The U.S. Conference of Catholic Bishops filed an amicus brief at the Supreme Court supporting a pro-choice labor union in a dispute over mandatory union fees.
The case is wrought with peril for the bishops, as it places the Church’s historic support for organized labor in direct tension with its opposition to abortion.
The case, Janus v. American Federation of State, County, and Municipal Employees (AFSCME), is the latest challenge to a 1977 Supreme Court precedent called Abood v. Detroit Board of Education, which allows public union bosses to collect “fair-share fees” from non-members for collective bargaining and dispute resolution.
Some non-members oppose this arrangement, arguing coerced fees violate their First Amendment rights to free speech and association. Judicial conservatives tend to agree, though progressives see the argument as a stalking horse for the anti-union agenda.
The high court heard a challenge to Abood in 2016 and appeared ready to declare fair-share fees unconstitutional, but Justice Antonin Scalia died shortly after the arguments, depriving the majority of its crucial fifth vote. Without Scalia, the justices split four to four on the decision. When the Court is evenly divided, the judgement of the lower court is automatically upheld.
Justice Neil Gorsuch’s April 2017 confirmation returned the Court to its full complement of nine, and the justices agreed to hear another challenge to fair-share fees just months later.
For over a century, the Catholic Church has treated organized labor as a vital means by which to affect the goals of Catholic social teaching, like solidarity and the equitable distribution of goods. As such, it’s not surprising that the U.S. bishops would support labor interests in a case sometimes billed as the swan song of public employee unions.
Still, the Church is staunchly committed to pro-life causes, and the AFSCME is an explicitly pro-abortion lobby. The group denounced fetal-personhood laws, clinic regulations, compulsory pre-abortion consultations, and any measure which might restrict immediate abortion access during its 2014 international convention in Chicago, Ill. They also endorse and finance pro-choice candidates, and co-sponsored a national pro-abortion demonstration in Washington before the 2004 presidential election.
The USCCB’s amicus (or “friend-of-the-court”) brief places them in unusual company. Progressive social groups often at odds with Catholics like the National Women’s Law Center, Lambda Legal Defense, and the Human Rights Campaign also filed briefs supporting the union.
Dr. Chad Pecknold, a professor of fundamental and political theology at the Catholic University of America in Washington, D.C., told The Daily Caller News Foundation that the USCCB should be wary of the perception their support of the union may create.
“The bishops will certainly understand that Catholics cannot, in good conscience, support unions that advocate killing vulnerable human beings in the womb,” Pecknold said. “Presumably the bishops amicus brief in support of AFSCME in no way condones that organization’s support for abortion, but the bishops should be careful about giving this impression.”
Pecknold is right that the brief is careful to condemn abortion. But it is silent as to the possibility that Catholic public employees may not want their money associated with a pro-choice group, even if those fees are not used for partisan purposes. Catholic social teaching generally gives pride of place to conscientious objectors.
The substance of the brief says the fair-share regime is an essential component of fair societies, and makes a broader argument about the role of churchmen in public life.
The bishops say the Court has lately restrained the power of ecclesial leaders to affect policy outcomes by removing moral-political questions from public debate. They cite the 2015 Obergefell v. Hodges decision, which announced a constitutional right to same sex marriage, as one such example. Though religious leaders are still at liberty to extol the virtue of traditional marriage, they can no longer advance their positions through ordinary political process.
“A ruling for [Janus] here, however, would yet again consign the positions of those bishops, and millions of Americans who share their views for decent and honorable reasons, to irrelevance with respect to any operative policy,” the brief reads.
It further notes that the USCCB does not believe its position must always prevail in the political process, but that they should not be consigned to irrelevance by judicial decree.
“[Our] point is far more modest: that the Court should allow the position of so many bishops on the ‘right-to-work’ question to compete in the policy arena with some possibility of success,” they write.
The USCCB declined to comment for this story.
The justices will hear arguments in the case on Feb. 26.
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