Collective Bargaining under Federal and State Labor Laws

Volume 49 | Issue 1 Article 3
1-1-2004
Religious Organizations and Mandatory Collective
Bargaining under Federal and State Labor Laws:
Freedom from and Freedom For
Kathleen A. Brady
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Kathleen A. Brady, Religious Organizations and Mandatory Collective Bargaining under Federal and State Labor Laws: Freedom from and
Freedom For, 49 Vill. L. Rev. 77 (2004).
Available at: http://digitalcommons.law.villanova.edu/vlr/vol49/iss1/3
2004]
RELIGIOUS ORGANIZATIONS AND MANDATORY COLLECTIVE
BARGAINING UNDER FEDERAL AND STATE LABOR LAWS:
FREEDOM FROM AND FREEDOM FOR
KATHLEEN A. BRADY*
I. INTRODUCTION
T HE National Labor Relations Act (NLRA or the “Act”) and state labor
laws require covered employers to bargain collectively with union representatives chosen by their employees, and the statutes provide a framework for the collective bargaining process. Whether the application of
these laws to religious organizations violates the First Amendment is a
longstanding question that the courts have wrestled with for over twenty
years. The landmark case is the Supreme Court’s 1979 decision in National Labor Relations Board v. Catholic Bishop of Chicago.1 The litigation in
Catholic Bishop arose when two Catholic dioceses refused to bargain with
unions of lay teachers at church-operated secondary schools. 2 The unions
had been certified by the National Labor Relations Board (NLRB or the
“Board”) under the NLRA.3 The dioceses argued that the Board’s assertion of jurisdiction and the resulting duty to bargain would impinge upon
their control over the religious mission of the schools and, thus, violate
the First Amendment. 4 The Supreme Court held that the exercise ofjurisdiction by the Board would raise a number of serious constitutional ques-
* Associate Professor of Law, Villanova University School of Law. J.D., 1994,
Yale Law School; M.A.R., 1991, Yale Divinity School; B.A., 1989, Yale College. I
gratefully acknowledge the support of the law firm Hunton & Williams, which
provided a research grant to make this project possible. This Article would also
not have been possible without the opportunities provided to me by Dorothy
Robinson, Vice President and General Counsel of Yale University, and Saul
Kramer, partner at Proskauer Rose LLP, while I was working in the Yale General
Counsel’s Office. My extensive work on litigation arising out of a “grade strike” by
graduate teaching assistants in the winter of 1996-97 provided much of the
inspiration for this piece. The ideas expressed in this piece are my own, but hmy
debt is to Dorothy and Saul. I am also indebted to my colleague Ann Hodges for
her guidance regarding American labor law and for her invaluable comments on
an earlier draft of this Article. I am also very grateful to Tom Berg, Michael
Scaperlanda and Bill Valente, who provided very helpful comments on the Article,
as did Michelle Anderson, Warren Billings, Mike Carroll, Frank Cooper and Greg
Magarian. My thanks also to John Cannon, Corinna Lain, Emmeline Paulette
Reeves and Charles Reid, and toJohn Witte for his continuing support of my work.
For their excellent work, I also thank my research assistants Bryan Bubar, Eileen
Kelly and Stacey Reed.
1. 440 U.S. 490 (1979).
2. See id. at 491-94.
3. See id. at 493-94.
4. See id. at 493; Catholic Bishop of Chi. v. NLRB, 559 F.2d 1112, 1123 (7th
Cir. 1977).
(77)
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tions,5 but the Court ultimately side-stepped resolving any constitutional
issues. According to the Court, in view of these serious questions, there
must be a clear affirmative intent by Congress to cover the teachers before
the Court would construe the Act to apply to them. 6 Finding none, the
Court declined to construe the Act to confer jurisdiction. 7
While Catholic Bishop did not resolve any constitutional questions, its
analysis has shaped later decisions by lower federal and state courts. In the
decade after Catholic Bishop, federal courts decided a series of cases addressing a range of religiously affiliated organizations, including hospitals,8 nursing homes, 9 homes for neglected and troubled children,”‘ day
care centers’ 1 and universities. 12 In more recent years, federal and state
courts have been reexamining the issues raised in Catholic Bishop as they
evaluate the constitutionality of applying state labor laws to church-operated elementary and secondary schools. 13 With few exceptions, the trend
among these federal and state courts has been to narrow the reach of Catholic Bishop. During the 1980s, federal circuit courts generally agreed that
no serious constitutional issues arise when the NLRA is applied to churchaffiliated social services programs as long as these programs function in
the same way as secular charitable enterprises and do not involve the dissemination of religious doctrine. 14 The only area of significant disagreement is whether the NLRA applies to church-affiliated colleges and
5. See Catholic Bishop, 440 U.S. at 501-04.
6. See id. at 501.
7. See id. at 507.
8. See St. Elizabeth Hosp. v. NLRB, 715 F.2d 1193 (7th Cir. 1983); St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d 1436 (9th Cir. 1983).
9. See Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302 (3d Cir.
1982).
10. See Volunteers of Am.-Minn.-Bar None Boys Ranch v. NLRB, 752 F.2d 345
(8th Cir. 1985); NLRB v. St. Louis Christian Home, 663 F.2d 60 (8th Cir. 1981); see also Denver Post of the Nat’l Soc’y of the Volunteers of Am. v. NLRB, 732 F.2d 769
(10th Cir. 1984) (addressing church-operated programs for troubled children as
well as programs providing shelter for women and children and program for victims of crime), overruled on other grounds by Aramark Corp. v. NLRB, 179 F.3d 872
(10th Cir. 1999).
11. See NLRB v. Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d I
(1st Cir. 1985).
12. See Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1986)
(en banc). In 2002, the D.C. Circuit also decided a case involving a religiously
affiliated university. See Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir.
2002).
13. See Catholic High Sch. Ass’n of the Archdiocese of N.Y. v. Culvert, 753
F.2d 1161 (2d Cir. 1985); Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch.,
487 N.W.2d 857 (Minn. 1992); S. Jersey Catholic Sch. Teachers Org. v. St. Teresa
of the Infant Jesus Church Elementary Sch., 696 A.2d 709 (N.J. 1997); N.Y. State
Employment Relations Bd. v. Christ the King Reg’l High Sch., 682 N.E.2d 960
(N.Y. 1997).
14. See infra text accompanying notes 41-50.
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universities. ‘
5 Courts evaluating the constitutionality of applying state labor laws to church-operated elementary and secondary schools have also
answered in the affirmative. According to these courts, because the state
laws in question clearly cover teachers at church-operated schools, the
constitutional issues avoided in Catholic Bishop must be addressed.16 Upon
examination of these issues, the courts have unanimously concluded that
any First Amendment problems can be solved by adjusting the scope of
collective bargaining and the remedial powers of the state.’ 7 It is not necessary, therefore, to exclude teachers from coverage altogether.
While courts continue to hear a steady stream of cases addressing the
application of labor laws to religious organizations and there has been a
continuing trend to narrow the reach of Catholic Bishop, scholarly interest
has not kept pace, and little attention has been given to this topic since
the 1980s. In this Article, I hope to renew interest in this topic by taking a
fresh approach which demonstrates that existing case law and scholarship
miss many of the important First Amendment issues that are raised when
religious organizations are forced to bargain collectively under labor laws.
My approach will be to ask an intriguing and perplexing question.
Many of the cases where litigation over collective bargaining has arisen
have involved organizations affiliated with the Catholic Church. 18 A num15. For example, in Bayamon, 793 F.2d at 398-99, the First Circuit, sitting en
banc, was evenly divided over whether the Supreme Court’s analysis in Catholic
Bishop applied to a church-operated university. There were four opinions written
in that case. Judge Coffin wrote the opinion for the three-judge panel finding that
NLRB jurisdiction over the university would not violate the First Amendment. See
id. at 383-84. Judge Torruella dissented from the panel and argued that Board
jurisdiction would violate the First Amendment and would be contrary to the Supreme Court’s decision in Catholic Bishop. See id. at 391. Judge Breyer (nowJustice
Breyer) announced the split in the en banc court and delivered an opinion for half
of the judges stating that the university falls within the scope of Catholic Bishop. See
id. at 401-03. Judge Coffin wrote again for four of the judges and argued that
Catholic Bishop does not apply to this case. See id. at 403-04. In 2002, the D.C.
Circuit approved of Breyer’s opinion and held that Catholic Bishop applies to religiously affiliated colleges and universities when they are operated on a nonprofit
basis and hold themselves out to the public as religious institutions. See Univ. of
Great Falls, 278 F.3d at 1342-43.
16. See Culvert, 753 F.2d at 1163, 1164 (observing that New York State Labor
Relations Act was amended in 1968 to bring employees of charitable, educational
and religious organizations within its scope); Hill-Murray, 487 N.W.2d at 862 (stating that while legislature did not consider application of Minnesota Labor Relations Act to religious organizations, Minnesota’s rules of statutory construction
clearly support their coverage); St. Teresa, 696 A.2d at 714 (observing that New
Jersey Constitution guarantees persons in private employment right to organize
and bargain collectively).
17. See infra text accompanying notes 66-74.
18. See, e.g., NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979); Univ. of
Great Falls, 278 F.3d 1335; St. Teresa, 696 A.2d 709; Christ the King, 682 N.E.2d 960;
Hill-Murray, 487 N.W.2d 857; NLRB v. Hanna Boys Ctr., 940 F.2d 1295 (9th Cir.
1991); Bayamon, 793 F.2d 383; Culvert, 753 F.2d 1161; St. Elizabeth Hosp. v. NLRB,
715 F.2d 1193 (7th Cir. 1983); St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d 1436
(9th Cir. 1983).
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ber of the courts in these cases have pointed to the well-known fact that
the Catholic Church has long been a strong supporter of worker rights
and unions. 19 Indeed, the American Catholic bishops have expressly recognized the rights of their own employees to join unions and bargain collectively. 20 Why, then, one wonders, would Catholic employers resist
collective bargaining with their employees under federal and state laws? Is
it mere “hypocrisy” as one scholar has suggested, 2 ‘ or is there something
more at stake? As I closely examine the Church’s teaching on collective
bargaining, I will argue that the picture of collective bargaining that
emerges from this teaching and the relationship between Church doctrine
and the claims of Catholic employers demonstrate that the First Amendment problems are more far-ranging and complex than is currently recognized by courts and scholars. While some of the problems that arise when
religious organizations are required to bargain collectively can be solved
by limiting and adjusting applicable laws in religious contexts, other
problems that may not be as easily recognized cannot be.
Church documents addressing labor issues envision collective bargaining in a radically different way than is provided for under the NLRA
and state labor laws. While the NLRA presumes and perpetuates an adversarial relationship between workers and management, Catholic teaching
encourages relations that are more cooperative and collaborative and, indeed, reflect ideals of love and mutual concern rather than distrust and
self-interest. To require Church institutions to comply with the bargaining
processes established by the NLRA would be to channel their employment
relations into patterns of behavior that are deeply at odds with the
Church’s basic vision for social life. While few Catholic employers have
articulated these concerns explicitly, the absence of such explicit reference will illustrate additional problems with mandatory bargaining.
The Article concludes with an examination of why protecting religious organizations from state interference is so important. Scholars who
defend the autonomy of religious institutions from government regulation
must have an answer for the growing number of scholars who argue that
religious organizations and other institutions of civil society need to be
shaped and molded, indeed “tamed,” to support the shared national values essential for democratic self-government. 22 A common response is
that religion is a spiritual and transcendent matter beyond the competence of government. 23 My examination of Catholic social teaching sug19. See, e.g., Hill-Murray, 487 N.W.2d at 865; Culvert, 753 F.2d at 1170.
20. See NATIONAL CONFERENCE OF CATHOLIC BISHOPS, ECONOMIC JUSTICE FOR
ALL: PASTORAL LETTER ON CATHOLIC SOCIAL TEACHING AND THE U.S. ECONOMY 132
(10th anniversary ed., 1997) (1986) [hereinafter ECONOMIC JUSTICE FOR ALL].
21. David L. Gregory, Government Regulation of Religion Through Labor and Employment Discrimination Laws, 22 STETSON L. REX’. 27, 67 (1992).
22. As discussed below, one of the most prominent scholars who has advocated this position is Stephen Macedo. See infra text accompanying notes 44144.
23. See infra text accompanying notes 457-59.
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gests, however, that this is only half of the answer; the response implicit in
Catholic teaching goes much further. The Church does not view religious
principles as spiritual or transcendent matters that exist apart from political relations. Rather, the Church’s long-time support for collective bargaining and unions reveals that it believes that it has a message for the
entire community, including the nation’s laws. For the Catholic Church,
the spiritual and transcendent necessarily reach into the political and social. It is precisely this broad reach that worries those who would like to
tame religious messages that challenge shared national values. However,
the impulse to tame religion is shortsighted. While not all religious organizations will use their freedom well, the ability of churches to develop
and model alternate visions for social life is critical for the health of the
larger community. As a prophetic voice, religious organizations can push
the larger community to reevaluate social and legal norms in light of new
visions, and these new visions can transform existing national values in
progressive directions unimagined by prevailing orthodoxies. Thus, protecting religious institutions from state interference is, at the same time,
providing benefits for the larger community.
The Church’s teaching on labor issues is an example. The Church’s
vision of a more cooperative model for collective bargaining presents an
important alternative to the adversarial model in the NLRA, and to force
religious employers to follow the processes and rules in the Act would prevent the church from presenting this new possibility to the larger society.
To be sure, few of the Catholic employers in the litigation discussed in this
Article may have successfully modeled this new vision. However, it is important to preserve their opportunity to try. While giving religious organizations space to play a transformative role in society necessarily entails the
risk of failure and abuse, not taking these risks leaves both religion and
the entire community impoverished.
II. EXISTING CASE LAW AND SCHOLARSHIP
This section begins with an analysis of the constitutional issues identified by the Supreme Court in Catholic Bishop. The questions raised by the
Court have shaped the way that lower courts and scholars have evaluated
the constitutionality of mandatory collective bargaining by religious organizations, and much of the debate among courts and scholars revolves
around these questions. While the Court in Catholic Bishop did not decide
any of the constitutional issues that it raised, the Court viewed these issues
as very serious, and the entire thrust of the opinion was to emphasize the
numerous problems that would arise if church-operated schools were
forced to bargain under the NLRA. Indeed, the reasoning in the opinion
strongly suggests that the justices would have found mandatory collective
bargaining in this case unconstitutional had they been required to face
the issue.
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Scholars who have drawn upon Catholic Bishop to support broad protections for religious organizations from government interference have
elaborated the constitutional concerns raised in Catholic Bishop, and they
argue that mandatory collective bargaining in at least some religious settings is not only constitutionally problematic but constitutionally prohibited.24 By contrast, other scholars and most lower court opinions have
minimized the constitutional concerns raised by the Supreme Court. In
recent cases, lower courts have routinely held that the constitutional questions in Catholic Bishop can be resolved easily by adjusting the scope of
mandatory bargaining and the remedial powers of the state rather than by
denying workers collective bargaining rights altogether. Thus, blanket exemption of religious organizations from labor statutes becomes gratuitous
favoritism if these statutes can be tailored to avoid interference with religious matters.
In this section I will argue that the First Amendment issues raised in
Catholic Bishop are not, in fact, as problematic as they initially appear and
that adjustments to the scope and operation of labor laws can resolve most
of these issues. However, in the next section my examination of Catholic
teaching on labor issues and the relationship between this teaching and
the claims made by Catholic employers will demonstrate that very real First
Amendment problems exist, but these problems lie deeper and in different places than courts and scholars expect.
Many of the constitutional issues identified by the Court in Catholic
Bishop relate to the danger of excessive entanglement between church and
state. Eight years before its decision in Catholic Bishop, the Court decided
the landmark case Lemon v. Kurtzman,25 and in its famous Lemon test for
Establishment Clause violations, the Court prohibited excessive entanglement between religion and government. Government actions must have a
secular purpose, their primary effect must neither advance nor inhibit religion and they must not foster “‘excessive government entanglement with
religion.’ “26
Like Catholic Bishop, Lemon arose in the context of church-operated
schools with a substantial religious mission and character. At issue in
Lemon were two state aid programs designed to supplement the salaries of
nonpublic school teachers. 2 7 According to the Lemon Court, when the
24. See infra text accompanying notes 119-30.
25. 403 U.S. 602 (1971).
26. Id. at 612-13 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)).
These are the three prongs of the Lemon test, and the prohibition against excessive
entanglement is the third prong. More recently, the Court has understood the
entanglement inquiry to be part of Lemon’s second prong, which forbids government actions whose primary effect is to advance or inhibit religion. See Agostini v.
Felton, 521 U.S. 203, 232-33 (1997). Regardless of whether it is understood as a
separate prong under the original Lemon test or part of the effects prong, the prohibition against excessive entanglement remains a central component of the
Court’s Establishment Clause analysis.
27. See Lemon, 403 U.S. at 606-10.
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state gives aid to religious schools, the aid must be specifically targeted to
secular instruction.2 8 Where schools have a substantial religious character, it will be difficult to restrict public funds to secular instruction because
teachers will have difficulty separating religious doctrine from secular
teaching. 29 Teachers in parochial schools play a critical role in disseminating religious beliefs and doctrine, and, thus, religion is intertwined
with secular instruction. 30 In such circumstances, policing the use of government funds to ensure that no funds go to religious instruction will require “comprehensive, discriminating, and continuing state surveillance”
that will involve “excessive and enduring entanglement between church
and state.”3
‘
The Court in Catholic Bishop emphasized the similarity between the
schools in both cases as well as the similar role of the teacher in inculcating religious beliefs, and the Court concluded that mandatory collective
bargaining would give rise to the same type of entanglement that was
threatened in Lemon.3 2 According to the Court, “[g]ood intentions by
government-or third parties-can surely no more avoid entanglement
with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to
by the church-operated schools which we found unacceptable in! Lemon
… ” The employment relationship between teachers and religious
schools is suffused with religious content, and, thus, mandatory collective
bargaining between teacher unions and schools will risk entangling the
state with the schools’ religious activities and mission.
The Court in Catholic Bishop also argued that unconstitutional entanglement would be threatened where school administrators are charged
with an unfair labor practice and the administrators respond by claiming
that the challenged action was mandated by church doctrine. 3 4 For example, the Seventh Circuit’s opinion in Catholic Bishop discussed an allegation
that school administrators had discharged or otherwise discriminated
against an employee in violation of section 8(a) (3) of the NLRA.- 5 Section 8(a) (3) makes it an unfair labor practice for an employer to discriminate in employment with the purpose of encouraging or discouraging
union membership. 36 Discrimination or discharge per se is not unlawful,
28. See id. at 619 (“State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.
29. See id. at 618-19.
30. See id. at 616-19.
31. Id. at 619.
32. See NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501-02 (1979).
33. Id. at 502.
34. See id.
35. See Catholic Bishop of Chi. v. NLRB, 559 F.2d 1112, 1125 (7th Cir. 1977).
36. Under section 8(a) (3), it is an unfair labor practice for an employer “by
discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a) (3) (2001).
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but employment actions based on antiunion animus are. If the school
responds to such an allegation by claiming that the motivation for the
action was not antiunion animus but, rather, a religious reason mandated
by church doctrine, the Board will likely become entangled in an inquiry
into the good faith of the position asserted by the school and the relationship of the reasons given by the school to the school’s mission. 3 7
In addition to entanglement concerns, the Court in Catholic Bishop
also discussed the effect of NLRB jurisdiction on the autonomy of religious schools. According to the Court, mandatory collective bargaining “‘necessarily represents an encroachment upon the former autonomous
position of management.”‘ 38 The Court pointed out that the Board
would be required to identify the “terms and conditions of employment”
that are mandatory subjects of bargaining under the NLRA and that
mandatory subjects of bargaining are generally interpreted broadly under
federal and state labor laws. 39 The Court also predicted that the Board’s
inquiries would give rise to conflicts between school administrators and
the Board, which would further entangle religion and government.40
While the Supreme Court’s opinion in Catholic Bishop underscored
the far-ranging and serious First Amendment problems with mandatory
collective bargaining in religious settings, two waves of lower court decisions have minimized these concerns and narrowed the reach of Catholic
Bishop. In the 1980s, federal circuit courts consistently decided that the
holding in Catholic Bishop does not apply to religiously affiliated social services organizations such as hospitals, nursing homes, day care centers and
homes for neglected and troubled children. 4 1 These courts distinguished
Catholic Bishop on the grounds that the schools in Catholic Bishop were permeated with a religious purpose and function. The lay teachers who
sought to unionize in Catholic Bishop played a critical role in this religious
mission, and it was this key role in the religious mission of the school that
gave rise to First Amendment problems.4 2 By contrast, the religiously affiliated social services programs addressed by the circuit courts were not de37. See Catholic Bishop, 440 U.S. at 502.
38. Id. at 503 (quoting Pa. Labor Relations Bd. v.. State Coll. Area Sch. Dist.,
337 A.2d 262, 267 (Pa. 1975)).
39. Id. at 502-03. Section 8(d) of the NLRA requires employees to bargain in
good faith with respect to “wages, hours, and other terms and conditions of em- ployment.” 29 U.S.C. § 158(d). State labor laws have similar requirements,
though the terminology may differ slightly.
40. See Catholic Bishop, 440 U.S. at 503-04.
41. See supra notes 8-12 for a list of cases.
42. See NLRB v. Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d 1,
5 (1st Cir. 1985); Volunteers of Am.-Minn.-Bar None Boys Ranch v. NLRB, 752
F.2d 345, 348-49 (8th Cir. 1985); Denver Post of the Nat’l Soc’y of the Volunteers
of Am. v. NLRB, 732 F.2d 769, 771-72 (10th Cir. 1984), overruled on other grounds by Aramark Corp. v. NLRB, 179 F.3d 872 (10th Cir. 1999); Tressler Lutheran Home
for Children v. NLRB, 677 F.2d 302, 305 (3d Cir. 1982); NLRB v. St. Louis Christian Home, 663 F.2d 60, 63-64 (8th Cir. 1981).
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signed to propagate religious faith. 43 Rather, they operated just like
secular charities, 4 4 and had a primarily secular function. 45 While these
programs may have been motivated by a religious purpose, this purpose
was secondary to the actual provision of services, which was comparable to
the provision of services by secular institutions.4 6 In such settings, circuit
courts found the constitutional questions raised by the Court in Catholic
Bishop unlikely to arise. 47 Any entanglement between religion and government or interference with religious matters would be minimal48 and outweighed by the state’s interest in protecting worker rights and fostering
labor peace. 49 Several of the circuit courts also noted that the organizations operating these programs did not oppose collective bargaining on
religious grounds.5 0
The arguments made by these circuit courts are deceptively simple.
Essentially their position is that First Amendment problems do not arise
where the activities of religious employers do not involve the propagation
of religious faith or some other inherently religious activity but, rather,
resemble the operations of secular charities. Collective bargaining in
these settings is distinguishable from Catholic Bishop because the type of
institution is different. Religiously affiliated organizations performing essentially secular functions do not generate the same type of First Amendment issues that would accompany mandatory bargaining in churchoperated schools. The emphasis in Catholic Bishop on the religious character of parochial schools and the role of the teachers in this religious mission invites the distinction drawn by the circuit courts, but it is faulty logic
43. See Volunteers of Am., L.A. v. NLRB, 777 F.2d 1386, 1389-90 (9th Cir.
1985); Salvation Army, 763 F.2d at 6; Bar None Boys Ranch, 752 F.2d at 348-49; Denver
Post, 732 F.2d at 771-72; Tressler, 677 F.2d at 305; St. Louis Christian Home, 663 F.2d
at 63-64.
44. See St. Elizabeth Hosp. v. NLRB, 715 F.2d 1193, 1196 (7th Cir. 1983);
Tressler, 677 F.2d at 305; St. Louis Christian Home, 663 F.2d at 64-65.
45. See Salvation Army, 763 F.2d at 6; Denver Post, 732 F.2d at 772-76; St. Elizabeth Hosp., 715 F.2d at 1196; St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d 1436, 1441-
42 (9th Cir. 1983); Tressler, 677 F.2d at 305.
46. See St. Elizabeth Hosp., 715 F.2d at 1196; Tressler, 677 F.2d at 305.
47. See Volunteers of Am., L.A., 777 F.2d at 1390; Salvation Army, 763 F.2d at 6;
Bar None Boys Ranch, 752 F.2d at 349; Denver Post, 732 F.2d at 772-73; Tressler, 677
F.2d at 306; St. Louis Christian Home, 663 F.2d at 64-65.
In NLRB v. Hanna Boys Center, 940 F.2d 1295 (9th Cir. 1991), the Ninth Circuit
also found that the constitutional questions identified by the Court in Catholic
Bishop would not arise if the Board asserted jurisdiction over nonfaculty employees
at a religiously affiliated residential school for boys. Id. at 1302. Although the
school in Hanna had a significant religious mission, the Ninth Circuit found that
the nonfaculty employees had secular work responsibilities unrelated to that mission and, thus, that mandatory collective bargaining with nonteachers would not
violate the First Amendment. Id. at 1304-06.
48. See Denver Post, 732 F.2d at 773; St. Elizabeth Cmty. Hosp., 708 F.2d at 1442;
Tressler, 677 F.2d at 306; St. Louis Christian Home, 663 F.2d at 64-65.
49. See St. Elizabeth Cmty. Hosp., 708 F.2d at 1442-43; Tressler, 677 F.2d at 306-
07.
50. See St. Elizabeth Cmty. Hosp., 708 F.2d at 1442; Tressler, 677 F.2d at 306.
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to assume that no serious problems will arise where mandatory collective
bargaining occurs at religiously affiliated organizations less suffused with
religious character and purpose. Just because a religiously affiliated organization engages in activity that is similar to the operations of nonreligious charities does not mean that there will be no threat of excessive
entanglement between religion and government or no dangers of interference with religious matters.
Indeed, it is easy to imagine a situation where such an organization is
charged with an unfair labor practice and the organization responds by
claiming that its conduct was motivated by a religious purpose. For example, at a religiously affiliated home for troubled children an employee
might be disciplined for making highly critical statements of the home’s
administrators in front of the home’s residents. The disciplined worker
alleges that the employer’s conduct was the result of antiunion animus.
The home claims that it disciplined the employee because the use of acrimonious speech in front of children is inconsistent with the fundamental
religious principles upon which its ministry is based, such as mutual respect and concern. The ensuing litigation will involve precisely the same
type of risk of entanglement that the Supreme Court warned of in Catholic
Bishop. Similarly, employees at a religiously affiliated day care center
might seek to bargain with the center about a more casual dress code, but
the center refuses on the grounds that it has a fundamental religious commitment to modest and professional attire for adults in work settings.
Dress codes have been identified by the NLRB as a mandatory subject of
bargaining,”‘ but, in this case, the religious organization is arguing that
bargaining over this subject would involve religious matters and impede its
control over its religious mission.
There are other problems with the reasoning of federal circuit courts
that have declined to apply Catholic Bishop in the context of religiously
affiliated social services programs. For instance, these courts assume that
the religious purpose and motivation of these organizations can be neatly
separated from their essentially secular activities and functions. However,
the fact that the activities of a religiously affiliated organization look just
like the activities of a secular charity does not mean that these activities are
not suffused with religious character. Indeed, one might argue that, historically, it has been secular charities that have imitated religious ones, not
vice versa. Justice Brennan makes this point eloquently in his concurrence
in Corp. of the Presiding Bishop of the Church ofJesus Christ of Latter-Day Saints
v. Amos. 52 According to Justice Brennan, religious charities typically view
the nonprofit provision of community services “as a means of fulfilling
religious duty and of providing an example of the way of life a church
seeks to foster.”53 In short, for religiously affiliated social services organi51. See, e.g., Am-Gard, Inc., 334 N.L.R.B. No. 42 (2001), available at 2001 WL
677278, at *2-*3 (June 13, 2001).
52. 483 U.S. 327 (1987).
53. Id. at 344 (Brennan, J., concurring).
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zations, helping those in need is quintessential religious activity; it is tantamount to a statement of religious belief and values.
Yet another weakness of the reasoning of these federal circuit courts
can be glimpsed in more recent opinions addressing mandatory collective
bargaining in the context of religiously affiliated colleges and universities.
As noted above, the only significant disagreement among federal courts
regarding the application of the NLRA to religious organizations concerns
religiously affiliated colleges and universities. The NLRB’s policy is to exercise jurisdiction over colleges and universities except where they have a
substantial religious character. 54 In its 2002 decision in University of Great
Falls v. NLRB, the D.C. Circuit rejected the Board’s test on the grounds
that “‘trolling”‘ through a school’s mission to determine whether it is substantially religious in character involves unconstitutional entanglement. 55
ThenJudge Breyer made a similar argument for half of the members of an
evenly divided en banc court in Universidad Central de Bayamon v. NLRB. 56
If the D.C. Circuit and Justice Breyer are correct, similar dangers of entanglement would seem to be threatened by examination into the religious
character of social services organizations. The distinction drawn by federal courts between the church-operated schools in Catholic Bishop and the
primarily secular activities of religiously affiliated social services programs
strongly resembles the type of inquiry struck down in Great Falls.57
54. See Univ. of Great Falls, 331 N.L.R.B. 1663, 1664-65 (2000), enforcement
denied, 278 F.3d 1335 (D.C. Cir. 2002); see also Livingstone Coll., 286 N.L.R.B. 1308,
1309-10 (1987) (assertingjurisdiction where purpose of college is primarily secular
and church is not involved in day-to-day administration). But see Trustee of St.
Joseph’s Coll., 282 N.L.R.B. 65, 67-68 (1986) (declining to assertjurisdiction where
religious order controlled college and faculty were required to promote goals of
order and to conform to Catholic doctrine).
55. Univ. of Great Falls, 278 F.3d at 1341-42 (quoting Mitchell v. Helms, 530
U.S. 793, 828 (2000) (plurality opinion)).
56. 793 F.2d 383, 402 (1st Cir. 1986) (en banc). Justice Brennan’s concurrence in Amos supports this entanglement argument. Justice Brennan noted that
the distinction between the religious and secular activities of religious organizations is not “self-evident,” and a legal rule predicated on such a distinction may
result in “considerable ongoing government entanglement in religious affairs.”
Amos, 483 U.S. at 343. For further discussion of Amos and Justice Brennan’s concurrence, see infra notes 136, 138.
57. To be sure, the distinction between schools with a substantial religious
mission and religiously affiliated schools without such a mission has a long pedigree in Supreme Court decisions evaluating the constitutionality of aid to religious
schools, and the Court has not shied away from making this inquiry in that context. See Tilton v. Richardson, 403 U.S. 672, 687 (1971) (distinguishing churchoperated elementary and secondary schools in Lemon from colleges and universities whose predominant mission is to provide students with a secular education; aid
to latter involves less risk of entanglement); see also Roemer v. Bd. of Pub. Works,
426 U.S. 736, 755-62 (1976) (plurality opinion) (finding that colleges receiving aid
under state program are not pervasively sectarian and, thus, entanglement dangers
are reduced). But see Mitchell, 530 U.S. at 826 (Thomas, J., plurality opinion) (arguing that relevance of whether school is pervasively sectarian is in “sharp decline”
in Court’s decisions regarding aid to religious organizations and should be “dispense [d] with”); Id. at 857-58 (O’Connor, J., concurring in the judgment) (re11
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However, regardless of whether the distinction that the federal circuit
courts have drawn between church-operated schools and religious organizations with primarily gecular functions is sustainable, the importance of
this distinction has been declining in recent years as a second wave of
lower courts evaluating state labor laws are now finding that mandatory
collective bargaining is constitutional even in quintessentially religious enterprises. Beginning with the Second Circuit’s decision in Catholic High
School Ass’n v. Culvert, one federal circuit court and three state supreme
courts have reexamined the constitutionality of mandatory collective bargaining in the context of church-operated schools. In each case, lay teachers sought to bargain under state labor provisions. All four courts that
addressed these claims found that the constitutional issues raised in Catholic Bishop do not preclude coverage. These courts recognized that a substantial religious mission permeates church-operated schools and that
teachers are key players in this mission. However, according to the courts,
the process of collective bargaining need not interfere with this religious
mission. As long as the scope of mandatory bargaining is limited to secular matters and the remedial powers of the state are similarly restricted to
nonreligious issues, mandatory collective bargaining under state labor regimes need not excessively entangle state with religion nor interfere with
the autonomy of religious organizations over their religious practices and
mission.
The first of these decisions, the Second Circuit’s decision in Culvert,
upheld the application of the New York State Labor Relations Act to lay
teachers employed at schools within the New York Archdiocese’s Catholic
High School Association. 58 In New York State Employment Relations Board v.
Christ the King Regional High School, the New York Court of Appeals reached
a similar result in a case involving lay teachers employed at a Queens
County Catholic high school. 59 Culvert was decided in 1985 and Christ the
King twelve years later in 1997. In the meantime, in 1992, in Hill-Murray
Federation of Teachers v. Hill-Murray High School, the Minnesota Supreme
Court held that teachers at Hill-Murray High School, also a Catholic
school, could bargain collectively under the Minnesota Labor Relations
Act.60 In 1997, the NewJersey Supreme Court followed suit in South Jersey
Catholic School Teachers Organization v. St. Teresa of the Infant Jesus Church
Elementary School.6 1 The NewJersey court held that lay teachers at churchoperated schools, like other private employees in New Jersey, have a state
jecting presumption in Lemon that teachers in church-operated elementary and
secondary schools will divert state aid to religious uses).
58. Catholic High Sch. Ass’n of the Archdiocese of N.Y. v. Culvert, 753 F.2d
1161 (2d Cir. 1985).
59. N.Y. State Employment Relations Bd. v. Christ the King Reg’l High Sch.,
682 N.E.2d 960 (N.Y. 1997).
60. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857
(Minn. 1992).
61. S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus
Church Elementary Sch., 696 A.2d 709 (N.J. 1997).
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constitutional right to bargain collectively with their employers and that
this right does not violate the First Amendment.
The courts in each of these cases made similar arguments supporting
the constitutionality of mandatory collective bargaining. For example, the
courts argued that collective bargaining under state labor laws will not involve the same type of comprehensive and continuing surveillance that
resulted in excessive entanglement in Lemon.62 Once a union is certified,
state boards and courts only become involved if an unfair labor practice
claim is filed,63 and state boards and courts have no authority to compel
agreement between employers and unions.64 Like the NLRA, state labor
provisions only bring the parties to the bargaining table and leave them to
negotiate their own agreements. 65
The courts also argued that the autonomy of school administrators
over religious matters can be protected by limiting the scope of bargaining
to wages, hours and other clearly nonreligious terms of employment. 6 6
Indeed, in Culvert, the Second Circuit noted that New York’s Catholic
High School Association had voluntarily agreed to bargain with its teachers in 1969 and subsequently negotiated a series of agreements expressly
limited to nonreligious terms of employment. 67 During that time, the Association never complained that the collective bargaining process interfered with its religious mission, 68 and even the unfair labor practices at
issue in the Culvert litigation did not involve religious matters. 69 In St.
Teresa as well, the Diocese of Camden had a history of voluntarily bargaining with its high school teachers, and their collective bargaining agreements also expressly excluded religious matters from coverage. 70
62. See St. Teresa, 696 A.2d at 718; Hill-Murray, 487 N.W.2d at 864; Culvert, 753
F.2d at 1166-67; Christ the King, 682 N.E.2d at 965 (following Culvert).
63. See Culvert, 753 F.2d at 1167.
64. See St. Teresa, 696 A.2d at 718; Hill-Murray, 487 N.W.2d at 864; Culvert, 753
F.2d at 1167.
65. See St. Teresa, 696 A.2d at 718; Hill-Murray, 487 N.W.2d at 864; Culvert, 753
F.2d at 1167.
66. See St. Teresa, 696 A.2d at 712, 716-17; Hill-Murray, 487 N.W.2d at 866, 867;
see also Culvert, 753 F.2d at 1167 (all state can do is “order an employer who refuses
to bargain in good faith to return and bargain on the mandatory bargaining subjects, all of which are secular”); Christ the King, 682 N.E.2d at 967 (“The First
Amendment’s metaphorical wall of separation between church and State does not
per se prohibit appropriate governmental regulation of secular aspects of a religious school’s labor relations operations.”). The Minnesota Supreme Court also
noted that matters of inherent managerial policy, which would include religious
doctrine and practice, are already nonnegotiable under Minnesota law. See HillMurray, 487 N.W.2d at 866.
67. See Culvert, 753 F.2d at 1163.
68. See id. at 1163.
69. See id. at 1164.
70. See St. Teresa, 696 A.2d at 716-17. Indeed, the willingness of the Catholic
High School Association and the Diocese of Camden to negotiate with teacher
unions over secular terms of employment was not unusual. In the latest published
survey by the National Catholic Educational Association, twenty-three percent of
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According to the New Jersey Supreme Court, this history suggests that bargaining limited to secular terms and conditions of employment will not
interfere with the religious mission of church-operated schools.7 1
The Culvert court also addressed the Supreme Court’s concern that
litigation over unfair labor practices would entangle government with religion if school administrators claimed that their actions were mandated
by their religious creeds. The Court in Catholic Bishop was worried that
such litigation would involve the NLRB in an inquiry into the good faith of
the position asserted by the school administrators and the relationship of
this position to the schools’ religious mission and beliefs. According to
the Second Circuit in Culvert, the dangers of entanglement in religious
matters can be avoided if labor boards are prohibited from examining the
religious reasons offered by school administrators. 72 If the religious justifications offered by the administration are accepted as plausible and legitimate interpretations of church doctrine, labor boards can still focus on
secular factors to determine if these religious justifications were, in fact,
the cause of the employer’s conduct.73 The New York Court of Appeals in
Christ the King agreed with this analysis.7 4
All of the courts addressing mandatory collective bargaining under
state labor laws have recognized that there is a possibility that restrictions
on the scope of bargaining and the remedial powers of the state will not
prevent every burden on religious practice and- belief.75 However, these
courts have argued that relief can be sought from the judiciary if First
Amendment problems do occasionally arise. 76 Furthermore, any burdens
Catholic secondary schools reported that “at least some of their teachers ‘are represented during contract negotiations by some negotiating groups.'” MICHAEL J.
GUERRA, DOLLARS AND SENSE: CATHOLIC HIGH SCHOOLS AND THEIR FINANCES “1994
14 (Nat’l. Catholic Educ. Ass’n 1995) (data from 1993-94 school year).
The National Association of Catholic School Teachers, the largest union of
Catholic school teachers, has agreed that collective bargaining should not intrude
upon the authority of church officials in matters of faith and morals. See Nat’l
Ass’n of Catholic Sch. Teachers, The Economics Pastoral and the Rights of Teachers, 17
Origins, NC Documentary Serv. 50, 51 (1987) (Mar. 1987 statement).
71. See St. Teresa, 696 A.2d at 716.
72. See Culvert, 753 F.2d at 1168.
73. See id. at 1168.
74. See N.Y. State Employment Relations Bd. v. Christ the King Reg’l. High
Sch., 682 N.E.2d 960, 966 (N.Y. 1997).
75. See St. Teresa, 696 A.2d at 723 (recognizing legitimate concerns regarding
church autonomy); Christ the King, 682 N.E.2d at 964, 966 (recognizing that burdens on religion are possible but not presented on the record); Hill-Murray Fed’n
of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 867 (Minn. 1992) (recognizing possibility of minimal infringement on free exercise of religious beliefs);
Culvert, 753 F.2d at 1170-71 (recognizing that state board jurisdiction may chill free
exercise rights if school administrators tailor their activities to steer clear of possible impermissible conduct).
76. See St. Teresa, 696 A.2d at 723; Culvert, 753 F.2d at 1167. In Christ the King,
the New York Court of Appeals declined to determine whether individualized First
Amendment claims are legally cognizable. See Christ the King, 682 N.E.2d at 964.
However, the court did leave open that possibility. See id. at 966. According to the
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will be minimal,” and to the extent they are unavoidable, these burdens
are justified by the government’s compelling interests in protecting
worker rights and preserving labor peace. 78
The arguments developed by lower courts reviewing state labor laws
suggest that when the constitutional issues in Catholic Bishop are placed
under a microscope with adjustments and accommodations for First
Amendment principles, the problems vanish. For example, the Court’s
concern in Catholic Bishop that mandatory collective bargaining will encroach upon the autonomy of religious employers can be addressed by
limiting the scope of mandatory bargaining to secular terms and conditions of employment. If mandatory subjects of bargaining exclude religious matters, the autonomy of religious employers will still be diminished
but not with respect to religious issues. 79 To be sure, the line between
secular conditions of employment and religious matters is not self-evident,
and there may be conflicts between labor boards and religious employers
over where to draw that line. These conflicts can be minimized, however,
if boards and courts defer to religious employers over the characterization
of religious matters. Deferring to religious employers on the characterization of bargaining subjects as either religious or secular may result in far
fewer mandatory subjects of bargaining than would be the case if the labor
boards made these determinations, and there is undoubtedly an incentive
for employers to characterize as religious as many subjects as possible.
Moreover, for those employers whose religious mission suffuses their activities and operations, very few aspects of the employment relationship may
be devoid of religious significance. However, religious employers will almost always recognize at least some purely secular terms and conditions of
employment even if these terms do not extend much beyond wages,
hours, pensions and retirement packages, and other classic subjects of bargaining. Protecting bargaining rights regarding such purely secular matters will provide important benefits to workers even if their ability to
bargain over the full range of employment conditions is limited.
Limiting the scope of mandatory bargaining to secular terms and conditions of employment also has support under the NLRA as well as judicial
interpretation of state law. Section 8(d) of the NLRA provides that emcourt, “[i]f, on individual application in the collective bargaining process or implementation, a line is crossed or the wall of separation is breached, that is the time
and circumstance to assert and have adjudicated such arguably actual infringements.” Id. at 966.
77. See St. Teresa, 696 A.2d at 718, 723; Christ the King, 682 N.E.2d at 964; HillMurray, 487 N.W.2d at 867; Culvert, 753 F.2d at 1171.
78. See St. Teresa, 696 A.2d at 722; Hill-Murray, 487 N.W.2d at 866-67; Culvert,
753 F.2d at 1171.
79. The Minnesota Supreme Court made this point in Hill-Murray: “While
Hill-Murray may have demonstrated that the application of the MLRA [Minnesota
Labor Relations Act] interferes with their authority as an employer, they have not
established that this minimal interference excessively burdens their religious beliefs.” Hill-Murray, 487 N.W.2d at 866.
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ployers and unions have a mutual obligation to confer in good faith with
regard to “wages, hours, and other terms and conditions of employment.”80 These are the mandatory subjects of bargaining under the
NLRA, and employers cannot make unilateral changes with respect to
these issues unless the parties have bargained in good faith and reached
an impasse.8 1 In its landmark decision in First National Maintenance Corp.
v. NLRB, the Supreme Court addressed whether these mandatory subjects
of bargaining include fundamental management decisions regarding the
scope or direction of an enterprise.8 2 The Court noted that many fundamental business decisions can have a direct impact upon the employment
relationship and even result in the elimination of jobs altogether.8 3 However, according to the Court, employers cannot be required to bargain
over all decisions that directly affect the employment relationship. 84 Employers must be free to make management decisions essential for the running of a profitable business, and if all decisions that directly affect the
employment relationship are mandatory subjects of bargaining, the ability
of employers to effectively operate their businesses would be jeopardized.8 5 Instead, the Court developed a balancing test and held that bargaining over such decisions should only be required if “the benefit, for
labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.”8 6
The Supreme Court’s reasoning in First National Maintenance provides
a basis for limitations on the scope of bargaining where the employer is a
religious organization and decisions touching upon religious matters are
at stake. Like fundamental management decisions regarding the scope
and direction of for-profit enterprises, decisions regarding religious matters are integral to the basic mission and purpose of religious organizations. Just as submitting fundamental business decisions to collective
bargaining will impede the employer’s ability to conduct a successful commercial operation, requiring religious employers to share decision making
over religious matters will interfere with their ability to define and achieve
the organization’s religious mission. Instead of a balancing test, however,
the appropriate approach in the First Amendment context would be to
exclude all decisions over religious doctrine and practice from mandatory
negotiation. Mandatory bargaining over any of these issues threatens the
autonomy of religious organizations over religious goals and purposes and
infringes upon important free exercise values.
In Catholic Bishop, the Court used the example of the required number of liturgies in religious schools as a problematic area for judicial in80. 29 U.S.C. § 158(d) (2001).
81. See First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 674-75 (1981).
82. See id. at 677-78.
83. See id. at 677.
84. See id. at 677-79.
85. See id. at 678-79, 686.
86. Id. at 679.
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quiry.8 7 Under the interpretation of First National Maintenance above, the
number of liturgies required in religious schools would be solely within
the control of school administrators. Decisions regarding the moral and
religious qualifications of teachers would also be matters within the sole
control of school administrators as would the number of pupils to be
served, school closure decisions and other matters implicating the schools’
religious mission.
Under First National Maintenance, employers still have a duty to bargain with employees about the effects of fundamental management decisions on employment conditions, and the Court recognized that effects
bargaining will have an impact upon these management decisions. 88 For
example, the Court stated that a union engaged in effects bargaining “may
achieve valuable concessions from an employer” and “indirectly may ensure that the decision itself is deliberately considered. ‘8 9 Thus, the decision in First National Maintenance would not insulate religious employers
from having to bargain over the effects of religious decisions. School administrators would be free to make unilateral decisions regarding the
number of required liturgies during the school year, the size of the student body and which schools to close or open, but teachers would still be
able to bargain about the effects of such decisions on salary, hours of work
and other secular matters. To the extent that effects bargaining indirectly
affects the employer’s deliberations about religious decisions, there will
admittedly be some interference with the authority of religious employers
over religious matters. Negotiations over salaries may affect how many
schools administrators can afford to keep open, and a plan to increase the
number of liturgies during noninstructional hours may be scrapped in the
face of hard bargaining by teachers over hours. However, if religious matters themselves are excluded from mandatory negotiation, the impact of
any mandatory bargaining over effects should be minimal. Moreover, the
employer’s duty to bargain over effects and other mandatory subjects does
not require agreement to any demands as long as negotiations are undertaken in good faith. 90
A prohibition on labor board inquiry into religious doctrine during
the course of unfair labor practice litigation, as suggested by the Second
Circuit in Culvert, will also prevent entanglement and interference with
religious matters. When an employee of a religious organization claims
that the employee has been discriminated against or discharged because
of unlawful antiunion animus, the employer may well claim that it had a
religious justification for the decision, but litigation of the claim need not
entangle reviewing boards and courts in an inquiry into this justification.
Take, for example, the case of an employee who argues that the religious
87. See NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 n.10, app. 507-08
(1979).
88. See First Nat’l Maint., 452 U.S at 682.
89. Id. at 682.
90. See infra text accompanying notes 257-59.
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reason given by the employer is a pretext or “sham.” When an employee
claims unlawful discrimination or discharge, it is common for employers
to respond that they had a legitimate reason for their actions. 9 1 Typically,
pretext is shown by proving that the purported reason or rule offered by
the employer either did not exist or was not actually relied upon by the
employer.9 2 Where a religious employer offers a religious reason for its
conduct, an examination into whether the religious principle or rule referred to by the employer actually exists would, indeed, be problematic as
would an inquiry into whether the reason is a valid interpretation of
church doctrine or an appropriate justification for the employer’s actions.
Examination of any of these matters would certainly entangle government
institutions in religious questions and threaten the organization’s control
over its own doctrine and beliefs.
However, an employee might still claim that the religious reason offered by the employer was not, in fact, the cause of the action. When
evaluating such claims under the NLRA, the NLRB and reviewing courts
typically consider a variety of secular factors that would not involve litigants and decision-makers in religious questions. For example, reviewers
consider whether other employees have been treated in a similar manner
under the same circumstances. 93 If an employer disciplines an employee
who is active in union affairs in circumstances where it has not penalized
other workers, this disparate treatment suggests that antiunion animus,
rather than a legitimate business reason, was the cause of the employer’s
action. Other secular factors that suggest unlawful motivation are the timing of the discipline if it corresponds with union activity, a failure by the
employer to give any warning to the employee or to investigate the incident in accordance with established procedures, the failure to give a reason for the action at the time it occurred, and shifting or inconsistent
justifications for its action. 94
In what are commonly referred to as “dual motive” cases, these secular factors are also relied upon by reviewing boards and courts. In dual
motive cases (as distinguished from pretext cases), the employee proves
that antiunion animus was a contributing cause for the discrimination or
discharge, but the employer argues that it also had a legitimate reason that
factored into the decision. 95 For example, a religious employer may argue
that religious principles were part of the reason it took the action that it
did even if these religious justifications were not the sole factor. Under
the NLRA, dual motive cases are treated under the NLRB’s analysis in
91. See Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083, 1083-84
(1980), enforced, 662 F.2d 899 (Ist Cir. 1981).
92. See id. at 1084.
93. See 1 PATRICK HARDIN &JOHN E. HIGGINS, JR., THE DEVELOPING LABOR LAW
298-99 (4th ed. 2001).
94. See id. at 294-99.
95. See Wright Line, 251 N.L.R.B. at 1084.
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Wright Line.96 Under the Wright Line test, the burden of establishing that
an unlawful antiunion purpose has contributed to the employer’s decision
is on the General Counsel of the Board, who litigates the employee’s claim
under the NLRA. 97 Once the General Counsel has established its prima
facie case, the burden shifts to the employer to demonstrate that it would
have taken the same action for legitimate reasons even in the absence of
any unlawful purpose. 98 The Board views the employer’s burden as an
affirmative defense. 99 Thus, if a religious employer would have discharged an employee for religious reasons even in the absence of antiunion animus, there is no violation of section 8(a)(3). The same factors
that the NLRB relies upon to infer pretext are also used to infer unlawful
purpose in dual motive cases, and, indeed, similar factors often reappear
again to undercut an employer’s affirmative defense. Disparate treatment
of employees involved in union activity, a history of antiunion animus, the
timing of the action, the failure to give a reason for the action at the time
it occurred, departure from established procedures, failure to investigate
and shifting justifications are all relevant. 100
Thus, in both pretext and dual motive cases, the fact that labor boards
and courts cannot second-guess the validity or existence of religious justifications for employer conduct does not foreclose inquiry into the employee’s claim altogether. If the inquiry remains focused on secular
matters, there is nothing entangling about determining whether religious
motives were, in fact, the actual cause of the employer’s conduct. There
are plenty of secular factors that litigants can rely upon to break the causal
connection between the employer’s religious justification, which is assumed to be valid, and the employer’s action.
The dual motive analysis in Wright Line also protects religious employers from having to reinstate workers who would have been discharged
even apart from their union activity. Prior to the NLRB’s decision in
Wright Line, the Board found a violation of section 8(a) (3) any time an
employer’s action was based “in part” on unlawful motivations even if the
96. 251 N.L.R.B. 1083, 1083-84 (1980), enforced, 662 F.2d 899 (1st Cir. 1981).
The NLRB’s analysis in Wright Line was approved by the Supreme Court in NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393 (1983), and in Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Court recognized its continuing validity. The Culvert court drew upon the analysis in Wright Line for its
approach to dual motive cases involving religious employers. See Catholic High
Sch. Ass’n of the Archdiocese of N.Y. v. Culvert, 753 F.2d 1161, 1168-69 (2d Cir.
1985).
97. See Wright Line, 251 N.L.R.B. at 1089. For the responsibilities of the General Counsel, see section 3(d) of the NLRA. 29 U.S.C. § 153(d) (2003).
98. See Wright Line, 251 N.L.R.B. at 1089.
99. See id. at 1088 n.1 1; see also Transp. Mgmt. Corp., 462 U.S. at 400-04 (discussing and approving Board’s position).
100. See 1 HARDIN & HIGGINS, supra note 93, at 260-61, 284-85. For cases considering such factors, see Transp. Mgmt. Corp., 462 U.S. at 404-05 and Wright Line,
251 N.L.R.B. at 1090-91.
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primary motivation was legitimate.’ 0 ‘ The Seventh Circuit’s decision in
Catholic Bishop correctly noted that this “in part” test would present troubling First Amendment issues.’ 0 2 The Second Circuit in Culvert did the
same. 10 3 According to the Culvert court, “[w]ere the Board allowed to apply an ‘in part’ test in addressing an asserted religious motive, . . . [a]
parochial school might be forced to reinstate a teacher it otherwise would
have fired for religious reasons simply because the school administration
was also partly motivated by antiunion animus.”‘ 0 4 The Court in Culvert
addressed this problem by applying a rule identical to the NLRB’s Wright
Line test. A religious employer does not violate the law unless its conduct
would not have occurred absent the unlawful motivation. 10 5
The Supreme Court seemed to recognize the permissibility of the
type of inquiry described above in its brief opinion in Ohio Civil Rights
Commission v. Dayton Christian Schools.106 In this case, Dayton Christian
Schools (DCS) refused to renew the contract of one of its teachers, Linda
Hoskinson, after it learned that she had become pregnant. 10 7 The stated
reason was that mothers should be at home when their children are
young. 10 8 After Hoskinson consulted an attorney, DCS rescinded its earlier decision on the grounds that Hoskinson had not received adequate
prior notice of DCS’s policy, but it terminated Hoskinson because she
failed to follow the “Biblical chain of command” in seeking relief.10 9 Hoskinson then filed a claim of gender discrimination with the Ohio Civil
Rights Commission.11 0 The Sixth Circuit enjoined the administrative proceeding on the grounds that the Commission’s exercise of jurisdiction
would violate the Free Exercise Clause,”‘ and involve the same type of
entangling inquiry into “intent, motive, causation, and pretext” found
problematic in Catholic Bishop.’ 12 The Supreme Court reversed the lower
court on abstention grounds. 1 3 In response to DCS’s contention that the
mere exercise of jurisdiction by the Commission would violate the First
Amendment, the Court responded that “the Commission violates no constitutional rights by merely investigating the circumstances of Hoskinson’s
101. See Wright Line, 251 N.L.R.B. at 1084-89.
102. See Catholic Bishop of Chi. v. NLRB, 559 F.2d 1112, 1130 (7th Cir. 1977),
affd, 440 U.S. 490 (1979).
103. See Catholic High Sch. Ass’n of the Archdiocese of N.Y. v. Culvert, 753
F.2d 1161, 1168-69 (2d Cir. 1985).
104. Id. at 1169.
105. See id. (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983)).
106. 477 U.S. 619 (1986).
107. See id. at 623.
108. See id.
109. Id. at 622-23.
110. See id. at 623-24.
111. See Dayton Christian Sch., Inc. v. Ohio Civil Rights Comm’n, 766 F.2d
932, 955 (6th Cir. 1985), rev’d, 477 U.S. 619 (1986).
112. Id. at 959-60.
113. See Dayton Christian Sch., 477 U.S. at 625-28.
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discharge in this case, if only to ascertain whether the ascribed religiouslybased reason was in fact the reason for the discharge.” l 4 While the Supreme Court’s opinion in Dayton Christian Schools was brief and the Court
did not explore the relationship between this statement and its earlier
analysis in Catholic Bishop, this case suggests that labor board jurisdiction
over unlawful discrimination or discharge claims is permissible if the reviewers limit their inquiry to secular matters and focus solely on the causal
connection between the employer’s actions and its asserted religious
beliefs.
The claim by lower courts that mandatory collective bargaining would
not involve the comprehensive and continuing surveillance that was present in Lemon is weaker. While labor boards do not become involved unless an unfair labor practice charge is filed and labor regulations generally
leave the parties alone to negotiate their own agreements, unfair labor
practices are not uncommon in the bargaining process and, thus, boards
and courts are frequently involved. 1 5 Moreover, the NLRA and state labor laws patterned after the NLRA include detailed provisions governing
the bargaining process. The NLRA and Board decisions have established
complex standards for matters ranging from what can be said during a
representation election,’ 16 what is required for good faith bargaining” 1 7
and when the parties can use economic weapons such as strikes and lock114. Id. at 628.
115. During fiscal year 2001 (ending September 30, 2001), 28,124 unfair labor charges were filed with the NLRB. See NATIONAL LABOR RELATIONS BOARD,
SIXTY-SIXTH ANNUAL REPORT OF THE NATIONAL LABOR RELATIONS BOARD FOR THE
FiscAL YEAR ENDED SEPTEMBER 30, 200, at 6 (2003).
116. Employers commit an unfair labor practice when they threaten employ- ees with reprisal if they vote for unionization. See NLRB v. Gissell Packing Co., 395
U.S. 575, 618 (1969). Promises or grants of benefits designed to influence the
outcome of an election also constitute an unfair labor practice. See NLRB v. Exch.
Parts Co., 375 U.S. 405, 409-10 (1964); see also infra text accompanying notes 296-
304. In addition, the NLRB has held that communications by employers and un- ions may justify setting aside an election even when they do not amount to an
unfair labor practice. In General Shoe Corp., 77 N.L.R.B. 124 (1948), the Board
envisioned the representation election as a “laboratory in which an experiment
may be conducted, under conditions as nearly ideal as possible, to determine the
uninhibited desires of the employees.” Id. at 127. Where the required laboratory
conditions are not present, “the experiment must be conducted over again.” Id.
Under its “laboratory conditions” doctrine, the Board has placed limits on electioneering at or near the polls. See Milchem, Inc., 170 N.L.R.B. 362 (1968). The
Board has also prohibited election speeches to captive assemblies of workers within
twenty-four hours of the election. See Peerless Plywood Co., 107 N.L.R.B. 427
(1953). In General Shoe, the Board restricted the ability of employers to assemble
and propagandize groups of employees in places regarded by employees as “the
locus of final authority in the plant.” General Shoe, 77 N.L.R.B. at 126-27.
117. For detailed treatment of this “unruly” obligation, see 1 HARDIN & HicGINS, supra note 93, ch. 13.
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outs.1 1
8 In short, labor laws are quite comprehensive, and involvement by
labor boards is not infrequent.
However, the type of entanglement that was present in Lemon is very
different from the type of state involvement in the labor context. The
Court’s claim in Catholic Bishop that mandatory collective bargaining will
raise the same entanglement issues as policing aid to church-related
schools ignores the differences between aid programs and labor regulations. The Court in Lemon found unconstitutional entanglement because
it assumed that any government aid must be limited to secular instruction
and then concluded that separating religious from secular instruction in
schools with a substantial religious character would be difficult and require ongoing and comprehensive surveillance by state actors. By contrast, in the collective bargaining context, there is no requirement that
state agencies be able to separate the religious aspects of an employee’s
job duties from the secular elements. Rather, what is critical is that the
bargaining process and any board or judicial oversight be limited to secular aspects of the employment relationship between the parties. The accommodations and adjustments to labor regimes discussed above suggest that
this can be done. Indeed, an employee’s job duties may be suffused with
religious purpose and content, but if mandatory collective bargaining is
restricted to secular terms and conditions of employment, such as wages
and hours, the type of entanglement that occurred in Lemon would not
arise. Similarly, if claims of unlawful discrimination or discharge can be
resolved without labor boards and reviewing courts becoming involved in
religious questions or doctrine, there would seem to be no entanglement
with religious matters. Permitting religious organizations to seek individualized relief on a case-by-case basis if some aspect of the bargaining process
does, in fact, impinge on Establishment Clause or free exercise principles
provides additional protection.
Thus, with some adjustments and accommodations, it seems to be
very possible to limit the involvement of state actors to secular issues and
to leave all religious matters to the autonomous control of employers. If,
in fact, state involvement can be limited to the secular aspects of the employment relationship, the type of blanket exclusion from NLRB coverage
that occurred in Catholic Bishop is unnecessary. Indeed, such exclusion is
not only unnecessary, but it also appears to be gratuitous favoritism that
no other type of charitable or nonprofit organization enjoys. Put quite
simply, if neither entanglement nor interference with religious matters is
threatened, why should religious employers be excluded from coverage
under federal and state labor laws?
Scholars who have drawn upon Catholic Bishop to support broad protections for religious organizations from government interference have a
number of responses to this question. Douglas Laycock gives one such
118. See 2 HARDIN & HIGGINS, supra note 93, chs. 19, 20; see also infra text
accompanying notes 267-81.
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response when he defends what he calls the “right of church autonomy.”11 9 According to Laycick, one of the facets of the Free Exercise
Clause is the right of religious institutions to manage their internal affairs
free from government interference even when such interference would
not require the institution to violate its religious principles. 120 This right
of autonomy extends to the selection of leaders, the resolution of disputes,
the definition of doctrine and other aspects of church operations, including routine administrative matters. 12 1 It is essentially a right of religious
institutions to be “left alone” by government except where a compelling
state interest justifies interference.122 In Laycock’s view, church labor relations are a clear example of internal operations protected by this
right. 123 For Laycock, one of the reasons that government interference
with church affairs is so dangerous is that it can influence and alter the
dynamic process by which religious doctrines and beliefs develop and
change even if the interference violates no readily identifiable religious
principle or doctrine. 1
24 Mandatory collective bargaining, in particular, is
especially intrusive because it interferes with the way authority and influence are allocated within religious organizations. 125 The type of ad hoc
relief envisioned by the lower courts discussed above offers insufficient
protection because it is often impossible to predict or ascertain when government regulations are affecting the process of religious formation. 126
Laycock’s central concern is that government not be permitted to affect the formation and development of religious belief. While such a position is, in theory, quite appealing, the weakness of this position is that it is
119. Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case
of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373,
1373 (1981).
120. See id. at 1373, 1398.
121. See id. at 1389, 1394, 1398.
122. See Douglas Laycock, The Right to Church Autonomy as Part of Free Exercise of
Religion, in GOVERNMENT INTERVENTION IN RELIGIOUS AFFAIRS II, at 28, 39 (Dean M.
Kelley ed., 1986).
123. See Laycock, supra note 119, at 1398, 1408-09.
124. See id. at 1391. Frederick Mark Gedicks has made a similar argument:
State intervention into the affairs of a religious community frequently destroys the daily development of the group’s historical and theological nar- ratives. Accordingly, government regulation may seriously disrupt and
distort the spiritual life of that community even when the state’s demands
would not violate clearly identifiable doctrines, beliefs, or practices. Such
intervention breaks the link between evolution of group meaning and
group authority and thus reinterprets and recasts such meaning.
Frederick Mark Gedicks, Toward a Constitutional Jurisprudence of Religious Group
Rights, 1989 WIs. L. REV. 99, 144.
125. See Laycock, supra note 119, at 1391-92.
126. See id. at 1392. Gedicks has also argued that judges may not be able to
accurately evaluate the burdens on religious groups whose beliefs and practices are unusual or obscure or whose “religious experience does not easily translate into
the rational language required by the legal system.” Gedicks, supra note 124, at
145-46. Judicial bias against religious belief systems may also reduce the effectiveness of ad hoc relief. See id. at 141.
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impossible to achieve in practice. All sorts of government activity affects
the development of beliefs in the larger society, including religious beliefs,
and it is impossible to seal religious organizations off from government
influence. Even government policies very indirectly related to religious
organizations can have profound effects on faith and doctrine.’ 27
Moreover, Laycock’s right of church autonomy would give religious
organizations the widest possible scope for freedom on the basis of the
most speculative of harms. For Laycock, religious organizations should be
free from government interference in all but the rare instances where a
compelling state interest is involved. Religious organizations are accorded
such broad freedom because there is a possibility that some regulations
might affect the development of church doctrine in ways that are often
unidentifiable. Where government regulations directly affect religious
matters, it is easy to justify a claim for church autonomy, but the blanket
protection that Laycock advocates seems to be based on only the most
tenuous of free exercise burdens.
To this critique, Carl Esbeck might reply that where religious matters
are at stake, a special wariness is constitutionally warranted. Esbeck envisions the Establishment Clause as a “structural restraint on governmental
power” 128 that bars the state from interfering with inherently religious
matters, such as doctrine, polity, administration and membership and
leadership decisions. 129 Where there is an “appreciable risk” of such interference, a “special wariness” is justified, and the boundary of government involvement should be drawn well before actual problems arise. 130
Others have argued that the type of burden on free exercise that Laycock sees is not merely speculative. They worry that mandatory collective
bargaining will have a “chilling” effect on religious activity even if negotiations are ostensibly limited to secular terms and conditions of employment
and labor boards and courts are forbidden to engage in questions of
church doctrine. The Seventh Circuit in Catholic Bishop made such an argument’ 3
‘ as did judge Torruella in his dissenting opinion in Universidad
Central de Bayamon v. NLRB. 132 According to the Seventh Circuit, “[t]o
127. William Marshall and Douglas Blomgren make a similar point. See William P. Marshall & Douglas C. Blomgren, Regulating Religious Organizations Under
the Establishment Clause, 47 OHIO ST. L.J. 293, 309-10 (1986).
128. Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1, 2 (1998).
129. See Esbeck, supra note 128, at 10-11, 44, 77, 109; Carl H. Esbeck, Myths,
Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 NoTE DAME J.L. ErHIcs & PUB. POL’Y 285, 307-08 (1999).
130. Carl H. Esbeck, Establishment Clause Limits on Governmental Intererence with
Religious Organizations, 41 WASH. & LEE L. REv. 347, 378, 381-82 (1984).
131. SeeCatholic Bishop of Chi. v. NLRB, 559 F.2d 1112, 1124 (7th Cir. 1977),
aff’d, 440 U.S. 490 (1979).
132. See Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 397-98 (1st
Cir. 1985) (Torruella, J., dissenting). In Bayamon, a panel of First Circuit judges
held that the result in Catholic Bishop did not extend to a religiously affiliated university and that NLRB jurisdiction over the university’s lay faculty was proper. See
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minimize friction between the Church and the Board, prudence will ultimately dictate that the [religious employer] tailor his conduct and decisions to ‘steer far wider of the unlawful zone’ of impermissible
conduct.”13 3 The Seventh Circuit gave an example involving a Catholic
school teacher who delivered a strong pro-union speech at a meeting one
week and advocated birth control or abortion the next. 13 4 In such a case,
dismissing the teacher would risk a “protracted and expensive unfair labor
practice proceeding” that may involve the church’s religious beliefs and
policies. 13 5 In order to avoid such litigation, the school may well choose
not to discipline the teacher and, thus, forgo asserting its free exercise
rights. 136
Judge Torruella was also worried that the type of ad hoc relief proposed in recent lower court cases will have a chilling effect on the religious
activities of religious organizations.’ 37 According to Judge Torruella, requiring the religious employers to engage in “interminable and ad hoc
litigation” to vindicate their First Amendment rights will have a “substanid. at 385. When the First Circuit reheard the case en banc, the court was evenly
divided, and, consequently, the NLRB’s decision to exercise jurisdiction was not
enforced. See id. at 398-99.
133. Catholic Bishop, 559 F.2d at 1124 (quoting Speiser v. Randall, 357 U.S. 513
(1958)).
134. See id. at 1124.
135. Id.
136. See id.; see also EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir.
1996) (making similar argument in Title VII context).
The Supreme Court made a similar argument in Corp. of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). In Amos,
the Court addressed the exemption of religious organizations from Title VII’s prohibition against religious discrimination in employment. See id. at 329-30. The
question presented to the Court was whether the application of this exemption to
the secular nonprofit activities of religious organizations violates the Establishment
Clause. Id. The Court held that it did not. Id. According to the majority, even if
the Free Exercise Clause only requires an exemption for the religious activities of
religious organizations, extension of the exemption to all nonprofit activities is a
permissible alleviation of government interference in the mission of religious
groups. Id. at 335-36. An exemption limited to religious activities would have a
chilling effect on the group’s ability to define and implement this mission. Id.
The line between religious and secular activities is not clear, and, thus, religious
organizations would have a difficult time predicting where courts would draw the
line. The consequence will be that “[flear of potential liability might affect the
way an organization carried out what it understood to be its religious mission.” Id.
at 336.
In his concurrence, Justice Brennan made the same point. Because the characterization of organizational activity as religious or nonreligious is not “self-evident,” determinations will have to be made on a case-by-case basis, and the
prospect of such litigation may chill religious organizations in their free exercise
activity. Id. at 343-44 (Brennan,J., concurring in thejudgment). In order to avoid
litigation and unpredictable outcomes, religious organizations may decide to characterize activities as religious only where there would be no dispute about the characterization and decline to claim an exemption for other activities even if they
regarded these activities as religious in nature. Id. at 343-44.
137. See Bayamon, 793 F.2d at 397 (Torruella, J., dissenting).
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tial chilling effect” on the exercise of those rights and will also involve the
type of continuous surveillance found to be unconstitutional entanglement in Lemon. 13 8
The response to all of these concerns is to defer to religious organizations regarding the characterization of their activities as religious or nonreligious and to use heightened standards of proof in cases alleging unfair
labor practices. If labor boards and reviewing courts defer to religious
organizations regarding what terms and conditions of employment have a
religious significance, religious employers should not feel compelled to
bargain about religious matters. Furthermore, if reviewers require clear
proof of a violation in pretext and dual motive cases, unfair labor practice
litigation need not chill religious activity. For example, in pretext cases,
claimants could be required to produce clear and convincing evidence
that the religious reason offered by the employer was not, in fact, relied
upon by the organization. In dual motive cases, instead of shifting the
burden to the employer once the claimant establishes that an unlawful
purpose contributed to the employer’s conduct, reviewers could keep the
burden on the claimant, who would also be required to prove that the
employer would not have taken the action that it did in the absence of the
unlawful purpose. Religious employers should feel comfortable disciplining workers for religious reasons if employees must overcome a high hurdle to prove that religious motivations were not, in fact, the cause of the
employer’s action.
To be sure, unfair labor practice litigation will not disappear nor will
conflicts over what are mandatory subjects of bargaining. There will also
be times when religious organizations will need to vindicate particularized
burdens on their religious freedom through ad hoc litigation. However,
deference to religious organizations on religious issues and heightened
standards of proof in unfair labor practice cases should reduce the occurrence of such litigation and the unpredictability of judicial outcomes. 13 9
Furthermore, the mere fact that some litigation will be unavoidable is not,
138. Id. at 397. Justice Brennan made a similar entanglement argument in
Corp. of the Presiding Bishop of the Church ofJesus Christ of Latter-Day Saints v. Amos, 483
U.S. 327 (1987). For a discussion of Amos, see supra note 136. According to justice
Brennan, ad hoc litigation over whether the activities of religious organizations are religious or secular will “result[ ] in considerable ongoing government entanglement in religious affairs.” Id. at 343 (Brennan, J., concurring in the judgment).
139. Deference to religious organizations on religious issues would also address Frederick Mark Gedicks’s concerns about ad hoc litigation. As noted above,
Gedicks worries that judicial bias and unfamiliarity with religious belief systems
may prevent courts from accurately evaluating burdens on religious groups and
reduce the effectiveness of ad hoc litigation as a means for relief. See discussion
supra note 126. However, if labor boards and courts routinely defer to religious
organizations on religious matters as well as the impact of state action on religious
activity, ad hoc litigation need not be ineffective. Furthermore, the need to seek
judicial relief will be minimized if labor boards defer to religious groups regarding
the characterization of bargaining subjects as secular or religious, and use height- ened standards of proof when employers are charged with unfair labor practices.
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in itself, sufficient to prove a violation of the First Amendment. Religious
organizations are involved in litigation all the time, and much of this litigation will affect the internal practices of the organization even if it does not
touch directly on religious matters. In the labor context, as long as labor
boards and reviewing courts do not become embroiled in religious inquiries and religious organizations can be reasonably certain that the government will not interfere with religious decision making and practices, the
effect of such litigation on the groups’ religious missions should be minimal. Of course, deference to religious organizations and heightened standards of proof will narrow the scope of mandatory bargaining and restrict
the remedial powers of the state. However, creating a comfortable buffer
between government regulation and religious activity is necessary to accommodate First Amendment concerns without excluding religious organizations from coverage altogether.
Scholars who draw upon Catholic Bishop to support broad protections
for religious organizations from government regulation frequently cite Supreme Court case law regarding intra-church disputes over property and
ecclesiastical governance for additional support.”4 ° For example, Laycock
draws upon this case law when defending his understanding of church
autonomy. 1 4
‘ Esbeck and other scholars who argue that government has
no competence in core religious matters also do so. 14 2 However, these
precedents do not decide the issue at hand. In each of these cases, at least
one of the litigants opened the door to secular court intervention by asking the court to resolve a dispute implicating religious doctrine. The Supreme Court has consistently held that when addressing disputes within
religious organizations, courts may not become involved in resolving ecclesiastical questions, 143 and when the outcome of a dispute within a hierarchical church turns on such a question, the court must defer to the
highest church tribunal. 144 In none of these cases, however, were the liti140. The principal decisions are Jones v. Wolf, 443 U.S. 595 (1979); Serbian
Eastern Orthodox Diocese for the United States and Canada v. Milivojevich, 426 U.S. 696
(1976); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440 (1969); Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, 344 U.S. 94 (1952); Watson v. Jones, 80 U.S.
(13 Wall.) 679 (1872).
141. See Laycock, supra note 119, at 1394-98; Laycock, supra note 122, at 32-33;
cf Gedicks, supra note 124, at 131-36 (drawing upon intra-faith dispute cases to
support broad protection for religious group rights).
142. See Esbeck, supra note 130, at 351-52, 381-82, 390-97; see also Bruce N.
Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by
Religious Organizations, 79 COLUM. L. REv. 1514, 1540-41 (1979) (drawing on Supreme Court precedent regarding intra-church disputes to support view that core spiritual activities of religious organizations are outside scope of government
regulation).
143. See Wolf 443 U.S. at 602; Milivojevich, 426 U.S. at 709-10; Hull, 393 U.S. at
449.
144. See Wolf 443 U.S. at 602, 604; Milivojevich, 426 U.S. at 709.
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gants seeking exemption from neutral government regulation targeted to
secular aspects of church operations.
There is, to be sure, ringing language in some of these cases about
the freedom of religious institutions from state interference. For example,
in Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North
America, the Court spoke of its precedent as “radiat[ing] . . .a spirit of
freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from
state interference, matters of church government as well as those of faith
and doctrine.” 14 5 However, the scope of this freedom remains unclear. It
certainly covers decisions on ecclesiastical questions, including “questions
of discipline, or of faith, or of ecclesiastical rule, custom, or law.”’14 6 The
Supreme Court has never directly addressed, though, whether it extends
to secular aspects of church administration. 147 With the adjustments and
accommodations discussed above, labor laws do not impinge on religious
aspects of polity, administration, custom or law, and labor boards and
courts need not become involved in ecclesiastical questions. The discussion above also suggests that a broad freedom to be left alone in all matters, religious and secular, is asking too much if autonomy over religious
matters is not endangered. If there is essentially nothing at stake, why
should religious organizations receive this special privilege?
III. LESSONS FROM CATHOLIC SOCIAL TEACHING ON LABOR RELATIONS
In this section, I begin with the question I have posed at the end of
Part II. If neither entanglement nor interference with religious matters is
threatened, why should religious employers be excluded from coverage
145. Kedroff 344 U.S. at 116.
146. Id. at 115 (citing Watson vJones, 80 U.S. (13 Wall.) 679, 727 (1872)); see also Milivojevich, 426 U.S. at 713 (” [C] ivil courts are bound to accept the decisions
of the highestjudicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.”); Watson, 80 U.S. at 728-29 (“The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to
create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, con- gregations, and officers within the general association, is unquestioned.”).
147. Indeed, in Corp. of the Presiding Bishop of the Church ofJesus Christ of LatterDay Saints v. Amos, 483 U.S. 327 (1987), the Court assumed, without deciding, that
the Free Exercise Clause only requires protection from state interference with the
religious activities of religious organizations. At issue in Amos was the constitutionality of Title VII’s exemption of religious organizations from its prohibition against
religious discrimination in employment. Id. at 329. The statutory exemption ex- tends to the religious activities of religious employers as well as secular functions.
The Court assumed for the sake of argument that the Free Exercise Clause only
requires Congress to exempt religious activities from the reach of Title VII. Id. at
335-36. According to the Court, the First Amendment does not prohibit Congress
from extending the exemption to the secular nonprofit activities of religious
groups as well, id. at 336-39, but whether the Constitution requires autonomy over
such matters was left an open question, see id. at 339.
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under federal and state labor laws? If nothing is at stake, why should religious organizations receive a special privilege that other charitable enterprises do not? In the discussion that follows, I will demonstrate that there
is actually a lot at stake, and the application of labor laws to religious organizations would give rise to very real First Amendment problems. Examination of the Catholic Church’s teaching on labor issues and the
relationship of this teaching to the claims made by Catholic employers will
reveal important First Amendment problems that existing case law and
scholarship miss. Then, in Part IV, I will demonstrate why exempting religious organizations from state interference is so important.
The Catholic Church has long supported the right of workers to
unionize and bargain collectively with their employers. 14 8 In 1986, the
American Catholic Bishops affirmed that these rights extend to Church
employees, who have the right to organize and bargain collectively with
Church institutions. 149 Why, then, one wonders, would Catholic employers resist collective bargaining under federal and state labor laws? Is this
resistance, as one scholar has argued, a hypocritical attempt to avoid clear
religious duties? 150 Not surprisingly, the reasons that Catholic employers
have given in litigation following the Supreme Court’s decision in Catholic
Bishop have tended to draw upon the entanglement and autonomy concerns raised in that case. Church employers, litigants argue, will lose autonomy over religious matters and government will become entangled in
religious doctrine and practices. 15
‘ As discussed above, these entanglement and autonomy concerns seem to disappear where courts carefully
tailor the scope of collective bargaining and the remedial powers of the
state to address First Amendment issues.
148. See POPE LEO XIII, RERUM NOvARUM (ON THE CONDITION OF THE WORKING CLASSES) 42-44 (Daughters of St. Paul transl.) (1891) [hereinafter RERUM
NOVARUM]; POPE Pius XI, QUADRAGESIMO ANNO (ON SOCIAL RECONSTRUCTION) 18
(Daughters of St. Paul transl.) (1931) [hereinafter QUADRAGESIMO ANNO]; SECOND
VATICAN COUNCIL, GAUDIUM ET SPES (PASTORAL CONSTITUTION ON THE CHURCH IN
THE MODERN WORLD) (1965) [hereinafter GAUDIUM ET SPES], reprinted in CATHOLIC
SOCIAL THOUGHT: THE DOCUMENTARY HERITAGE 166, 212 (David J. O’Brien &
Thomas A. Shannon eds., 1992) [hereinafter CATHOLIC SOCIAL THOUGHT]; POPE
JOHN PAUL II, CENTESIMUS ANNUS (ON THE HUNDREDTH ANNIVERSARY OF RERUM
NOVARUM) 15 (Daughters of St. Paul transl.) (1991) [hereinafter CENTESIMUS
ANNUS].
149. See ECONOMIC JUSTICE FOR ALL, supra note 20, at 132.
150. See Gregory, supra note 21, at 67.
151. See Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1337, 1340 (D.C. Cir.
2002); NLRB v. Hanna Boys Ctr., 940 F.2d 1295, 1305 (9th Cir. 1991); Catholic
High Sch. Ass’n of the Archdiocese of N.Y. v. Culvert, 753 F.2d 1161, 1164, 1166-
67, 1169 (2d Cir. 1985); Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383,
383 (1st Cir. 1985) (en banc opinions 1986); St. Elizabeth Cmty. Hosp. v. NLRB,
708 F.2d 1436, 1438 (9th Cir. 1983); St. Elizabeth Hosp. v. NLRB, 715 F.2d 1193,
1195 (7th Cir. 1983); Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487
N.W.2d 857, 863, 865-66 (Minn. 1992); S. Jersey Catholic Sch. Teachers Org. v. St.
Teresa of the Infant Jesus Church Elementary Sch., 696 A.2d 709, 714, 718 (NJ.
1997).
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However, when one examines Catholic teaching on labor and other
social issues, it becomes clear that the problems with mandatory collective
bargaining under federal and state laws go much deeper than the First
Amendment issues framed in Catholic Bishop and discussed in subsequent
legal scholarship. For the Catholic Church, the relationship between employer and employee, including the collective bargaining relationship, is
understood as part of a larger vision for human relations based on the
Gospel principles of love, cooperation, forgiveness and reconciliation.
There is, in fact, no real separation between the religious and the secular
in the employment relationship. All aspects of the relationship, like all
facets of social life, have a religious dimension and destiny, and these relationships will be distorted if they are cut off from the ethical and spiritual
norms that ground human existence.
The problem with requiring Church institutions and agencies to bargain under federal and state labor laws is that these laws reflect a very
different vision for human relations than Catholic teaching, and they
channel labor-management interactions into patterns that are deeply inconsistent with Church doctrine. In the discussion that follows, I will be
focusing on the NLRA. As I will show, the NLRA reflects a fundamental
distrust of the employer and separates employer and employee into an
adversarial, arms-length relationship based upon equality of bargaining
power rather than mutual concern and collaboration. To impose the
NLRA’s rules for the collective bargaining process on Church institutions
would, therefore, effectively prevent these institutions from structuring
their internal social relations according to religious norms.
A. Principles of Catholic Social Thought
The Church’s teaching on social issues is not monolithic. With each
Pope, the Church’s teaching has taken on a different flavor, and concepts
articulated in earlier documents are often developed in new directions.
However, the basic principles for social relations have remained constant.
The Church’s contemporary teaching on social issues has its origins in
Pope Leo XIII’s encyclical Rerum Novarum, which was promulgated in
1891. The background for Rerum Novarum was the desperate condition of
the working classes at the height of the industrial age. As the Church
looked out on the socioeconomic landscape of Europe in the late nineteenth century, she saw workers suffering from extreme poverty and exploitation and business owners greedily accumulating the vast wealth
produced by the new capitalist machinery for themselves. She also saw the
ensuing clash between these two classes, which threatened to ignite a “passion for revolutionary change.”152
In Rerum Novarum, Pope Leo XIII cautioned that it is “a capital evil” to
assume that the present clash between labor and management is inevitable
152. RERUM No-VARuM, supra note 148, at 5.
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or acceptable. 153 Social relationships are properly founded upon unity
and concord,’ 54 the recognition of mutual duties 155 and pursuit of the
common good, 15 6 not conflict and division. 157 Indeed, the perfection of
human relations requires more. It requires the “closest neighborliness
and friendship”1 5 and, beyond even friendship, “brotherly love” 15 9 and
“charity,”’16 0 which is “the mistress and queen of the virtues.” 16 1 At the
root of the labor problem is, therefore, something inescapably moral and
spiritual. Employers have neglected their duties towards workers and have
sought instead their own good at the expense of others, and workers have
been aroused to bitterness, exaggerated demands and even violence.1 6 2
Just as the problem has moral and spiritual roots, so too the only sure path
to social healing will require moral renewal.’163 Employers and employees
must both be motivated by concern for the good of each other so that
employers are “mindful of their duties,” workers “press their claims with
reason” and both work together to address the conditions of workers. 16 4
Public officials must also use the resources of the state to assist, though
never replace, 1 6 5 private actors in promoting the common good and seeking the basic principles of justice that guarantee to workers what is required for human dignity. 16 6 It is only when all elements within society
153. See id. at 17.
154. See id. at 17-18.
155. See id. at 18.
156. See id. at 21-22.
157. See id. at 17-18, 20, 24.
158. Id. at 20.
159. Id. at 24.
160. Id. at 53.
161. Id.
162. See id. at 18-20.
163. See id. at 52-53. Pope Leo XIII writes:
And since religion alone, as We said in the beginning, can remove the
evil, root and branch, let all reflect upon this: First and foremost Christian morals must be re-established, without which even the weapons of
prudence, which are considered especially effective, will be of no avail to
secure well-being.
Id.; see also id. at 26 (“Wherefore, if human society is to be healed, only a return to
Christian life and institutions will heal it.”).
164. Id. at 52.
165. While the Church teaches that the state has an important role in promoting the common good and achieving the requirements ofjustice, the Church’s
doctrine of subsidiarity cautions that the state must not unduly restrict the freedom of private actors and associations; rather, the state must increase their freedom by preserving their responsibility to perform functions that do not require
government intervention. See id. at 32-33; QUADRAGESIMO ANNO, supra note 148, at
40-41; POPE JOHN XXIII, MATER ET MAGISTRA (CHRISTIANITY AND SOCIAL PROGRESS)
(1961) [hereinafter MATER ET MAGISTRA], reprinted in CATHOLIC SOCIAL THOUGHT,
supra note 148, at 84, 92-93; POPE PAUL VI, OCTOGESIMA ADVENIENS (A CALL TO
ACTION ON THE EIGHTIETH ANNIVERSARY OF RERUM NOVARUM) (1971) [hereinafter
OCTOGESIMA ADVENIENS], reprinted in CATHOLIC SOCIAL THOUGHT, supra note 148,
at 265, 282; CENTESIMUS ANNUS, supra note 148, at 71.
166. See RERUM NOVARUM, supra note 148, at 29-40.
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work together for the good of all that lasting peace can be established, and
the needs of the most vulnerable members met. 167
In later documents, the Church continues to teach that social relations must be founded on principles of love and mutual concern. 1 68 The
Church envisions all people and nations as members of one family.169 Between individuals and groups there must be unity,’170 harmony, 17 1 charity, 17
2 a spirit of brotherhood 1 73 and an attitude of mutual respect 1 74 and
167. According to Pope Leo XIII:
Certainly, the well-being which is so longed for is chiefly to be expected
from an abundant outpouring of charity; of Christian charity, We mean,
which is in epitome the law of the Gospel, and, which, always ready to
sacrifice itself for the benefit of others, is man’s surest antidote against
the insolence of the world and immoderate love of self ….
Id. at 53.
168. See QUADRAGESIMO ANNO, supra note 148, at 68-69; MATER ET MAGISTRA,
supra note 165, at 85; POPEJOHN XXIII, PACEM IN TERRIS (PEACE ON EARTH) (1963) [hereinafter PACEM IN TERRIS], reprinted in CATHOLIC SOCIAL THOUGHT, supra note
148, at 131, 158; GAUDIUM ET SPES, supra note 148, at 185; POPE PAUL V1,
POPULORUM PROGRESSIO (ON THE DEVELOPMENT OF PEOPLES) (1967) [hereinafter POPULORUM PROGRESSIO], reprinted in CATHOLIC SOCIAL THOUGHT, supra note 148,
at 240, 256-57; SYNOD OF BISHOPS, JUSTICE IN THE WORLD (1971) [hereinafter JusTICE IN THE WORLD], reprinted in CATHOLIC SOCIAL THOUGHT, supra note 148, at
288, 293; POPE PAUL VI, EVANGELII NUNTIANDI (ON EVANGELIZATION IN THE MODERN WORLD) (1975) [hereinafter EVANGELn NUNTIANDI], reprinted in CATHOLIC SOCIAL THOUGHT, supra note 148, at 303, 313; POPE JOHN PAUL II, DIVES IN
MISERICORDIA (THE MERCY OF Goo) 44 (Daughters of St. Paul transl.) (1980)
[hereinafter DIVES IN MISERICORDIA]; POPEJOHN PAUL II, SOLLICITUDO REI SOCIALIS
(ON SOCIAL CONCERN) (1987) [hereinafter SOLLICITUDO REI SOCIALIS], reprinted in CATHOLIC: SOCIAL THOUGHT, supra note 148, at 395, 418, 423; CENTESIMUS ANNUS,
supra note 148, at 19; ECONOMIC JUSTICE FOR ALL, supra note 20, at 41, 136.
169. See QUADRAGESIMO ANNO, supra note 148, at 69; PACEM IN TERRIS, supra
note 168, at 150; GAUDIUM ET SPES, supra note 148, at 180; POPULORUM PROGRESSIO,
supra note 168, at 250.
170. See QUADRAGESIMO ANNO, supra note 148, at 42, 68; GAUDIUM ET SPES,
supra note 148, at 180, 184; SOLLICITUDO REI SocIALIS, supra note 168, at 423; EcoNOMIC JUSTICE FOR ALL, supra note 20, at 41.
171. See QUADRAGESIMO ANNO, supra note 148, at 42; MATER ET MAGISTRA,
supra note 165, at 97, 99.
172. See QUADRAGESIMO ANNO, supra note 148, at 68-69; MATER ET MAGISTRA,
supra note 165, at 125; PACEM IN TERRIS, supra note 168, at 151, 158; GAUDIUM ET
SPES, supra note 148, at 185;JUsTICE IN THE WORLD, supra note 168, at 293; EVANGELII NUNTIANDI, supra note 168, at 313; DIVEs IN MISERICORDIA, supra note 168, at 44;
SOLLICITUDO REI SOCIALiS, supra note 168, at 418, 423; CENTESIMUS ANNUS, supra
note 148, at 19; ECONOMIC JUSTICE FOR ALL, supra note 20, at 41.
173. See MATER ET MAGISTRA, supra note 165, at 110; PACEM IN TERRIS, supra
note 168, at 159; GAUDIUM ET SPES, supra note 148, at 180; POPULORUM PROGRESSIO,
supra note 168, at 250; EVANGELII NUNTIANDI, supra note 168, at 313; DIVES IN MISERICORDIA, supra note 168, at 43-44.
174. See MATER ET MAGISTRA, supra note 165, at 99; POPULORUM PROGRESSIO,
supra note 168, at 255.
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service. 1
75 Interactions must take the form of cooperation,’ 76 collaboration 177 and togetherness, 1 78 and all persons should seek the common
good 179 and try to solve problems through mutual understanding,1 80 sharing’ 8 ‘ and solidarity. 182 Where there is conflict or disagreement, a spirit
of forgiveness1 83 and reconciliation 184 should prevail.
By emphasizing the centrality of charity in human affairs, the Church
does not neglect a concern for justice, and, indeed, the Church understands the requirements of justice expansively. The breadth of these requirements is described by the Second Vatican Council:
[T] here must be made available to all men everything necessary
for leading a life truly human, such as food, clothing, and shelter;
the right to choose a state of life freely and to found a family; the
right to education, to employment, to a good reputation, to respect, to appropriate information, to activity in accord with the
175. See PAcEM IN TERRIS, supra note 168, at 135; GAUDIUM ET SPES, supra note
148, at 185; POPULORUM PROGRESSIO, supra note 168, at 260; OCTOGESIMA ADVENIENS, supra note 165, at 281; JUSTICE IN THE WORLD, supra note 168, at 293;
SOLLICITUDO REI SOCIALIS, supra note 168, at 422; CENTESIMUS ANNUS, supra note
148, at 74.
176. See QUADRAGESIMO ANNO, supra note 148, at 52; MATER ET MAGISTRA,
supra note 165, at 97; GAUDIUM ET SPES, supra note 148, at 228; POPULORUM
PROGRESSIO, supra note 168, at 253; OCTOGESIMA ADVENIENS, supra note 165, at 282;
JUSTICE IN THE WORLD, supra note 168, at 299; CENTESIMUS ANNUS, supra note 148,
at 48, 84; ECONOMIC JUSTICE FOR ALL, supra note 20, at 120.
177. See MATER ET MAGISTRA, supra note 165, at 99; PACEM IN TERRIS, supra
note 168, at 136; GAUDIUM ET SPES, supra note 148, at 228; POPULORUM PROGRESSIO,
supra note 168, at 257; POPE JOHN PAUL II, LABOR EXERCENS (ON HUMAN WORK) 37
(Daughters of St. Paul transl.) (1981) [hereinafter LABOR EXERCENS]; SOLLICITUDO
REI SoCIALIS, supra note 168, at 416, 423; CENTESIMUS ANNUS, supra note 148, at 48,
64; ECONOMIC JUSTICE FOR ALL, supra note 20, at 120.
178. See SOLLICITUDO REi SoCIALIs, supra note 168, at 423.
179. See QUADRAGESIMO ANNO, supra note 148, at 25, 42; MATER ET MAGISTRA,
supra note 165, at 100; PACEM IN TERIS, supra note 168, at 139; POPULORUM
PROGRESSIO, supra note 168, at 244; OCrOGESIMA ADVENIENS, supra note 165, at 270;
JUSTICE IN THE WORLD, supra note 168, at 300; LABOR EXERCENS, supra note 177, at
37; SOLLICITUDO REI SOCIALIS, supra note 168, at 421; CENTESIMUS ANNUS, supra
note 148, at 64; ECONOMIC JUSTICE FOR ALL, supra note 20, at 51.
180. See POPULORUM PROGESSIO, supra note 168, at 250.
181. See id. at 253.
182. See MATER ET MAGISTRA, supra note 165, at 88; POPULORUM PROGRESSIO,
supra note 168, at 250; JUSTICE IN THE WORLD, supra note 168, at 297; EVANGELI
NUNTIANDI, supra note 168, at 310-11; SOLLICITUDO REI SOCIALIs, supra note 168, at
418; CENTESIMUS ANNUS, supra note 148, at 19, 84; ECONOMIC JUSTICE FOR ALL,
supra note 20, at 41.
183. See QUADRAGESIMO ANNO, supra note 148, at 69; DIVEs IN MISERICORDIA,
supra note 168, at 45-46; SOLLICITUDO REI SOCIALIS, supra note 168, at 423;
CENTESIMUS ANNUS, supra note 148, at 41.
184. See PACEM IN TERRIS, supra note 168, at 146; GAUDIUM ET SPES, supra note
148, at 212; DIVES IN MISERICORDIA, supra note 168, at 44; SOLLICITUDO REI
SOCIALIS, supra note 168, at 423.
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upright norm of one’s own conscience, to protection of privacy,
and to rightful freedom in matters religious too. 1 85
However, justice can never be understood apart from love.18 6 Indeed,justice must always be sought in charity, which should be the animating principle of all human life. Church documents repeat that “the Church’s
teaching on social matters … has truth as its guide, justice as its end, and
love as its driving force.”‘ 8 7 Thus, the Church seeks social relationships
“built” on justice,188 and “inspired and perfected by mutual love.” 18 9
Indeed, to give oneself for others in love is the path to human fulfillment and true freedom. 190 When Christ revealed to humanity that God is
love, he also “taught us that the new command of love was the basic law of
human perfection and hence of the world’s transformation.”‘ 9′ Thus,
neither individual perfection nor social renewal is possible without love at
its core.’ 92 Movements for social, economic or political change that do
not seek ‘justice in charity” “carr[y] within [themselves] the germ of
[their] own negation.’ 9 3 Instead of healing social relations, reform ef185. GAUDIUM ET SPES, supra note 148, at 181. For further elaboration of
these rights, see PACEM IN TERRIS, supra note 168, at 132-35. The Church teaches
that all the rights of persons are inseparably connected with corresponding duties.
See id. at 135. For example, the right to a decent standard of living entails the
“duty of living it becomingly,” and the right to investigate truth entails the “duty of
seeking it ever more completely and profoundly.” Id.
186. See, e.g.,JUsTICE IN THE WORLD, supra note 168, at 293 (“Christian love of
neighbor and justice cannot be separated.”); DWvEs IN MISERICORDIA, supra note
168, at 37 (teaching that ‘justice alone is not enough”).
187. MATER ET MAGISTRA, supra note 165, at 120-21; see also PACEM IN TERRIS,
supra note 168, at 136-37, 155, 159; GAUDIUM ET SPES, supra note 148, at 181.
188. GAUDIUM ET SPES, supra note 148, at 181.
189. PACEM IN TERRIS, supra note 168, at 137.
190. See GAUDIUM ET SPES, supra note 148, at 180; POPULORUM PROGRESSIO,
supra note 168, at 250; OCTOGESIMA ADVENIENS, supra note 165, at 281, 283;JusTIcE
IN THE WORLD, supra note 168, at 293; CENTESIMUs ANNUS, supra note 148, at 60-61.
191. GAUDIUM ET SPES, supra note 148, at 188; see also EVANGELI NUNTIANDI,
supra note 168, at 313 (“Evangelization … also includes the preaching of hope in
the promises made by God in the new Covenant in Jesus Christ, the preaching of
God’s love for us and of our love for God; the preaching of brotherly love for all
men-the capacity of giving and forgiving, of self-denial, of helping one’s brother
and sister-which, springing from the love of God, is the kernel of the Gospel
…. .).
192. As Pope John Paul II explains:
Man is alienated if he refuses to transcend himself and to live the experience of self-giving …. A society is alienated if its forms of social organization, production and consumption make it more difficult to offer this
gift to self and to establish this solidarity between people.
Centesimus Annus, supra note 148, at 61.
193. EVANGELn NUNTIANDI, supra note 168, at 315. Similarly, in his encyclical
Dives in Misericordia, John Paul II writes that “[t]he experience of the past and of
our time demonstrates thatjustice alone is not enough, that it can even lead to the
negation and destruction of itself, if that deeperpower, which is love, is not allowed to
shape human life in its various dimensions.” DIVES IN MISERICORDIA, supra note
168, at 37. Pius Xl’s encyclical On Social Reconstruction makes the same point:
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forts that do not recognize and promote humanity’s call to love distort the
human community and retard human development. 194 For example, efforts to build peace on a mere balance of power rather than mutual trust
will fail.’ 9 5 Efforts to solve labor problems are similarly misguided if they
pit labor and management against each other like “two armies . . .engaged in combat.”‘ 196 A society founded upon “classes with contradictory
interests and hence opposed to each other” is “prone to enmity and
strife.”‘1 97 Strife is also assured if forgiveness is eliminated from human
relations and justice alone pursued:
A world from which forgiveness was eliminated would be nothing
but a world of cold and unfeeling justice, in the name of which
each person would claim his or her own rights vis-a-vis others; the
various kinds of selfishness latent in man would transform life
and human society into a system of oppression of the weak by the
strong, or into an arena of permanent strife between one group
and another.198
As in Rerum Novarum, the Church has also continued to teach that at
the root of all social problems is human sin and the “structures of sin” that
are built up through sin. 19 9 Thus, any solution to social problems must
change “spiritual attitudes” and “conver[t]” the mind and heart. 20 0 It is,
J ]ustice alone, even though most faithfully observed, can remove indeed
the cause of social strife, but can never bring about a union of hearts and
minds. Yet this union, binding men together, is the main principle of
stability in all institutions, no matter how perfect they may seem, which
aim at establishing social peace and promoting mutual aid. In its absence, as repeated experience proves, the wisest regulations come to
nothing.
QUADRAGESIMO ANNO, supra note 148, at 68.
194. See, e.g., EVANGELI NUNTIANDI, supra note 168, at 316 (“[T]he best structures and the most idealized systems soon become inhuman if the inhuman inclinations of the human heart are not made wholesome, if those who live in these
structures or who rule them do not undergo a conversion of heart and of
outlook.”).
195. See PACEM IN TERRIS, supra note 168, at 149; see also GAUDIUM ET SPES,
supra note 148, at 220 (teaching that peace is “the fruit of love”).
196. QUADRAGESIMO ANNO, supra note 148, at 41-42; see also id. at 44 (stating
that “the unity of human society cannot be built upon class-warfare”).
197. Id. at 41.
198. DrvEs IN MISERICORDIA, supra note 168, at 45.
199. SOLLICITUDO REi SoctaLis, supra note 168, at 419-20.
200. Id. at 421; see also QUADRAGESIMO ANNO, supra note 148, at 47-48 (reconstructing social order requires reform of morals); POPE JOHN PAUL II, REDEMPTOR
HoMINIS (THE REDEEMER OF MAN) 33 (Daughters of St. Paul transl.) (1979) [hereinafter REDEMPTOR HOMINIS] (“This difficult road of the indispensable transformation of the structures of economic life is one on which it will not be easy to go
forward without the intervention of a true conversion of mind, will and heart.”);
EVANGELIi NuNrIANtI, supra note 168, at 309 (stating that Church’s evangelizations
seeks “interior change” and “conver[sion.]” of both “personal and collective consciences of people”); ECONOMICJUSTICE FOR ALL, supra note 20, at 40 (“The world
is wounded by sin and injustice, in need of conversion and of the transformation
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therefore, a mistake to believe that social progress can be made without
seeking to improve moral and spiritual well-being as well, and both should
always be sought together.20 1
The Church recognizes that all earthly progress will be imperfect.
The Kingdom of God will be initiated by Christ at the end of history, and it
should not be confused with any human achievement. 20 2 However, the
Church still has “confidence … in man” 20 so that progress toward social
reconstruction and renewal is not only possible 20 4 but also an essential
responsibility for all. 20 5 As social relations are transformed according to
charity, brotherhood and peace, human society becomes a “foreshadowing” 20 6 of God’s kingdom and “reflect[s] and in a sense anticipate[s]
the glory of th[is] kingdom.” 20 7
In this process, the Church plays a critical role as both an example
and an instrument of social unity. Church documents describe the
Church as an example of a “new brotherly community,” 20 8 a “leaven and
… a kind of soul for human society,”20 9 a “witness” of God’s love, 2 10 a sign
of “transformation” and “newness of life,”‘2 11 and a “model of collaborathat comes when persons enter more deeply into the mystery of the death and
Resurrection of Christ.”).
201. See PACEM IN TERRIS, supra note 168, at 140; see also ECONOMICJUSTICE FOR
ALL, supra note 20, at 21 (stating that economy must “serve the material and spiri- tual well-being of people”). In his encyclical Centesimus Annus, Pope John Paul II
states:
The world today is ever more aware that solving serious national and international problems is not just a matter of economic production or of
juridical or social organization, but also calls for specific ethical and religious values, as well as changes of mentality, behavior and structures….
The Church has constantly repeated that the person and society need not
only material goods but spiritual and religious values as well. CENTESIMUS ANNUS, supra note 148, at 84-85.
202. See GAUDIUM ET SPES, supra note 148, at 188-89; SOLLICITUDO REI
SociALIs, supra note 168, at 430.
203. SOLLICITUDO REi SOCIALIS, supra note 168, at 429.
204. See id.; GAUDIUM ET SPES, supra note 148, at 188 (“To those … who
believe in divine love, he gives assurance that the way of love lies open to all men and that the effort to establish a universal brotherhood is not a hopeless one.”).
205. SeeGAUDIUM ET SPES, supra note 148, at 189 (stating that “the expectation
of a new earth must not weaken but rather stimulate our concern for cultivating this one”); SOLLICITUDO REI SocIALIs, supra note 168, at 430 (stating that expectation of coming Kingdom “can never be an excuse for lack of concern for people in
their concrete personal situations and in their social, national, and international
life”).
206. GAUDIUM ET SPES, supra note 148, at 189; OGTOGESIMA ADVENIENS, supra
note 165, at 278.
207. SOLLICITUDo REi SoclALs, supra note 168, at 430.
208. GAUDIUM ET SPES, supra note 148, at 185; see also EVANGELII NUNTIANDI,
supra note 168, at 308 (teaching that Church is a “community of brotherly love”).
209. GAUDIUM ET SEES, supra note 148, at 189.
210. SOLLICITUDO REi SOCIALIS, supra note 168, at 431.
211. EVANGELII NUNTIANDI, supra note 168, at 311.
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tion and participation.” 2 12 In this way, the Church functions as a “sacrament” or, in other words, a “sign and instrument” of intimate union with
God and the unity of all mankind. 2 13 The Church “shows the world that
an authentic union, social and external, results from a union of minds and
hearts,” and she injects within society the force of “faith and charity put
into vital practice.” 2 14
The Church’s vision for labor-management relations is part of this
larger vision for social life. While the Church’s understanding of labor
unions has changed and developed since Rerum Novarum was promulgated
in 1891, the Church continues to envision unions as a way for workers to
collaborate with management to overcome divisions and improve the conditions of workers in a spirit of understanding and mutual concern. When
the Church first discussed worker associations in 1891, it depicted a type of
association that is very different from the labor unions that we are familiar
with today. Instead of organizations composed entirely of workers and designed to be a bargaining agent with management, worker associations resembled mutual aid societies that served both economic and religious
functions.2 15 Composed either of workers alone or workers and management together, these associations would promote the prosperity of workers
while also providing moral and religious training. 2 16 The worker associations that the Church favored in 1891 were essentially Catholic organizations imbued with religious principles and directed towards both spiritual
and material ends. 217 Consistent with its view that workers and employers
should work together to improve the conditions of labor, the Church expressed approval of “eminent men” and “Catholics of great wealth” who
were Voluntarily assisting workers to form these associations. 21 8
When the Church celebrated the fortieth anniversary of Retum
Novarum in 1931 with Pius XI’s encyclical Quadragesimo Anno, the Church
continued to view the ideal union as a Catholic association directed towards the spiritual as well as economic improvement of workers. 2 19 At
times, Pius XI also spoke of vocational groups that would unite employers
212. ECONOMIC JUSTICE FOR ALL, supra note 20, at 134.
213. SECOND VATICAN COUNCIL, LUMEN GENTIUM (DOGMATIC CONSTITUTION
ONTHE CHURCH) 7 (Daughters of St. Paul transl.) (1964); see also GAUDIUM ET SPES,
supra note 148, at 191 (quoting Lumen Gentium). The U.S. Bishops also describe
the Church as “a communion of people bonded by the Spirit with Christ as their
Head, sustaining one another in love, and acting as a sign or sacrament in the
world.” ECONOMIC JUSTICE FOR ALL, supra note 20, at 129.
214. GAUDIUM ET SPES, supra note 148, at 191.
215. See RERUM NOVARUM, supra note 148, at 42, 48-49.
216. See id.
217. Leo XIII spoke of these associations as “associations of Catholics,” id. at
50, 52, and associations of “Christian workers,” id. at 51.
218. Id. at 47.
219. See QUADRAGESIMO ANNO, supra note 148, at 17-18. The Church recognized that in some situations it would not be possible for Catholic workers to form
Catholic unions. Id. at 17. Consequently, the Church permitted workers to join
neutral trade unions if these unions posed no danger to religion and existed side
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and employees together within the same organization and, thereby, help
to abolish conflict between the classes. 22 0 The Church specifically rejected a model of labor relations where workers and management are divided into two opposing parties and bargaining proceeds as between “two
armies … engaged in combat.”22 1 Instead, the Church envisioned a harmonious collaboration among employees and employers for the common
good.222
By 1961, when Pope John XXIII issued the next major encyclical on
Catholic social teaching, Mater et Magistra, the Church’s understanding of
the function of labor unions had changed substantially. The Church no
longer viewed unions as specifically Catholic associations, nor as organizations that might include labor and management together in the same
group. Rather, the Church now understood unions to be collective bargaining agents representing workers in negotiations with management
over terms and conditions of employment. 223 Thus, the Church gave her
approval to the type of labor organization that had emerged in Europe
and America in the twentieth century. However, the Church continued to
describe the relationship that should exist between worker and employer
as a collaborative one based upon mutual concern and the common good,
and Church documents repeatedly refuse to view this relationship in divisive or adversarial terms.2 24 Unions and employers must work together in
by side with Catholic “associations which aim at giving their members a thorough religious and moral training.” Id. at 17-18.
220. See id. at 41.
221. See id. at 41-42.
222. See id. at 17, 41-43, 46.
223. See MATER ET MAGISTRA, supra note 165, at 100; see also GAUDIUM ET SPES,
supra note 148, at 212; OCTOGESIMA ADVENIENS, supra note 165, at 270; LABOREM
EXERCENS, supra note 177, at 48.
The development of the Church’s understanding of labor unions reflects, in
part, the historical evolution of worker associations in the late nineteenth and also
twentieth centuries. In the United States, for instance, prior to the late nineteenth
century, unions often played a role as mutual aid societies with reform goals. See
CHARLES C. HECKSCHER, THE NEW UNIONISM: EMPLOYEE INVOLVEMENT IN THE
CHANGING CORPORATION 16-17 (1988). With the rise of the Knights of Labor in the
1880s, a national worker organization emerged that combined educational and
social reform goals with the goal of economic improvement. See FOSTER RHEA DuL,
LES & MELVIN DUBOFSKY, LABOR IN AMERICA: A HISTORY 120-41 (4th ed. 1984);
HECKSHER, supra, at 17. However, beginning in the late nineteenth century with
the rise of the American Federation of Labor, worker associations gradually
evolved into the form we recognize today: collective bargaining agents focused on
securing higher wages and better working conditions for their members. See DULLES & DUBOFSKY, supra, at 142-57; HECKSCHER, supra, at 17-25.
224. See, e.g., MATER ET MAGISTRA, supra note 165, at 104 (teaching that relationships between workers and management must be “readjusted according to
norms of justice and charity”); OcroGESIMA ADVENIENS, supra note 165, at 270
(“The important role of union organizations must be admitted: their object is the
representation of the various categories of workers, their lawful collaboration in
the economic advance of society, and the development of the sense of their responsibility for the realization of the common good.”).
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a spirit of brotherhood and charity and pursue common aims, rather than
strife, 22 5 and like all groups in society, both sides must bring their interests
into harmony with the good of the entire community.22 6
The Church recognizes that disputes between employees and employers will arise. However, the Church cautions that the proper response
should be to seek a peaceful resolution through mutual understanding
and “sincere discussion.” 22 7 While there may be circumstances when even
a strike will be necessary to defend the rights of workers, 2 28 strikes are “an
extreme means,”2 2 9 and when they are used, the parties must resume negotiations and “discussion of reconciliation” as quickly as possible. 2 30
Thus, peace among workers and management, like peace among nations,
requires the use of reasoned discussion, cooperation and the desire for
reconciliation. 2 3 1 Force or power, even a balance of power among contending parties, cannot bring lasting peace; peace is, rather, the “fruit of
love.” 2 3 2 Unions must also be careful not to abuse the use of strikes for
narrow self-interest, and strikes must notjeopardize the health or safety of
the larger community. 2 3 3 The Church rejects the view that unions are
part of a “class struggle which inevitably governs social life”: unions reflect
a struggle “for” social justice and the common good, but should never be
viewed as a tool or weapon in a struggle “against” others. 2 3 4
Church documents also emphasize two additional principles for labor-management relations, and both of these principles have been amplified in Pope John Paul II’s encyclicals. First, the Church teaches that
225. See MATER ET MAGISTRA, supra note 165, at 100.
226. See PACEM IN TERRIS, supra note 168, at 139-40; OCTOGESIMA ADVENIENS,
supra note 165, at 270; cf. GAUDIUM ET SPES, supra note 148, at 212 (stating that
through participation in labor unions, workers “will be brought to feel that according to their own proper capacities and aptitudes they are associates in the whole
task of economic and social development and in the attainment of the universal
common good”).
227. GAUDIUM ET SPES, supra note 148, at 212.
228. See id.
229. LABOREM EXERCENS, supra note 177, at 50; see also GAUDIUM ET SPES, supra
note 148, at 212 (referring to strikes as “ultimate … means” for defense of worker
rights); OCTOGESIMA ADVENIENS, supra note 165, at 270 (describing strikes as “a
final means of defense”).
230. GAUDIUM ET SPES, supra note 148, at 212.
231. See PACEM IN TERRIS, supra note 168, at 146 (stating that peace requires “a
mutual assessment of the reasons on both sides of the dispute …. a mature and
objective investigation of the situation, and … an equitable reconciliation of differences of opinion”).
232. GAUDIUM ET SPES, supra note 148, at 220; see also PACEM IN TERRIS, supra
note 168, at 149 (“There can be … no doubt that relations between states, as
between individuals, should be regulated not by the force of arms but by the light
of reason, by the rule, that is, of truth, of justice and of active and sincere
cooperation.”).
233. See LABOREM EXERCENS, supra note 177, at 50-51; OcrOGESIMA ADVENIENS,
supra note 165, at 270.
234. LABOREM EXERCENS, supra note 177, at 49.
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workers must be given the opportunity to participate in the operation and
management of business enterprises. 2 35 This principle first appeared in
Quadragesimo Anno, which taught that, whenever possible, workers should
be made “sharers” in some way in the ownership, management or profits
of the company. 236 Later, the Church described worker responsibility in
the productive enterprise as one of the ways in which employees perfect
themselves and realize their dignity as persons.2 37 The importance of
worker participation in the life of the firm has been given special emphasis
by the United States Catholic Bishops in their 1986 pastoral letter on Economic Justice for All. 23 8
Related to this first principle is the Church’s teaching that productive
enterprises must be understood as “communi[ties] of persons”23 9 or “true
human fellowship [s] .”,240 The workplace is a vehicle for uniting people as
they work together to benefit themselves as well as others, including the
larger society.2 4 1 All participants in this community, workers and management alike, must collaborate harmoniously in a spirit of “mutual respect,
esteem, and good will.” 24 2 The U.S. Bishops have also given considerable
attention to the need for greater partnership and cooperation between
workers and management in American businesses. 243
235. See MATER ET MAGISTRA, supra note 165, at 99; GAUDIUM ET SPES, supra
note 148, at 212; POPULORUM PROGRESSIO, supra note 168, at 246; LABOREM ExERCENS, supra note 177, at 36; CENTESIMUs ANNUS, supra note 148, at 471.
236. See QUADRAGESIMO ANNO, supra note 148, at 34.
237. In Mater et Magistra, Pope John XXIII stated that “U]ustice is to be observed not merely in the distribution of wealth, but also in regard to the conditions
under which men engaged in productive activity have an opportunity to assume
responsibility and perfect themselves by their efforts.” MATER ET MAGISTRA, supra
note 165, at 97. In Populorum Progressio, Pope Paul VI stated:
John XXIII gave a reminder of the urgency of giving everyone who works
his proper dignity by making him a true sharer in the work he does with
others …. Man’s labor means much more still for the Christian: the
mission of sharing in the creation of the supernatural world which remains incomplete until we all come to build up together that perfect man
of whom St. Paul speaks “who realizes the fullness of Christ.”
POPULORUM PROGRESSIO, supra note 168, at 246-47 (quoting Ephesians 4:13). When
commemorating the hundredth anniversary of Reram Novarum in Centesimus Annus, John Paul II wrote that the Church’s teaching:
Recognizes the legitimacy of workers’ efforts to obtain full respect for
their dignity and to gain broader areas of participation in the life of industrial enterprises so that, while cooperating with others and under the
direction of others, they can in a certain sense “work for themselves”
through the exercise of their intelligence and freedom.
CENTESIMUS ANNUS, supra note 148, at 63 (citation omitted).
238. See ECONOMIC JUSTICE FOR ALL, supra note 20, at 44, 113-16.
239. CENTESIMUs ANNUS, supra note 148, at 52.
240. MATER ET MAGISTRA, supra note 165, at 99.
241. See CENTESIMUs ANNUS, supra note 148, at 47-48, 52-53.
242. MATER ET MAGISTRA, supra note 165, at 99; see also LABOREM EXERCENS,
supra note 177, at 49.
243. See ECONOMIC JUSTICE FOR ALL, supra note 20, at 113-16.
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For John Paul II, all of these principles concerning labor-management relations come together in a rich theology of work. John Paul II
understands work as essential for human fulfillment. In work, individuals
express their dignity by exercising their intelligence and freedom in a creative process that shares in the creative activity of God.244 Work is, therefore, something personal to the worker; he is the “true subject of work,”
and in the production process, he must be able to know that he is “working ‘for himself.’ 245 However, work takes place as part of a community of
workers, and the individual also realizes himself in this community when
he collaborates with others for the good of others.2 4 6 In short, for John
Paul II, individuals realize their full humanity in work by expressing their
creative potential in community, for others, and, through this process, by
drawing closer to God. 2 4 7
B. Catholic Social Teaching and the Model of Collective
Bargaining in the NLRA
The Church’s teaching regarding labor-management relations makes
clear that the employment relationship in a Catholic context is not neatly
separable into secular and religious components. When the U.S. Bishops
affirmed that workers in Catholic institutions have a right to organize and
bargain collectively with their employers, they intended Church organizations to be an exemplary model for employment relationships in the
larger society. 248 Thus, the entire relationship between Catholic employers and their employees must be based upon the principles of love, mutual
concern and cooperation that the Church believes should guide economic
and social relations in the larger world. There is no aspect of the employment relationship that can escape the ethical and religious dimension that
the Church envisions for social relations. While wages and hours may appear to be quintessentially secular matters, the process of bargaining over
these matters is not. Like all aspects of the employment relationship, collective bargaining must be understood as part of and guided by the
Church’s religious vision. To be sure, the Church no longer views unions
of employees as specifically religious organizations with a responsibility for
developing the religious and spiritual well-being of workers. Nonetheless,
for the Church, unions remain a religious concept through and through.
Unions are part of the Church’s vision for human society and, as such,
their role in labor-management relations is colored by religious principles.
The Church’s understanding of collective bargaining is not only a religious concept through and through, but the model for collective bar244. See LABOREM EXERCENS, supra note 177, at 57; CENTESIMUS ANNUS, supra
note 148, at 63.
245. LABOREM EXERCENS, supra note 177, at 38.
246. See CENTESIMUS ANNUS, supra note 148, at 63-64.
247. See LABOREM EXERCENS, supra note 177, at 56.
248. See ECONOMIC JUSTICE FOR ALL, supra note 20, at 131-32.
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gaining in the Church’s teaching is very different from the model in
federal and state labor laws. As mentioned above, this Article will focus on
the NLRA. The NLRA structures an arms-length relationship between employer and employee founded upon an essentially distrustful attitude towards employers and the assumption that the interests of employers and
employees inevitably conflict. The adversarial relationship that results
from collective bargaining under the NLRA is very different from the cooperative relationship based on mutual concern and charity envisioned by
the Church.
When Congress passed the NLRA in 1935, it described the Act as a
mechanism for reducing the strikes and other forms of labor strife that
disrupt the free flow of interstate commerce. 249 The aim of the Act was,
therefore, to promote labor peace. 250 The basic approach of the Act was
to reduce the inequality of bargaining power between employers and employees by protecting the right of workers to organize and bargain collectively through representatives of their own choosing. 25 1 Section 7 of the
Act guarantees this right,25 2 and section 8 specifies a series of unfair labor
practices by employers and unions that impermissibly interfere with section 7 rights. 253 For example, section 8(a)(1) prohibits employers from
“interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise
of the rights guaranteed in section 7.”254 Under section 8(a) (2), employers may not “dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.”255
As discussed above, section 8(a) (3) prohibits employers from discrimination in employment with the purpose of encouraging or discouraging
union membership. 256
Collective bargaining is described in section 8(d) as the mutual obligation of both employer and employee representatives to meet at reasonable times and confer in “good faith” with respect to mandatory bargaining
subjects. 257 The duty to bargain in good faith does not require either
249. See 29 U.S.C. §§ 141, 151 (2001).
250. See NLRB v.Jones & Laughlin Steel Corp., 301 U.S. 1, 34, 42, 45 (1937).
251. See 29 U.S.C. § 151.
252. Id. § 157. Section 7 states that:
Employees shall have the right to self-organization, to form,join or assist
labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
shall also have the fight to refrain from any or all of such activities ….
Id.
253. Id. § 158 (enumerating unfair labor practices).
254. Id. § 158(a)(1).
255. Id. § 158(a)(2). For further discussion of section 8(a)(2), see infra text
accompanying notes 328-94.
256. Id. § 158(a)(3). For a further discussion of section 8(a)(3), see supra
note 36 and accompanying text.
257. Id. § 158(d).
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party to assent to a proposal or make a concession. 258 The parties must,
however, have a desire to reach agreement and make a serious effort to
find common ground. 25 9
Under section 9, a union becomes the representative of a unit of employees when the union is “designated or selected” by a majority of the
employees in the unit.260 The selected union becomes the “exclusive”
representative for all the employees in the unit, and the employer is prohibited from bargaining with any other labor organization or with employees directly. 26 1 Section 9 also provides for an election procedure for
selecting union representatives that is supervised by the NLRB. 262 The
Board has the authority to determine appropriate bargaining units, investigate representation questions, police the election process to ensure that
the outcome fairly represents the choice of employees, and certify collective bargaining agents.2 63 The Act also gives the Board the responsibility
for supervising the collective bargaining process. 264 The Board adjudicates unfair labor practice charges, including claims that one or both parties have refused to comply with their duty to bargain in good faith. 265
While the NLRA is designed to promote labor peace by equalizing the
bargaining power of employees and employers and bringing both sides to
the bargaining table,2 66 the process of collective bargaining is not envisioned as a serene or idealized dialogue between friendly parties. In a
series of decisions addressing the rights of employees and employers to
use economic weapons to advance their bargaining position, the Supreme
Court has rejected the view that collective bargaining can be equated with
an “academic discussion”267 or “collective search for truth.”268 The NLRA
does not assume that “perfect understanding among people would lead to
perfect agreement among them on values.”2 69 Thus, the Board has erred
when it has sought to prohibit weapons that it believes interfere with rea258. See id.
259. See NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 485-86 (1960).
260. 29 U.S.C. § 159(a).
261. Id.
262. See id. § 159. While elections are the preferred mechanism for determining representation questions, the Act does not require an election. Generally, em- ployers may insist upon an election, but the NLRB can recognize a union as the
exclusive bargaining representative of a unit of employees without an election in
certain cases where the employer has committed unfair labor practices that have
the tendency to undermine the union’s majority and impede a fair election. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 610-15 (1969).
263. See 29 U.S.C. § 159.
264. See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970).
265. See 29 U.S.C. § 160.
266. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42, 45 (1937).
267. NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 495 (1960).
268. Id. at 488.
269. Id. at 488-89.
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soned discussion and interchange. 270 Rather, the Act leaves employees
and employers free to use economic weapons not specifically prohibited
by the Act.2 7 1
For example, in NLRB v. Insurance Agents’ International Union, the Supreme Court found that a union of insurance agents did not violate the
Act when it sought to press its position by having members refuse to solicit
new business, refuse to comply with company reporting procedures, report late to work and leave early, and engage in other on-thejob activities
designed to harass the company and interfere with its business. 272 Similarly, no violation occurred when the employers in American Ship Building
Co. v. NLRB 27 3 and NLRB v. Brown 274 sought to advance their bargaining
position with lockouts. 275 As long as employers do not use weapons as a
device to undermine the union or the collective bargaining process and
their weapons are not inherently destructive of employee rights without a
significant economic justification, the Board cannot interfere. 2 76
In Insurance Agents, the Supreme Court explained that an idealized
vision of collective bargaining as a process of reasoned discussion and persuasion does not fit with the realities of the employment relationship. According to the Court, “[t]he parties-even granting the modification of
views that may come from a realization of economic interdependencestill proceed from contrary and to an extent antagonistic viewpoints and
concepts of self-interest.” 277 Thus, the use of economic weapons, “should
more peaceful measures not avail,” 2 78 is not some “grudging exception” to
the Act’s vision for collective bargaining. 279 To the contrary, “[t]he presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and
270. See id. at 497-500; see also Lodge 76, Int’l Ass’n of Machinists & Aerospace
Workers v. Wis. Employment Relations Comm’n, 427 U.S. 132, 149-50 (1976).
271. See Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316-18 (1965); NLRB v.
Brown, 380 U.S. 278, 292 (1965); Lodge 76, 427 U.S. at 14344.
272. See Ins. Agents, 361 U.S. at 479-81.
273. 380 U.S. 300.
274. 380 U.S. 278.
275. In American Ship Building, the employer temporarily locked out and laid
off employees to bring economic pressure on the union. 380 U.S. at 301-02. In
Brown, a multi-employer bargaining group locked out its employees and used temporary replacements in response to a whipsaw strike against one member of the
group. 380 U.S. at 279-81.
276. See Am. Ship Bldg., 380 U.S. at 308-09, 311-12; Brown, 380 U.S. at 280-84,
286-88. In Lodge 76, International Ass’n of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), the Supreme Court also
held that, like the NLRB, state labor relations boards may not prohibit the use of
weapons that are not proscribed under the Act. Id. at 149-51, 153-55 (holding that
union members’ refusal to work overtime in order to bring economic pressure on
employer “must be free of regulation by the States”).
277. Ins. Agents, 361 U.S. at 488.
278. Am. Ship Bldg., 380 U.S. at 317.
279. Ins. Agents, 361 U.S. at 495.
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Taft-Hartley Acts [the NLRA] have recognized.” 2 3 The Supreme Court
has also argued that the Board’s attempt to regulate the use of these weapons to ensure an idealized or balanced dialogue will inevitably involve intrusion into the substantive terms of collective bargaining agreements,
which the Act forbids.281
To be sure, the NLRA does not contemplate that the collective bargaining process will be solely an antagonistic one, nor that the parties will
always resort to economic weapons or pressure tactics to achieve their interests. As the parties deal with one another, bonds between them will
develop and cooperation and collaboration will occur.282 Much of the
antagonism between the parties will, therefore, be “channel[ed]” into discussion and “defus[ed]” through the negotiating process, 28 3 which will
have a “mediatory influence” on controversies and disagreements. 2 4
Moreover, the parties cannot evade their duty to engage in collective negotiations. The duty to bargain in good faith requires a sincere and serious effort to reach common ground, and it prohibits either party from
refusing to negotiate or from engaging in actions that directly impede the
process of discussion. 285
However, behind the bargaining process and a key factor in motivating the parties to reach agreement is the availability of economic weapons
280. Id. at 489.
281. See id. at 488-90; see also Lodge 76, 427 U.S. at 153.
282. See Ins. Agents, 361 U.S. at 489-90. The Supreme Court in Insurance
Agents quotes from Archibald Cox:
Collective bargaining is curiously ambivalent even today. In one aspect
collective bargaining is a brute contest of economic power somewhat
masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic
power; they lack legal sanctions but are nonetheless effective to contain
the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of
responsibility, a responsiveness to government and public opinion, and
moral principle; but in time these forces generate their own compulsions,
and negotiating a contract approaches the ideal of informed persuasion.
Id. (quoting Archibald Cox, The Duty to Bargain in Good Faith, 71 HARV. L. REv.
1401, 1409 (1958)).
283. First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981).
284. Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 211 (1964); see also H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970) (“The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of
prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement.”).
285. For example, in NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court
held that an employer may not make unilateral changes in mandatory subjects of
bargaining during the negotiations process. Id. at 743, 747. According to the
Court, such unilateral changes would be tantamount to a refusal to negotiate. Id.
In NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956), the Supreme Court also
stated that claims made during collective negotiations should be honest claims. Id.
at 152. The Court found that when the employer in that case refused to provide
information that would support its claim of inability to pay higher wages, it violated
the duty to bargain in good faith. Id. at 152-53.
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and the threat that they will be used.28 6 The presence of these weapons
and a corresponding “‘area of labor combat’-287 is, as the Supreme Court
has said, part and parcel of the structure of the Act. Labor peace is
achieved under the Act by balancing the power of employers and employees, directing both parties to bargain in good faith, and giving each party
wide discretion in the use of weapons should less adversarial tactics fail.
This vision of the collective bargaining process is deeply inconsistent
with the Church’s vision. For the Church, the animating spirit in labormanagement relations must be one of brotherhood and cooperation.
Strikes, and perhaps other economic weapons, are permitted, but the
Church cautions that they should only be used in extreme cases, never
abused for the purposes of advancing a party’s narrow self-interest and
followed quickly by a mutual endeavor to seek reconciliation. Rather than
seeking peace through a balance of power between contending parties,
the Church teaches that lasting peace can only be achieved through mutual trust. Just conditions, too, must be sought with love. Thus, for the
Church, the collective bargaining process is not one where the parties necessarily proceed from antagonistic viewpoints and concepts of self-interest.
To the contrary, each party must try to understand the other’s position,
even put themselves in the other’s position, and genuinely seek reasoned
interchange and a harmonious outcome. The common good, not merely
common ground, should be the object of the negotiating process, and the
primary motivation for reaching agreement should be love, not fear. Indeed, for the Church, when individuals or groups oppose one another
with a self-interested attitude, true human fulfillment and social renewal is
impossible. One cannot give oneself in love if one faces the other as an
“adversar[y].”288 Nor is a genuine “community of work”289 possible where
workers and management view each other as potential enemies rather
than joint participants in a common enterprise. Requiring Catholic employers to bargain under the NLRA would, therefore, subject them to a
very different model for collective bargaining than the Church desires for
its own institutions and for the larger world.
Several specific provisions of the Act are also deeply inconsistent with
the Catholic vision for collective bargaining. One example is the NLRB’s
long-standing position regarding promises or grants of benefits made by
employers during an organizing campaign.2 90 As noted above, one of the
roles of the Board under the Act is to police representation elections and
286. See Ins. Agents, 361 U.S. at 489 (approving of scholarship “describing economic force as ‘a prime motive power for agreements in free collective bargain- ing”‘) (quoting GEORGE W. TAYLOR, GOVERNMENT REGULATION OF INDUSTRIAL
RELATIONS 18 (1948)).
287. Lodge 76, 427 U.S. at 146 (citing Garner v. Teamsters Union, 346 U.S.
485, 500 (1953)).
288. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 317 (1965).
289. See discussion supra notes 239-43 and accompanying text.
290. See NLRB v. Exch. Parts Co., 375 U.S. 405 (1964).
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ensure that outcomes fairly reflect employee choices.29 ‘ One of the ways
that an employer may undermine employee choice is through conduct
that amounts to an unfair labor practice, such as by threatening employees
with reprisals if they vote for the union29 2 or by discharging union supporters in order to discourage other workers from voting for the union. 293
The Board has also developed additional regulations for campaign speech
and conduct to ensure that the election functions as a “laboratory” for
determining the “free and untrammeled choice” of employees. 294 Violations of these “laboratory conditions” regulations do not amount to unfair
labor practices, but they do provide a basis for setting aside the election
and holding a second election at a later time. 29 5
The Board has held that promises or grants of benefits made by an
employer during an election campaign constitute an unfair labor practice
if the employer made the promises or grants in order to influence the
outcome of the election. 29 6 Such promises and grants violate section
8 (a) (1), which prohibits employers from “interfer[ing] with, restrain [ing],
or coerc [ing]” employees in the exercise of their section 7 rights to organize and bargain collectively with representatives of their own choosing. 297
While section 8(c) of the Act states that employer speech alone cannot
constitute an unfair labor practice, it contains an exception for expression
that contains a “threat of reprisal or force or promise of benefit.”298
In NLRB v. Exchange Parts Co.,2 99 the Supreme Court approved the
Board’s position and provided two rationales for why promises and grants
of benefits interfere with employee free choice.30 0 While the employer
conduct in Exchange Parts involved only grants of benefits, later courts have
routinely relied upon the decision and analysis in Exchange Parts in cases
involving promises of benefits as well. 30 ‘ According to the Court in Exchange Parts291. See supra notes 262-65 and accompanying text.
292. Threats of reprisal are a violation of section 8(a) (1).
293. Such discharges violate section 8(a) (3).
294. Gen. Shoe Corp., 77 N.L.R.B. 124, 126-27 (1948).
295. Id. at 127.
296. This has been a long-standing position of the Board. See, e.g., Hudson
Hosiery Co., 72 N.L.R.B. 1434, 1436-37 (1947); see also NLRB v. Exch. Parts Co.,
375 U.S. 405, 408-09 (1964) (describing and approving Board’s position).
297. 29 U.S.C. § 158(a)(1) (2001).
298. Id. § 158(c). In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court found that section 8(c) is consistent with the First Amendment. Id. at
616-20.
299. 375 U.S. 405 (1964).
300. See id. at 409-10. The Supreme Court also expressed approval in Medo
Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944) (” [T]he action of employees
with respect to the choice of their bargaining agents may be induced by favors
bestowed by the employer as well as by his threats or domination.”).
301. See, e.g., V & S ProGalv, Inc. v. NLRB, 168 F.3d 270, 277-78 (6th Cir.
1999); NLRB v. Century Moving & Storage, Inc., 683 F.2d 1087, 1091-92 (7th Cir.
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The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow
and which may dry up if it is not obliged.30 2
Thus, the Court found that employees would interpret grants of benefits
as the equivalent of a threat of reprisal should the employees choose the
union. The Supreme Court provided an additional basis for the Board’s
rule when it refuted the claim that the Board’s rule would discourage benefits for labor. According to the Supreme Court:
The beneficence of an employer is likely to be ephemeral if
prompted by a threat of unionization which is subsequently removed. Insulating the right of collective organization from calculated good will of this sort deprives employees of little that has
lasting value. 30 3
In other words, when employers make promises or grants of benefits, they
are not to be trusted, and any benefits will be fleeting. A promise or grant
of benefit is essentially a misleading gesture by employers designed to
stave off unionization rather than a genuine expression of good will. Employees need to be protected from such promises and grants because
there is a danger that they will believe their employers and rely upon their
representations when voting. 30 4
The Supreme Court’s reasoning in Exchange Parts has been criticized
by many scholars. Scholars have argued .that employees do not need the
protection that the Board’s rule provides. They are not naive about the
risks associated with their employer’s representations, and the union will
be vigorous in pointing out these risks. 305 Furthermore, employer
promises or grants of benefits need not always be distrusted. Employers
have a strong interest in following through with any promises because if
they do not, disgruntled employees can choose a union in the future. 30 6
1982); Sioux Prods., Inc. v. NLRB, 684 F.2d 1251, 1254 n.4 (7th Cir. 1982); NLRB
v. Garry Mfg. Co., 630 F.2d 934, 94142 (3d Cir. 1980).
302. Exch. Parts, 375 U.S. at 409.
303. Id. at 410.
304. In NLRB v. Gissel Packing Co., the Supreme Court made a similar assumption that employees need protection from manipulative employer tactics. According to the Court, the balance between employee rights under the Act and
employer speech rights under section 8(c) must “take into account the economic
dependence of the employees on their employers, and the necessary tendency of
the former, because of that relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more disinterested ear.” 395 U.S.
at 617.
305. See, e.g., Derek C. Bok, The Regulation of Campaign Tactics in Representation
Elections Under the NLRA, 78 HARV. L. REv. 38, 115 (1964).
306. See id. at 114; Charles C. Jackson &Jeffrey S. Heller, Promises and Grants of
Benefits Under the National Labor Relations Act, 131 U. PA. L. REV. 1, 55 (1982).
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In a well-known study on employee voting behavior in representation
elections, Julius Getman, Stephen Goldberg and Jeanne Herman have also
disputed the Board’s assumptions that employees pay attention to company tactics and are influenced by them.30 7 According to the authors of
this study, the data show that employees do not view promises and grants
of benefits as threats of reprisal, 1 8 and such promises and grants do not
have an impact on employee choice.30 9 The Getman, Goldberg and Herman study reaches similar conclusions regarding a wide range of unlawful
campaign practices. Employees are not generally attentive to the employer’s campaign. 310 They have strong predispositions regarding unionization prior to the campaign, and employer campaign tactics, even those
that are unlawful, have little effect on employee choice. 3 1′ The authors’
claim that campaign tactics generally have little impact on the outcome of
elections has been controversial. Other scholars have disputed the study’s
conclusions on a number of grounds, including methodology.3 12 However, the Supreme Court’s view that employees will perceive grants of benefits as threats of reprisal and naively rely on such grants without
attempting to assess the genuineness of their employers’ motivations does
seem far-fetched. Where a union has an incentive to challenge the employer’s representations, employees are unlikely to rely on promises or
grants of benefits without considering the risks, and they will be in a good
position to evaluate the sincerity of their employers. 3 13
Still other criticisms have been made of the Supreme Court’s analysis
in Exchange Parts. Scholars have argued that the Board’s restrictions on
employer speech are inconsistent with the First Amendment. 3 14 They
have also argued that the Board’s rule deprives employees of important
307. See JuLIus G. GETMAN, STEPHEN B. GOLDBERG & JEANNE B. HERMAN,
UNION REPRESENTATION ELECTIONS: LAw AND REALITY 111, 140-47 (1976).
308. See id. at 119, 151.
309. See id. at 141, 147, 151.
310. See id. at 140.
311. See id. at 140-46.
312. For works disputing the soundness of the study’s methodology and conclusions, see, for example, W. Dickens, The Effects of Company Campaigns on Certification Elections: Law and Reality Once Again, 36 INDUS. & LAB. REL. REv. 560 (1983);
Patricia Eames, An Analysis of the Union Voting Study fiom a Trade-Unionist’s Point of
View, 28 STAN. L. REv. 1181 (1976); Paul Weiler, Promises to Keep: Securing Workers’
Rights to Self-Organization Under the NLRA, 96 HARv. L. REv. 1769, 1783-86 (1983)
(drawing on Dickens’s work). For support for the study’s findings, see, for exam- ple, Laura Cooper, Authorization Cards and Union Representation Election Outcome: An
Empirical Assessment of the Assumption Underlying the Supreme Court’s Gissel Decision, 79
Nw. U. L. REv. 87 (1984).
313. See Bok, supra note 305, at 116 (arguing that promises or grants of benefits before election are of “doubtful efficacy”).
314. SeeJulius Getman, Labor Law and Free Speech: The Curious Policy of Limited
Expression, 43 MD. L. REv. 4 (1984). But see Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 BERKELEYJ. EMP. & LAB. L. 357, 390
(1995) (employer speech is corporate commercial speech and should be regulated
as such).
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information for making a reasoned and informed choice about unionization. 3 15 If employers are not permitted to make promises or grants of
benefits that they would otherwise be willing to make to discourage unionization, employees will not have accurate knowledge about what working
conditions would be like in a nonunionized environment, and, thus, their
ability to evaluate and compare the benefits of unionization and nonunionization will be skewed.3 1 6 The Board’s rule has also been criticized as
difficult to enforce,3 17 and for providing few benefits for the cost of administration.3 18 It has also been criticized as favoring unionization rather
than true free choice.3 19
There are defenders of the Board’s position. Some have viewed
promises or grants of benefits as ugly “bribes” that have no place in a fair
election.320 Other scholars have defended the Supreme Court’s assumption that employees need protection from employer tactics. In the view of
these scholars, the employment relationship is inherently unequal, and
the economic dependence of workers on employers means that employer
speech has more coercive power than may initially be supposed.3 2 1 In his
article Promises to Keep, Paul Weiler has made a similar argument that the
willingness of employers to use unlawful tactics to intimidate and the
“skyrocketing”3 22 occurrence of coercive tactics “foster[ ] an environment
in which employees … take very seriously even subtle warnings about the
consequences of joining a union.”3 23 Thus, paternalistic protections for
employees are not only appropriate but are necessary to protect employee
free choice. Indeed, these scholars would place even greater limitations
on the role of the employer in the election process than the Board has
315. See Bok, supra note 305, at 115; Jackson & Heller, supra note 306, at 25,
56, 62-63. But see Story, supra note 314, at 457 (“In the 1990s, voting employees
already have no shortage of information sources to find out the employer’s side of
the unionization option and the alleged threat that unions impose.”).
316. See Bok, supra note 305, at 115; Jackson & Heller, supra note 306, at 25,
26, 62,
317. See Bok, supra note 305, at 116.
318. See GETMAN, GOLDBERG & HERMAN, supra note 307, at 161-62; see also Bok,
supra note 305, at 64 (arguing that costs of administration counsel against retaining rules of speculative value). Charles Jackson and Jeffrey Heller also argue that
the Board’s rule encourages gamesmanship, seeJackson & Heller, supra note 306,
at 55, and they join the authors of the Getman, Goldberg and Herman study in
criticizing the Board’s position for generating costly litigation, see id. at 64;
GETMAN, GOLDBERG & HERMAN, supra note 307, at 162.
319. SeeJackson & Heller, supra note 306, at 53.
320. Edward B. Miller, The Getman, Goldberg and Herman Questions, 28 STAN. L.
REv. 1163, 1174 (1976) (former NLRB chairman); see also Craig Becker, Democracy
in the Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L.
REv. 495, 575 (1993) (analogizing grants of economic benefits to “vote-buying”).
321. See, e.g., Story, supra note 314, at 456 (“[T]he explicit and ‘hidden’ coerciveness and hierarchy of the employment relationship invest most employer
speech with coercive power.”).
322. Weiler, supra note 312, at 1769.
323. Id. at 1781.
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done. Weiler has argued for “the elimination of the representation campaign through a system of instant elections.”3 24 Instant elections will reduce the opportunities for employers to manipulate employee choice. 325
Others have argued that employers should have no legally sanctioned role
in representation elections 32 6 or should be prohibited from intervening
altogether.32 7
What all of these scholars miss, supporters of Exchange Parts and detractors alike, is that the Board’s rule deprives employees and employers
of something that the Church would view as even more important than
informed choice, efficient administration or broad scope for employer
speech. What the prohibition on promises and grants of benefits does is
restrict the ability of employers to offer, and employees to accept, a gesture of reconciliation. Under the Board’s rule, an employer cannot listen
to employee complaints, genuinely try to understand them, and then respond with an overt offer to meet employee concerns outside the context
of unionization. If the employer says, “yes, I understand. You have legitimate claims and I will try to meet them. Take these benefits and let us
avoid an adversarial bargaining system under the NLRA,” the employer
has committed an unfair labor practice. While such a conversation may
not occur very often in the commercial world of corporate employers, it is
very foreseeable in a Church context. Church employers may understandably want to avoid collective bargaining under the NLRA because the Act’s
model for collective bargaining is so different from the Church’s more
cooperative vision for labor-management relations. Church employers
can also be expected to try to meet employee demands with promises and
grants of benefits, and they may well hope and intend that these promises
will encourage workers to reject unionization and collaborate with management in a less adversarial mode than the NLRA envisions. In such a
context, the promise or grant of benefits is, in essence, an attempt at reconciliation, and if the gesture is accepted by employees, the acceptance is
an act of forgiveness.
What the Court in Exchange Parts misses is that a promise or grant of
benefits may be neither a fist nor even an ugly bribe but, rather, an olive
branch extended in an act of conciliation. The Supreme Court assumes
that gestures of beneficence by employers are not to be trusted and that
employees need protection from their misleading promises. When
promises or grants of benefits are made, the interchange is necessarily exploitative. Workers are threatened, and they will likely be hoodwinked by
ephemeral benefits. The Supreme Court seems to have been unable to
imagine that a promise of benefits might be what it appears to be: an olive
branch designed to achieve peace and mutual good. Thus, the Supreme
324. See id. at 1770.
325. See id. at 1770, 1816.
326. See Becker, supra note 320, at 500-01, 585-86.
327. See Story, supra note 314, at 456.
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Court follows the Board in cutting off that very possibility. Reconciliation
is an unimagined possibility, and, as a consequence, it becomes an actual
impossibility.
If the NLRA is applied to religious institutions, these same assumptions and restrictions will be applied to the Church. If a religious employer tries to make a promise or grant of benefits during an election
campaign with the intent of encouraging workers to vote against unionization, the law will assume that the employer is acting in bad faith. Church
institutions will be unable to make such gestures even if they genuinely
want to address worker concerns and to strive for a labor-management
relationship more consistent with Church principles. To prevent Catholic
institutions from making such gestures to their employees would certainly
be a significant infringement on religious freedom. The law would, in
essence, be prohibiting speech and conduct that is suffused with a religious meaning and purpose.
Another provision of the NLRA that is inconsistent with the Catholic
vision for labor-management relations is section 8(a)(2).328 Section
8(a) (2) makes it an unfair labor practice for an employer to “dominate or
interfere with the formation or administration of any labor organization
or contribute financial or other support to it.”3 29 The purpose of section
8(a) (2) was to eliminate “company unions,” which had proliferated in the
years before the passage of the Act. 330 The term “company union” referred to unions or employee committees set up by management as an
alternative to independent unions.3
1
3 1 Senator Robert Wagner, the leading proponent and drafter of the original Act, condemned company unions as “sham” unions.3 32 Employers establish these unions to give
workers the impression that they have a voice in company affairs, but in
reality, management controls the union and, thus, the outcome of any
interactions with it. In Wagner’s words, “[c]ollective bargaining becomes
a sham when the employer sits on both sides of the table or pulls the
strings behind the spokesman of those with whom he is dealing.”333
As the language of section 8(a) (2) indicates, the way that this section
works is to make it unlawful for employers to “dominate,” “interfere with”
or “support” a “labor organization.” A labor organization is defined in
328. See 29 U.S.C. § 158(a) (2) (2001).
329. Id. § 158(a)(2).
330. For historical background on section 8(a) (2), see Mark Barenberg, The
Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106
HARv. L. REV. 1379, 1442-61 (1993); Thomas C. Kohler, Models of Worker Participation: The Uncertain Significance of Section 8(a)(2), 27 B.C. L. REV. 499, 518-34 (1986).
331. See Kohler, supra note 330, at 519-20.
332. See 79 CONG. REC. 2372 (1935), reprinted in 1 LEGISLATIVE HISTORY OF THE
NATIONAL LABOR RELATIONS Acr, 1935, at 1313 (1949) [hereinafter LEGISLATIVE
HISTORY].
333. Hearings on S. 1958 Before the S. Comm. on Educ. and Labor, 74th Cong., 1st
Sess. 40-41 (1935) (statement of Sen. Robert Wagner), reprinted in 1 LEGISLATIVE
HISTORY, supra note 332, at 1416-17.
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section 2(5) of the Act as “any organization of any kind, or any agency or
employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work. ‘
1
3 3 4 The Board has broken
down this definition into three elements. An organization is a “labor organization” under section 2(5) if (1) employees participate, (2) the organization exists, at least in part, for the purpose of “dealing with” an
employer and (3) the dealing concerns any of the subjects listed in the
statute, including wages, hours, grievances and other conditions of
work.3 35 Where the organization is an employee “representation committee or plan,” there must also be evidence that the organization serves that
representational role.3 36
The Act does not define what it means for a labor organization to
“deal with” an employer. In NLRB v. Cabot Carbon Co., the Supreme Court
held that the term “dealing with” should be construed broadly and goes
beyond actual collective bargaining.3 3 7 In recent decisions, the Board has
given further guidance. An organization deals with an employer whenever
their interaction involves a “bilateral process” in which employees make
proposals and these proposals are considered by management. 338 In the
Board’s words, dealing with “involves … a bilateral mechanism between
two parties. That ‘bilateral mechanism’ ordinarily entails a pattern or
practice in which a group of employees, over time, makes proposals to
management, management responds to these proposals by acceptance or
rejection by word or deed, and compromise is not required.”339 The
Board has carved out a series of “safe havens” where it has found that a
bilateral relationship does not exist. 3
4 For example, brainstorming
groups or other groups formed for the purpose of sharing information do
not deal with management if the group does not make proposals to man334. 29 U.S.C. § 152(5).
335. Electromation, Inc., 309 N.L.R.B. 990, 994, 996 (1992), enforced, 35 F.3d
1148 (7th Cir. 1994).
336. The NLRB has not decided whether an organization must have a representational function to meet the requirements of a labor organization. See Polaroid Corp., 329 N.L.R.B. 424, 424 (1999).
337. See NLRB v. Cabot Carbon Co., 360 U.S. 203, 211 (1959).
338. Electromation, 309 N.L.R.B. at 997 & n.21.
339. E.I. Du Pont De Nemours & Co., 311 N.L.R.B. 893, 894 (1993). The
Board further states:
If the evidence establishes such a pattern or practice, or that the group
exists for a purpose of following such pattern or practice, the element of
dealing is present. However, if there are only isolated instances in which
the group makes ad hoc proposals to management followed by a management response of acceptance or rejection by word or deed, the element
of dealing is missing.
Id.
340. Polaroid, 329 N.L.R.B. at 425.
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agement.3 4 1 Committees with a “suggestion box” procedure also do not
involve dealing where proposals are made by individual employees rather
than on a group basis. 34 2 Where committees exist solely for the purpose
of planning educational programs, there is no dealing. -4 3 The delegation
of management functions to employee groups also does not involve dealing between management and workers. 344
Organizations of employees that deal with management are not labor
organizations under the Act if the dealings do not concern matters covered under section 2(5). Thus, if the organization does not address “grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work,” there is no violation of the Act.3 45 For example, the
Board has suggested that employee committees established to work with
management on quality or efficiency issues, rather than working conditions, do not violate the Act. 346
If an organization meets the definition of a “labor organization”
under section 2(5), section 8(a)(2) is violated whenever an employer
dominates, interferes with or supports the organization. Domination is
the more serious infringement. If the Board finds that a company has
dominated a labor organization, it will order the employer to cease dealing with or recognizing the organization and completely disestablish it.3 4 7
If the company has only interfered with or supported the organization, the
organization need not be disestablished, but the Board will order the company to cease and desist from the unlawful activity.34 8 While the line separating domination from other unlawful activity is often imprecise, and
reviewing courts often differ from the Board on this issue, the Board has
clearly stated that domination exists where a labor organization has been
created by management, management has determined its structure and
function, and its continued existence depends on management.3 49
According to the Board, the purpose of section 8(a) (2) is to ensure
that labor organizations that deal with management on working condi341. See id.; Du Pont, 311 N.L.R.B. at 894.
342. Polaroid, 329 N.L.R.B. at 425; Du Pont, 311 N.L.R.B. at 894.
343. SeeDu Pont, 311 N.L.R.B. at 895.
344. See Electromation, Inc., 309 N.L.R.B. 990, 995 (1992), enforced, 35 F.3d
1148 (7th Cir. 1994).
345. 29 U.S.C. § 152(5) (2001).
346. See Electromation, 309 N.L.R.B. at 998.
347. See, e.g., Keeler Brass Auto. Group, 317 N.L.R.B. 1110, 1116 (1995); Carpenter Steel Co., 76 N.L.R.B. 670, 673 (1948).
348. See, e.g., M.K. Morse Co., 302 N.L.R.B. 924, 925-26, 932-34, 940 (1991). If
the unlawful support consists of recognition of a union that does not have the
support of a majority of employees, the Board will order the employer to cease
recognizing the union or giving effect to any contract with it unless and until the
union is properly certified by the Board. See, e.g., ILGWU v. NLRB (BernhardAltmann Texas Corp.), 366 U.S. 731, 735, 73940 (1961); Wayne County Neighborhood Legal Servs., Inc., 333 N.L.R.B. 146, 149 (2001); Carpenter Steel 76 N.L.R.B. at
673.
349. See Electromation, 309 N.L.R.B. at 995.
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tions and other section 2(5) matters are independent of management.
The independence of labor organizations is important for several reasons.
First, it protects employees from being deceived by employers who use
management-dominated organizations to give the impression that employee concerns are being addressed bilaterally when, in fact, they are
not.3 50 Second, requiring labor organizations to be independent protects
the rights of employees to select representatives of their own choosing,
free from employer interference and coercion. 3 51 The freedom of employees to choose their own representatives is endangered where management-controlled organizations are presented as suitable alternatives to
collective bargaining because these organizations can never provide the
loyal representatives that the Act envisions. Senator Wagner made this
point when he argued that freedom for workers to “select a form of organization that is not free is a contradiction in terms.”35 2 In the Board’s
words, “[im] uch of the harm implicit in employer-dominated organizations
is that, when they are successful, they appear to employees to be the result
of an exercise of statutory freedoms, when in fact they are coercive by their
very nature.”35 3
The effect of section 8(a) (2) is to funnel all bilateral dealing between
employers and employees over working conditions and other section 2(5)
matters into collective bargaining or some other type of arms-length relationship. When bilateral discussions over wages, hours and other working
conditions occur, employers and employees must be separated into independent camps. Joint labor-management committees and other structures
that do not preserve full employee independence are prohibited.3 5 4 Instead, the parties must sit across the negotiating table from one another,
and employers, in particular, are restrained from joining employees on
their side of the table. The assumption under the Act is that such a strict
separation is necessary because too close a relationship between labor and
management is dangerous. Management will abuse joint committees and
other nonindependent organizations to give employees the illusion that
true bilateral discussions are occurring. Thus, section 8(a) (2) reflects a
profound distrust of the motives and conduct of employers. In addition,
the Act also assumes that employees will not be able to protect themselves
from manipulative employer practices by exercising their rights under the
Act to form independent unions. Presumably this is because employees
350. See id. at 998.
351. See Polaroid Corp., 328 N.L.R.B. 424, 424 (1999).
352. Hearings on H.t. 6288 Before the House Comm. on Labor, 74th Cong., 1st
Sess. 15 (1935), reprinted in 2 LEGisLATIvE HISTORY, supra note 332, at 2489.
353. Electromation, 309 N.L.R.B. at 997 n.27.
354. In unionized workplaces, joint labor-management committees are permissible, but they must be negotiated by the employer and the union. See Robert
B. Moberly, The Worker Participation Conundrum: Does Prohibiting Employer-Assisted Labor Organizations Prevent Labor-Management Cooperation, 69 WASH. L. Rxv. 331, 355-56
(1994) (describing common features of such agreements among major U.S.
companies).
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will believe employers when they falsely present joint committees or employer-controlled employee organizations as vehicles for addressing employee concerns through bilateral discussion and interchange.
Section 8(a)(2) has become increasingly controversial in recent decades, and many scholars are calling for its repeal or modification. These
scholars are concerned that section 8(a)(2) cannot be reconciled with
many of the new programs for employee participation that have become
popular in the contemporary American workplace. These employee participation programs include a range of different types of organizations,
including quality of work life programs, quality control circles, self-directing work teams, job enrichment programs, and other types of programs designed to increase worker participation and involvement in
decision making and operations.3 5 5 Those who support these programs
point to numerous benefits associated with greater worker involvement in
the workplace. Worker involvement can help American companies meet
the challenges of increasing global competition by improving productivity,
efficiency and product quality.3 5 6 Employee involvement programs can
also increase labor-management cooperation, which not only improves the
competitiveness of U.S. companies, 35 7 but also decreases adversarialism
and conflicts between management and workers. 358 Increased employee
involvement will also enhance worker satisfaction and morale 359 and, thus,
the contributions of employees to the company.3 6° In addition, employee
involvement has been defended as a vehicle for affording employees
greater dignity.3 6 1
Supporters of these programs tend to be very critical of section
8(a) (2) because they correctly observe that many employee participation
programs violate the Act. Employee involvement programs are often initiated by employers, and, once formed, employee committees are rarely independent of management. Many committees also address working
conditions and other section 2(5) subjects. Where such programs also in355. For a discussion of the types of worker participation programs commonly
used in American companies, see Kohler, supra note 330, at 505-10.
356. See PAUL C. WEILER, GOVERNING THE WORKPLACE: THE FUTURE OF LABOR
AND EMPLOYMENT LAw 192 (1990); William B. Gould IV, Employee Participation and
Labor Policy: Why the TEAM Act Should Be Defeated and the National Labor Relations Act
Amended, 30 CREIGHTON L. REV. 3, 7 (1996); Kohler, supra note 330, at 499, 504.
357. See WILLIAM B. GOULD IV, AGENDA FOR REFORM: THE FUTURE OF EMPLOYMENT RELATIONSHIPS AND THE LAw 110-11 (1993); Moberly, supra note 354, at 332;
Paul C. Weiler, A Principled Reshaping of Labor Law for the Twenty-first Century, 3 U.
PA.J. LAB. & EMp. L. 177, 198 (2001).
358. See GOULD, supra note 357, at 110; WEILER, supra note 356, at 192;
Michael H. LeRoy, Employee Participation in the New Millennium: Redefining a Labor
Organization Under Section 8(a)(2) of the NLRA, 72 S. CAL. L. REx’. 1651, 1663-64
(1999).
359. See WEILER, supra note 356, at 192.
360. See Kohler, supra note 330, at 504; Moberly, supra note 354, at 331.
361. See Kohler, supra note 330, at 505.
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volve bilateral interchange between employees and management, as they
often do, they run afoul of section 8(a)(2).
Scholars who advocate greater employee involvement and cooperativeness in the workplace have made a wide range of proposals for amending or repealing section 8(a) (2). Some favor a broad scope for
experimentation with employee committees. For example, scholars have
argued that employee groups which deal with management on working
conditions and other matters should be lawful as long as employers do not
represent or otherwise suggest that these programs are functioning as independent bargaining agents of employees. 3 62 Others have argued that
employers should be allowed to form and oversee employee participation
programs as long as they do not attempt to interfere with employee choice
should employees desire to unionize.3 63 A similar proposal is to permit
employee involvement programs except where employers initiate them in
order to defeat a union organizing drive. 364 Other proposals to modify
section 8(a)(2) are much more modest. For example, former NLRB
Chairman William Gould favors relaxing the Board’s standard for domination and allowing employers to initiate employee committees as long as
these committees remain truly independent and are not designed to
thwart unionism.3 65 By contrast, Paul Weiler has made a far-reaching pro362. See Samuel Estreicher, Employee Involvement and the “Company Union ” Prohibition: The Case for Partial Repeal of Section 8(a)(2) of the NLA, 69 N.Y.U. L. Rrv. 125,
127, 150 (1994); see also Weiler, supra note 357, at 200 (“We should roll back section 8(a) (2) so that it bans only company-dominated unions that collectively bargain-not just deal-with the employer.”).
The Teamwork for Employees and Managers Act (the “TEAM Act”), which
was introduced into Congress twice and vetoed by President Clinton, takes this
approach. The first version of the TEAM Act passed by Congress in 1996 would
permit employers to establish employee committees that address any matters of
mutual concern as long as these committees do not “have, claim, or seek authority
to be the exclusive bargaining representative of the employees or to negotiate or
enter into collective bargaining agreements with the employer or to amend existing collective bargaining agreements between the employer and any labor organization.” H.R. 743, 104th Cong. (1995). Clinton vetoed this version of Act, and
it was reintroduced into Congress in 1997. The second version of the Act included
an additional requirement that employees participate “to at least the same extent
practicable as representatives of management participate.” H.R. 743, 105th Cong.
(1997). This second version was never passed.
Michael LeRoy favors a similar rule allowing employers to form committees to
discuss working conditions or other matters of mutual interest as long as these
committees do not purport to be collective bargaining agents and employees participate to the same extent possible as management. See LeRoy, supra note 358, at
1660, 1708-09.
363. See Charles C. Jackson, An Alternative to Unionization and the Wholly Unorganized Shop: A Legal Basis for SanctioningJoint Employer-Employee Committees and Increasing Employee Free Choice, 28 SYRACUSE L. REv. 809, 836, 838-39 (1977).
364. See WEILER, supra note 356, at 214.
365. See Keeler Brass Auto. Group, 317 N.L.R.B. 1110, 1117-19 (1995);
GOULD, supra note 357, at 140-41. Gould also supports the Seventh Circuit’s standard in Chicago Rawhide Manufacturing Co. v. NLRB, 221 F.2d 165 (7th Cir. 1955).
See Keeler, 317 N.L.R.B. at 1117. The Seventh Circuit requires actual, rather than
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posal to repeal section 8(a) (2) and require all employers above a certain
size to have independent employee committees based on the model of
German works councils.3 66
Critics of section 8(a) (2) dispute the assumptions underlying the Act.
Conditions in American industry, they argue, are different today than they
were in the 1930s. 367 We need not distrust all employers. Many American
companies are establishing employee participation programs for legitimate reasons, such as to meet pressing economic challenges in a global
market, to increase worker satisfaction and to reduce conflict, rather than
to manipulate workers.3 68 Nor do workers need the paternalism of the
Act. 369 Workers will be able to detect when an employer has established a
program in bad faith, and disgruntled workers can vote for an independent union if they wish. 3 70 Indeed, the threat that disgruntled workers
will decide to unionize should provide employers with a significant incentive to establish programs that are genuinely responsive to worker input
and concerns, rather than merely tools of management to unilaterally control outcomes. 37 1 Employer-initiated committees that fail to live up to employer promises make unionization more likely. 372
Moreover, scholars observe that the number of workers who have chosen unionization has declined dramatically in recent decades, and, thus,
section 8(a) (2) has the effect of denying workers who do not want to join
an independent union any mechanism for dealing with management on
working conditions.3 73 For some scholars, the underlying purpose of the
Act to protect employee choice requires giving employees the option of
merely potential, control or domination for finding a violation of section 8(a)(2),
and control and domination are considered from the subjective viewpoint of the
employees. Id. at 1117-18 (discussing Chicago Rawhide).
366. See Paul C. Weiler, Governing the Workplace: Employee Representation in the
Eyes of the Law, in EMPLOYEE REPRESENTATION: ALTERNATIVES AND FUTURE DIRECTIONs 81, 97-98 (Bruce Kaufman & Morris Kleiner eds., 1993); see also WEILER,
supra note 356, at 282-95. These committees would have a right to be consulted
regarding material changes in workplace conditions and would administer state
regulatory programs for the workplace. See Weiler, supra, at 98-99.
367. See GOULD, supra note 357, at 136; Estreicher, supra note 362, at 134;
Jackson, supra note 363, at 823; LeRoy, supra note 358, at 1659.
368. See GOULD, supra note 357, at 110; WEILER, supra note 356, at 214; LeRoy,
supra note 358, at 1663-64, 1659; Weiler, supra note 366, at 92.
369. See Estreicher, supra note 362, at 128; Jackson, supra note 363, at 823,
839.
370. See Estreicher, supra note 362, at 149, 154; Jackson, supra note 363, at
839, 844-45; LeRoy, supra note 358, at 1659-60 (drawing on Canadian experience
with company unions).
371. SeeJackson, supra note 363, at 845.
372. See Estreicher, supra note 362, at 154; Jackson, supra note 363, at 845;
LeRoy, supra note 358, at 1659.
373. See Estreicher, supra note 362, at 126, 135. According to former NLRB
Chairman Gould: “Employers ought to be able to promote the creation of and to
subsidize employee groups. In the real world that is what is happening anyway.
With workers unrepresented by unions in 85 percent of the workforce, how else
can such systems flourish?” Gould, supra note 356, at 11.
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choosing management-initiated employee involvement programs over independent unions if they so wish.374
There are, to be sure, many defenders of section 8(a)(2). These
scholars do not believe that the assumptions underlying section 8(a) (2)
are outdated, and they tend to manifest the same distrust of employers
and employer-initiated committees as the drafters of the Act did.3 75 Supporters of section 8(a) (2) also argue that the provision leaves much room
for employee involvement programs.3 76 Programs initiated by management do not violate the Act if they address efficiency, productivity or quality issues or other subjects that are not covered under section 2(5). 3 7 7 Nor
does the Act prohibit managers from soliciting employee ideas through a
suggestion box mechanism or gathering information about employee
wishes through brainstorming groups and other committees that do not
make proposals to management. 37 8
When section 8(a)(2) is considered in light of the Church’s social
teaching, it is clear that the assumptions and restrictions in the Act reflect
and promote a very different vision for labor-management relations than
the Church teaches. When section 8(a) (2) pushes employers and employees apart and restricts them to different sides of the bargaining table, it
severely limits the type of collaboration that can take place with respect to
working conditions and other section 2 (5) subjects. The Church envisions
business enterprises as “communit[ies] of persons,”3 79 “true human fellowship[s]” 380 where participants work together harmoniously in a spirit
of “mutual respect, esteem, and good will.” 38 1 Rather than distrusting employers, the Church expects and demands that both employers and employees try to put themselves in the other’s shoes and solve problems
through reasoned discussion motivated by the desire for reconciliation
and the spirit of charity. Thus, rather than placing employees and employers on the opposite sides of a bargaining table, the Church would envision both parties as sitting together on the same side of the table or at least
frequently switching places in order to better see each other’s point of
view. Moreover, for the Church, unity and togetherness are two of the
374. See Jackson, supra note 363, at 826 (“Consistent with employee free
choice, then, employees should be free, if they wish, to select a weak employees’
committee instead of a strong national union.”).
375. See Michael C. Harper, The Continuing Relevance of Section 8(a)(2) to the
Contemporary Workplace, 96 MICH. L. REv. 2322, 2337-39, 2375-76 (1998); Kohler,
supra note 330, at 549-50; see also Moberly, supra note 354, at 333, 357 (repeal or
amendment of section 8(a)(2) would allow management to establish employee
participation programs as “union-busting mechanisms”).
376. See Harper, supra note 375, at 2334; Moberly, supra note 354, at 344, 352,
357.
377. See Moberly, supra note 354, at 352, 357.
378. See id. at 353.
379. CENTESIMuS ANNUS, supra note 148, at 52.
380. MATER ET MAGIsTRA, supra note 165, at 99.
381. Id.
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fundamental principles that should ground all human relations. To force
parties apart, place them on opposing sides and prevent them from working too closely together is to foster division, not unity.
For the Church, employee participation and partnership in the operation and management of productive enterprises are also requirements of
human dignity. To deny workers who do not choose an independent
union a chance to participate in decisions over working conditions and
other section 2(5) matters restricts their exercise of responsibility in the
workplace and, thus, strips them of their dignity as “true sharer[s] in the
work [they] do[ ] with others.”3: 82 Brainstorming groups or suggestion
box procedures do offer avenues of communication between employer
and employees, but they do not offer the possibility of direct involvement
in the formation of decisions or the opportunity to participate in a true
give-and-take with management.
Consistent with the principies expressed in Papal encyclicals and the
social teachings of Vatican II, the U.S. Bishops have strongly supported
greater cooperation and partnership between workers and management
in the American workplace, including greater opportunities for employee
participation in determining working conditions. 383 While the Bishops
have cautioned that both labor and management must have “real freedom
and power to influence decisions” and that partnership must be a “two-way
street, with creative initiative and a willingness to cooperate on all
sides,” 384 the Bishops do not believe that this requires strict separation of
labor and management. Rather, the Bishops have called for continued
research and experimentation along the lines of the employee participation programs discussed above. 38 5 According to the Bishops, labor unions
can, and should, play an important role in helping to ensure that partnerships between management and labor are genuine and fair to employees, 386 but unions themselves should also “seek new ways of doing
business.” 38 7 Rather than seeking only the narrow economic interests of
their members, unions must operate more cooperatively and with a view to
the larger common good: “The purpose of unions is not simply to defend
the existing wages and prerogatives of the fraction of workers who belong
to them, but also to enable workers to make positive and creative contributions to the firm, the community, and the larger society in an organized
and cooperative way.”388
Thus, Church teachings echo and reach beyond the familiar calls of
scholars to increase employee involvement and labor-management cooperation. For the Church, greater worker involvement and increased coop382. POPULORUM PROGRESSIO, supra note 168, at 246.
383. See ECONOMIC JUSTICE FOR ALL, supra note 20, at 114.
384. Id. at 115.
385. See id. at 114-15.
386. See id. at 115.
387. Id. at 116.
388. Id.
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eration are not just a means to achieve greater productivity, nor even just a
means for enhancing worker morale and satisfaction. Rather, they are requirements of human dignity and fulfillment and essential conditions for
the social renewal that the Church envisions. AsJohn Paul II wrote on the
hundredth anniversary of Rerum Novarum, “[a] society is alienated if its
forms of social organization, production and consumption make it more
difficult [for persons] to offer th [e] gift of self and to establish … solidarity between people.” 389 When section 8(a) (2) pushes employers and employees apart, places them on opposite sides of a bargaining table and
expects each to seek its own good rather than the interests of others, it is
the very type of alienating influence that the Church condemns.
The application of section 8(a) (2) to Church institutions would be
especially destructive to the Church’s ability to live and model its vision for
social relations. By channeling relations between Church employers and
employees into arms-length dealings, section 8(a)(2) will severely limit
their ability to work closely together in joint labor-management groups
and other settings that assume and foster mutual respect and concern.
Instead, Church institutions will be forced to pattern their relations with
their workers on secular standards that reflect distrust of human motivations and disbelief in genuinely caring employment relationships. Instead
of engaging one another as close friends, and even brothers and sisters,
Catholic employers and employees will have to keep their distance and
face each other as potential enemies.
In his influential article on the intellectual origins of the NLRA, Mark
Barenberg has argued that Senator Wagner and the other leading proponents of section 8(a) (2) did not intend the prohibition against company
unions to produce an adversarial relationship between workers and management.390 By equalizing bargaining power between employers and employees and ensuring that workers speak through independent
organizations, the Act was designed to foster genuine cooperation and
mutual trust.3 9 1 In Wagner’s view, such trust and cooperation will only be
possible for parties who have equal power to defend their own interests. 39 2
History has proven Wagner’s predictions to be wrong. Barenberg notes
that by the 1960s, and even much before, an adversarial mode of unionism
389. CENTESiMus ANNUS, supra note 148, at 61.
390. See Barenberg, supra note 330, at 1388, 1390.
391. While some scholars share Barenberg’s view that the system of collective
bargaining under the NLRA was designed to be cooperative rather than adversarial, see, e.g., Moberly, supra note 354, at 333, many others continue to hold the
traditional view that the NLRA’s model for labor-management relations is, indeed,
adversarial. SeeKeeler Brass Auto. Group, 317 N.L.R.B. 1110, 1117 (1995) (Gould,
Chairman, concurring); WEILER, supra note 356, at 192-93; William B. Gould IV,
Reflections on Workers’Participation, Influence and Powersharing: The Future of Industrial
Relations, 58 U. CIN. L. REv. 381, 383 (1989); Kohler, supra note 330, at 515.
392. See Barenberg, supra note 330, at 1427-28, 1441, 1462, 1467, 1471, 1482-
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had become the norm in American industry.3 93 Rather than a basis for
mutual trust and cooperation, the equalization of bargaining power under
the NLRA and the prohibition against company unions served to support
the “‘area of labor combat”‘ 394 that the Supreme Court has recognized as
part and parcel of the system established by the NLRA.
For the Church, the failure of Wagner’s vision is not surprising. Decades before the passage of the Act, the Church had taught that the only
sure foundation for peace is mutual trust and a desire for reconciliation,
and the only sure foundation for justice is love. To prevent the Church
from living these principles in its internal life would be a significant infringement on her religious freedom. There is, perhaps, little that is more
destructive to the Church’s vision than sowing the seeds of distrust and
division where she seeks to build love and unity.
C. Additional Problems with Mandatory Collective Bargaining
The foregoing discussion demonstrates that the First Amendment
problems with applying state and federal labor laws to religious organizations go deeper than courts and scholars recognize. I began the third
section of this Article with a question. Why would Catholic employers resist collective bargaining under state and federal labor laws when the
Church has long supported the rights of workers to unionize? Part of the
answer to this question is that the Church’s vision for collective bargaining
is shaped by religious principles and values that are very different than the
assumptions and principles underlying secular labor statutes. For the
Church, collective bargaining is a concept suffused with religious content
and meaning, and the Church seeks a cooperative relationship based on
love, togetherness and reconciliation. By contrast, the NLRA and state
labor statutes that resemble the NLRA395 are premised upon much more
393. See id. at 1492-93.
394. Lodge 76, Int’l Ass’n of Machinists and Aerospace Workers v. Wis. Employment Relations Comm’n, 427 U.S. 132, 146 (1976) (citing Garner v. Teamsters
Union, 346 U.S. 485, 500 (1953)).
395. The first state labor statutes were modeled after the NLRA as originally
adopted in 1935. See CHARLES C. KILLINGSWORTH, STATE LABOR RELATIONS ACTS: A
STUDY OF PUBLIC POLICY 1-2 (1948). The original version of the NLRA is commonly referred to as the Wagner Act, and these first state statutes are known as
“little” or “baby” Wagner Acts. See SANFORD COHEN, STATE LABOR LEGISLATION
1937-47: A STUDY OF STATE LAws AFFECTING THE CONDUCT AND ORGANIZATION OF
LABOR UNIONS 4 (1948). Later state statutes anticipated the amendments to the
Wagner Act in the Taft-Hartley Act of 1947 and helped to shape these changes. See
KILLINGSWORTH, supra, at 2-5. For the mutual influence of state and federal labor
statutes upon one another, see KILLINGSWORTH, supra. The New York State Labor
Relations Act, which was at issue in Culvert and Christ the King, is a “baby” Wagner
Act. See KILLINGSWORTH, supra, at 2; see also Catholic High Sch. Ass’n of the Archdi- ocese of N.Y. v. Culvert, 753 F.2d 1161, 1165 n.3 (2d Cir. 1985) (noting that the
New York statute is “patterned after the NLRA”). In Hill-Murray Federation of Teach- ers v. Hill-Murray High School, 487 N.W.2d 857 (Minn. 1992), the Minnesota Supreme Court also noted the similarity of the Minnesota Labor Relations Act to the
NLRA. See id. at 861.
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pessimistic assumptions about human nature and a much more adversarial
vision for labor-management relations. The consequences of applying secular labor statutes to Church employers would, therefore, be to place a
maximum burden on the Church. It would prevent the Church from
structuring its own internal human relationships according to its religious
vision for human fulfillment and social life.
Moreover, the discussion above also demonstrates that for Catholic
institutions, it is simply not possible to neatly separate religious matters
from the secular aspects of the employment relationship. The Church’s
vision for labor-management relations extends to every aspect of the employer-employee relationship. While there are matters such as hours and
wages that seem strictly secular, interactions between employers and employees regarding these and other issues are not. Lower courts that have
argued that it is possible to avoid entanglement and interference with religious matters by restricting the scope of collective bargaining and the
remedial powers of the state are wrong. The entire process of collective
bargaining has a religious dimension for the Church, and, thus, there is
nothing that does not implicate religious beliefs and doctrine.
It is also not possible to distinguish Catholic organizations whose purpose is to propagate religious faith from those that perform essentially
secular social services functions as federal circuit courts have tried to do.
For the Church, reaching out to others in self-giving is just as much a
religious act as teaching Church doctrine, and, indeed, it is quintessentially religious activity. Responding to God’s love with caring and service
for others is at the heart of the Christian message about human fulfillment
and human freedom: “According to the Christian message,. . . man’s relationship to his neighbor is bound up with his relationship to God; his response to the love of God, saving us through Christ, is shown to be
effective in his love and service of men.”396 Moreover, social services programs run by Church organizations should function, like other aspects of
the Church community, as models of unity and love among people. Thus,
while they may appear to be operating just like secular social services agencies, the charitable activities of the Church are motivated by a radical spirit
of love and mutual concern and their function, as well as their purpose, is
in all respects a religious one. Furthermore, there is no authority in the
Church’s teaching for applying a different set of principles for labor relations to social services programs than other types of Church institutions.
The Church clearly envisions all of its programs to be an integral part of
its mission, and similar religious principles for social relations should govern all Church organizations. Indeed, the Church views its principles for
social life as a leaven that should not only guide internal Church structures but also the social renewal of the entire world.
In reply, some readers may argue that all I have done is to make the
case that Catholic employers should be exempted from coverage under
396. JUSTICE IN THE WORLD, supra note 168, at 293.
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state and federal labor laws, not that all religious organizations should.
For some religious organizations it may be possible to separate religious
and secular aspects of the employment relationship, and unionization
under secular statutes will not necessarily conflict with the religious principles and values of every denomination. However, an examination of the
relationship between Church doctrine and the claims made by Catholic
employers in litigation will demonstrate that infringements on First
Amendment freedoms are threatened even where religious organizations
do not appear to have a religious vision of collective bargaining that conflicts with the model in secular statutes.
A quick look back at the cases discussed in Part II will remind the
reader that none of the Catholic employers in those cases made the type
of arguments against mandatory collective bargaining that I have outlined
above. To the contrary, the Culvert and St. Teresa decisions suggest that
Catholic organizations are an exemplary case of religious groups that can
separate religious from secular matters and bargain under state law without interference with religious principles. For example, in Culvert, Catholic school employers in the New York Archdiocese had voluntarily
bargained with lay teachers under the New York State Labor Relations Act
for a decade before objecting to jurisdiction on First Amendment
grounds. 39 7 When litigating their First Amendment claim, they never
claimed that collective bargaining under the state law had conflicted with
the Church’s vision for labor relations. 3 9 8 In St. Teresa, the Diocese of
Camden also voluntarily bargained with its high school teachers. 399 In
both cases, the agreements that resulted from negotiations were expressly
limited to secular issues and schools retained authority over religious matters.400 Thus, these Catholic employers believed that it was possible to
separate the religious from the secular aspects of the employment
relationship.
However, when one goes beyond these two cases, one discovers that
Catholic attitudes toward collective bargaining under secular labor statutes
are not uniform, nor are they static. Catholic school employers have often
voiced objections to collective bargaining on the grounds that it is too
adversarial even if they have generally not raised these arguments in the
courts. 40 1 Indeed, it should not be surprising that arguments focusing on
the inconsistency between the Catholic vision for collective bargaining and
secular models are not raised in litigation. After the Supreme Court’s de397. See Culvert, 753 F.2d at 1163.
398. See id. at 1163-64.
399. See S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the InfantJesus
Church Elementary Sch., 696 A.2d 709, 716 (N.J. 1997).
400. See id. at 716-17; Culvert, 753 F.2d at 1163.
401. In a March 1987 statement, the National Association of Catholic School
Teachers recognized that school officials often object to collective bargaining because of “what they claim is the adversary approach taken by teacher organizations.” Nat’l Ass’n of Catholic Sch. Teachers, supra note 70, at 52.
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cision in Catholic Bishop, most religious employers who object to mandatory
collective bargaining under state laws will naturally focus on the same type
of entanglement and autonomy arguments that the Court raised there.
These were winning arguments before the Supreme Court, and litigants
understandably will rely on them. The fact that Catholic employers have
not drawn upon the Church’s tradition regarding labor relations and the
differences between Catholic and secular visions for collective bargaining
may indicate nothing more than a strategic decision by their litigators.
However, there is another explanation for why arguments emphasizing the inconsistency between Catholic and secular views of labor-management relations do not appear in court. In many cases, Catholic employers
may simply not have given the relationship between Catholic and secular
views of collective bargaining the extended thought and treatment that I
have here. There are, to be sure, Catholics and Catholic employers who
genuinely believe that collective bargaining under state and federal laws is
compatible with the Church’s vision for labor-management relations. 40 2
However, many others have not fully developed or articulated a position
on the issue.
Nevertheless, while many Catholic employers may not have given extended consideration to the relationship between the Catholic understanding of collective bargaining and the model in state and federal
statutes, Catholic employers have repeatedly bumped up against the differences between them even when they have not grasped the full significance
of their experiences. For example, in several cases decided by the NLRB
prior to the Supreme Court’s decision in Catholic Bishop, Catholic school
employers reacted very negatively to union drives that took a divisive or
confrontational form. In Diocese of Fort Wayne-South Bend, the Board linked
the diocese’s hostility to unionization to the concern that union activities
were a “divisive force” in the schools,40 3 and the diocese discharged several teachers for conduct that undermined “peace and harmony and cooperation.”40 4 In St. Joseph’s High School, a Catholic high school dismissed a
teacher for “undermin[ing]” the school by mailing a negative report about
the school’s labor relations to the accrediting body that was evaluating the
school. 40 5 In this case, as well, the school was reacting against a power
play that it probably viewed as inconsistent with a spirit of cooperation and
the common good. In both cases, the Board asserted jurisdiction and
found that the employers had unlawfully discharged the teachers. 40 6
402. For Catholic scholarship taking this position, see Gregory, supra note 21,
at 67; David L. Gregory & Charles J. Russo, Overcoming NLRB v. Yeshiva University
by the Implementation of Catholic Labor Theory, 41 LAB. L.J. 55, 63 (1990).
403. Diocese of Fort Wayne-South Bend, Inc., 230 N.L.R.B. 267, 272 (1977)
(affirming rulings, findings and conclusions of administrative law judge).
404. Id. at 272-73.
405. St. Joseph’s High Sch., 236 N.L.R.B. 1623, 1624 (1978) (affirming rulings, findings and conclusions of administrative law judge).
406. See St. Joseph’s, 236 N.L.R.B. at 1625; Fort Wayne, 230 N.L.R.B. at 273.
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In Andrew G. Grutka, Bishop of the Roman Catholic Diocese of Gary, Indiana,4° 7 the differences between the Church’s approach to labor relations
and the model underlying the NLRA are demonstrated even more vividly.
The dispute in Grutka arose when teachers at one of the high schools in
the Diocese of Gary sought to organize a local chapter of the American
Federation of Teachers (AFT).4 8 The Diocese of Gary did not refuse to
bargain collectively with its employees but insisted that the employees
choose a representative that was not affiliated with AFT. 40 9 According to
the diocese, it could not bargain with AFT because AFT’s policy of opposing state aid to nonpublic schools made it a declared enemy of the Catholic Church.4 10 Despite the diocese’s resistance, the teachers requested
recognition and bargaining as an affiliate of AFT .
4 11 The diocese refused,
and Robert Madsen, the leading organizer of the union drive, sent a letter
to a local newspaper describing Bishop Grutka’s past support for labor
unions as a “masquerade” and “sham.”4 12 The newspaper printed the letter, and Madsen was discharged for making personal attacks on the spiritual leader of the diocese. 41 3
After Madsen’s discharge, Bishop Grutka and other diocesan officials
continued to meet with Madsen and other representatives of the union to
discuss their differences. 41 4 During the course of one of these meetings,
diocesan officials read a prayer and Bible passage calling for a spirit of
humility and reconciliation based upon self-giving rather than conflict and
confrontation. 4 15 During the same meeting, the diocese offered office
space and other assistance to the union if the teachers would disaffiliate
with AFT. 4 1 6 The diocese also indicated that it would reinstate Madsen if
a decision in favor of disaffiliation were made. 4 17
Union organizers did not reply to the diocese’s request for disaffiliation immediately, and after several months had passed, a member of the
Diocesan School Commission telephoned one of the union officers to determine if a decision had been reached on disaffiliation. 4 18 When the
union officer replied that the union was still considering the matter, the
diocesan representative declared: “Well, you know, the Bishop is going to
take this thing to the Supreme Court. Good grief.., there are jobs on the
407. Andrew G. Grutka, Bishop of the Roman Catholic Diocese of Gary, Indiana, 238 N.L.R.B. 1643 (1978) (affirming rulings, findings, recommendations and
conclusions of administrative law judge).
408. See id. at 1646-47.
409. See id. at 1647.
410. See id.
411. See id.
412. Id. at 1648.
413. See id. at 1648, 1652.
414. See id. at 1648.
415. See id.
416. See id. at 1649.
417. See id.
418. See id.
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line here. ”4 19 When asked about the meaning of ‘jobs on the line,” the
diocesan representative replied: “[Y]ou know what I mean, you know what
the Bishop is like. This is going to end up in the Supreme Court. Do you
want that? Why are you doing that? Why are you doing this to our school
system?
420
For the Board, the diocese’s conduct in this case was a series of flagrant unfair labor practices. The diocese had interfered with the teachers’
right to select the representative of their own choosing in numerous ways.
The diocese violated section 8(a) (1) when it made promises of benefits to
union organizers if they disaffiliated with AFT. 421 These promises included office space and other assistance as well as the suggestion that Madsen would be reinstated if a decision in favor of disaffiliation was made. 422
The diocese also violated section 8(a) (1) by engaging in coercive interrogation, 4 23 and by threatening teachers with job terminations and other
economic harm if they did not disaffiliate with AFT. 4 2 4 In addition, the
Board found that the diocese had violated section 8(a) (3) when it terminated Madsen. According to the Board, the diocese’s claim that Madsen’s
termination was the result of his insulting remarks about the Bishop, not
antiunion reasons, was pretextual.425 While the Board did not discuss the
issue, the diocese’s offer to provide office space and other assistance to the
union might also have violated section 8(a)(2) if the employees had
accepted. 426
Bishop Grutka and other diocesan officials were probably quite surprised to learn that their conduct during this case amounted to a series of
unlawful practices in violation of the Act. When viewed from the perspective of the Church’s teaching on labor and other social issues, the diocese’s conduct was not only understandable but also clearly suffused with
moral and religious content. When the diocese insisted that the union
419. Id. at 1650.
420. Id.
421. See id. at 1650-51.
422. See id.
423. See id. at 1651.
424. See id.
425. See id. at 1651-52.
426. When an employer provides a union with office space or other use of
company time or property, this assistance does not usually violate section 8(a) (2).
See BASF Wyandotte Corp., 274 N.L.R.B. 978, 980 (1985), enforced, 798 F.2d 849
(5th Cir. 1986). Indeed, the Board has stated that where the union is the lawfully
recognized collective bargaining agent of the company’s employees, “the use of
company time and property, in the absence of deeper employer involvement or
intrusion in union affairs” is regarded as “merely ‘friendly cooperation growing
out of an amicable labor-management relationship.”‘ Id. (quoting Duquesne
Univ. of the Holy Ghost, 198 N.L.R.B. 891, 891 (1972)). In Grutka, however, the
union had not been lawfully established as the collective bargaining agent of the
teachers, and the diocese offered office space and other assistance precisely in
order to interfere with union affairs. 238 N.L.R.B. at 1651. The offer of office
space was expressly intended to induce the union to disaffiliate with AFT. See id.
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disaffiliate from an organization that it perceived to be a declared enemy
of the Catholic Church, it was insisting that the teachers consider the
larger interests of the Catholic community when selecting their agent.
Furthermore, when the diocese terminated Madsen for publicly accusing
Bishop Grutka of deception, it was responding reasonably to conduct that
was, from a Catholic perspective, extremely disrespectful and the antithesis of love. To offer to reinstate Madsen if the union disaffiliated with AFT
was essentially a gesture of reconciliation as was the offer of office space
and other assistance. The exasperated exclamation by the representative
of the Diocesan School Commission, “Why are you doing this to our
school system?” was as much a plea for mutual understanding as it was
coercive interrogation. When diocesan officials called in prayer for an attitude of humility, self-giving and reconciliation, rather than confrontation, they were expressing the essence of Catholic social thought.
The effect of the Board’s assertion ofjurisdiction in Grutka was clearly
to place a model of labor-model relations on religious schools that undermined the Church’s vision for social life. The Board’s decision turned the
religious conduct of diocesan officials into a series of unfair labor practices. What for the Church was a reflection of Catholic principles of cooperation, mutual understanding and reconciliation was, for the Board, a
violation of the Act.
The lessons from Grutka go beyond merely demonstrating the deep
inconsistency between the Catholic vision for labor relations and the
model of secular statutes. What is most significant about this case is that
this inconsistency only became apparent to the diocese as its dispute with
the union organizers gradually unfolded over time. The diocese seems to
have begun with little understanding of the nature of collective bargaining
under federal law as it blithely walked into numerous legal land mines
under the Act. However, when the conflict was over, the diocese had
learned well that actions that it had taken for essentially religious reasons
were a violation of the provisions, and principles, of the NLRA.
The danger of applying secular labor laws to religious institutions is
that similar dramas might unfold in other religious contexts. Religious
employers who initially believe that collective bargaining under state or
federal law is consistent with their religious principles may over time discover that there are more conflicts than they initially thought. A religious
employer may want to reach out with a promise or grant of benefit as a
gesture of reconciliation and find that it has committed an unfair labor
practice. Religious employers may want to sit down at the same side of the
negotiating table with their employees as part of a single labor-management committee and find that the have violated section 8(a) (2). A religious employer may punish an employee for divisiveness or combative
conduct inconsistent with religious doctrine and find that the employee’s
actions were protected conduct under the Act.
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As these discoveries are made, the religious organization may eventually decide that it cannot continue to bargain under secular laws and remain faithful to its religious mission. When it reaches that point, the
organization’s past bargaining history with its employees will probably
make it difficult for the group to successfully make its case before the labor board or reviewing court. There will certainly be controversy between
employer and employees, and the employer’s past assent to unionization
may be turned against it. In the litigation that ensues, there is considerable danger that reviewing boards and courts will second-guess the reasons
for the employer’s change of position and, in so doing, entangle themselves in religious questions and interfere with the development of religious principles and doctrine.
Thus, one of the dangers with asserting jurisdiction over religious organizations that do not perceive any incompatibility between their religious principles and bargaining under secular labor laws is that these
principles, or the group’s understanding of them, may change over time.
For example, Catholic employers who do not currently see any significant
differences between collective bargaining under state and federal laws and
the Church’s vision for labor relations may change their mind in light of
new experiences. Those who may have intuitively grasped that there are
fundamental differences may, in turn, further develop these intuitions
into new positions that can become the basis for a First Amendment claim
in the future. Where such changes occur, religious and secular matters
that seemed separable in the past will no longer be, and secular statutes
that seemed compatible with Church principles will now burden the
Church’s religious mission. Which religious organizations are likely to undergo similar changes is impossible to predict, nor can one predict which
denominations these groups are likely to be affiliated with. However, one
thing is certain: where religious organizations are currently bargaining
under state or federal law, it will be difficult to change the status quo. The
fact that labor boards have asserted jurisdiction and a bargaining relationship is already in place will hinder the ability of these organizations to
tailor future acts according to new views. For an organization like the
Catholic Church, the Church’s rich tradition on social issues will almost
certainly inspire a continual process of development and discovery as circumstances change and different individuals and groups interact with
these circumstances in new ways. It is important that the First Amendment protects the freedom of this process and similar developments in
other religious traditions to continue unrestricted by state interference.
Even if it were possible to identify a subset of religious organizations
whose religious principles will never conflict with the model of collective
bargaining in state and federal law, the application of these laws will interfere with and retard the change and development of religious principles
in other ways. As discussed above, lower courts believe that they can address any potential infringements on First Amendment liberties by restricting the scope of collective bargaining to secular subjects and prohibiting
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reviewing boards and courts from addressing religious questions. While
such adjustments to labor statutes may provide strong protection for current religious doctrines and practices, they cannot adequately account for
new developments.
For example, by restricting the scope of mandatory bargaining to secular issues and deferring to religious organizations on what subjects have a
religious dimension, labor boards and courts may well be able to ensure
that the bargaining process steers clear of matters that the group identifies
as religious when the process begins. However, over time a religious organization may change its views about what subjects have a religious significance, and matters that appeared purely secular in the past may take on a
religious dimension and vice versa. While, in theory, labor boards and
courts should defer to the religious group when such developments occur,
in practice the outcome will be much more difficult to predict. As soon as
the employer refuses to bargain about a matter that had previously been
subject to negotiation, employees can be expected to complain and litigation may well result. If litigation does result, employees will claim that the
employer has acted in bad faith, and courts will be called upon to determine whether the group’s views have genuinely changed or whether their
new position is an excuse for trying to escape the burdens of collective
bargaining. The fact that the group has bargained on the issue in the past
will support the position of employees that the group is trying to avoid
mandatory negotiations rather than acting from truly religious concerns.
Unless the reviewing board or court simply defers to the religious organization whenever it claims that a subject has acquired religious significance,
the reviewer will become embroiled in religious questions.
For instance, the religious organization will surely present evidence
that its views have, in fact, changed, and much of the evidence will have a
religious character. The group may present evidence of new pronouncements by religious officials, meetings or other activities related to the issue, or religious writings supporting the new interpretation that it
advances. The union may, in turn, counter with evidence of a similar type
supporting the opposite conclusion. The result will be that labor boards
and courts will find it difficult to avoid second-guessing religious organizations about their beliefs, and if they do, there is a significant danger that
the organization’s control over religious matters will be undermined and
the free growth and development of religious principles inhibited.
Similar dangers may arise where a religious organization is charged
with discharging or otherwise discriminating against an employee in violation of section 8(a) (3) and the organization raises a religious defense. In
Part II, I suggested that First Amendment problems can be avoided if reviewing boards and courts accept the existence and validity of the organization’s religious justifications and focus instead on whether these
justifications were, in fact, the cause for the employer’s action. 427 If re427. See supra pp. 93-97.
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viewers focus solely on the question of causation and restrict their inquiry
to secular factors, there should be no entanglement or free exercise
problems. Secular factors that are commonly considered in section
8(a)(3) cases include the disparate treatment of employees involved in
union activity, the timing of the discharge if it corresponds with union
activity, the failure of the employer to give any warning before taking disciplinary action or to investigate the incident, the failure to give a reason for
the discipline at the time it occurred and shifting or inconsistent justifications for the action. All of these factors tend to break the causal connection between the employer’s religious defense and its conduct without
embroiling reviewers in questions of religious doctrine.
The problem with this approach, however, is that it may give false
readings of unlawful conduct where religious beliefs and views are undergoing a process of change. For example, take a case where an employer
raises a religious defense to a discriminatory discharge claim, and the reviewing court finds that the religious justifications given by the employer
were not the cause of the discharge because the employer had never disciplined other workers in similar circumstances. Such disparate treatment
may, in fact, indicate that antiunion animus was the real cause for the
employer’s actions, but it may also reflect the fact that the group is developing new interpretations of its religious doctrines and principles. Actions that would not have violated church doctrine in the past are now
viewed as inconsistent with the group’s religious beliefs. Similarly, a religious organization may delay giving an explanation for its action because its
views regarding the employee’s behavior have not yet been clearly formulated. The organization may intuitively know that the employee’s actions
offend religious beliefs, but it may not be able to immediately identify the
principles or rationale that best explains its intuitive reaction. A more precise understanding and explication of what the employee has done wrong
may take time to fully develop and articulate. Where an employer gives
shifting or inconsistent justifications for its action, these too may reflect
the development or formulation of views rather than bad faith or antiunion animus. Thus, while adjustments to the powers of reviewing boards
and courts in section 8(a) (3) cases may hold promise for addressing First
Amendment problems if religion were a static phenomenon, these adjustments do not provide sufficient protection against government interference with religion when religious beliefs are changing.
IV. THE IMPORTANCE OF PROTECTING RELIGIOUS ORGANIZATIONS
FROM GOVERNMENT INTERFERENCE
In the foregoing section, I have answered the question that I concluded with in Part II. If neither entanglement nor interference with religious matters is threatened by the application of state and federal labor
laws to religious organizations, why should these groups receive a special
exemption from these statutes? By examining the Catholic Church’s
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teaching on labor and other social issues and the relationship between this
teaching and the claims of Catholic employers, I have demonstrated that
the First Amendment problems with mandatory collective bargaining are
more far-ranging and complex than courts and scholars realize, and there
is much more at stake than is commonly recognized. For religious groups
like the Catholic Church, it is impossible to separate the secular from the
religious aspects of the employment relationship, and the application of
secular collective bargaining regimes to Church institutions will severely
restrict the Church’s ability to structure its labor-management relations
according to its own religious vision for social life. While there may be
some groups for whom such a separation is possible and for whom religious principles are not inconsistent with the secular models for collective
bargaining, all religious groups undergo change, and over time these
groups may develop new positions that are incompatible with secular laws.
If such change occurs and bargaining has been underway for several years,
it will be difficult for the group to successfully make the case for an exemption. Furthermore, the adjustments to collective bargaining regimes that
have been advanced by lower courts do not eliminate all of the First
Amendment problems with mandatory collective bargaining because they
do not adequately account for the process of change and development in
religious beliefs.
In this section, I will demonstrate why protecting religious organizations from interference by the state is so important. Throughout this Article, I have assumed that the state should not interfere with the autonomy
of religious groups over religious matters. Religious employers should be
free to follow their own visions for labor-management relations when
these visions conflict with secular labor statutes, and collective bargaining
regimes must not interfere with religious doctrine and practice. These
assumptions are consistent with Supreme Court precedent. As discussed
in Part II, the Court in Catholic Bishop found that government entanglement with religious doctrine and practice raises serious constitutional
questions as does state interference with the autonomy of religious groups
over internal affairs. 428 In case law addressing intra-faith disputes over
property and ecclesiastical governance, the Court has firmly held that reviewing courts may not become entangled with ecclesiastical questions.42 9
In addition, the state may not infringe upon the right of individuals to
form religious organizations and establish internal structures for resolving
questions of church governance, leadership, discipline, faith and doc428. See supra text accompanying notes 32-40.
429. See Serbian E. Orthodox Diocese for the United States and Canada v.
Milivojevich, 426 U.S. 696, 708-10 (1976); see alsoJones v. Wolf, 443 U.S. 595, 602-
03 (1979); Presbyterian Church in the United States v. Mary Elizabeth Blue Hull
Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).
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trine. 430 Courts must respect the freedom of religious groups to “decide
for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’
”
4 3 1 While the Court’s intrafaith dispute decisions have never directly addressed whether the autonomy of religious groups over internal affairs extends to secular as well as
religious matters, 43 2 these decisions strongly support organizational autonomy over matters involving religious doctrine and practice. 43 3
A number of leading scholars of the religion clauses share this position. In their view, government interference with religious organizations,
as with religious beliefs and practices more generally, must be kept to a
430. See Milivojevich, 426 U.S. at 724-25; Kedroff v. St. Nicholas Cathedral of
the Russian Orthodox Church in N. Am., 344 U.S. 94, 114-16 (1952); see also Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1872).
431. Kedroff 344 U.S. at 116.
432. See supra text accompanying note 147.
433. The Supreme Court’s most recent decision addressing an intra-faith dispute,Jones v. Wolf did not diminish these protections for religious groups. Prior to
Wolf where an intra-faith dispute involved a hierarchical religious polity, the Court
deferred to the decision of the highest church tribunal. See Milivojevich, 426 U.S. at
724-25; Kedroff 344 U.S. at 114-16; Watson, 80 U.S. at 727, 728-29. Such deference
continues to be necessary where the dispute turns on a religious question. See Wolf,
443 U.S. at 604; Milivojevich, 426 U.S. at 709. However, in Wolf, the Court also
permitted courts to use “neutral principles of law” to resolve controversies according to secular principles of trust and property law. 443 U.S. at 602-03. The neutral
principles approach has been criticized as inconsistent with the Court’s traditional
deference to the highest religious authority in hierarchical polities as well as the
free exercise rights of groups to establish their own procedures and tribunals for
resolving internal disputes. See id. at 610-11, 613-14, 616-18 (Powell,J., dissenting).
The Court has disagreed. According to the Court, free exercise rights are protected under the neutral principles approach because religious groups remain free
to provide for any outcomes they wish by embodying their preferences in a “legally
cognizable form.” Id. at 603-04, 605-06.
The Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S.
872 (1990), also did not curtail the protections that the First Amendment affords
religious organizations. In Smith, the Court held that the Free Exercise Clause
does not relieve individual believers from the obligation to comply with neutral
laws of general applicability. Id. at 878-79. The Court did not discuss claims made
by religious groups for protection from state interference in internal affairs. In
recent cases, federal circuit courts have held that the protections for religious organizations articulated in the Court’s intra-faith dispute cases survive Smith. See Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1302-04 (11 th Cir.
2000); EEOC v. Roman Catholic Archdiocese of Raleigh, 213 F.3d 795, 800 n.*
(4th Cir. 2000); Combs v. Cent. Tex. Annual Conference of the United Methodist
Church, 173 F.3d 343, 347-50 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83
F.3d 455, 461-63 (D.C. Cir. 1996).
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minimum.4 34 Religion and religious organizations should be “let
alone.”43 5
However, increasingly scholars are challenging the assumption that
religious organizations should be free from state interference. There have
always been scholars who have expressed concern that exempting religious organizations from burdensome state regulations hinders the ability
of the state to achieve the public policies underlying these regulations. 436
Scholars have also voiced concerns about potential abuses associated with
unregulated religious groups. 437 In recent years, these concerns have
been amplified by scholars who view religious organizations and other voluntary associations as important mechanisms for teaching civic virtue and
other norms and practices necessary for democratic self-government. Religious organizations are among the “mediating structures” 43 8 or institutions of “civil society”4 3 9 that stand between the individual and the state,
and as such, they play a critical role in fostering public virtue and civic
engagement. Because of this important role in supporting democratic
government, the state has a strong interest in molding civil society institutions according to public values. 440
434. See, e.g., Carl H. Esbeck, A Constitutional Case for Governmental Cooperation
with Faith-based Social Service Providers, 46 EMORY L.J. 1, 26 (1997); Esbeck, supra
note 129, at 316; Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality
Toward Religion, 39 DEPAUL L. REv. 993, 1001-02 (1990); Douglas Laycock, The
Unity of Separation and Neutrality, 46 EMORY L.J. 43, 69 (1997); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REv. 115, 169 (1992) [hereinafter McConnell, Religious Freedom at a Crossroads]; Michael W. McConnell, The
Problem of Singling Out Religion, 50 DEPAUL L. REv. 1, 3, 11-12, 38 (2000) [hereinafter McConnell, Singling Out Religion].
435. See, e.g., Esbeck, supra note 128, at 83 (arguing that when ecclesiastical
endeavors are at issue, government should “leave[ ] the church where the government found it”); Laycock, supra note 119, at 1376 (stating that religious organizations have a right “to be left alone”); McConnell, Singling Out Religion, supra note
434, at 11 (arguing that unifying principle of religion clauses is “let it [religion]
alone”).
436. See, e.g., Ira C. Lupu, Free Exercise Exemption and Religious Institutions: The
Case of Employment Discrimination, 67 B.U. L. REv. 391, 403 (1987); Marshall &
Blomgren, supra note 127, at 321.
437. See Lupu, supra note 436, at 403; Marshall & Blomgren, supra note 127, at
316-20.
438. This term has become popularized by PETER L. BERCER & RICHARD JOHN
NEUHAUS, To EMPOWER PEOPLE: FROM STATE TO CIVIL SOCIETY 158 (Michael Novak
ed., 2d ed. 1996). Berger and Neuhaus give an influential account of how religious organizations and other voluntary associations serve as mediating structures
between the individual and the modern state. They do not advocate a role for the
state in molding these institutions according to prevailing public values as many
later scholars have done.
439. See Linda C. McLain & James E. Fleming, Foreword: Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 CHI.-KENT L. Rev. 289, 289
(2000).
440. See, e.g., STEPHEN MACEDO, DIVERSrrY AND DISTRUST: CMc EDUCATION IN A
MULTICULTURAL DEMOCRACY 108 (2000); Stephen Macedo, Constituting Civil Society:
School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values, 75 CHI.-
KENT L. Rev. 417, 451 (2000) [hereinafter Macedo, Constituting Civil Society]; Ste-
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Stephen Macedo is one of the most well-known exponents of this position, and in his view, the state may, and should, “colonize” 44 1 the private
realm of voluntary associations and “shape”442 and “constitute”443 them in
the image of fundamental democratic norms and structures. Indeed, for
Macedo, sustaining our shared democratic order means that “we must
maintain political institutions and practices that work to transform the
whole of the moral world in the image of our most basic political
values.”1
444
For all of these scholars, government cannot leave religious organizations alone because even the internal practices of religious groups affect
the larger society. For Macedo and others who envision religious organizations as educative institutions with an important role in fostering civic
virtue and democratic norms, religious organizations and other civil society institutions must be tamed and transformed in the image of public
values so that they encourage, not undermine, these values. While the
tools of transformation that they advocate are generally noncoercive
ones, 445 a coercive approach may be necessary where the activities of civil
society institutions threaten essential public norms. 44 6 Likewise, scholars
who oppose strong protections for religious groups on the grounds that
exemptions from burdensome laws will hinder the state’s ability to achieve
public policy goals also believe that a policy of noninterference will have
significant costs for the larger society. For example, Evelyn Tenenbaum
has argued that the exemption of religious schools from labor statutes creates an atmosphere of labor strife that harms children by subjecting them
phen Macedo, The Constitution, Civic Virtue, and Civil Society: Social Capital as Substantive Morality, 69 FORDHAM L. REv. 1573, 1573-74 (2001) [hereinafter Macedo,
The Constitution, Civic Virtue, and Civil Society]; see alsoJoshua Cohen & Joel Rogers,
Secondary Associations and Democratic Governance, 20 POL. & Soc’v 393, 394-95
(1992); Amy Gutmann, Freedom of Association: An Introductory Essay, in FREEDOM OF
ASSOCIATION 3, 18 (Amy Gutmann ed., 1998). For discussions of scholarship advocating this position, see NANcy L. ROSENBLUM, MEMBERSHIP AND MORALS: THE PERSONAL USES OF PLURALISM IN AMERICA 36-41 (1998), and Yael Tamir, Revisiting the
Civic Sphere, in FREEDOM OF ASSOCIATION, supra, at 214, 220-22. Both Rosenblum
and Tamir disagree with those who favor using the power of the state to achieve a congruence between the internal values of groups and public values. See ROSENBLUM, supra, at 47-65, 349-50; Tamir, supra, at 215, 222-26.
441. Macedo, Constituting Civil Society, supra note 440, at 441.
442. MACEDO, supra note 440, at 108, 135; Macedo, The Constitution, Civic Virtue, and Civil Society, supra note 440, at 1574.
443. Macedo, Constituting Civil Society, supra note 440, at 451.
444. MACEDO, supra note 440, at 151.
445. See Macedo, Constituting Civil Society, supra note 440, at 424.
446. See MACEDO, supra note 440, at 147. According to Macedo:
[W]e cannot give carte blanche to everything that claims the cover of
religious freedom. Some religious beliefs are at odds with liberalism itself. We should tolerate the intolerant, as long as they do not genuinely
threaten the survival of free institutions, but we need not bend over backwards to make life easy for them.
Id. at 147.
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to conflict and division. 447 Similar arguments have been made where
other public policies are at stake. 448
Many of the lower courts that have examined the constitutionality of
applying state and federal labor laws to religious organizations have also
been quick to find countervailing public policies that outweigh the First
Amendment interests of religious groups. Even where lower courts have
found that mandatory collective bargaining does infringe upon First
Amendment freedoms, these courts have routinely held that this interference is minimal and outweighed by the government’s compelling interest
in preserving labor peace and protecting worker rights to unionize. 449
The fact that the NLRB only began asserting jurisdiction over nonprofit
organizations during the 1970s 450 and that exemptions would be limited
to religious groups has not been persuasive. Labor peace and worker
rights are viewed as such important public values that they outweigh religious liberty interests even when these values are formulated at a very general level.45 1 The Minnesota Supreme Court has given a particularly
colorful illustration of this point in Hill-Murray. Collective bargaining
rights under labor statutes are so important because they “allow[ ] the individual ‘David’ to negotiate against the employer ‘Goliath.'”452 The voluntary grievance procedure that the Hill-Murray High School had
adopted was not sufficient to give workers the collective strength that they
can exert under labor statutes. 453 Equality of bargaining power between
447. See Evelyn M. Tenenbaum, The Application of Labor Relations and Discrimination Statutes to Lay Teachers at Religious Schools: The Establishment Clause and the
Pretext Inquiry, 64 ALB. L. REV. 629, 671, 674 (2000).
448. For instance, Jane Rutherford has argued that permitting religious organizations to discriminate in employment based on race or gender reinforces a “culture of subordination” that affects members and nonmembers alike. Jane
Rutherford, Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049, 1114, 1123 (1996); see
also Lupu, supra note 436, at 408-09. William Marshall and Douglas Blomgren have
argued that deregulating the fundraising activities of religious groups threatens
the public interest in combating fraud. See Marshall & Blomgren, supra note 127,
at 319. The list goes on.
449. See cases cited supra notes 48-49, 77-78.
450. See e.g., Cornell Univ., 183 N.L.R.B. 329 (1970) (extendingjurisdiction to
colleges and universities); Shattuck Sch., 189 N.L.R.B. 886 (1971) (exercisingjurisdiction over secondary schools). It was not until the NLRB’s decision in Rhode
Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 N.L.R.B. 1344 (1976),
that the Board used the same jurisdictional standards for nonprofit and for-profit
organizations. See id. at 1345.
451. Douglas Laycock has observed that the Second Circuit in Culvert “assert[ed] the state’s interest at the highest level of generality; the court did not
explain why the state had any interest at all in industrial peace or economic order
inside a religious institution.” Douglas Laycock, A Survey of Religious Liberty in the
United States, 47 OHIO ST. L.J. 409, 436 (1986).
452. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857,
867 (Minn. 1992).
453. See id.
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workers and management trumps First Amendment protections for religious groups.
Scholars who have advocated strong protections for religious groups
from government interference have offered numerous reasons for their
position. Scholars have noted that religion receives special treatment in
the First Amendment.4 54 They have also echoed arguments raised in the
founding era. For example, scholars have argued that the protection of
religion from government interference is necessary because religious
claims have a special authority for the believer that takes priority over civil
laws. 4 55 For the believer, religious obligations are backed by a transcendent command. In James Madison’s words, they are a “duty towards the
Creator [which is] precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”45 6
Noninterference with religious groups is also defended on the
grounds that these organizations address spiritual matters that are beyond
the government’s competence. The state is limited to the temporal and
material. Its jurisdiction does not extend to the transcendent or the sacred.4 57 Roger Williams’s metaphor of the church as a garden which must
be separated and protected from the wilderness of the world and civil state
expresses this argument well. 458 John Locke’s division between the spiritual and temporal spheres does as well; according to Locke, salvation of
souls is the business of religion, and temporal matters belong to civil gov454. See, e.g., Douglas Laycock, The Remnants of Free Exercise, 1990 SuP. CT. REV.
1, 16; McConnell, Singling Out Religion, supra note 434, at 9, 14-15. According to
Laycock:
Religion is unlike other human activities, or at least the founders thought
so. The proper relation between religion and government was a subject
of great debate in the founding generation, and the Constitution includes two clauses that apply to religion and do not apply to anything
else. This debate and these clauses presuppose that religion is in some
way a special human activity, requiring special rules applicable only to it.
Laycock, supra, at 16.
455. See McConnell, Singling Out Religion, supra note 434, at 28-29; Michael W.
McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO.
WASH. L. REV. 685, 692 (1992) [hereinafter McConnell, An Update and a Response];
Michael W. McConnell, Accommodation of Religion, 1985 Sup. CT. REV. 1, 15-16, 26
[hereinafter McConnell, Accommodation of Religion].
456. JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS As- SESSMENTS (1785), reprinted in 8 THE PAPERS OFJAMES MADISON 295, 299 (Robert A.
Rutland & William M.E. Rachal eds., 1973).
457. See Gerard V. Bradley, Church Autonomy in the Constitutional Order: The End
of Church and State?, 49 LA. L. REV. 1057, 1084-87 (1989); Ira C. Lupu & Robert
Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L.
REv. 37, 84, 92 (2002); Steven D. Smith, Separation and the “Secular”: Reconstructing
the Disestablishment Decision, 67 TEX. L. REv. 955, 1017-18 (1989).
458. See ROGER WILLIAMS, THE BLOUDY TENENT OF PERSECUTION (1644), reprinted in 3 THE COMPLETE WRITINGS OF ROGER WILLIAMS 1, 94-95, 415 (Samuel L.
Caldwell ed., 1963).
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ernment.4 59 Thus, noninterference reflects an essential separation between what is temporal and what is extratemporal.
Arguments based on the transcendent authority of religious commitments and the special spiritual character of religious activity may have limited appeal to those without religious convictions, but scholars have
reformulated both of these arguments for broader audiences. For example, Douglas Laycock argues that because religious beliefs are of extraordinary importance to individuals and relatively little importance to the state,
religion should be left to those who care about it most. 4 60 When the state
interferes with religious belief and practice, the result is conflict and
human suffering.46 1 According to Michael McConnell, one does not need
to believe in God to respect the special authority that religious commands
have for those who do. 4 62 McConnell has also argued that protecting religious groups from interference by the state preserves the ability of individuals to choose and pursue their own vision for the good life, which is a
fundamental value in liberal societies. 4 63 A democratic society can afford
to “let a thousand flowers bloom.”464
All of these arguments emphasize the value for religion when government refrains from interfering with religious matters. Scholars have also
defended the autonomy of religious groups on instrumental grounds. For
example, as discussed above, many scholars are currently giving renewed
attention to the value of religious groups and other mediating structures
as sources of civic virtue and public values as well as practice grounds for
civic discourse and engagement. Voluntary associations are “seedbeds of
459. JOHN LOCKE, A LETTER CONCERNING TOLERATION 17, 27 (Bobbs-Merrill
1955) (1689).
460. See Douglas Laycock, Religious Liberty as Liberty, 7 J. CONTEMP. LEGAL ISSUES 313, 317, 325-26 (1996). Laycock does not argue that religious beliefs are of
no importance to government. He recognizes that some religious beliefs may foster the type of public culture and behaviors that support good government. Id. at
317. However, religious beliefs will always be more important to the individual
than to the state, and history demonstrates that government interference in religious matters is not an effective mechanism for fostering religious faith. Id. at 317-
18.
461. See id. at 317; see also McConnell, Accommodation of Religion, supra note
455, at 16 (arguing that protecting religion from state intrusion preserves harmony
among citizens).
462. See McConnell, Singling Out Religion, supra note 434, at 30.
463. See Michael W. McConnell, Old Liberalism, New Liberalism, and People of
Faith, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT 5, 14 (Michael W. McConnell
et al. eds., 2001); Michael W. McConnell, Why Is Religious Liberty the “First Freedom”?,
21 CARDozo L. REv. 1243, 1251-52 (2000); see also Gedicks, supra note 124, at 116,
158 (stating that religious groups provide contexts for “personal expression, development, and fulfillment” and for the “development of individual personality and
identity”).
464. Michael W. McConnell, Education Disestablishment: Why Democratic Values
Are lll-Served by Democratic Control of Schooling, in MORAL AND POLITICAL EDUCATION:
NoMos XLIII, at 87, 103 (Stephen Macedo & Yael Tamir eds., 2002).
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civic virtue ‘465 or “schools for democracy.” 466 For some, this role means
that government must mold and shape religious groups and other civil
society institutions so that they reflect shared democratic norms. However, others have argued that state interference with religious groups and
other voluntary associations will impede the production of civic virtue, not
enhance it.4 6 7 Thus, preserving the ability of religious organizations to
generate and nurture civic virtue requires strong protections from state
control. 468 Michael McConnell has gone even further and disputed the
assumption that Americans share a common civic culture or morality that
can serve as the basis for state intervention. 469 According to McConnell,
democratic government does require public virtue, but virtue is fostered
best by a diversity of religious groups and civil society institutions that all
teach public values and morality from their own point of view. 4 7 0
Other scholars have emphasized the value of religious groups as a
check against overweening state power. Protecting religious groups from
state interference helps to safeguard citizens against a totalitarian state. 471
Religious organizations are a “buffer” between the individual and the
state, 472 and vehicles for resisting government encroachment on individ465. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL
DISCOURSE 109 (1991); see also SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE,
CHARACTER, AND CITIZENSHIP IN AMERICAN SOCIETY (Mary Ann Glendon & David
Blankenhorn eds., 1995).
466. BERGER & NEUHAUS, supra note 438, at 194.
467. See Timothy L. Hall, Religion and Civic Virtue: A Justification of Free Exercise,
67 TUL. L. REv. 87, 121, 123-25, 131-33 (1992); see also Thomas C. Berg, Civility,
Politics, and Civil Society: Response to Anthony Kronman, 26 CUMB. L. REv. 871, 878-79,
882 (1995-96).
468. Hall, supra note 467, at 121, 123-25, 131-33. Unions have also been described as seedbeds of civic virtue and engagement. See Thomas C. Kohler, Civic
Virtue at Work: Unions as Seedbeds of the Civic Virtues, 36 B.C. L. REV. 279, 281, 297-301
(1995); Kohler, supra note 330, at 550-51; see also Cynthia L. Estlund, The Changing
Workplace as a Locus of Integration in a Diverse Society, 2000 COLUM. Bus. L. REv. 331,
360 (stating that unions “actively cultivate solidarity and egalitarian and democratic values and practices”). However, unlike religious organizations, unions that
are established under federal and state law are heavily regulated by government.
Thus, unions cannot play the same prophetic role in society that religious organizations freed from state interference can play. For a discussion of this prophetic
role, see infra pp. 156-58. While excluding religious organizations from coverage
under labor statutes may mean that these groups will choose not to recognize or engage worker associations, it also frees them to play an important role in fostering
new visions for labor-management relations and new types of worker organizations.
469. See McConnell, supra note 464, at 96, 101, 106; Michael W. McConnell,
Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 133.
470. See McConnell, supra note 464, at 124-25, 134; Michael W. McConnell,
The New Establishmentarianism, 75 CHI.-KENT L. REv. 453, 475 (2000).
471. See Lupu & Tuttle, supra note 457, at 40, 84.
472. Esbeck, supra note 128, at 53, 67-68.
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ual freedom. 473 Strong protections for religious groups also foster religious pluralism, which reduces the threat of religious absolutism or
tyranny.
4 74
All of these scholars give important reasons for protecting religious
organizations from state interference. However, the discussion of Catholic
social teaching above and the relationship of this teaching to secular models for collective bargaining reveal that these scholars have overlooked
something that is also critical for appreciating the full value of religious
groups. When the Catholic Church teaches that labor relations, like other
social relations, should be based upon mutual concern, cooperation and
willingness to forgive and seek reconciliation, the Church challenges the
assumptions and expectations underlying federal and state labor laws.
Rather than assuming distrust and conflicts of interest, the Church builds
her approach to labor relations upon hope and the expectation that employers and employees can work together to see each others’ concerns and
pursue the common good. Indeed, human fulfillment and social renewal
require such self-giving. Thus, the Church rejects an essentially adversarial understanding of labor-management relations and a model for labor
peace that is built upon the balance of power rather than a spirit of unity.
The Church also envisions its own institutions as a model for this unity.
The Church wants to be a witness and leaven in society for the broader
transformation of human relations.
Protecting Church institutions from outside interference by the state
is, therefore, critical for preserving the alternate vision for labor relations
that the Church desires to offer to society. What the Church and other
religious groups can offer to society is a prophetic voice, a new understanding of social life. Religious institutions are not only seedbeds of civic
virtue; they can also be seeds for the renewal of the social, political and
legal order. Religious groups, Catholic and non-Catholic alike, offer the
possibility of counter-cultural visions that challenge and push the larger
community in progressive directions unimagined by prevailing beliefs.
For example, instead of teaching that the worker “David” must be fitted
with new powers so that he can “negotiate against the employer ‘Goliath,'”475 the Church proclaims a new message that encourages David and
Goliath to give up their weapons and sit down together at the same table
and talk over their differences in a spirit of mutual love and concern.
When the Minnesota Supreme Court required the Hill-Murray High
School to bargain under the state’s labor statute, it stifled the Church’s
ability to present this radically new model for labor relations.
473. See Gedicks, supra note 124, at 158; see also Esbeck, supra note 128, at 67-
68.
474. See Bagni, supra note 142, at 1540; McConnell, Accommodation of Religion,
supra note 455, at 19.
475. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 867 (Minn. 1992) (emphasis added).
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Scholars who study the religion clauses tend to view the quintessential
free exercise plaintiff as an individual or group seeking freedom from
state regulation in order to pursue its own affairs according to religious
principles. The quintessential plaintiff is the individual who desires to follow the command of God over the demands of the state, or the group that
seeks to preserve their internal spiritual life free from government encroachment. This picture does, in fact, describe many plaintiffs. The
Amish parents in Wisconsin v. Yoder 476 are a familiar example. When these
parents sought an exemption from Wisconsin’s compulsory education laws
so that they could withdraw their children from school after the eighth
grade, 477 what they wanted was to be left alone, free to pursue their religious beliefs and practices unimpeded by the state. For many religious
groups today, freedom from state interference is understood in the same
way. For example, for many conservative Christian groups, Roger Williams’s metaphor of the garden and the wilderness is as true today as it was
in the seventeenth century. The purpose of the church is to save people
out of the world into the Kingdom of God, not to transform the wilderness
of the world, much less confuse progress in the world with the coming of
the Kingdom. For these groups, freedom from state interference is just
that: it is freedom from outside control. It is the freedom to build the
garden of the Church as a sphere that is radically distinct from the wilderness of the world.
The Catholic Church, by contrast, has never envisioned a sharp divide
between the Church and the world, the spiritual and the temporal, or religion and politics. For the Church, the internal spiritual life of its members and institutions must always move outwards as a sign and instrument
for the transformation of the larger society. The Church does not confuse
the renewal of the social order with the Kingdom of God, but the former
should reflect and foreshadow the latter. Thus, the Church wants something more than merely to be .left alone by the state. For the Church,
freedom from state interference is essential so that religious groups can
exert a transformative power on the larger world. The Church wants to
offer her solutions for pressing social questions; 478 she wants to be the
“mother and teacher of nations.”479 She believes that her tradition of social teaching can be a “living, growing resource that can inspire hope and
help shape the future” for all. 48s She wants freedom from outside interference so that she can be free for the world that she desires to serve. Not all
religious organizations seek to be a transformative force in the larger community. However, even insular religious communities can present an important example for nonmembers.
476. Wisconsin v. Yoder, 406 U.S. 205 (1972).
477. See id. at 207.
478. See CENTESIMUS ANNUS, supra note 148, at 14.
479. MATER ET MAGISTRA, supra note 165, at 84.
480. ECONOMIC JUSTICE FOR ALL, supra note 20, at 27.
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For Macedo and other scholars who would like to see all institutions
of civil society teach common democratic norms and values, alternative
visions for social life are to be distrusted. The world of democratic political institutions and values is the garden that must tame the wilderness of
deviant religious groups and voluntary associations. However, the discussion of Catholic social thought above illustrates vividly that difference can
be a powerful force for social good. One need not agree with the
Church’s vision for social relations to see that the Church offers an important voice that should be heard and carefully considered. Much will be
lost if the Church cannot offer a model for labor relations built on love,
cooperation and reconciliation rather than conflict, division, distrust and
battle. Thus, protecting religious groups benefits not only the church but
the world as well. Among religious groups are many flowers that can offer
new possibilities for the field of the world.
There are probably many readers who view the Church’s teaching regarding labor relations as too idealistic and not sufficiently reflective of
the limitations that human self-interest and weakness place upon workplace relations. Perhaps, for example, readers are willing to concede that
promises and grants of benefits in the religious workplace may be a gesture of reconciliation but are unwilling to extend such an assumption to
the commercial sector where the opportunities and incentives for abuse
are greater. Likewise, there may be readers who can envision religious
employers and employees successfully sitting around the same table and
addressing working conditions together but, nevertheless, fear the dangers
of exploitation in a commercial setting. For these readers, exemptions for
religious organizations from labor statutes may be appropriate, but the
Church’s ideals have little value for the larger world.
There may, indeed, be elements of the Church’s teaching that are not
sufficiently realistic for commercial settings, and it is almost certainly true
that any ideals for economic and social life will have to undergo some
adjustments as they are applied to the realities of the world. However,
regardless of their limitations, the ideals of religious communities are still
an important leaven in society, and they remain valuable elements in public conversations about social and legal norms. Even if they are not wholly
accepted, religious ideals for social life can contribute to a larger collective
conversation among Americans about how to structure legal norms, and,
together, all these participants can fashion solutions that draw from many
different insights.
For example, if they are freed from mandatory collective bargaining
under federal and state labor statutes and permitted to model a more cooperative vision for labor relations, Catholic organizations can provide important contributions to the current debates over section 8(a)(2).
Employee participation programs that currently violate section 8(a)(2)
could be tried in the Church context, and if they are successful, the
Church can offer them as a model for other workplaces. To be sure, work-
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ers may need more protections in secular workplaces than in religious
ones, and there will be voices urging the need for greater caution in the
commercial setting. However, here too the Church may have something
instructive to say. The Church has never denied the power of sin in the
world. Indeed, the U.S. Bishops have suggested that programs designed to
increase cooperation and employee involvement in the workplace should
be used in conjunction with independent unions in order to provide the
greatest protection for workers. Thus, the best approach may be to permit
employers to experiment with a wide range of endeavors to increase participation and labor-management cooperation, but retain strong protections for worker rights to unionize should employers act in bad faith or
otherwise fail to live up to their representations. If employers do initiate
employee participation programs in bad faith, employees who are the victims of manipulative practices can unionize, and employee participation
programs that are smokescreens for employer domination will almost
surely increase the incentives for unionization. On the other hand, employers who honestly desire to increase worker responsibility and a cooperative workplace environment will be able to do so, and the Church can
play an important role as a model of what employers and employees can
achieve if they choose to try to work together in a spirit of unity rather
than distrust. In this way, the law would leave open the possibility of labor
relations built upon cooperation and mutual concern but also have protections in place for situations that fail to achieve this vision.
Other readers may object to my defense of religious group protections on the grounds that not all religious groups are beneficial influences
on the larger society. While there may be flowers among religious organizations, there are many weeds as well, and even organizations with valuable visions for social relations may not live up to their ideals. It is certainly
true that not all religious groups will offer positive alternatives for social
relations, and many others will fail to live up to the visions they promote.
The Church itself has recognized that its clergy and lay members have not
always been faithful to the Church’s message,481 and given the weaknesses
of human nature, this should not be surprising. Indeed, the history of
labor relations in the American Church contains examples of Catholic employers who have failed to model the Church’s vision for labor-management interaction. In 1949, a bitter fight between the Archdiocese of New
York and striking cemetery workers led Dorothy Day to write the following
in a letter addressed to New York’s Cardinal Spellman:
I’m writing to you, because the strike, though small, is a terribly
significant one in a way. Instead of people being able to say of us
“see how they love one another,” and “behold, how good and
pleasant it is for brethren to dwell together in unity,” now “we
481. See GAUDIUM ET SPES, supra note 148, at 193.
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have become a reproach to our neighbors, an object of derision
and mockery to those about US.” 4 8 2
Dorothy Day’s letter describes labor-management relations within the
Church that not only fail to meet the ideals of love and cooperation but
also give the world an unfortunate example of fighting and division.
The events in Christ the King provide a similar example. The litigation
in Christ the King arose out of a bitter strike by lay teachers at Christ the
King Regional High School in Queens, New York. 48 3 The strike began in
September of 1981 and continued for several months until school administrators fired the striking teachers, hired replacements and ended negotiations.48 4 During the strike, recriminations and animosity on both sides
ran high, 485 and after the teachers were dismissed, the long-running battle
continued in the courts for sixteen years. 486 The school did not resume
negotiations or reinstate striking workers until 1997 when the Court of
Appeals of New York upheld the authority of a state labor board decision
ordering the school to do so. 4 87 Both sides in this battle provided a poor
example of the Church’s teaching regarding cooperation, reconciliation
and forgiveness.
Scholars and commentators have also criticized the contemporary
American Church for failing to develop structures and procedures to implement the U.S. Bishops’ promise of union rights for Church employees.4 88 For these critics, the fact that only twenty-three percent of Catholic
schools report representation for lay teachers means that the Church has
not done enough to make its teaching a reality within Catholic
organizations. 89
Thus, the Church has, and will again, fail to live up to its vision for
social life, and other religious organizations will make mistakes as well.
However, the proper response is not to cut off the possibility of prophetic
examples by regulating religious organizations according to secular stan482. Letter from Dorothy Day to Francis Cardinal Spellman, Archbishop of
New York (Mar. 4, 1949), quoted in David L. Gregory, Dorothy Day, Workers’ Rights
and Catholic Authenticity, 26 FORDHAM URB. L.J. 1371, 1379 (1999).
483. See N.Y. State Employment Relations Bd. v. Christ the King Reg’l High
Sch., 682 N.E.2d 960, 963 (N.Y. 1997); Damon Stetson, Sides Called “Deadlocked” in
Lay Teachers’ Strike, N.Y. TIMES, Nov. 8, 1981, § 1, at 47.
484. See Christ the King, 682 N.E.2d at 963; Cerisse Anderson, Judge Backs Rehiring of Fired Lay Teachers;Judge Rejects Catholic School’s First Amendment Claim, N.Y.L.J.,
Sept. 8, 1992, at 1; Beth Holland, Judge Tells School to Rehire Teachers, NEWSDAY, Oct.
4, 1989, News, at 31.
485. See Stetson, supra note 483.
486. See Charlie LeDuff, Sixteen Years Later, Catholic School Is Told to Rehire
Teachers, N.Y. TIMES, July 13, 1997, § 13, at 7.
487. See Christ the King, 682 N.E.2d at 963, 966-67; LeDuff, supra note 486;
William Murphy, School Loses Union Battle; Ordered to Rehire Teachers Fired in 81,
NEWSDAY, June 14, 1997, News, at A25.
488. See David L. Gregory & CharlesJ. Russo, The First Amendment and the Labor
Relations of Religiously-Affiliated Employers, 8 B.U. PUB. INT. L.J. 449, 456-57 (1999).
489. See id. at 457-58 & n.43.
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dards. Rather, it is important to preserve the freedom of religious organizations to formulate new ideals and endeavor to live according to these
visions. The ability of religious organizations to generate and present
these ideals is a valuable resource for the entire community, and the larger
society will be impoverished if religious organizations are not free to pursue their distinctive ways of life. Leaving space for religious groups to develop their ideals and play a prophetic role in society necessarily means
accepting the risk that some groups will fail to live up to their principles or
even take a path that is more regressive than progressive. However, the
benefits to society are worth these risks. Without such a space for experimentation, the larger community will be deprived of the value as well as
the costs that new possibilities may present.
In the labor area, in particular, the risks associated with strong protections for religious groups are not very high. Because religious organizations are only a small fraction of employers, employees will have
opportunities to leave and seek other employment if they are not treated
fairly. Religious groups also have incentives to treat employees well. It will
be difficult for religious groups to raise money from donors if they have a
reputation for exploiting their employees. Moreover, it is the religious
employer who will suffer the most from failures or abuses. The Church
has recognized that when religious leaders and members do not live up to
the Church’s message, “they inflict harm on the spread of the Gospel. 49 0
The more successfully religious groups model their ideals, the more effective they will be at fostering broader social renewal.
In rare cases, limitations on the freedom of religious organizations
may be necessary. For example, if a religious group experiments with
practices that endanger the lives of its employees or threaten them with
serious bodily injury, interference may be justified. Recent cases involving
clergy who have sexually abused minors raise the question of whether state
interference is appropriate where church disciplinary procedures or oversight mechanisms fail to protect children from serious emotional injury.
When the practices of religious groups harm outsiders to the organization,
there is also a role for government regulation. 49 1 In any of these cases,
however, state interference should be permitted only where truly compelling government interests are at stake. When a government interest becomes sufficiently compelling to justify intrusion into religious group
affairs and how state interests should be balanced against the rights of
religious organizations is a complex matter that is beyond the scope of this
Article. However, if religious group freedom is of critical importance for
both religious groups and the larger society, restrictions on this freedom
should be both narrow and infrequent. Certainly, state interests do not
490. GAUDIUM ET SPES, supra note 148, at 193; cf JUSTICE IN THE WORLD, supra
note 168, at 295 (stating that “everyone who ventures to speak to people about
justice must first be just in their eyes”).
491. Douglas Laycock discusses the necessity of some limitations on religious
group autonomy in Laycock, supra note 119, at 1402-09.
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justify requiring religious organizations to bargain collectively under federal or state law. As discussed above, the risks associated with excluding
religious groups from coverage under labor statutes are not high. Lower
courts that have upheld labor board jurisdiction in cases involving religious organizations commonly refer to the state’s interest in protecting
worker rights and fostering labor peace. 49 2 However, employment with a
religious organization is a voluntary choice by an adult, and the employees
of religious organizations can leave and seek employment elsewhere if
they are mistreated. The state’s interest in promoting labor peace is also
weak where religious groups compose only a small fraction of all
employers.
Other readers may object to special protections for religious groups
on the grounds that religious voices are not the only prophetic voices in
society, nor are religious groups the only sources for alternative models of
social relations. There are secular flowers as well whose ideals can benefit
the larger community. A number of scholars have made this argument
that it would be unfair to give religious groups protections from state interference that secular groups do not also receive. 493 One response to this
objection is that the religion clauses themselves treat religious groups differently, and, consequently, there is constitutional authority for giving religious groups special protections that nonreligious groups do not have.49 4
Even more importantly, however, if differential treatment is problematic,
the appropriate approach is to increase protections for nonreligious
groups, not eliminate protections for religious groups. 49 5 In my view, secular nonprofit groups and voluntary organizations can, indeed, be important sources for social renewal just as religious groups can. They should,
therefore, receive greater protection from government interference than
they do under current legislation and constitutional interpretation. Both
types of groups should be protected, not neither.
In the labor field, there is precedent for giving nonprofit groups, religious and nonreligious alike, protection from state interference. Prior to
1976, the NLRB routinely declined jurisdiction over many types of charitable nonprofit entities on the grounds that the purposes of the Act would
not be served by asserting jurisdiction. 496 This exclusion applied regard492. See supra note 449 and accompanying text.
493. See, e.g., Christopher L. Eisgruber & Lawrence G. Sager, ie Vulnerability
of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L.
RExv. 1245, 1262-66 (1994); Lupu, supra note 436, at 401-03; Marshall & Blomgren,
supra note 127, at 309, 321.
494. For scholars making this argument, see Laycock, supra note 460, at 314;
Laycock, supra note 454, at 16; McConnell, Singling Out Religion, supra note 434, at
9; McConnell, An Update and a Response, supra note 455, at 717.
495. Michael McConnell has made a similar argument. See McConnell, Singling Out Religion, supra note 434, at 23, 46-47.
496. See, e.g., Ming Quong Children’s Ctr., 210 N.L.R.B. 899, 901 (1974)
(“[W]e conclude that it would not effectuate the policies of the Act for the Board
to assert its jurisdiction over this type of nonprofit institution whose activities are
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less of whether the entity was religious or nonreligious. In Rhode Island
Catholic Orphan Asylum, a/k/a St. Aloysius Home, the Board changed its policy and began to assert jurisdiction over nonprofit charitable entities on
the same basis as for-profit groups. 497 The Board might return to its former position to allow for greater diversity and experimentation in the nonprofit world as well as to equalize the treatment of religious and
nonreligious groups. At the constitutional level, further Supreme Court
expansion of the freedom of association under the First Amendment
would also give nonreligious groups greater protections from state interference. Currently the protections from state interference under the
Court’s freedom of association decisions are more limited than the protections that religious groups receive under the religion clauses, but the
Court’s recent decision in Boy Scouts of America v. Dale4 98 has signaled the
Court’s willingness to interpret associational freedoms more broadly in
the future. 499
Still other readers may object to my defense of religious group rights
on the grounds that it assumes and envisions too great a role for religious
groups in public political life. John Rawls and scholars who have embraced his “political liberalism” 50 0 argue that fundamental political principles in a liberal democratic society must be based upon reasons that can
be accepted by all reasonable citizens. 50 1 In public discussion and formulation of these principles, citizens must use what Rawls has called “public
reason.”50 2 Citizens engage in public reason when they give justifications
for political outcomes that others who do not share the same religious,
moral and philosophical commitments can be reasonably expected to understand and endorse. 50 3 For example, such reasons may include arguments from common sense and common experience, widely accepted
noncommercial in nature and are intimately connected with the charitable purposes of the institution.”).
497. See R.I. Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 N.L.R.B.
1344, 1345 (1976).
498. 530 U.S. 640 (2000).
499. For discussion of the significance of Dale, see, for example, Daniel A.
Farber, Speaking in the First Person Plural: Expressive Associations and the First Amendment, 85 MINN. L. REv. 1483 (2001); Steffen N. Johnson, Expressive Association and
Organizational Autonomy, 85 MINN. L. REV. 1639 (2001). For additional discussion,
see David McGowan, Making Sense of Dale, 18 CONST. COMMENT. 121 (2001).
500. The term “political liberalism” derives from the title of John Rawls’s influential book, POLITICAL LIBERALISM (1993).
501. See AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT
13-14, 52-53 (1996); MACEDO, supra note 440, at 169-70, 174; RAwL.s, supra note
500, at 137.
502. For Rawls’s understanding of “public reason,” see Lecture VI in RAwm.s,
supra note 500, and John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L.
REv. 765 (1997). Rawls and other scholars have also used the term “reciprocity.”
See GUTMANN & THOMPSON, supra note 501, at 14, 52-53, 55-56; Rawls, supra, at 767.
503. See GUTMANN & THOMPSON, supra note 501, at 14, 25, 52-53; MACEDO,
supra note 440, at 169-74; RAwLs, supra note 500, at 137, 217, 225, 243; Rawls, supra
note 502, at 770-71, 773.
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forms of reasoning and generally accepted empirical conclusions and
methodologies. 50 4 Appeals to comprehensive moral, religious or philosophical ideas about truth as a whole do not meet the requirements of
public reason.5 0 5 Disagreement about such comprehensive doctrines is
persistent and permanent, and, thus, these ideals cannot ground legitimate political principles. 50 6 Rawls would permit comprehensive religious
and moral doctrines to be introduced into public discourse about fundamental political principles provided that those who make these arguments
also give public reasons to support their position. 50 7 Others would allow
citizens to introduce comprehensive doctrines into public discussion
where these doctrines are translatable into mutually accessible reasons. 50 8
However, religious experiences or arguments that are not generally accessible to all citizens, including citizens of different faiths, have no place in
political debate and decision making. “19
For these scholars, the alternative visions for social life that religious
groups present are not necessarily valuable resources for public life. My
defense of strong protections for religious groups proceeds from the erroneous assumption (in their view) that the ideals modeled by religious
groups are best understood as prophetic voices that can push society in a
progressive direction. Some may be, but religious visions for social life
that cannot be supported by reasons accessible to all are not legitimate
sources for public political values and institutions. Thus, there is a danger
when the Catholic Church claims that she is “mother and teacher of nations” or when she promotes her religious vision for human relations as
the basis for renewing the social order and solving pressing social
problems. Religious insights that can be expressed in terms of public reasons can be shared with others in political discussion and decision making,
but the Church violates the requirements of public reason when she challenges society with something new that is not comprehensible to all. The
Church also violates public reason when she promotes her comprehensive
religious vision for human life as the proper foundation for the whole
social and political order. In Rawls’s words, “[t]he zeal to embody the
504. See GUTMANN & THOMPSON, supra note 501, at 55-56; MACEDO, supra note
440, at 170; RAWLS, supra note 500, at 67, 162, 224.
505. See MACEDO, supra note 440, at 170, 168; RAWLS, supra note 500, at 224-
25.
506. See GUTMANN & THOMPSON, supra note 501, at 25, 92; MACEDO, supra note
440, at 166-74; RAWLS, supra note 500, at 38-43, 60-63, 134, 224-25, 243; Rawls, supra
note 502. at 766-67.
507. See Rawls, supra note 502, at 776.
508. See Amy Gutmann, Religious Freedom and Civic Responsibility, 56 WASH. &
LEE L. REv. 907, 909 (1999).
509. See GUTMANN & THOMPSON, supra note 501, at 56-57; MACEDO, supra note
440, at 172; RAwLS, supra note 500, at 224-25.
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FREEDOM FROM AND FREEDOM FOR
whole truth in politics is incompatible with an idea of public reason that
belongs with democratic citizenship. “5 10
My defense of religious group protections does, indeed, challenge the
idea of public reason. Supporters of public reason would limit political
values to norms that can be understood and accepted by all while I celebrate new visions for social life that challenge prevailing orthodoxies. In
my view, supporters of public reason lose much when they exclude from
political life religious ideas that are not grounded in shared beliefs or reasoning processes. The requirement of public reason stifles change by circumscribing political discussion to what is, or can be, commonly agreed
upon. There is no room for new or creative influences that transform
widely accepted norms of reasoning and beliefs or change our current
understandings of human experience.
Catholic social teaching contains vivid illustrations of what would be
lost. When the Church teaches that mutual love and self-giving are the
path to true human fulfillment and the proper basis for human relations,
she is advocating something quite radical. The weaknesses of human nature are plain facts for all to see, and peace through a balance of power
among competing interests is a concept readily accessible to common
sense. However, hope in the capacity of human beings to seek each
others’ good and to sustain a political order based upon the values of love
and forgiveness requires a certain leap beyond the familiar. Such a vision
may, indeed, speak to the modern heart, but it is not because it can be
constructed from reasons acceptable to all. It is, rather, as the Church
teaches, a divine gift that transcends human experience at the same time
that it explains and fulfills that experience. Supporters of public reason
cut themselves off from such gifts as well as other radically new visions for
public life that religious groups may offer. Without such prophetic voices,
it will be difficult to challenge accepted norms and push beyond them.
Political life will become stagnant, and public conversations will end where
they began.
Those who embrace the idea of public reason fear a religious zeal to
dominate the political order with a single controversial vision for human
life as a whole. However, such a prospect is unlikely in a pluralistic democracy. When the Church claims to be “mother and teacher of nations,” she
speaks as one voice among many, and political outcomes will necessarily
510. Rawls, supra note 502, at 767; see also RAwLs, supra note 500, at 243 (stating that “politics in a democratic society can never be guided by what we see as the
whole truth”). Amy Gutmann and Dennis Thompson make a similar point: “In a
pluralist society comprehensive moral conceptions neither can nor should win the
assent of reasonable citizens. A deliberative perspective for such societies must
reject the unqualified quest for agreement because it must renounce the claim to
comprehensiveness.” GUTMANN & THOMPSON, supra note 501, at 92. Macedo echoes Rawls and Gutmann and Thompson: “Comprehensive moral ideals-including
apparently liberal ones such as critical moral autonomy-claim more than we
should want to claim on behalf of our political order.” MACEDO, supra note 440, at
167.
20041
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VILLANOVA LA-W REVIEW
reflect numerous different insights and visions. Indeed, the great value of
political discourse and debate that includes comprehensive religious and
moral visions is that these visions can help shape outcomes that blend different ideas and reach towards solutions that go beyond the insights offered by any single contributor. When public reason requires participants
to give reasons that all reasonable people can be expected to understand
and accept, it loses the benefits of political debates among comprehensive
belief systems and cuts off political discussion from some of its most valuable sources and resources. Political debate among comprehensive religious views is not something to be avoided; it is something to be embraced.
Indeed, most conversations about fundamental political values in
America have, in fact, been discussions among comprehensive religious,
moral and philosophical perspectives. From its founding, the American
political system has been the product of such conversations about our
deepest beliefs. American liberal democracy was constructed in the
founding era from enlightenment and religious sources that situated political questions within larger understandings of human life and ends. The
moral crusades that have since shaped and forged out political identity,
such as the abolitionist movement and the civil rights movement, have
drawn heavily upon prophetic religious and moral voices that have challenged and transformed the political foundations of the nation. 51′ Public
reason may be appropriate for polite society at cocktail parties, but it cannot sustain the vibrant and innovative political life that has been part and
parcel of American history.
Supporters of political liberalism and public reason also emphasize
the “irreducibl [e]”5 1 2 and “implacable”5 13 conflict among moral and religious ideas. However, religious and moral disagreement is not something
to be feared or avoided in public life. Rather, it is a rich source of insight
for public life that can push the political order in directions that no one
individual or group can imagine. To be sure, the existence of religious
and moral disagreement may yield sharp divisions on public questions and
sometimes even divisive conflict. However, conflict need not be implacable, and it need not destroy the political community. In my view, beneath
our disagreements about social and political life are truths about human
nature that we all draw from, but that no one individual or group completely understands. While we will never completely, or perhaps even substantially, agree upon what these foundations are, as long as we learn to
listen to each other, there is much we can learn from one another as we
seek to understand these foundations better. We would lose something of
profound value if we no longer viewed our public political discussions as
part of a joint effort to uncover the true foundations for political life.
511. SeeJohn T. Noonan, Jr., The End of Free Exercise?, 42 DEPAUL L. REv. 567,
579-80 (1992).
512. GUTMANN & THOMPSON, supra note 501, at 25.
513. MACEDO, supra note 440, at 167.
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Only a collective quest for the truth can inspire the prophetic visions that
can shake our complacency and renew our society. Protecting religious
groups as important participants in this quest goes beyond merely protecting the individual religious conscience or the internal spiritual life of religious communities from outside interference. It also goes beyond
recognizing the value of religious organizations as seedbeds of virtue or
buffers against overweening state power. Protecting the freedom of religious groups from state interference is, at the same time, crucial for preserving new visions of social life for us all.
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