Monday, July 2, 2018
The holding in Janus v. AFSCME last week that compulsory public sector agency fees are unconstitutional ushered in some commentary about the relationship between Janus and the long tradition in Catholic social thought of supporting unionization. The USCCB filed an amicus brief in the case supporting the union side, Bishop Frank Dewane (Bishop of Venice, Florida and Chairman of the USCCB Committe on Domestic Justice and Human Development) issued a statement expressing disappointment with the decision in Janus, and Michael Sean Winters has a piece here condemning the decision. On the other side, Bishop Thomas Paprocki of Springfield, Illinois tweeted a message of approval for the outcome in Janus, which resulted in a series of replies with a tone and vehemence that are typical of Catholic Twitter.
I’ve already staked out my position (as has Rick Garnett here at MOJ), but here are a couple of clarifying questions about the issues in Janus as they pertain to Catholic social teaching that—I hope—might be the start of a better conversation than “unions—hooray!” or “unions—boo!”.
1. Do public sector unions pose distinctive issues from the concerns that ground the Catholic social tradition’s support for unions?
One of the consistent themes in the arguments for the outcome in Janus is that agency shop arrangements in the public sector are meaningfully different than such arrangements in the private sector. The “management” on the other side of the bargaining table in public employment is the state whose leaders are the subject of lobbying and political support from…the public employee union. Rerum Novarum and the ensuing line of Catholic teaching on unionization were primarily addressed to the urgent necessity of unions for trade workers in the private sector. In light of the rise of wage labor amid industrialization, Leo XIII focused on the problem of commutative justice and how the formation of workers’ associations would be ordered to the common good.
That does not entail, of course, that Catholic social teaching is irrelevant to public sector unions—but the more fruitful conversation, I think, would be somewhere in between the view that CST on unions applies simply and conterminously between public and private sector unions and the view that CST has nothing to do at all with public employee unions. Do the principles of CST supporting the rights of workers to organize apply with full or modified force in the public sector union context? There is a long scholarly literature about public sector bargaining that highlights the inelastic demand for services and bargaining power of public employee unions, with important policy and economic consequences. To my knowledge, Catholic social teaching has not engaged with that literature.
2. How should we understand the relation between the Catholic social tradition on rights of association and First Amendment freedom of speech?
As presented in litigation, Janus is foremost a case about the scope of First Amendment rights and not about whether unions are a good thing or a bad thing. Specifically, the case was about the claim by plaintiffs such as Mark Janus that the payment of an agency fee amounted to compulsory subsidization of political activity (and more precisely, that Abood’s distinction between chargeable expenses for collective bargaining activities and expenses for political activities was not sustainable, see pp. 28-31 of the slip opinion). Pace Eugene Volokh and Will Baude’s interesting and thoughtful brief, both the majority opinion by Justice Alito and the dissent by Justice Kagan assumed agency fees pose some plausible First Amendment burden on employees such as Janus. Their disagreement was over whether that burden runs headlong into a “no compelled speech” principle (Alito) or whether that burden is justified by a deferential, lower level of scrutiny derived from the government employee speech line of cases coming out of Pickering v. Board of Education (Kagan).
It seems to me that Catholic social teaching underdetermines the answer to this First Amendment problem, in large part because CST on rights of workers' associations begins with a thick understanding of the common good and civil society (which is served by maintenance of a living wage for laborers to support the family) and gets around belatedly to rights of freedom of expression. Catholic social thought has not developed much by way of an account of why and when freedom of speech should be legally protected, and Millian liberal or “marketplace of ideas” accounts presumably sit uneasily with the Catholic understanding of law and politics. Apart from a passing mention of freedom of speech in Pacem in Terris or perhaps by derivation from religious freedom in Dignitatis Humanae, there just isn’t much in the tradition (and the concerns about “indifferentism” in, say Pope Gregory XVI’s Mirari Vos did not lend themselves to a robust doctrine of freedom of speech, to put it mildly). Even John Courtney Murray—usually associated with an irenic assimilation of Catholic political thought and American constitutional law—struggles in this little known essay to square the Catholic commitment to the "moral basis of government" and "ordered liberty" with the then-nascent U.S. Supreme Court caselaw on free speech. All of which is—again—not to say that Catholic social teaching doesn’t speak to the question at all (and perhaps says all the worse for the individualism of American constitutional rights discourse), but only that CST does not resolve the constitutional question in a straightforward way.