Bench Memos

Law & the Courts

Empty USCCB Amicus Brief in Public-Sector Union Dues Case

[Cross-posted on The Corner]

On February 26, the Supreme Court will hear oral argument in the much-watched case of Janus v. AFSCME. The United States Conference of Catholic Bishops has submitted an amicus brief in Janus. Both as a Catholic and as a lawyer, I find the USCCB’s brief badly misguided in important ways.

The legal issue in Janus is whether, consistent with the First Amendment, government employees who refuse to join the public-sector union that has been recognized as their representative for purposes of collective bargaining may nonetheless be compelled to pay the union a fee (a so-called “agency fee”) to cover their share of the union’s collective-bargaining expenditures, even when those employees object to the union’s political advocacy and lobbying.

To illustrate the issue more concretely: In 2014, the American Federation of State, County, and Municipal Employees (AFSCME) donated $400,000 to the Planned Parenthood Action Fund, which in turn funded political candidates who support Planned Parenthood’s abortion agenda. May a government employee who is a faithful Catholic, as a condition of continued employment, be required to pay AFSCME a monthly agency fee?

The USCCB amicus brief would have you believe that the “widely held” position of American bishops is to answer “yes” to the question whether agency fees may be imposed on government employees.

The USCCB’s amicus brief suffers from three serious defects:

First: The brief itself is nothing more than special pleading—asking that the (supposed) position of “so many bishops” against right-to-work laws in the public sector not be declared “constitutionally out of bounds.” The brief does not offer any legal argument why agency fees in the public sector are constitutionally permissible. Indeed, the words “First Amendment” do not appear a single time in the brief. [Update: I now see that “Free Speech Clause” appears three times, so I’m striking the preceding sentence.]

Second: The brief derives the supposed “widely held” position of American bishops by stitching together a handful of statements of dubious relevance that were made over a period of seven decades. You might think that the actual position of American bishops today could be ascertained by asking them. But there is no evidence in the brief that the question was ever put to them.

To be clear: I don’t dispute at all—indeed, I embrace—the brief’s statement that, beginning with Pope Leo XIII’s 1891 encyclical Rerum Novarum, the “social doctrine of the Catholic Church has contained ‘repeated calls … for the promotion of workers’ associations that can defend their rights.’” I likewise agree that “the Catholic bishops of the United States have consistently affirmed and defended the right of workers to organize, precisely in service to [the] values” of protecting “both the poor and vulnerable from exploitation, and the right of association from governmental infringement.” (Emphasis in original.) What I question is how these principles apply to whether public-sector unions today should be able to extract agency fees from objecting nonmembers.

The USCCB brief pays zero attention to this question. When one thinks of Catholic concern for workers exploited by “capital” (Rerum Novarum is titled “Rights and Duties of Capital and Labor”), government workers hardly fit the bill. Yet the brief treats any statement that generally opposes right-to-work laws as though it would specifically oppose right-to-work laws governing the public sector.

The USCCB brief also seems to assume that public-sector unions are the “good” unions that Pope Francis says are part of a good society. Why that would be so is a mystery. Beyond their staunch support for abortion, public-sector unions steadfastly oppose school choice and thus deprive many poor children of a Catholic education far superior to that in failing inner-city public schools. Indeed, the bloated salaries and pensions that public-sector unions so often extract are ultimately at the expense of working men and women in the private sector, whether in the form of higher taxes or diminished public services. Illinois, the state in which Mr. Janus is employed, is on the verge of bankruptcy because of the too cozy relationships between public-sector unions and state politicians.

In its quest to pad its list of bishops’ statements against right-to-work laws generally, the USCCB brief also relies heavily on statements that were not in fact by bishops—such as a 1947 statement by the “Social Action Department of the National Catholic Welfare Conference” and the 1965 testimony of the NCWC’s Social Action director, Msgr. George Higgins.

At bottom, the brief does not remotely support the proposition that the American bishops have “widely held” the position that right-to-work laws in the public sector are unjust to government workers. Indeed, it provides no evidence that any bishop has ever taken that highly dubious position.

Third: The USCCB brief also invites the dangerous misperception that it considers right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do. Twice (pp. 2 and 13) the brief cites Roe v. Wade and Obergefell v. Hodges—and only those two cases—in lamenting that a ruling against AFSCME “would represent another unfortunate decision of this Court that marginalizes the voice of the bishops with respect to an important public policy debate by declaring their position to lie beyond the constitutional pale.” (That’s from page 13; the passage from page two is similar.)

To be sure, the attentive reader will discern that the brief implicitly recognizes that how best to defend the legitimate rights of workers is, unlike the matters of abortion and marriage, a matter of prudential judgment on which Catholics can in good faith disagree. But it’s no surprise—indeed, it’s entirely predictable—that those not well versed in Catholic teaching will imagine that the American bishops, through the USCCB brief, are now putting all three matters on the same moral plane. Why would the USCCB sow such confusion?

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