Jackson v. Benson, 218 Wis. 2d 835 (1998). That program enabling poor children to attend sectarian private schools through a public voucher system passed constitutional muster because it included an “opt-out” provision, he said.
An “opt-out” lets parents or guardians excuse their children from religious activities. This was an important factor under the test for state endorsement of religion set out in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, Crooks explained, a school voucher program does not violate the Establishment Clause if it has a secular legislative purpose, its principal or primary effect neither advances nor inhibits religion, and it does not create excessive entanglement between government and religion.
But if, as the majority asserts, the teaching of secular subjects at CCS is infused with religion, the opt-out provision is ineffective. “If the majority is correct in its conclusions, I fail to see how it can continue to be maintained that benefits flowing from the Milwaukee school choice program do not have the primary effect of advancing religion,” Crooks wrote.
Crooks remarked that this also puts the MPCP program in doubt under the state constitution’s “compelled support clause” in Article I, Section 18 barring a sectarian private school from requiring students to participate in religious activities. Likewise, the “benefits clause” of Article I, Section 18 forbids the expenditure of public money for the benefit of religious societies or theological seminaries.
I can’t wait for the voucher challenge to commence.