If you had told me ten years ago that the Wisconsin Supreme Court would become the most dangerous branch of the state government, I would have thought you were a conspiracy theorist. While activist liberal justices have issued misguided decisions in the past, they generally operated within boundaries that allowed them to lean left without completely losing their way. At least they acknowledged the rule of law. However, some things that seemed like conspiracy theories a decade ago have become a reality. Right? Under the current liberal majority, the court has indeed become the most dangerous body in Wisconsin government. The four liberal justices have demonstrated no regard for either the proper constitutional role of the legislature or the limits on the court’s own power.
Everyone is well familiar with some of the high-profile political decisions the liberal majority has issued. You know about the redistricting case in which they struck down the legislature’s maps over feigned outrage that there were “municipal islands.” You know about their raw legislating from the bench in rewriting the early voting law to permit unmanned ballot drop boxes. Of course, you saw how both of those decisions overturned Supreme Court cases decided just two years earlier — so much for respecting precedent.
You may even know about the eminent domain case out of Egg Harbor in which the liberals ruled that, I am not kidding about this, “a sidewalk is not a pedestrian right of way.” That conclusion opened the door (pardon the Door County pun) for the village to take property from a private business owner against his will so they could put in a walking path, which is apparently not a “pedestrian right of way.”
But there are some dangerous cases I am pretty sure most of you don’t know about. How about the Catholic Archdiocese of Superior v. Labor and Industry Review Commission (LIRC)? LIRC started taxing the Archdiocese, which comprises 16 counties in the far northwest of the state, for their charitable work. The state statute exempts from taxation any nonprofit organization operated primarily for religious purposes by a church. But LIRC canceled the tax exemption for the Archdiocese.
The Archdiocese sued, and the Ashland County Circuit Court judge agreed with the Archdiocese and blocked the tax. But the case made its way to the Wisconsin Supreme Court, and the leftists on the court reversed the ruling, deciding that it was not enough to be a religious organization and to do charitable work to avoid taxation. The court rewrote the statute to add another element that requires that a religious organization also prove that its work is “sufficiently religious in nature.” What, you may ask, does it mean to be “sufficiently religious in nature?” I can’t tell you, because the leftists did not give any clear standard. Instead, they leave it up to the executive branch (currently Governor Evers) to decide whether religious groups meet the amorphous standard. If this sounds to you like a violation of the First Amendment, you are right in line with Justice Rebecca Bradley’s powerful dissent in the case. (As a side note, the U.S. Supreme Court has unanimously voted to take this case up, apparently on that First Amendment question.)
Back to the case. The liberal majority reasoned, for instance, that a person could get food from an Archdiocese food pantry without being Catholic. They could get other services without proving they were baptized or even Christian. The court held that since no one required a person seeking help to listen to any preaching, the work is not religious charity; it is just ordinary charity and can be taxed.
It is important to note that, since this is a Supreme Court decision, it does not just apply to this church organization way up north, it applies to every religious organization that does charitable work in our state! This decision reflects overt legislating from the bench and either a complete misunderstanding of the motivations of people of faith, or an utter disdain for the charitable work of faith groups. Whichever it is, we should be very concerned.
Here is the real danger: when the government gets to tax, they control behavior. We are all tax-adverse, whether we are an individual, a business, or a nonprofit organization. Therefore, we usually try to minimize our tax liability. If the government gets to decide which charitable work is good enough in their opinion, they effectively control the way faith groups carry out their ministry.
Here is another case I bet you did not hear about: in A.M.B v. Circuit Court for Ashland County, the Wisconsin Supreme Court unanimously agreed that there is a rational basis for the legislature to require that only married couples adopt a child in this state. For the statute at issue in this case, to survive constitutional scrutiny, the legislature needed to only have a rational basis for the restriction imposed by the statute. All 7 justices agreed it did.
So why do I have beef with a unanimous decision? I don’t have an issue with the majority opinion. But the danger is in the two concurring opinions written by liberal justices.
Justice Karofsky’s concurring opinion is just nutty. She decided to take ink to paper in the permanent records of our courts to write an attack on marriage. By the way, the adoption statute applies to same-sex marriages, too. She wrote an eight-paragraph discourse to support her ultimate conclusion that, “[t]he notion that marriage serves as the foundation of society is at best outdated, and at worst misogynistic.” Not surprisingly, no other justice joined her bizarre concurring opinion.
Justice Dallet’s concurring opinion, which was joined by two other liberal justices (not Justice Karofsky), is more overtly dangerous. She went to great pains to make her case that the Wisconsin Constitution should have its own unique identity from the federal constitution. It seems harmless enough, but you need to read deeper to see what she is really getting at. She is teeing something up for the future. She notes that both the U.S. and Wisconsin Constitutions enumerate rights to life and liberty but asserts that Wisconsin courts should abandon the tradition of construing the equal protection clauses of the Wisconsin and U.S. Constitutions as consistent with each other. Instead, as Justice Rebecca Bradley aptly notes, Justice Dallet, “intimates that future generations must each decide for themselves what the constitution means in their time”. Justice Dallet says, “[i]t is up to us–judges, lawyers and citizens–to give effect to” the constitution’s words today, and that should not be bound by the same methodology used to interpret the U.S. Constitution.
If the leftists maintain control of our Supreme Court, you will not have heard the last of this notion that the Wisconsin Constitution is an ever-changing document to be sculpted into whatever image a particular judge or court majority wishes at the time. Rather than forming an enduring foundation, the Constitution will continuously change over time to adapt to the whims of the majority of the public or worse, the majority of the court. The only reason for Justice Dallet to go to all of the trouble to write this concurring opinion to a unanimous decision is to set something up in the future. I say we do not give her the chance to follow through on her plans, and for the good of our state, put her back in the minority on the court.
If conservatives do not win back the majority on our Supreme Court this April 1, our next chance will not be until April of 2028. Everything is on the line. Your call to action is not just to vote. It is to make sure everyone you know who is a patriotic Wisconsinite gets out to vote, and urge them to vote early. November 5 was a pivotal victory, but the job is not done. If we are truly going to stop the madness and save our nation and state, we must have a conservative win in the Supreme Court race. Can I count on you one more time?
About the Author
