St. Augustine School v. Taylor

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The Supreme Court answered a certified question from the United States Court of Appeals for the Seventh Circuit regarding whether a private school was entitled to receive public funding to transport children to its school.

St. Augustine School applied for transportation benefits pursuant to Wis. Stat. 121.51 and 121.54, under which private schools are entitled to receive public funding to transport children to their schools but only one affiliated school per "religious denomination" can receive the funding in each "attendance area." The Superintendent of Public Transportation denied the application on the grounds that St. Gabriel was another school of the same religious denomination within the same attendance area. The certified question asked what information the Superintendent may consider in making a determination regarding whether two schools are affiliated with the same religious denomination. The Supreme Court answered that the Superintendent is not limited to consideration of a school's corporate documents exclusively but may also conduct a neutral and secular inquiry.

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2021 WI 70 SUPREME COURT OF WISCONSIN CASE NO.: 2021AP265-CQ COMPLETE TITLE: St. Augustine School, Joseph Forro and Amy Forro, Plaintiffs-Appellants, v. Carolyn Stanford Taylor, in her official capacity as Superintendent of Public Instruction, Tony Evers, in his official capacity as Superintendent of Public Education, terminated 2/14/20 and Friess Lake School District, Defendants-Appellees. CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 2, 2021 May 4, 2021 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined. NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants, there were briefs filed by Richard M. Esenberg, Brian McGrath, Anthony LoCoco, and Wisconsin Institute for law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg. For the defendants-appellees Friess Lake School District, there was a brief filed by Lori M. Lubinsky, Danielle B. Tierney and Axley Brynelson, LLP, Madison. For the defendant-appellee Superintendent Carolyn Stanford Taylor, there was a brief filed by Hannah S. Jurss, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Hanna S. Jurss. 2021 WI 70 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP265-CQ STATE OF WISCONSIN : IN SUPREME COURT St. Augustine School, Joseph Forro and Amy Forro, Plaintiffs-Appellants, FILED v. Carolyn Stanford Taylor in her official capacity as Superintendent of Public Instruction and Friess Lake School District, JUL 2, 2021 Sheila T. Reiff Clerk of Supreme Court Defendants-Appellees. ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined. CERTIFICATION of question of law from the United States Court of Appeals for the Seventh Circuit. Certified question answered and cause remanded. ¶1 ANN WALSH BRADLEY, J. This case is before the court on a certified question from the United States Court of Appeals No. for the Seventh Circuit. 2021AP265-CQ See Wis. Stat. § 821.01 (2019-20).1 Explaining that the question boils down to one of methodology, it certified the following question: For purposes of determining whether two or more schools are "private schools affiliated with the same religious denomination" for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school's selfidentification in sources such as its website or filings with the state. ¶2 This question arises in the context of St. Augustine School's (St. Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per "religious denomination" can receive the funding in each "attendance area." ¶3 St. Augustine's application was denied by the Superintendent of Public Instruction on the ground that another school of attendance the same area religious was denomination already receiving within the the same benefit. Specifically, the Superintendent determined that St. Gabriel, a Catholic school affiliated with the Archdiocese of Milwaukee, was already established in the same attendance area as St. All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 1 2 No. 2021AP265-CQ Augustine, and St. Augustine also represented itself as a Roman Catholic school. ¶4 the The certified question asks us only what information Superintendent regarding whether may two consider schools religious denomination." in are making a "affiliated determination with the same It does not ask us to resolve whether St. Gabriel and St. Augustine are actually of the same religious denomination. The application of the facts to the law remains with the federal courts upon remand. ¶5 We conclude that, in determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings. ¶6 Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings. I ¶7 St. Augustine is a private, religious school located within the boundaries of the Friess Lake School District (the School District). On its website, 3 St. Augustine describes No. 2021AP265-CQ itself as "an independent and private traditional Roman Catholic School." ¶8 Plaintiffs Joseph and children attend St. Augustine. Amy Forro are parents whose Seeking transportation for their children to and from school, the Forros along with St. Augustine made a request for a busing contract from the School District pursuant to Wis. Stat. § 121.54.2 ¶9 In unaffiliated the with request, the St. Augustine Archdiocese of asserted Milwaukee. that It it is stated: "Our governing body is our Board of Directors and we receive no funding from nor communicate with the Diocese on matters of education." As such, St. Augustine distinguished itself from St. Gabriel Catholic School, a diocesan Catholic school also located within the boundaries of the School District. 2 Wisconsin Stat. § 121.54 provides in relevant part: Except as provided in sub. (1) or otherwise provided in this subsection, the school board of each district operating high school grades shall provide transportation to and from the school a pupil attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from the pupil's residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route. § 121.54(2)(b)1. 4 No. ¶10 2021AP265-CQ The School District denied St. Augustine's request. In doing so, it noted that the Forros' address "is within the boundaries already approved for a Catholic School." School District already bused students to St. Because the Gabriel, it determined that it could not approve St. Augustine's request as it would constitute an overlapping attendance area. ¶11 With St. Augustine and the School District at odds, they sought a determination from the Superintendent.3 As it did before the School District, St. Augustine argued that it is not affiliated with the same religious denomination as St. Gabriel within the meaning of Wis. Stat. § 121.51(1). In support of this argument, it asserted: Neither St. Augustine School, Inc., nor the school operated by the corporation, has ever been affiliated by control, membership, or funding with the Archdiocese of Milwaukee. No representative of the Archdiocese or a parish church of the Archdiocese has ever been a director or officer of St. Augustine School, Inc. No employees of St. Augustine School have ever been hired or compensated by the Archdiocese or a parish church of the Archdiocese. None of the religious instructors at St. Augustine School have Wisconsin Stat. § 121.51 outlines a procedure by which a private school's attendance area is proposed by the private school's governing body and then considered by the public school district's school board. Providence Cath. Sch. v. Bristol Sch. Dist. No. 1, 231 Wis. 2d 159, 176, 605 N.W.2d 238 (Ct. App. 1999). The statute further provides that in the event of a disagreement between the private and public school, the determination will be made by the Superintendent. Id.; § 121.51(1) ("If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area."). 3 5 No. 2021AP265-CQ ever been employed, assigned, or compensated for their work at St. Augustine School by the Archdiocese or a parish church of the Archdiocese. ¶12 Then-Superintendent Tony Evers4 agreed with the School District and transportation denied benefit. St. Augustine's He concluded request that "St. for the Augustine School, Inc. is a private, religious school affiliated with the Roman "[t]he Catholic District denomination." already Further, provides he determined transportation to that students attending St. Gabriel School, another private, religious school affiliated with the Roman Catholic denomination, the attendance area of which is co-extensive with the attendance area of the District." As a result, the Superintendent concluded that St. Augustine's attendance area overlaps that of St. Gabriel and thus "the Friess Lake School District is not required to provide transportation to students attending St. Augustine School, Inc." ¶13 The Superintendent's written decision reflects that he examined all of the parties' filings, St. Augustine's website, and the law in reaching his decision. on the school's bylaws and He commented specifically determined that nothing in that document "even hints that the School is a private religious school or a private, religious non-denominational school." The Superintendent also made specific comments on an amendment to St. Augustine's articles of incorporation changing its name from Then-Superintendent Evers has since been elected Governor, and has been replaced as a party to this case by the current Superintendent, Carolyn Stanford Taylor. 4 6 No. 2021AP265-CQ Neosho Country Christian School Inc. to its current moniker. As with the bylaws, the Superintendent concluded that "there is nothing in the School's name change amendment to its Articles of Incorporation that reveals anything about the School's nature, i.e., religious or non-religious, or its affiliation with a religious denomination."5 ¶14 Finding Augustine's these "affiliation sources with unhelpful a in religious determining St. denomination" for purposes of Wis. Stat. § 121.51, the Superintendent looked to St. Augustine's publicly available website. was permissible, in the Such a procedure Superintendent's view, because "[r]eviewing a public website that is created and maintained by or on behalf of the School, and accepting the School's description of itself as set forth in that website, does not create an excessive entanglement of state authority in religious affairs." The Superintendent supported such a determination with the premise that "a public website, by its very nature, invites, and even wants persons to review it." In previous proceedings, disputes arose as to whether St. Augustine submitted the original articles of incorporation to either the School District or the Superintendent and whether the Superintendent actually considered St. Augustine's original articles of incorporation. The Seventh Circuit determined that "plaintiffs have failed to carry their burden of producing evidence to support their assertion that the defendants looked at the document. Without any evidence that they did so, a secondary dispute over whether St. Augustine submitted the original articles of incorporation to the state is immaterial." St. Augustine Sch. v. Evers (St. Augustine II), 906 F.3d 591, 595-96 (7th Cir. 2018) (citation omitted). 5 7 No. ¶15 2021AP265-CQ Relying on statements on St. Augustine's website, the Superintendent agreed with the School District that St. Augustine is affiliated with the Roman Catholic denomination. He cited in his decision "two of a number of statements in the website pages from which any reasonable person would conclude the School Catholic forth is a religious denomination." that St. traditional The Augustine Roman school affiliated first is of "an Catholic these with the Roman statements independent and School . . . [that sets private is] an incorporation of dedicated families, who believing that all good things are of God, have joined together to provide the children of our Catholic education." community Additionally, with the an exceptional website classical provides: "[St. Augustine] loves and praises all the traditional practices of the Catholic faith." ¶16 St. Augustine responded to the adverse determination by filing suit in Washington County circuit court against the Superintendent and the School District, asserting a claim pursuant to 42 U.S.C. § 1983 that its rights under Free Exercise and Establishment Clauses of the First Amendment were violated, as well as a claim that the Superintendent and School District contravened Wis. Stat. § 121.51(1). The Superintendent and School District removed the case to federal court. ¶17 After the parties filed competing summary judgment motions, the District Court granted the Superintendent and the School District's motion with respect to the federal claims. St. Augustine Sch. v. Evers (St. Augustine I), 276 F. Supp. 3d 8 No. 890 (E.D. Wis. 2017). 2021AP265-CQ As relevant to the certified question, the District Court determined that the Superintendent and the School District did not engage in an excessive entanglement with religion in reaching their conclusion that affiliated with the Catholic denomination. St. Augustine Id. at 902. is It concluded that "because St. Augustine was obviously a religious school and did bylaws that not submit identified or any articles disclaimed of its incorporation affiliation with or a religious denomination," the Superintendent permissibly looked elsewhere to surmise what St. Augustine purported to be. Id. The defendants then turned to the statement on St. Augustine's website describing it as a "Roman Catholic School," and they accepted this statement at face value and concluded that St. Augustine was affiliated with the Roman Catholic denomination. These actions did not involve any participation in, supervision of, or intrusive inquiry into religious affairs. Id. ¶18 St. Augustine affirmed the District dissent. appealed, Court's decision the over Seventh Judge Circuit Ripple's St. Augustine Sch. v. Evers (St. Augustine II), 906 F.3d 591 (7th Cir. 2018). free and exercise problem The Seventh Circuit majority saw no with the Superintendent and School District's application of Wis. Stat. § 121.51, determining that "[t]he reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because——by its own choice——it professes to be affiliated with a group that already has a school in that zone." 9 No. Id. at 597. "The problem for St. Augustine is not that it is Catholic; it is that it is second in line." ¶19 no 2021AP265-CQ Id. The Seventh Circuit further determined that there was entanglement problem. "[T]he school district and state superintendent did not consider St. Augustine's theology or its religious practices." Id. at 598. Instead, in the Seventh Circuit's view, "[t]aking a party's repeated chosen label at face value hardly constitutes a deep-dive into the nuances of religious affiliation." ¶20 the Id. at 599. In contrast, Judge Ripple dissented, concluding that Superintendent failed to follow precedent when he went beyond St. Augustine's articles of incorporation and bylaws to make the determination dissenting). at issue. Id. at 603 (Ripple, J., In Judge Ripple's view, "[r]ather than grounding his decision in the articles of incorporation and by-laws as he was required to do under state law, [the Superintendent] decided to undertake an independent investigation and rested his decision on statements he found on St. Augustine's website." Id. ¶21 Judge Ripple further criticized the majority's approach for taking the term "Catholic" out of context. 604. He cautioned: Id. at "the court's selective use of the term 'Catholic' rests on the assumption that, for purposes of our Free Exercise analysis, a single term, even when culled from its context, can describe accurately the religious values aspirations of an individual or a group of individuals." 10 Id. and No. ¶22 St. Augustine petitioned United States Supreme Court. for 2021AP265-CQ certiorari with the The Court granted certiorari but did not issue a full opinion. Instead, it simply vacated the judgment and remanded to the Seventh Circuit for consideration in light of its recent decision in Espinoza v. Montana Department of Revenue, 591 U.S. __, 140 S. Ct. 2246 (2020).6 St. Augustine Sch. v. Taylor (St. Augustine III), 141 S. Ct. 186 (2020). After remand, the Seventh Circuit certified to this court the question now before us. II ¶23 § 121.51. review The certified question asks us to interpret Wis. Stat. Statutory interpretation is a question of law we independently. Winebow, Inc. v. Capitol-Husting Inc., 2018 WI 60, ¶23, 381 Wis. 2d 732, 914 N.W.2d 631. Co., We are not bound by the interpretations of the federal courts, but they may aid in our analysis. ¶24 Our review See id. (citation omitted). of Constitution and precedent. the statute is informed by the The application of constitutional In Espinoza, the Court addressed a Montana program that provides tuition assistance to parents who send their children to private schools. Espinoza v. Mont. Dep't of Revenue, 591 U.S. __, 140 S. Ct. 2246, 2251 (2020). When the petitioners sought to use the program for scholarships at religious schools, the Montana supreme court struck down the program on the basis of a "no-aid" provision in the Montana Constitution, which prohibits any aid to a school controlled by a "church, sect, or denomination." Id. The Court determined that the no-aid provision violates the Free Exercise clause, writing that "[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." Id. at 2261. 6 11 No. principles likewise presents a question of 2021AP265-CQ law. State v. Roundtree, 2021 WI 1, ¶12, 395 Wis. 2d 94, 952 N.W.2d 765. III ¶25 We begin by setting the foundation for our analysis, detailing the history of this court's interpretation of Wis. Stat. § 121.51. With that necessary history and context in hand, we then turn to examine the certified question. A ¶26 In 1967, constitutional the people provision setting of Wisconsin forth: adopted "Nothing in a this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning." Several provisions in ch. 121 Wis. Const. art. I, § 23. of the Wisconsin Statutes operationalize this guarantee. ¶27 Wisconsin Stat. § 121.54(2)(b) sets forth the conditions under which a student attending a private school can receive publicly funded transportation. It provides: Except as provided in sub. (1) or otherwise provided in this subsection, the school board of each district operating high school grades shall provide transportation to and from the school a pupil attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from the pupil's residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route. 12 No. 2021AP265-CQ § 121.54(2)(b)1. ¶28 "Attendance area" is a defined term that sits at the center of the instant case. Wisconsin Stat. § 121.51(1) defines "attendance area" as follows: [T]he geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes. ¶29 The natural question that arises from the definition of "attendance area" is what it means for private schools to be "affiliated with the same religious denomination." assuming that schools are co-educational and not After all, single-sex, only one school of each "religious denomination" may receive the transportation benefit in a single attendance area. ¶30 This court first addressed this language in 1971 in State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971). In Vanko, the court addressed a constitutional challenge to the attendance area statute. ¶31 The constitutional court acknowledged problem if the that statute there were would be interpreted a to include "a restriction placed upon children attending religious schools and not placed upon those attending private, secular 13 No. schools." Id. "[r]eligious at This affiliation classification." saving 214. Id. construction problem would be the Accordingly, to avoid the would arise sole the 2021AP265-CQ because basis court of engaged constitutional the in a infirmity, interpreting the statute to apply to both religious and nonreligious schools: "We read the statute as not authorizing or permitting overlapping in attendance area boundary lines as to all private sponsoring schools group, affiliated whether such or school corporation is secular or religious." ¶32 operated by a operating single agency or Id. at 215. Building on its decision in Vanko, the court seven years later decided Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). plaintiff school was previously with the Archdiocese. a In Holy Trinity, the Catholic school affiliated It responded to the Vanko decision by reorganizing as a "community school" with no legal ties to the Roman Catholic Church or any other religious organization. at 146. Id. However, the new community school took over all the employment contracts of the old Catholic school, accepted all students who attended the school's previous iteration, and utilized the same building as the old Catholic school, owned by the Holy Trinity Congregation, which leased the building to the community school for one dollar annually. ¶33 The community school no Id. longer required Catholic instruction, but instead instituted a release time for religious programming of the students' parents' choice. However, in practice only the 14 Catholic Id. at 146-47. religion was taught No. during the release time. Superintendent found Id. at 147. that Holy 2021AP265-CQ Based on these facts, the Trinity Community School was affiliated with the Catholic denomination, even though it was not controlled by the Archdiocese or the Roman Catholic Church. Id. ¶34 Pinpointing a constitutional infirmity in the manner the Superintendent went about making his determination, the Holy Trinity court concluded: [W]here a religious school demonstrates by a corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, that in the absence of fraud or collusion the inquiry stops there. To make the further inquiry, as attempted by the Superintendent of Public Instruction, is to involve the state in religious affairs and to make it the adjudicator of faith. Id. at 157-58. ¶35 The court explained that the "continuing surveillance of [the] school to determine whether its practices comport with those of the Catholic Church" causes an excessive entanglement of the government in purely religious matters. Id. at 150. It is not for the government to decide "who or what is Catholic," and accordingly the inquiry undertaken by the Superintendent in Holy Trinity was deemed unconstitutional. Id. The court continued, discussing the sources of information at play under the facts of Holy Trinity: For this court or for the Superintendent of Public Instruction to determine, in the light of the prima facie showing of the articles of incorporation to the contrary, that this school corporation is or is not affiliated with the Catholic denomination is to meddle into what is forbidden by the Constitution the 15 No. determination allegiance. Id. of matters of faith and 2021AP265-CQ religious Thus, it concluded that "[w]e are obliged to accept the professions of the school and to accord them validity without further inquiry." ¶36 Id. at 155. At the time we granted the certification in this case, we asked the parties to address a question in addition to that certified by the Seventh Circuit: The Free Exercise Clause and the Establishment Clause of the First Amendment may bear upon our interpretation of Wis. Stat. § 121.51 and its inclusion of "private schools affiliated with the same religious denomination." In meeting the query of the certified question, should we revisit this court's decisions in State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 210 (1971) and Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978) . . . . ¶37 Vanko or In briefing, Holy no Trinity, party and asked in us fact to St. overrule either Augustine, the Superintendent, and the School District all affirmatively stated that we need not and should not overrule or revisit the holdings of those cases. When pressed at oral argument, the discussion focused on Vanko, and both parties reiterated their positions that we not upset that case.7 Accordingly, we decline to At oral argument, St. Augustine's counsel stated: "Here today, no one is asking this court to overrule Vanko." See State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971). Later, the same counsel suggested that Vanko's status of remaining unchallenged for over 50 years is some indication that its statutory interpretation has been workable and relied upon for decades: 7 (continued) 16 No. 2021AP265-CQ overrule or revisit either case on our own initiative. See Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35 (explaining that "[w]e do not step out of our neutral role to develop or construct arguments for parties; it is up to them to make their case"). B ¶38 With this foundation in hand, we turn now to address the certified question. ¶39 The Seventh Circuit's certification order puts a fine point on the issue before us and assists in focusing on the distinct and narrow question. After summarizing the lengthy history of this litigation, the Seventh Circuit relates that "[a]t this dispositive juncture . . . the question of issue state law: has boiled what down to one methodology for determining affiliation is required under the relevant Wisconsin statutes?" St. Augustine Sch. v. Taylor (St. Augustine IV), No. 17-2333 (7th Cir. Feb. 16, 2021) (order certifying question to Wisconsin Supreme Court) at 2. [This court] could certainly come to the conclusion that Vanko is a 50-year-old decision and the fact that we haven't been before the court for 50 years and are here only because the [Superintendent] did something so extraordinary that it resulted in a grant of cert and a [vacating of the Seventh Circuit's decision] is some indication that [the statute] is workable given the reliance that schools and families have had on the statutory interpretation that sticking to precedent might be the best thing to do. Counsel for the Superintendent similarly argued that "the court got it right in Vanko." 17 No. ¶40 2021AP265-CQ Prior to proceeding with our analysis, we offer an observation regarding what is before us and what is not. The Seventh law Circuit has certified to us a pure question of pertaining only to the sources of information the Superintendent may consider in determining whether two schools are "affiliated with the same religious denomination" for purposes of Wis. Stat. § 121.51(1). ¶41 case. In essence, it is an inquiry of methodology. We do not apply our determination to the facts of this That is, we do not determine whether St. Augustine is affiliated with the same religious denomination as St. Gabriel. That is a question for the federal court on remand. With this clarification, we proceed to our analysis. ¶42 the Both the Constitution and our precedent interpreting statute information provide a relevant Superintendent guardrails may around consider. The the world of Constitution prohibits the excessive entanglement of the state in religious matters. L.L.N. N.W.2d 434 (1997). v. Clauder, Such a 209 Wis. 2d 674, proposition, known 686, 563 as the entanglement doctrine, springs from the Establishment Clause of the First Amendment.8 ¶43 Id. Excessive entanglement occurs "if a court is required to interpret church law, policies, or practices." Id. at 687. The Establishment Clause of the First Amendment provides: "Congress shall make no law respecting an establishment of religion . . . ." U.S. Const. amend. I. It is applicable to the states through the Fourteenth Amendment. L.L.N. v. Clauder, 209 Wis. 2d 674, 686, 563 N.W.2d 434 (1997). 8 18 No. 2021AP265-CQ Thus, the First Amendment prohibits such an inquiry. Id. On the other hand, it is well-settled that "a court may hear an action if it will principles of law." ¶44 whether The the involve the consideration of neutral Id. (citations omitted). certified question consideration of requires us to certain matters determine in the determination of whether two schools are "affiliated with the same religious denomination" would rely on an unconstitutional religious inquiry and thus cause an impermissible excessive entanglement, or whether such consideration would merely involve the application of neutral principles of law. We are asked to address specifically a school's self-identification as set forth on its publicly available website or in its filings with the state. ¶45 St. Augustine argues that the manner in which the Superintendent considered such information impermissibly places the Superintendent in the position to decide "what is Catholic" and thus constitutes an excessive entanglement with religion. In contrast, the Superintendent and the School District advance that simply accepting St. Augustine's self-identification does not require any investigation at all or any determination of whether St. Augustine is Catholic——they are simply taking St. Augustine at its word. ¶46 Because we refrain from developing arguments not advanced by either party and determine that our precedent should be maintained rather than overruled, our inquiry is framed by Vanko and Holy Trinity. Vanko established that "affiliated with 19 No. 2021AP265-CQ the same religious denomination" is "the test of affiliation in a single school system rather than operation by a single agency or set of trustees or religious denomination." establishes that the religious order within a particular Vanko, 52 Wis. 2d at 215. statute applies to both It further religious and secular schools "affiliated or operated by a single sponsoring group." ¶47 Id. Holy Trinity is particularly approach to the certified question. apt in guiding our There, the court engaged in a similar exercise of line-drawing to that which we undertake in the instant case. the The line the Holy Trinity court drew between constitutional investigation practices. and and the unconstitutional surveillance of a was school's Holy Trinity, 82 Wis. 2d at 150. at the religious With regard to statements made by a school, the court set forth: "We are obliged to accept the professions of the school and to accord them validity without further inquiry." ¶48 Just professions as in that are Holy Trinity, Id. at 155. accepting a published on its public website school's or set forth in filings with the state does not necessarily require any investigation or surveillance into the practices of the school. It need not require any religious inquiry at all. ¶49 As long as the Superintendent considers the school's professions and not its practices, the Superintendent remains on the correct side of the line. In other words, a superintendent attempting a specific to determine religious that denomination 20 school may is rely affiliated on any with evidence a of No. 2021AP265-CQ affiliation between the school and a denomination that does not violate the First Amendment and that does not inquire into the religious beliefs of the school or the denomination. ¶50 The wording of the certified question implies that corporate documents represent neutral criteria while a school's self-identification in sources such as its website and filings with the state dichotomy. does not. But this appears to be a false Indeed, simply accepting a school's profession of what it claims to be or with whom it is affiliated constitutes a neutral undertaking, as does the acceptance of a school's professions of affiliation in documents filed with the state. Here St. Augustine professes that while it is Roman Catholic, it is independent of and unaffiliated with the Archdiocese. Neither accepting corporate documents nor accepting a school's professions necessarily requires any investigation of the type prohibited by Holy Trinity or even any religious inquiry whatsoever. ¶51 related Our conclusion is further supported with a look to a statute. amendments society. to the Wisconsin articles of Stat. § 187.01(7) incorporation of a addresses religious It provides in relevant part: Such corporation may amend its articles of organization or constitution at a regular meeting of said corporation by the majority vote of the members present so that such corporation has the right to merge with and transfer all of its real estate and personal property to another corporation of the same religious denomination. § 187.01(7) (emphasis added). 21 No. ¶52 An important statutory text. principle can be 2021AP265-CQ gleaned from this The phrasing "another corporation of the same religious denomination" indicates that "religious denomination" is a broader category than "corporation." In other words, there can be multiple corporations that fit under the umbrella of a single religious denomination. If the legislature wanted to limit the Superintendent's consideration to corporate documents in an inquiry of whether the schools are affiliated with the same corporate body, it would not have used the broader term "religious denomination" in Wis. Stat. § 121.51(1). Indeed, a single corporate charter may not fully answer whether a school is affiliated with a religious denomination. ¶53 Vanko also supports such a premise. highlighted that "affiliated with To explain, Vanko the same religious denomination" is the test to be used within a school system "rather than operation by a single agency or set of trustees or religious Vanko, order 52 within a Wis. 2d at 215 particular (emphasis religious added). denomination." Thus, Vanko explicitly disclaimed an assertion that "operation by a single agency" is a necessary condition to establish that two schools are of the same religious denomination. To limit the inquiry to exclusively elevate corporate documents would this assertion that the Vanko court rejected. ¶54 However, it is important to keep in mind an additional principle arising from Vanko——the focus on a "single sponsoring group." to Id. at 215. corporate Although the Superintendent is not limited documents exclusively, 22 corporate documents may No. often be determinative. Indeed, as Holy Trinity 2021AP265-CQ explains, "where a religious school demonstrates by a corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, that in the collusion the inquiry stops there." 157-58. inquiry, absence of fraud or Holy Trinity, 82 Wis. 2d at But where corporate documents alone do not resolve the the Superintendent is permitted to consider other neutral sources of information. ¶55 We thus conclude this methodological inquiry, determining that in examining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's neutral consider corporate and the school's documents secular exclusively. inquiry, professions of the the self-identification conducting Superintendent school and In with may regard affiliation, also to but a the the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings. ¶56 Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings. By the Court.—Certified question answered and cause remanded to the United States Court of Appeals for the Seventh Circuit. 23 No. ¶57 PATIENCE DRAKE ROGGENSACK, J. 2021AP265-CQ.pdr (concurring). The question before the Seventh Circuit Court of Appeals is whether St. Augustine denomination" is for "affiliated purposes of with Wis. the Stat. same religious § 121.51(1) as is St. Gabriel, a Catholic school, whom all agree is "affiliated with" the Archdiocese of Milwaukee. The answer to this question turns on the meaning of "affiliated with." become involved in a factual There is no need to examination of the religious teachings of the private schools that are being compared or the religious teachings of the organization with which they are claimed to be affiliated. ¶58 Rather, "affiliated I with" agree in a with way Justice that will Hagedorn result in that to be overlapping attendance areas of St. Augustine's and St. Gabriel's schools pursuant to organizational Wis. Stat. relationship" § 121.51(1) between St. requires a Augustine "mutual and the religious denomination with which St. Gabriel is affiliated.1 That is, St. Augustine and the religious denomination, here the Archdioceses of Milwaukee, must mutually agree to be affiliated with one another. Because the majority opinion overlooks the dispositive legal issue of mutuality in the phrase "affiliated with" from § 121.51(1), and instead focuses on a variety of factual inquiries that will not assist the Seventh Circuit Court of Appeals move forward in its decisional process, I do not join the majority opinion, but respectfully concur. 1 Justice Hagedorn's concurrence, ¶¶71, 85. 1 No. I. ¶59 The historic 2021AP265-CQ.pdr BACKGROUND background underlying the certified question from the Seventh Circuit Court of Appeals is ably set out in the majority opinion and in the concurrence of Justice Hagedorn.2 The certification invited us "to re-formulate" the certified question, indicating that the Seventh Circuit realized there may be more that would underlie compliance with their request than certified might be question.3 apparent In in the words chosen response, we asked the for parties the to address First Amendment concerns that may bear on our assisting the Seventh Circuit in addition to the certified question. However, no party did so.4 II. A. ¶60 DISCUSSION Standard of Review The dispositive issue in this case is the meaning of "affiliated with," § 121.51(1). as that phrase is used in Wis. Stat. Statutory interpretation presents a question of law that we decide independently. State v. Guarnero, 2015 WI 72, ¶12, 363 Wis. 2d 857, 867 N.W.2d 400. B. ¶61 Our Statutory Interpretation interpretation of the meaning of the phrase, "affiliated with" in Wis. Stat. § 121.51(1), begins with the Majority ¶¶76-84. 2 op., ¶¶7-11; Justice Hagedorn's concurrence, St. Augustine Sch. v. Taylor (St. Augustine IV), No. 172333, 6 (7th Cir. Feb. 16, 2021). 3 4 Majority op., ¶¶37, 38. 2 No. 2021AP265-CQ.pdr words chosen by the legislature. Spiegelberg v. State, 2006 WI 75, ¶17, 291 important Wis. 2d when 601, 717 N.W.2d determining the plain 641. Context meaning of a also is statute. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. ¶62 Wisconsin Stat. § 121.51(1) provides in relevant part: The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes. (Emphasis added). Affiliated is not a defined term; therefore, we employ its "common, ordinary and accepted meaning." Kalal, 271 Wis. 2d 633, ¶45. ¶63 We dictionary. often determine common meanings Guarnero, 363 Wis. 2d 857, ¶16. by consulting a When I do so here, I note that an "Affiliate [is] an organization that is connected with or controlled by another, usually larger, organization. [For example] Our college is an affiliate of the university." Affiliate, Cambridge Dictionary, dictionary.cambridge.org, https://dictionary.cambridge.org/dictionary/english/affiliate?q= Affiliate (last visited June 21, 2021). To be "affiliated with" requires a mutuality of connection between the "affiliate" and the entity with which there is an affiliation. affiliated with is "to controlled by another." Id. be officially That is, to be connected with or From a common meaning perspective, one cannot be affiliated with another organization if there is no mutual connection between the two organizations. 3 No. ¶64 2021AP265-CQ.pdr "Affiliated with" is a phrase used in decisions that occur in other contexts, sometimes frequently. For example, cases involving union activities or union employees may arise when there is a question about whether workers on a particular job are affiliated with a particular union, e.g., with the AFLCIO, such that picketing can or cannot occur. Upper Lakes Shipping, Ltd. v. Seafarers' Int'l Union of Canada, 18 Wis. 2d 646, 659, 119 N.W.2d 426 (1963). Workers join a union and the union accepts their membership when it appears to be to their mutual benefit to do so. ¶65 In Cape v. Id. Plymouth Congregational Church, 130 Wis. 174, 109 N.W. 928 (1906), we discussed criteria that were considered in determining whether a congregation had withdrawn from affiliation with the Primitive Methodist denomination when the congregation chose to become a Congregational denomination. Id. at 179. We explained that to be a member of a synodical organization, "at least two things are essential: A profession of the accepted faith and a submission to its government." at 181. Id. We reasoned that because the deed of trust for the land on which the church building stood said that the church property was to be used by a Methodist denomination, the Primitive Methodist congregation could not be excluded from use of the church facility. Id. at 186. Again, there was a mutuality in the affiliation between the Primitive Methodist denomination and Cape et al that was not present with a Congregational denomination that challenged the Primitive Methodist's right to use the church building. 4 No. ¶66 As Justice Hagedorn notes, the phrase, with," has been used in several statutes.5 deals with cemeteries and affiliated with cemeteries. religious 2021AP265-CQ.pdr "affiliated One such statute societies that are Wisconsin Stat. § 157.63(6) creates potential liability for damages for a religious society with whom a cemetery is affiliated when the cemetery or cemetery authority fails to comply with statutory requirements. Section 157.63(6) provides: The religious society that is affiliated with a cemetery to which a certification under this section applies is liable for the damages of any person that result from the failure of the cemetery or cemetery authority to fully comply wit s. 157.11(9g) or 157.12(3) during the reporting period under s. 157.62(2) for which such compliance has been certified under this section. The obligations that arise by virtue of § 157.63(6) imply that a religious society could not be affiliated with a cemetery absent mutual agreement to affiliate because such an affiliation comes with obligations that the religious society must meet if the cemetery does not comply with statutory requirements. III. ¶67 CONCLUSION In sum, my review shows that the common dictionary definition of "affiliate," the way in which we have interpreted "affiliation" in matters relating to unions, our interpretation of "affiliate" in other legal contexts and our interpretation of "affiliated with" in other statutes have been consistent with one another. 5 All require express or implied mutual agreement to Justice Hagedorn's concurrence, ¶¶96, 97. 5 No. 2021AP265-CQ.pdr connection between the persons and entities that are affiliated. Therefore, in regard to the case before us, I conclude that "affiliated with" pursuant to Wis. Stat. § 121.51(1) requires a mutual organizational relationship between St. Augustine and the Archdiocese of Milwaukee, the religious denomination with which St. Gabriel is affiliated. Accordingly, the Seventh Circuit Court of Appeals should consider those facts presented to it that bear Milwaukee on have whether St. mutually Augustine agreed that and the their Archdiocese organizations of are affiliated with each other. ¶68 Because dispositive the legal majority issue opinion presented respectfully concur. 6 by does this not address controversy, the I No. ¶69 BRIAN HAGEDORN, J. (concurring). 2021AP265-CQ.bh The Seventh Circuit Court of Appeals poses a methodological question to this court: what evidence may be considered when determining whether private schools denomination" are under "affiliated Wis. Stat. with the § 121.51(1) same religious (2019-20)?1 The parties agree the answer includes both the self-representations of a school as well as corporate documents. In a narrow opinion, the majority reiterates this conclusion, which I agree with and join. assistance However, to the this Seventh answer Circuit may not without be the of much requisite statutory analysis explaining what this information may be used for under the law. Therefore, I write separately to examine what a "religious denomination" is under the statute and what it means for a school and a religious denomination to be "affiliated with" one another. ¶70 In short, to obtain public transportation aid for its students, a private school in Wisconsin must draw an attendance area defining the region from which the public school district must transport 121.54(2)(b)1. affiliated overlap." its students. Wis. Stat. §§ 121.51(1); And the "attendance areas of private schools with the § 121.51(1). same religious denomination shall not As the subsequent analysis will show, a religious denomination under the law is not the same thing as a religious faith; rather, statutory context reveals that "religious denomination" is a kind of religious organization. A All subsequent reference to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 1 1 No. school——itself an organizational with" this type of with" in this context relationship. religious Both entity——must organization. involves the a private be "affiliated And "affiliated mutual school 2021AP265-CQ.bh organizational and the religious denomination must agree to be affiliated with each other. This statutory inquiry is organizational, not theological. ¶71 Therefore, Wis. Stat. § 121.51(1) prohibits overlapping attendance areas only when multiple schools have a mutual organizational denomination. question, In a relationship answer school's to the general with a Seventh single religious Circuit's certified description of its religious beliefs is unlikely to constitute relevant evidence because a statement of faith, even shared faith, does not demonstrate a mutual organizational denomination. On the hand, that denomination of it is relationship. types with a religious Affiliation requires more than a shared faith. other elsewhere relationship is a school's or relevant is organizational not on affiliated evidence of a its with mutual website a or religious organizational Likewise, corporate documents, by-laws, and other organizational conclusively) statement demonstrate relationship documents the presence between denomination. 2 a can or also lack school and (oftentimes of a a mutual religious No. I. ¶72 2021AP265-CQ.bh STATUTORY ANALYSIS Two statutory provisions work together to provide for and place limits on the availability of transportation aid for pupils attending private schools. ¶73 Wisconsin Stat. § 121.54(2)(b)1. provides: [T]he school board of each district operating high school grades shall provide transportation to and from the school a pupil attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from the pupil's residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route. This subdivision transportation to directs K-12 school students districts attending four conditions are satisfied: to private provide schools if (1) the student lives in the district; (2) the student lives at least two miles away from the private school's school; (3) "attendance the student area"; and lives (4) within the the private private school is located in or within five miles of the district's boundaries.2 ¶74 The third condition is further informed by the definition of "attendance area" in Wis. Stat. § 121.51(1): "Attendance area" is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the A school district has several options to satisfy its obligation under Wis. Stat. § 121.54(2)(b)1., including by providing transportation for a pupil directly or by compensating the pupil's parent or guardian for the pupil's transportation costs. Wis. Stat. § 121.55(1). 2 3 No. 2021AP265-CQ.bh school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes. (Emphasis added.) The dispute in this case concerns the restriction on overlapping attendance areas for "private schools affiliated with the same religious denomination."3 the statute's schools exception affiliated with for the sex-specific same religious Id. schools Unless applies, denomination must have mutually exclusive attendance areas. ¶75 Wisconsin Stat. students attending private more than fifty years. 1967. §§ 121.51 schools and to 121.54 have transportation entitled aid for See generally §§ 33-40, ch. 313, Laws of How these statutes came to be informs their meaning, so we begin there.4 The dissent aptly characterizes this provision as the "overlapping attendance area" provision, a label employed in this concurrence as well. See dissent, ¶110. 3 "By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute." Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581. An inquiry into statutory history is part and parcel of a plain meaning analysis. Fabick v. Evers, 2021 WI 28, ¶30 n.12, 396 Wis. 2d 231, 956 N.W.2d 856. 4 4 No. A. ¶76 In 1968, 2021AP265-CQ.bh Historical Context the legislature enacted Wis. Stat. § 121.54(2)(b), directing school districts to provide students attending private schools transportation schools.5 § 40, ch. 313, Laws of 1967. directly to their As initially enacted, § 121.54(2)(b) did not prohibit overlapping attendance areas, or even use the phrase "attendance area." the other three conditions still Instead, in addition to found in the statute, a district was obligated to provide transportation to a private school only "if such private school [was] the nearest available private school which the pupil may reasonably choose to attend." Wis. Stat. § 121.54(2)(b)1.-2. (1967-68). ¶77 This "may reasonably choose to attend" language proved problematic almost immediately, and in short order became the focus of litigation before this court. See State ex rel. Knudsen v. Bd. of Educ., Elmbrook Schs., Joint Common Sch. Dist. This was not the legislature's first attempt to provide public transportation aid to private school students. In 1962, the legislature passed a law entitling students attending private schools to receive free school transportation. Ch. 648, Laws of 1961. We struck down this law before it went into effect for violating Article I, Section 18 of the Wisconsin Constitution "which prohibits the expenditure of any public funds 'for the benefit of religious societies, or religious or theological seminaries.'" State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 165-66, 115 N.W.2d 761 (1962) (quoting Wis. Const. art. I, § 18). In response to that decision, the people ratified Article I, Section 23 of the Wisconsin Constitution in April 1967, providing: "Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institutions of learning." Wis. Const. art. I, § 23. 5 5 No. 2021AP265-CQ.bh No. 21, 43 Wis. 2d 58, 168 N.W.2d 295 (1969). The Knudsen case arose "service when a school district established areas" defining which of the four Catholic schools students from each geographic attend. area of the Id. at 62-63. district could reasonably choose to A parent in the district requested and was denied transportation for his daughter to attend a Catholic high school that did not correspond to his daughter's districtassigned service area. Id. at 63. The parent sought a writ of mandamus to compel the district to provide transportation to his daughter's preferred Catholic school. Id. at 64. We held that the statute gave the pupil the choice of which school to attend, but added that deciding "whether that choice is reasonable is to be determined in the discretion of the school board." 65. Id. at And the school board's exercise of its discretion required "a weighing of conflicting factors which may very well vary in accordance with the subjective needs of the student and the particular problems of the school district." ¶78 Less responded to than our three Knudsen months decision Id. at 66. later, by the amending legislature Wis. § 121.54(2)(b) and creating Wis. Stat. § 121.51(1). 304j, ch. 154, Laws of 1969. Stat. §§ 304c, The new law replaced the "may reasonably choose to attend" language with the "attendance area" provision and definition described above. Id. In adopting this change, the legislature retained the "service areas" concept, but assigned the task of drawing what it now termed "attendance areas" to the private schools 6 themselves, subject to the No. overlapping attendance area provision and the 2021AP265-CQ.bh school board's approval. ¶79 In amendment, the we decade decided following two cases Knudsen that and the applied Wis. § 121.51(1)'s overlapping attendance area provision: 1969 Stat. State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971), and Holy Trinity Comm. Sch., Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). ¶80 Vanko involved an original action petition, filed shortly after the 1969 amendment, seeking a declaration that Wis. Stat. § 121.51(1)'s restriction on overlapping "attendance areas of private denomination" schools was affiliated with unconstitutional. the Id. at same 210. religious In our decision, we acknowledged that the most natural reading of the provision likely rendered it unconstitutional because it imposed a restriction on private religious schools and not on private secular devised schools. a construction constitutional authorizing Id. at of infirmity, or 213-14. permitting the reading However, the statute to "the overlapping Vanko avoid the as not statute in court attendance area boundary lines as to all private schools affiliated or operated by a single sponsoring group, whether such agency or corporation is secular or religious." ¶81 school operating Id. at 215. Dissenting, Chief Justice Hallows objected that under the majority's reading, "the plain language 'the same religious denomination' now becomes a single operating 'religious' is read out of the classification." 7 group and Id. at 218 No. (Hallows, C.J., dissenting). construction to these 2021AP265-CQ.bh In so doing, the court gave "a statutes beyond the breaking point and . . . construed them to mean exactly the opposite of what the legislature plainly said and intended."6 Id. at 217 (Hallows, C.J., dissenting). ¶82 The attendance second area superintendent's unaffiliated with case provision conclusion the to involved that Roman Trinity, 82 Wis. 2d at 141. interpret a a the challenge particular Catholic overlapping to the school was denomination. Holy Following our decision in Vanko, Holy Trinity School, which until then had been operated by a Roman Catholic congregation, dissolved itself, and a new school named Holy Trinity Community School incorporated. 46. Id. at 145- The newly incorporated school featured the same students, teachers, and Id. at 146. buildings as the prior Holy Trinity School. But, as its corporate documents explained, Holy Trinity Community School was officially an independent school, Chief Justice Hallows' critique, echoed by the dissent in today's decision, rings loudly. See dissent, ¶¶112-16. However, even if Vanko was wrongly decided, none of the parties in this case ask us to revisit Vanko despite our invitation to address this question. I do not disagree with the dissent's contention that it is improper in some circumstances to accept unchallenged precedent as an analytical starting point. See dissent, ¶¶103-04. But while I too would welcome an opportunity to revisit Vanko for many of the reasons well-stated in the dissent, we do not need to do so to answer the question the Seventh Circuit asked us. Our answer to the certified question does not prevent a future reconsideration of this line of cases. We answer a narrow state law question to assist the Seventh Circuit in addressing the factual and constitutional questions properly addressed to their judgment, not ours. 6 8 No. having "no legal its ties to according to religious denomination." the bylaws, Roman having "no Id. at 146. 2021AP265-CQ.bh Catholic church" affiliation The and, with any superintendent challenged Holy Trinity Community School's claim, "contend[ing] that the mere separation of the school, as a legal entity, from the Catholic Church, of which it was previously a part, is insufficient to show that it is no longer affiliated with that denomination." ¶83 Id. at 147-48. We unanimously rejected the superintendent's argument, explaining that the First Amendment forbade the superintendent from "determin[ing] the denominational allegiance of the institution" based on it's "inspection and surveillance of the school." Id. at 149. Rather, we accorded "facial validity to the charter and bylaws," and observed that the school "expressly disavow[ed] affiliation with any church denomination." 154. "[T]o inquire further," we said, "impinges Id. at on the religious right of citizens to make their own declaration in respect to their religious affiliation." Id. The First Amendment obligated us "to accept the professions of the school and to accord them validity without further inquiry."7 155. Id. at Holy Trinity Community School was therefore "a private school, independent of any religious denomination; and, We noted just one exception, explaining that "courts reserve the right to look behind such decisions where there is evidence of fraud or collusion." Holy Trinity Comm. Sch., Inc. v. Kahl, 82 Wis. 2d 139, 155, 262 N.W.2d 210 (1978). If fraud were "alleged and proved, we would look behind a representation which on its face purported to demonstrate a complete lack of denominational affiliation." Id. 7 9 No. 2021AP265-CQ.bh accordingly, as a matter of law it [was] entitled to a districtwide attendance area." ¶84 statutory Neither Id. Vanko analysis of nor what Holy the Trinity conducted overlapping a full attendance area provision means when it says "private schools affiliated with the same religious denomination."8 See Wis. Stat. § 121.51(1). Vanko's statutory interpretation, such as it was, was limited to reading "same religious denomination" as functionally analogous to "single sponsoring affiliation occurs. group"; it said 52 Wis. 2d at 215. nothing about how And Holy Trinity relied primarily on the Constitution to reverse the superintendent's decision. 82 Wis. 2d at 154-55. It didn't say much about what a "religious denomination" is or what it means for a school to affiliate with one. The majority in this case limits its analysis to the types of evidence that could be relevant to affiliation, similarly declining a thoroughgoing analysis of the words of the statute. Majority op., ¶¶5, 40, 55. In my view, the statutory language clarifies how a court should employ the methodology articulated in the majority opinion, and provides the necessary context for our answer to the Seventh Circuit's certified question. Wisconsin Stat. §§ 121.51(1) and 121.54(2)(b) have undergone slight revisions since Vanko and Holy Trinity, but no changes since then affect our interpretation of the overlapping attendance area provision. 8 10 No. B. ¶85 2021AP265-CQ.bh Analyzing the Text A proper interpretation of "affiliated with the same religious denomination" requires a deeper dive into the meaning of two phrases: Wis. Stat. "religious denomination" and "affiliated with." § 121.51(1). As we shall see, schools are "affiliated with the same religious denomination" when a mutual organizational relationship exists between the schools and the same religious denomination. 1. ¶86 Religious Denomination "Religious denomination" is not a defined phrase in our statutes. Nevertheless, related statutes reveal that when a statute says "religious denomination," it is not referring to a religious faith generally, but to a particular kind of religious organization.9 ¶87 Apart from Wis. Stat. § 121.51(1), the phrase "religious denomination" appears in more than a dozen statutory sections. Societies," Many of these are in Chapter 187, titled "Religious which governs religious organizations. the state's relationship with These sections describe how religious organizations meet, incorporate, govern themselves, and own or manage property. See generally Wis. Stat. §§ 187.01-.09. See State ex rel. Zignego v. WEC, 2021 WI 32, ¶16 & n.9, 396 Wis. 2d 391, 957 N.W.2d 208 (illustrating that technical terms and phrases in the statutes need not always be statutorily defined); see also Wis. Stat. § 990.01(1) ("[T]echnical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning."). 9 11 No. ¶88 Wisconsin because it including explains Stat. explains how denominations, that a § 187.05 "body is especially organizations can of take on other a authorized 2021AP265-CQ.bh noteworthy than corporate churches, form. representatives It of any church or religious denomination . . . may elect any number of trustees, not § 187.05(1). less than three, to be incorporated." Then, it provides that "[a]ny denominational body mentioned in sub. (1) . . . at any stated meeting may vote to become a corporation and designate any of its members of adult age, not less than 10 in number, to make, acknowledge and file with the department containing its of financial pertinent institutions corporate details. a certificate" § 187.05(3)(a). Next, the section explains that a denomination that has taken corporate form "shall have the power and privileges and exercise the rights and be subject to the obligations corporations organized under general law." imposed upon § 187.05(3)(c). And finally, a denomination may own property and reorganize itself if it so demonstrate chooses. that a § 187.05(3)(b), "religious (d). denomination" All is of a these type of religious organization, not a generic reference to people with a kindred faith. ¶89 Further, Wis. Stat. § 187.08 provides that if a religious society belonging to a religious denomination in this state is dissolved, "the title to such real estate so owned by such defunct society shall be vested in such corporation of the same religious denomination next higher in authority in such denomination." Beyond property 12 acquisition, this section No. demonstrates that a religious 2021AP265-CQ.bh denomination can have a relationship with other organizational entities, here religious societies, such that the denomination and religious societies form something resembling a corporate structure with parent and subsidiary corporations. religious denomination This type of structure reveals that a under Wisconsin law is a kind of organization, not a reference to a group's religious faith. ¶90 Statutes outside Chapter 187 paint the same picture. Wisconsin Stat. § 182.030, corporation "connected denomination or for example, with[] any may provide society" explains church in or its that a religious articles of organization "that it shall be under the supervision and control of such church, denomination, or society." It is an organized body that would supervise and control a corporation. Likewise, Wis. Stat. § 101.05(4)(b) provides a tax exemption for school buildings that are, among other things, "operated by and for members of a bona fide religious denomination." religious denominations can operate a This assumes school——something an organization, and not a religious faith, is capable of. ¶91 The statutes also use the phrase "religious denomination" when referring to entities that ordain or accredit individuals in certain fields. Wisconsin Stat. § 765.16(1m)(a), for example, authorizes an "ordained member of the clergy of any religious denomination" to officiate a marriage. Wisconsin Stat. § 455.02(2m)(i) creates a psychology licensing exemption for "[a]n ordained denomination." member of the clergy of any religious And Wis. Stat. § 979.01(1)(g), which outlines 13 No. 2021AP265-CQ.bh circumstances under which a death must be reported, references an "accredited practitioner of a bona fide religious denomination relying on prayer or spiritual means for healing." A religious faith cannot ordain or accredit individuals as these sections contemplate; instead, there must be an organization that carries out those functions. ¶92 The statutory context paints a clear picture. When the legislature uses the phrase "religious denomination," it is referring to an organizational entity. denomination Wisconsin need not take As the law. denomination' is Majority op., ¶52. a a broader To be sure, a religious specific majority category corporate observes, than form under "'religious 'corporation.'" But every single use of the phrase in the Wisconsin statutes demonstrates that a "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when Wis. Stat. § 121.51(1) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization——a religious denomination.10 This organizational understanding of "religious denomination" is also consistent with Vanko's construction of Wis. Stat. §§ 121.51 and 121.54(2)(b). Regardless of whether it was correct to do so, its decision to read "same religious denomination" synonymously with "single sponsoring group" is telling. See State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 215, 188 N.W.2d 460 (1971). If "the same religious denomination" meant nothing more than a common religious faith, our use of the "single sponsoring group" terminology would be nonsensical. A denomination that shares even an identical religious faith with an entirely independent private school is not a "single (continued) 14 10 No. 2. ¶93 Affiliated With Like "religious denomination," the phrase "affiliated with" is not expressly defined in the statutes. context 2021AP265-CQ.bh reveals that it contemplates a But statutory mutual relationship between two organizations.11 ¶94 As an initial matter, "religious denomination" permissible readings § 121.51(1). of a proper centers and "affiliated characterization circumscribes with" in Wis. of the Stat. It is one thing for a school to self-declare their allegiance to a particular religious faith. It is quite another to affiliate with a particular religious organization without that organization's agreement. If a private school could unilaterally affiliate itself with a religious organization, it would deprive that organization of its liberty to decide with sponsoring group" for that school. Religious faiths cannot sponsor schools, but religious organizations can. The Vanko court explained that a "single sponsoring group" is a "school operating agency or corporation." Id. A religious faith is neither an agency nor a corporation; a religious denomination can take on corporate form. Although Holy Trinity focused primarily on the Constitution, it also agreed with the organizational understanding of "religious denomination." Summarizing Vanko, the Holy Trinity court explained that "the effect of the statute was to prohibit overlapping attendance districts in respect to . . . religious schools affiliated or operated by a single sponsoring group or denomination." 82 Wis. 2d at 145. Because it is not a technically or specially defined phrase, we give "affiliated with" its "common, ordinary, and accepted meaning." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. 11 15 No. 2021AP265-CQ.bh whom and with which organizations it chooses to associate. On this basis alone, the most reasonable reading of "affiliated with" in Wis. relationship Stat. between § 121.51(1) the private requires school some and the mutual religious denomination, whereby both agree to be affiliated. ¶95 The overlapping history that prompted the area provision supports attendance enactment this of the reading. After the Knudsen decision gave districts discretion to decide which private attend," shift the that school a student legislature discretion could immediately to the "reasonably amended private instance, subject to districts' approval. the schools choose to statute to in the Supra, ¶10. first But the legislature nevertheless directed private schools with the same denominational areas. history The is affiliation most that to draw reasonable by adding non-overlapping inference the from overlapping attendance this statutory attendance area provision, the legislature contemplated that the drawing of nonoverlapping attendance areas is something that could be facilitated by the religious denomination——or in the words of Vanko, a single sponsoring group. It makes no sense to read the statute as asking separate organizations with no relationship (other limited than perhaps attendance shared areas religious together. convictions) "[A]ffiliated to draw with" must contemplate a mutual relationship between two organizations that agree to associate with one another.12 Our opinion in Vanko understood this in its focus on the "single sponsoring group" terminology. 52 Wis. 2d at 215. A (continued) 16 12 No. ¶96 Context from other statutes confirms notably, Chapter 157, which regulates 2021AP265-CQ.bh this. cemeteries, Most routinely contains separate provisions for cemeteries that are "affiliated with a religious association." Wis. Stat. § 157.07(6) provides that certain platting requirements do "not apply to . . . a cemetery authority of a cemetery that is affiliated with a religious association." Wis. Stat. § 157.08(5) governs conveyances of cemetery lots but partially exempts cemeteries that are "affiliated with a religious association" from its reach. Wis. Stat. cemetery § 157.11(10) lots but governs partially improvement exempts and cemeteries care that of are "affiliated with a religious association." Wis. Stat. § 157.63(6) holds a "religious society that is affiliated with a cemetery" liable for damages "that result from the failure of the cemetery" to comply with certain statutory requirements. Wis. Stat. § 157.635 permits cemeteries "affiliated with a religious association" to limit who may be buried in a cemetery. Wis. Stat. § 157.637 forbids cemeteries, other than cemeteries "organized and operated by, or affiliated with, a religious association" from forbidding veteran burials. single group sponsoring a school necessarily describes a mutual tie between two organizations that choose to be connected. 17 No. It would cemetery turn the could especially cemetery statutes self-affiliate Wis. Stat. with on a their 2021AP265-CQ.bh head religious § 157.63(6)'s if any association, provision extending liability to the religious organization the cemetery chose to affiliate with. Quite clearly then, Chapter 157 uses "affiliated with" to contemplate a mutual relationship between cemeteries and religious associations. ¶97 Similarly, Wis. Stat. § 628.92(5)(b) requires navigators "not affiliated with an entity" to furnish a bond. Surely a navigator cannot avoid a bond requirement simply by self-affiliating § 16.99(3p) with defines another a entity. "public Likewise, museum" as "a Wis. Stat. nonprofit or publicly owned museum located in this state that is accredited by the American Association of Museums or an educational center that is affiliated with such a museum." center merely self-affiliate satisfy this definition? ¶98 So too in with an Could an educational accredited museum to When the Certainly not. Wis. Stat. § 121.51(1). overlapping attendance area provision says "affiliated with the same religious denomination," it means that there must be a mutual relationship that ties religious denomination together.13 affiliate with each other; the private school and the Both entities must choose to neither can unilaterally self- Adding additional research from our cases and reference to dictionary definitions, Justice Roggensack's concurrence agrees that a mutual organizational relationship is the most reasonable interpretation of the statutory language. Justice Roggensack's concurrence, ¶¶61-67. 13 18 No. affiliate with the other.14 question of theological 2021AP265-CQ.bh This statutory inquiry is not a symmetry, but of organizational connection. II. ¶99 With this THE CERTIFIED QUESTION statutory background, the answer Seventh Circuit's question comes into fuller view. to the The Seventh Circuit asks whether the Superintendent must "rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school's self-identification in sources such as its website or filings with the state." As the majority observes, however, depending on what is meant by a "school's self-identification," this question may present "a false dichotomy." Majority op., ¶50. ¶100 The Superintendent certainly must rely "exclusively on neutral criteria" to demonstrate a school's affiliation with a religious denomination. (organizational connection). The statute's aim is neutral And as we held in Holy Trinity, the Constitution provides further limits. Although "ownership, To the extent the majority opinion discusses "the professions of the school with regard to the school's selfidentification and affiliation," majority op., ¶¶5, 55, I understand it to be discussing the school's self-identification about its mutual affiliation with a religious denomination. A school may not unilaterally self-affiliate with a denomination, but its statements professing to be affiliated with a denomination may be evidence of a mutual organizational relationship between it and the religious denomination it professes to be affiliated with. 14 19 No. 2021AP265-CQ.bh control, and articles of incorporation" are examples of neutral criteria (and evidence might often may be permissibly determinative), be considered. other For types example, of a school's profession on its website that it is an unaffiliated religious school would constitute evidence that the school shares no mutual organizational relationship with a religious denomination.15 ¶101 Therefore, in answer to the certified question, I join the majority's conclusion that statements of affiliation by a school on its website, in filings with the state, or otherwise, along with corporate documents, may be permissible sources of evidence regarding whether two schools are affiliated with a religious denomination. This statutory organizational, not theological. inquiry, however, is A religious denomination under the law is a kind of religious organization, not a religious creed. And a school is affiliated with a religious denomination if there exists a mutual organizational relationship between the private school and the religious denomination. With this understanding, I respectfully concur. The parties in this case do not disagree on whether statements on a website may be relevant. They do disagree on what kind of statements may be relevant and how they may be used. 15 20 No. ¶102 REBECCA GRASSL BRADLEY, J. (dissenting). repugnant to the constitution is void." U.S. (1 Cranch) 137, 180 (1803). 2021AP265-CQ.rgb "[A] law Marbury v. Madison, 5 Wisconsin Stat. § 121.51(1) is repugnant to the Constitution and therefore void. In answering the certified question, this court should say so. Fifty years ago in State N.W.2d 460 ex rel. (1971), Vanko this v. court Kahl, 52 Wis. 2d 206, overstepped its 188 judicial boundaries and rewrote the statute in order to save it. Vanko embodies an egregious example of legislating from the bench and should be certified overturned. question Instead, in a manner the majority which answers the unconstitutionally entangles state authorities in the religious affairs of private schools. It is of no import that none of the parties asked us to overrule Vanko in this dispute. We ordered the parties to address whether Vanko should be revisited, and the question is squarely treatment before of us the notwithstanding subject. the Litigants decisions of this court; the law does. parties' do not negligible dictate the As proclaimed over 160 years ago, "[w]e sit here to decide the law as we find it, and not as the parties or others may have supposed it to be." Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., dissenting). ¶103 The Wisconsin Supreme Court serves a law-development function. Wis. 2d State ex rel. Wis. Senate v. Thompson, 144 429, 436, 424 N.W.2d 385 (1988) ("[I]t is this court's function to develop and clarify the law."). "In a legal system in which appellate opinions not only establish the meaning of 1 No. 2021AP265-CQ.rgb law, but do so through precedent that binds future litigants, courts cannot cede to the parties control over legal analysis." Amanda (2009). Frost, The Limits of Advocacy, 59 Duke L.J. 447, 453 In this case, the majority does a great disservice to the people of Wisconsin by letting three parties control the law for an entire state. ¶104 The logical implications of the majority's reasoning are concerning, if not absurd. refuse to follow binding In future cases, will the court precedent if no party cites it? Presumably, "[n]o one would argue that a court is free to ignore a binding precedent simply because the parties fail to cite it." Id. at because 494. the But if parties we cannot didn't ask reconsider us to do our so, own the precedent majority's reasoning would also preclude us from considering any case the parties didn't mention. What if a case has been cited, perhaps even by both parties, but we disagree with their reading of it? Are we now obligated to read our own prior decisions through the lenses of partisan litigants? ¶105 The majority's aberrantly restrictive vision of our role consigns the state's highest court to selecting winners and losers in litigation contests rather than declaring the law. However, "courts do not simply resolve disputes between parties; they are also responsible for making pronouncements of law that are binding on all who come after. When the parties fail to raise relevant legal claims and arguments——whether by error or through conscious choice——judges must do so themselves to avoid issuing inaccurate or incomplete statements of law." 2 Id. at No. 447. it, 2021AP265-CQ.rgb Doing so does not abandon our neutral role; it embraces while serving as "an essential means of protecting judiciary's role in the constitutional structure." the Id. at 452. ¶106 Read in conjunction with Wis. Stat. § 121.54(2)(b), Wis. Stat. § 121.51(1) precludes public school districts from providing transportation to students who attend a private school if the school district decides that the school is "affiliated with the same religious denomination" as another private school within the same geographic attendance already receive such transportation. imposes a restriction applicable only to on the area students On its face, the statute receipt religious whose of public schools. benefits Recognizing the constitutional infirmities of this statutory scheme, the Vanko court impermissibly excised the phrase "religious denomination" from the statute attendance-area by applying exclusion to § 121.51(1)'s religious and overlapping- secular schools alike. ¶107 Prioritizing the parties' collective preference to preserve the statute over our duty to faithfully interpret the law as written, the majority declines to revisit the Vanko court's mangling of the statute. However, "[t]he principle of stare us decisis does not compel to adhere to precedent or refuse to correct our own mistakes." Outagamie Cnty. Wis. 2d 613, Bd. 628 of Adjustment, N.W.2d 376. interests of the parties reworking of the statute, 2001 Regardless in WI of perpetuating our 3 duty to the 78, the Vanko's erroneous State v. ¶31, 244 particular improper Constitution is No. primary. 2021AP265-CQ.rgb "We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision." Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665 N.W.2d 257 (internal citations omitted). ¶108 Had the majority confronted Vanko's errors, it would have necessarily concluded that Wis. Stat. § 121.51(1) is unconstitutional under the First Amendment to the United States Constitution. is," Tetra It is the duty of this court "to say what the law Tech EC, Inc. v. DOR, 2018 WI 75, ¶50, 382 Wis. 2d 496, 914 N.W.2d 21 (quoting Marbury, 5 U.S. at 177), to "faithfully give effect to the laws enacted by the legislature" by applying the plain language of a statute, State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110, and to ensure conformity with our Constitution. each of these responsibilities. repeats the error. I. ¶109 In those enacted laws are in This court in Vanko violated The majority in this case I respectfully dissent. Vanko should be overruled because the court rewrote Wis. Stat. § 121.51(1). the interests of the "safety and welfare of children," the Wisconsin Constitution allows the legislature to "provid[e] for the transportation of children to and from any parochial or private school or institution of learning." Wis. Const. this art. I, § 23. Following the adoption of constitutional provision in 1967, the legislature enacted Wis. Stat. § 121.54(2)(b), which provides in relevant part: 4 No. 2021AP265-CQ.rgb [T]he school board of each district operating high school grades shall provide transportation to and from the school a pupil attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from the pupil's residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route. (Emphasis added.) Under this law, school districts must provide students with transportation to and from private schools, so long as certain criteria are met.1 Specifically, the student must reside at least two miles from the school and within that school's "attendance area," and the private school within five miles of the school district's boundaries. must be In turn, the State provides aid to the school district at specified rates depending upon the location of students district. See Wis. Stat. § 121.58(2). transported by the ¶110 Wisconsin Stat. § 121.51(1) defines "attendance area" as "the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board private school is located." the "attendance area" of the district in which the Any disagreement over the scope of must be resolved superintendent of public instruction (SPI): by the state "[i]f the private school and the school cannot agree on [an] attendance area, the state superintendent Wisconsin transportation. 1 shall, Stat. upon § 121.55 5 the request prescribes of the private methods of No. school and the board, attendance area." make a § 121.51(1). final 2021AP265-CQ.rgb determination of the As particularly relevant to the certified question before this court, § 121.51(1) also mandates a limitation applicable only to religious schools: "[t]he attendance areas of private schools affiliated with the same religious denomination shall not overlap."2 (Emphasis added.) (hereinafter the "overlapping attendance area" provision). ¶111 Reading Wis. Stat. § 121.51(1) in conjunction with Wis. Stat. § 121.54(2)(b), the provision prohibiting overlapping attendance areas transportation "affiliated to with requires school students the same who districts attend religious a to private denomination" as deny school another private school within the same geographic attendance area whose students already receive transportation. In other words, if two religious schools belong to the same "religious denomination"——a term statutorily undefined and subject to the interpretation of the SPI——students attending one of the religious schools are denied transportation, school. The regardless Constitution of their prohibits distance such from the faith-based discrimination in conferring public benefits. ¶112 Soon after this statute's enactment, religious schools and parents of constitutionality children of the attending provision them challenged prohibiting the overlapping attendance areas of private schools "affiliated with the same This mandate is subject to an exception involving singlesex schools which is not pertinent to the matter before the court. Wis. Stat. § 121.51(1). 2 6 No. religious denomination." unconstitutionality, § 121.51(1) in infirmity." plainly Instead the order Vanko to cure of confronting court its rewrote "apparent Vanko, 52 Wis. 2d at 214. prohibits overlapping 2021AP265-CQ.rgb its glaring Wis. Stat. constitutional Although § 121.51(1) attendance areas of only those schools "affiliated with the same religious denomination," the Vanko court "read the statute as not authorizing or permitting overlapping in attendance area boundary lines as to all private schools affiliated or operated by a single sponsoring group, whether such school operating agency or corporation is secular or religious." Id. at 215 (emphases added). To support its "reading" of § 121.51(1), the Vanko court effectively replaced the phrase group" "religious (ostensibly statute's a restriction denomination" secular to with phrase) both secular so and "single as sponsoring to apply religious the schools. Amending the law by judicial fiat, reasoned the Vanko court, prevents "[r]eligious affiliation [from being] the sole basis of the classification" purpose of children." providing and fulfills "for Id. at 214. legislative constitutional action, doubt the safety statute's and overarching welfare of school As further support for taking this the canon the Vanko of court statutory misapplied construction: the "[i]f there were any doubt as to this being the correct construction of the statute, . . . [it] use[s] the statutory construction rule that, given two alternative constructions of a statute, preference is to be given to the one that saves the statute from being struck down as unconstitutional." 7 Id. at 215. No. 2021AP265-CQ.rgb ¶113 The Vanko court's blatant judicial activism was not lost on all members of the court. Noting the unconstitutionality of the statute, dissenting Chief Justice E. Harold Hallows pointed out that constitutionality of [the provision] . . . , the majority "[i]n order 'overlapping has to save attendance given a the area' construction to these statutes beyond the breaking point and has construed them to mean exactly the opposite of what the legislature plainly said[.]" Id. at 217 (Hallows, C.J., dissenting). In the court's reconstruction of the statute, "the plain language 'the same religious denomination' now becomes a 'single operating group' and 'religious' is read out of the classification." at 218. overreach: Id. Chief Justice Hallows rightly criticized the court's "We cannot take clear and unambiguous language and under the guise of construction or interpretation change what the legislature has said." Id. at 219. If the "overlapping attendance area" provision is to apply to religious and secular schools alike, "the legislature must say so." ¶114 Although Vanko is irreconcilable Id. with the plain language of Wis. Stat. § 121.51(1),3 a majority of this court At the time of the Vanko attendance area" provision was § 121.51(4). 3 8 decision, codified the in "overlapping Wis. Stat. No. nevertheless sustains its erroneous holding.4 2021AP265-CQ.rgb Because Vanko's construction of § 121.51(1) is unmoored from the statutory text, it should be overruled. An invention of the Vanko court, the phrase "single sponsoring group" is nowhere to be found in the statute. Nor does the statutory text apply the "overlapping attendance area" restriction to secular schools. Only students attending private schools "affiliated with the same religious denomination" as another private school within the same geographic attendance area are denied a public benefit——solely on account of their school's religious affiliation. ¶115 In arriving at its holding, the Vanko court trampled over fundamental principles of statutory interpretation, under which we are supposed to "'begin with the language of the statute,'" and when the "meaning of the statute is plain, we ordinarily stop the inquiry." (quoted source omitted). Kalal, 271 Wis. 2d 633, ¶45 We give statutory language "its common ordinary, and accepted meaning," id., and we should never "read into the write." statute Dawson words v. the Town of legislature Jackson, did 2011 not WI see 77, fit ¶42, to 336 The majority also errs in upholding Holy Trinity Cmty. Sch., Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). In that case, this court refined its decision in Vanko to prescribe how the SPI should ascertain whether a religious private school is affiliated with a "sponsoring group." In relevant part, Holy Trinity held that "where a religious school demonstrates by a corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, that in the absence of fraud or collusion the inquiry stops there." Holy Trinity, 82 Wis. 2d at 157-58. Because Holy Trinity rests upon the faulty foundation laid by Vanko, it too should be overturned. 4 9 No. Wis. 2d 318, 801 N.W.2d 316. 2021AP265-CQ.rgb "It is not up to the courts to rewrite the plain words of statutes," State v. Wiedmeyer, 2016 WI App 46, ¶13, 370 Wis. 2d 187, 881 N.W.2d 805, nor can a court "add words to a statute to give it a certain meaning." State v. Neill, 2020 WI 15, ¶23, 390 Wis. 2d 248, 938 N.W.2d 521 (quoted source omitted). "[R]ather, we interpret legislature actually enacted into law." the words the State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165. If the law offends the Constitution, we are duty-bound to say so. ¶116 The statute, Vanko court acknowledged began its with the language "constitutional of the infirmity," and committed a cavalcade of errors in order to avoid employing the only appropriate judicial remedy——striking the statute. Discarding its obvious meaning, the Vanko court invoked "the purpose of the "classification transportation solely on the statute" basis of and declared religious that a sponsorship would not be germane or reasonably related to the purpose of the statute"——so it deleted it. handiwork, the phrase "same "single sponsoring group." of an Through the court's legislative unconstitutional religious denomination" became In order to absolve the legislature act, the court committed its own, arrogating to itself the power to make law. ¶117 Writing laws resides within the exclusive domain of the legislature, into which judges may not tread. federal counterpart, '[o]ur state "Like its constitution . . . created three branches of government, each with distinct functions and powers,' and '[t]he separation of powers doctrine is implicit in 10 No. this tripartite division.'" 2021AP265-CQ.rgb Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384 (quoted source omitted; alterations and ellipsis in original). "Three clauses of the Wisconsin Constitution embody this separation: Article IV, Section 1 ('[t]he legislative power shall be vested in a senate and assembly'); Article V, Section 1 ('[t]he executive power shall be vested in a governor'); and Article VII, Section 2 ('[t]he judicial court system')." power . . . shall be vested in a unified Gabler, 376 Wis. 2d 147, ¶11 (alterations and ellipsis in original). "The separation of powers 'operates in a general way to confine legislative powers to the legislature.'" League of Women Voters v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511, 929 N.W.2d 209 (quoting Goodland v. Zimmerman, 243 Wis. 2d 459, 467, 10 N.W.2d 180 (1943)). ¶118 "Each branch's core powers reflect 'zones of authority constitutionally established for each branch of government upon which any intruding. of other branch of government is prohibited from As to these areas of authority, . . . any exercise authority by unconstitutional.'" another branch of government is Gabler, 376 Wis. 2d 147, ¶31 (quoting State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990) (ellipsis in original)). "It is 'the province and duty of the judicial department to say what the law is[,]' and not what we think it should be." Sheboygan, (Rebecca 2020 Grassl WI 16, Bradley, ¶51, J., 390 Town of Wilson v. City of Wis. 2d 266, concurring) 11 938 (quoting N.W.2d 493 Marbury, 5 No. U.S. at 177). 2021AP265-CQ.rgb "This court lacks any authority to modify, tweak or supplement the legislature's work." Id. ¶119 In addition to invading the exclusive province of the legislature, principles the Vanko underlying court the violated multiple plain-meaning method foundational of statutory interpretation, which this court adopted long before the Vanko decision. See, e.g., W. Side Bank v. Marine Nat. Exch. Bank, 37 Wis. 2d 661, 669-70, 155 N.W.2d 587 (1968) ("It is not within the province of this Court to seek secondary sources of legislative intent where the meaning of the statute is plain and unambiguous."); Folschow v. Werner, 51 Wis. 85, 7 N.W. 911 (1881) (applying the "plain meaning" of a statute to determine whether a creditor can reach the defendant's pension). In addition to transgressing the constitutional boundaries of the judicial role, the methodology employed by the Vanko court in order to reach a statute-saving outcome contravened basic principles of statutory interpretation. ¶120 The Vanko court was transparent reconstruction of the statute: from being struck Wis. 2d at 215. principle is down the justifying its doing so "save[d] the statute unconstitutional." Vanko, 52 Although not named by the Vanko court, this known as statutory construction. applied, as in the constitutional doubt The Vanko court misused it. constitutional doubt canon counsels canon of Properly that "[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt." Reading Law: Antonin Scalia & Bryan A. Garner, The Interpretation of Legal Texts 241 (2012). 12 It No. 2021AP265-CQ.rgb may be employed only "where a statute is susceptible of two constructions." Id. (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (per White, J.)). This court recently expressed the operation of the canon in terms of reasonableness: "where we can adopt a a saving construction of constitutional conflict, we do so." ¶31, 381 court's Wis. 2d 74, application constitutional statute." 911 of conflict Id. statute canon, does to avoid a State v. Hager, 2018 WI 40, N.W.2d 17. the reasonably Contrary simply not drive to the Vanko "avoid[ing] . . . a our reading of the Instead, the constitutional doubt canon "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that [the legislature] did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez, 543 U.S. 371, 381 (2005) (emphases added). ¶121 There is nothing "reasonable" nor "plausible" about the Vanko court's construction of Wis. Stat. § 121.51(1). constitutional doubt canon is not a license to The rewrite a statute, either to better effectuate its purpose or to conform it to the Constitution. Nor does it authorize a court to insert new words into the text or remove words from it. press statutory evasion' even to construction avoid a 'to the constitutional States v. Locke, 471 U.S. 84, 96 (1985). constitutional plain. See doubt canon Pennsylvania point when DOC v. 13 the of "We cannot disingenuous question." United Nor can we employ the text Yeskey, of 524 the statute U.S. 206, is 212 No. (1998). Although courts "will often 2021AP265-CQ.rgb strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." Aptheker v. Sec'y of State, 378 U.S. 500, 515 (1964) (quoted source omitted). § 121.51(1) schools to The the cannot Vanko point be of court bent changing classified by its the language meaning. "religious of Secular denomination" notwithstanding the Vanko decision's lexical distortions. It should be overturned. ¶122 In perpetuating the judicial malfeasance Vanko embodies, the majority "determine[s] that our precedent should be maintained rather than overruled," implicitly relying on the doctrine of stare decisis. Majority op., ¶46. "While adhering to precedent is an important doctrine for lending stability to the law, not every decision deserves stare decisis effect. After all, the purpose of stare decisis 'is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.'" State v. Grandberry, 2018 WI 29, ¶86, 380 Wis. 2d 541, 910 N.W.2d 214 (Rebecca Grassl Bradley, J., dissenting) (quoting Antonin Scalia, A Matter of Interpretation: Federal Court and the Law 138-40 (1997)). As the state's highest court, we are not "'constrained to follow precedent' that is 'unworkable or badly reasoned,' because stare decisis 'is a principle of policy and not a mechanical formula of adherence to the latest decisions.'" Outagamie Cnty. Bd. of Adjustment, 244 Wis. 2d 613, ¶31 (quoting 14 No. Payne v. Tennessee, 501 U.S. 808, 827-28 2021AP265-CQ.rgb (1991)) (internal alterations omitted). ¶123 "Reflexively cloaking every judicial opinion with the adornment of stare decisis threatens the rule of law, particularly when applied to interpretations wholly unsupported by the statute's text." 6, ¶81 n.5, 379 Manitowoc Co., Inc. v. Lanning, 2018 WI Wis. 2d 189, Bradley, J., concurring). 906 N.W.2d 130 (Rebecca Grassl The Vanko court's construction of "religious denomination" to mean "single sponsoring group" is "wholly unsupported by the statute's text" and represents a revision rather than an interpretation of law. "In evaluating whether that to persist judicially-imagined in upholding legislative a decision purpose over the elevated words the legislature actually enacted, '[i]t is well to keep in mind just how thoroughly purported to Agency, 480 Because the [the opinion] construe.'" U.S. attendance court's 616, Vanko area" Id. 670 court (quoting (1987) of Wis. the statute Johnson (Scalia, entirely provision rewrote rewrote Stat. J., the v. it Transp. dissenting)). "overlapping § 121.51(1), the majority errs in upholding it. ¶124 In justifying Controls, "unsound Johnson a decision 264 in overturned. Controls, this to overturn Wis. 2d 60, ¶¶98-99. principle" Id., ¶99; or "wrongly see also court enumerated precedent. When a decided," Bartholomew See prior it v. factors Johnson case is should be Wisconsin Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216. 15 A judicial decision No. like Vanko, which statute," is decided,'" and Wis. 2d 266, "blatantly disregarded the text of the [] "both 'unsound should ¶63 2021AP265-CQ.rgb be (Rebecca in principle' overruled. Grassl Town Bradley, and of 'wrongly Wilson, J., 390 concurring). Doing so would advance the rule of law: This court has no apprehension about being a solitary beacon in the law if our position is based on a sound application of this state's jurisprudence. But when our light is dim and fading, then this court must be prepared to make correction. Stare decisis is neither a straightjacket nor an immutable rule. We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision. Johnson Controls, 264 Wis. 2d 60, ¶100 (internal citations omitted). ¶125 The majority's refusal to correct Vanko's irrefutably erroneous interpretation of the law "does not comport with our duty [to exercise our constitutionally-vested 'judicial power'] because it elevates demonstrably erroneous decisions——meaning decisions outside the realm of permissible interpretation——over the text of . . . duly enacted . . . law." Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring). "[J]udicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them." Id. at 1984. The Vanko court not only incorrectly interpreted Wis. Stat. § 121.51(1), it also usurped the legislative function by rewriting the statute. court's duty sustaining to say judicial so. rewriting "Besides of 16 eternalizing statutes usurpation of the legislative function." It is this sanctions bad law, judicial Town of Wilson, 390 No. 2021AP265-CQ.rgb Wis. 2d 266, ¶52 (Rebecca Grassl Bradley, J., concurring). This court should overturn the "demonstrably erroneous decision" it made in Vanko. II. The "overlapping attendance area" provision in Wis. Stat. § 121.51(1) is unconstitutional. ¶126 Overturning Vanko's reconstruction of the statute necessitates a consideration of its constitutionality, which the Vanko court avoided by expanding the "overlapping attendance area" restriction in Wis. Stat. § 121.51(1) to encompass not only religious schools but secular ones as well. On its face, § 121.51(1) denies a public benefit only to students attending religious schools in overlapping attendance areas. Private but secular schools located in overlapping attendance areas are not disqualified from receiving benefits on this basis. otherwise identity publicly violates available the benefit First on Amendment account to the of Denying an religious United States Constitution. ¶127 As it pertains to religion, the First Amendment says "Congress shall religion, or no law respecting prohibiting the free Const. amend. I. make an exercise establishment thereof." of U.S. As recently interpreted by the United States Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), and Espinoza v. Montana Dep't of Rev., 140 S. Ct. 2246 (2020), the Free Exercise Clause of the First Amendment prohibits the government from denying a public benefit solely on the basis of religious identity. Consequently, the "overlapping attendance area" provision must be struck from Wis. Stat. § 121.51(1). 17 No. 2021AP265-CQ.rgb ¶128 The Free Exercise Clause, which applies to the states by operation of the Fourteenth Amendment,5 provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." Clause U.S. 'protect[s] treatment' and Const. amend. religious subjects to I. "The observers the strictest Free Exercise against unequal scrutiny laws that target the religious for 'special disabilities' based on their 'religious status.'" Trinity Lutheran Church, 137 S. Ct. at 2019 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)). United States denying a Supreme generally "Applying that basic principle, [the Court] has available repeatedly benefit solely confirmed on that account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'" Id. (quoted source omitted). ¶129 In Trinity Lutheran Church, the United States Supreme Court scrutinized a program under which the Missouri Department of Natural Resources provided grants to help public and private schools, as well as playground surfaces. nonprofit organizations, Id. at 2017. purchase rubber The Department "had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity." Id. Applying this policy, the Department denied a grant application by Trinity Lutheran Church Child Learning Center——a preschool See Cantwell v. Connecticut, 310 U.S. 296 (1940) (holding that the First Amendment's Free Exercise Clause is incorporated against the states via the Fourteenth Amendment). 5 18 No. and daycare——solely church. on the basis that it was 2021AP265-CQ.rgb operated by a Id. at 2017-18. ¶130 The United States Supreme Court held that the Department's policy violated Trinity Lutheran's rights under the Free Exercise Clause. Id. at 2019. The Court explained that the State unconstitutionally "puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution." the Court, Lutheran the to State renounce cannot its Id. at 2021-22. "expressly religious According to require[] character in Trinity order to participate in an otherwise generally available public benefit program, for which it is fully qualified." Id. at 2024. "[W]hen the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: 'To condition the availability of benefits . . . upon [a recipient's] willingness . . . to surrender[] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.'" Id. at 2022 (quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978)). benefit program" character" does and "having not comport Choosing between "a government to disavow with the protection of the free exercise of religion. ¶131 Just last year, the United reaffirmed these principles in Espinoza. [one's] First religious Amendment's Id. States Supreme Court The Court held that the Free Exercise Clause precluded Montana from striking down a law establishing a scholarship program for private schools on the basis of a state constitutional provision prohibiting the 19 No. state from giving public aid to "church, sect, or denomination." 52. any school 2021AP265-CQ.rgb controlled by a Espinoza, 140 S. Ct. at 2251- The Court held that the application of Montana's "no-aid provision" to the scholarship program violated the First Amendment by "bar[ring] religious schools from public benefits solely because of the religious character of the schools" as well as by "bar[ring] parents who wish to send their children to religious schools from those same benefits, again solely because of the religious character of the schools"——a fact "apparent from the plain text" of the no-aid provision. Applying Trinity Lutheran Church, the Id. at 2255. Court subjected the state's application of the no-aid provision to the "strictest scrutiny" and "interest of determined the that highest Montana order" by failed to advance disqualifying any religious schools and the children who attend them from receiving the benefits of a scholarship program solely because of their faith. Id. at 2260. ¶132 As United States Supreme Court precedent confirms, the Free Exercise Clause prohibits Wisconsin from denying otherwise generally available transportation benefits to students attending a private school "affiliated with the same religious denomination" geographic § 121.51(1) 'protects another attendance "overlapping violates as area. attendance applies the First religious private only Because area" to the "The against 20 within plain provision religious Amendment. observers school in unequal text Wis. schools, Free the the Exercise same of the Stat. statute Clause treatment' and No. 2021AP265-CQ.rgb against 'laws that impose special disabilities on the basis of religious status.'" Espinoza, 140 S. Ct. at 2254 (quoting Trinity Lutheran Church, 582 U.S. at 2021). ¶133 Trinity generally Lutheran available Church benefit is solely clear: on "denying account of a religious identity imposes a penalty on the free exercise of religion that can be justified order.'" source only by a state interest 'of the highest Trinity Lutheran Church, 137 S. Ct. at 2019 (quoted omitted). § 121.51(1)'s "set[ting] attendance The State discrimination parameters" area in for order rationalizes against a Wis. religious schools religiously-affiliated to avoid district[']s . . . limited funds." Stat. straining as school's a "school The United States Supreme Court already rejected this sort of justification for religious discrimination: "A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." 140 S. Ct. at 2261. Espinoza, If the financial cost of transporting students to school trumps our right to remain free from "unequal treatment" based upon our religious identity, then the Free Exercise Clause would have little meaning. ¶134 Like disqualifying" under its Missouri's religious playground policy organizations resurfacing of from program in "categorically receiving Trinity grants Lutheran Church, Wisconsin's "overlapping attendance area" provision puts schools "to a choice: [they] may participate in an otherwise available benefit program or remain a religious institution." 21 No. 2021AP265-CQ.rgb Trinity Lutheran Church, 137 S. Ct. at 2021-22. Under Wis. Stat. § 121.51(1), if a school overlaps with another private religious institution of "the same religious denomination," that school, and its students, may either renounce their religious affiliation or lose their right to state-provided transportation benefits. The First Amendment does not permit the government to "punish[] the Espinoza, 140 Constitution forced to free S. does either exercise Ct. at not of 2256 (quoted countenance forgo a religion" a source this manner. omitted). religious "government "disavow its religious character." in school benefit The being program" or Trinity Lutheran Church, 137 S. Ct. at 2022; see Espinoza, 140 S. Ct. at 2261. III. Wisconsin Stat. § 121.51 impermissibly entangles the government in the affairs of religious schools. ¶135 Declaring the overlapping attendance area provision unconstitutional, as this court should have done 50 years ago when first presented with the issue, would have been dispositive of this matter. Instead, the majority persists in preserving an unconstitutional law, necessitating a response to the certified question: For purposes of determining whether two or more schools are "private schools affiliated with the same religious denomination" for purposes of Wis. Stat. 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school's selfidentification in sources such as its website or filings with the state? Whether applying a faithful interpretation of the statutory text or Vanko's reconstruction of the statute, there is no way to 22 No. 2021AP265-CQ.rgb answer this question without requiring the SPI to violate the Establishment Clause of the First Amendment. ¶136 In this case, the SPI must decide whether a selfdescribed Roman Catholic school is "affiliated with the same religious denomination" Milwaukee, corporate as the Roman notwithstanding the school's and theological Catholic independence Archdiocese professions from the of of both Archdiocese. The inevitable litigation ensuing from a determination by the SPI that results in the denial of public benefits based upon overlapping attendance areas between religious schools will require judges to engage in the same inquiry concerning the religious character of schools. The Establishment Clause of the First Amendment does not permit such entanglement between church and state. ¶137 The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Const. amend. I. U.S. In interpreting this provision, the United States Supreme Court has held that "[a] statute must not foster 'an excessive entanglement with religion.'" 403 U.S. 602, 613 (1971). Lemon v. Kurtzman, Wisconsin Statute § 121.51(1) not only fosters an excessive entanglement with religion, it compels it. Under the statute, the SPI is charged with conducting a comparative analysis to determine whether two schools belong to the same "religious denomination"——an exercise unavoidably requiring the government to interpret the nature of a particular faith. Discerning whether one religious school is "affiliated with the same religious denomination" as another forces the SPI 23 No. 2021AP265-CQ.rgb as well as the courts to delve into the meaning of "religious denomination" and what it means to be "affiliated" with one. However, it is not for the government to determine the "proper interpretation of [one's] faith." U.S. 252, 257 (1982). state litigating in United States v. Lee, 455 Indeed, "[t]he prospect of church and court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment[.]" New York v. Cathedral Acad., 434 U.S. 125, 133 (1977). ¶138 Where, exactly, is the SPI expected to draw the line? What is a "religious denomination"? What characteristics, professions of faith, or doctrinal tenets render a religious institution part of a particular denomination? The statute doesn't tell us, and it would be unconstitutional for any state actor, including United States a court, to Supreme resolve Court the question. recognized As decades the ago, "[i]ntrafaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve Religion Clauses." such difference in relation to the Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 715 (1981). It is not for the government to determine, for example, whether a Roman Catholic school and a Ukrainian Catholic school religious denomination" § 121.51(1) or otherwise. are within "affiliated the meaning with of the Wis. same Stat. "[A] single term" like "Catholic" cannot "describe accurately the religious values and aspirations of an individual or a group of individuals. 24 Labels work very No. 2021AP265-CQ.rgb well for identifying commodities in a supermarket, but they are ill fitted for protecting the religious liberty of an individual American." St. Augustine v. Evers, 906 F.3d 591, 604 (7th Cir. 2018) (Ripple, J., dissenting). ¶139 Any governmental overriding of a religious school's profession of independence from the "religious denomination" of another school——whether made by the SPI or a court——would "require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that [courts] were never intended to play." Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 458 (1988). The government lacks both constitutional authority and institutional competence to make these determinations. ¶140 The majority does not address the entanglement problem presented by Wis. exists at all. Stat. § 121.51 but The majority says: mistakenly denies one "in determining whether schools are 'affiliated with the same religious denomination' pursuant limited to to Wis. Stat. consideration exclusively. § 121.51, of a the Superintendent school's corporate is not documents In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard affiliation." "accepting a to the school's Majority op., ¶5. school's professions self-identification and The majority maintains that that are published on its public website or set forth in filings with the state does not 25 No. 2021AP265-CQ.rgb necessarily require any investigation or surveillance into the practices of the school. It need not require any religious inquiry at all." Majority op., ¶48. ¶141 As by focuses on formulated whether "a the school The majority is wrong. majority, is the affiliated SPI's with a inquiry specific religious denomination," which obviously poses a question of a religious nature. The majority's declaration that the SPI's determination of whether schools are "affiliated with the same religious denomination" does not require any religious inquiry "at all" reflects a manner of Orwellian newspeak by which "religious" means something other than "religious." The only way avoid for a Catholic school like St. Augustine to a governmentally-decreed affiliation with the same "denomination" as another Catholic school is for St. Augustine to disavow its Catholic character. ¶142 Aside from the entanglement problem produced by the majority's decision, it offers little assistance to the Seventh Circuit in resolving this dispute. Augustine professes that while The majority notes that "St. it is Roman Catholic, independent of and unaffiliated with the Archdiocese." it is Majority op., ¶50. The majority then proclaims that "[n]either accepting corporate documents nor accepting a school's professions necessarily requires any investigation of the type prohibited by Holy Trinity or even any religious inquiry whatsoever." The majority misunderstands the heart of this dispute. Id. Although St. Augustine's corporate documents reveal no affiliation with the Archdiocese and St. Augustine 26 explicitly disclaimed any No. 2021AP265-CQ.rgb affiliation with any other Catholic school or The Archdiocese of Milwaukee in its letters to Friess Lake School District and the SPI, it professes on its website to be "Roman Catholic," which prompted the SPI to declare St. Augustine affiliated with the Archdiocese by virtue identification. religious That inquiry of is their a mutual determination prohibited by the Roman Catholic derived from Establishment a Clause. Regardless, the majority supplies no rule to resolve whether a school's corporate documents, website content, or professions of corporate and ecclesiastical independence controls the question of affiliation with a particular denomination. ¶143 The purely majority secular should sources such have as restricted corporate the inquiry documents, to leaving religious labels and alliances beyond consideration, but instead directs the Seventh Circuit to apply Wis. Stat. § 121.51(1) in a manner which impermissibly entangles the courts in matters of religion. The prohibits this: very precedent on which the majority relies "For this court or for the Superintendent of Public Instruction to determine, in the light of the prima facie showing of the articles of incorporation to the contrary, that this school corporation is or is not affiliated with the Catholic denomination is to meddle into what is forbidden by the Constitution the determination of matters of faith and religious allegiance." Holy Trinity Cmty. Sch., Wis. 2d 139, 150, 262 N.W.2d 210 (1978). Inc. v. Kahl, 82 "[T]he determination of who or what is Catholic . . . is an inquiry that government cannot make." Id. at 150-51. 27 No. ¶144 Because the "overlapping attendance 2021AP265-CQ.rgb area" provision violates both the Free Exercise and Establishment Clauses of the First Amendment, it must be struck from Wis. Stat. § 121.51(1). United States Supreme Court precedent interpreting the Religion Clauses "radiates organizations, a an manipulation——in spirit of independence short, power freedom of to of secular decide for religious control or themselves, free from state interference, matters of church government as well as those of faith and doctrine." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 186 (2012) (quoted source omitted). Constitution reserves Within the context of this case, the decisions of religious affiliation for private schools themselves, and the State may not force private schools or their students to "choose between their religious beliefs and receiving a government benefit." Trinity Lutheran Church, 137 S. Ct. at 2023 (quoted source omitted). * * * ¶145 "The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently defensible." concurring). when Gamble, the 139 precedent S. Ct. at at issue 1988 is least (Thomas, J., A majority of this court privileges precedent over text in preserving this court's indefensible decision in Vanko. In answering the certified question, the majority perpetuates a judicial reconstruction of Wis. Stat. § 121.51(1), which, despite the court's legislative efforts to save it, nevertheless violates the Religion Clauses 28 of the First Amendment by No. 2021AP265-CQ.rgb excluding religious schools and the students who attend them from a government benefit solely on the basis of their religion. "An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture." Trinity Lutheran Church, 137 S. Ct. at 2024 (quoting Speech by H.M. Brackenridge, Dec. Sess. 1818, in H. Brackenridge, W. Worthington, & J. Tyson, Speeches in the House of Delegates of Maryland, 64 (1829)). Repeating its error from 50 years ago, this court once again neglects its duty to strike an unconstitutional statute. I respectfully dissent. ¶146 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins this dissent. 29 No. 1 2021AP265-CQ.rgb

Primary Holding

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