- The Washington Times - Tuesday, June 7, 2011

When federal agents ruled for a second time this year that a Catholic college cannot claim First Amendment protection from federal labor laws, they brazenly ignored instructions from the U.S. Court of Appeals for the D.C. Circuit and set up a potential Supreme Court confrontation.

On May 26, the Chicago regional director for the National Labor Relations Board (NLRB) declared that St. Xavier University, a Catholic institution established by the Sisters of Mercy, was not sufficiently religious to be exempt from federal jurisdiction. The ruling came just four months after a similar ruling against the Christian Brothers’ Manhattan College, which has appealed to the national board for a reversal.

It’s doubtful Manhattan can get a favorable ruling from the union-friendly NLRB, but if the college then appeals to the District’s federal court, it is likely to prevail.

That’s because the U.S. Court of Appeals for the District has twice already ordered the NLRB to cease harassing religious colleges and universities. In 2002 and 2008 rulings, the court reversed the NLRB and exempted religious institutions from requirements of the National Labor Relations Act.

Citing the 1979 U.S. Supreme Court ruling in NLRB v. Catholic Bishop of Chicago, et al., which exempted Catholic parochial schools from NLRB oversight, the court found that the NLRB’s extensive evaluations of whether colleges are substantially religious are precisely “the sort of intrusive inquiry that Catholic Bishop sought to avoid.” The Supreme Court had found that NLRB jurisdiction over Catholic schools “will necessarily involve inquiry into the good faith of the position asserted by the clergy administrators and its relationship to the schools’ religious mission. … It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”

Nevertheless, the NLRB has never dropped its unconstitutional “substantial religious character” test, instead forcing multiple Catholic and other religious colleges to comply with federal labor law and regulations. Ultimately, it may require another Supreme Court ruling to set the NLRB straight.

Such a showdown could very well favor religious colleges, thanks to the support of Supreme Court Justice Stephen G. Breyer. In rejecting the NLRB’s intrusive “religious character” test, the D.C. appeals court prescribed in 2002 a simple three-part test for exemption from federal labor law - a test first recommended by former Court of Appeals Judge Breyer in a 1986 opinion.

Justice Breyer’s test requires no investigation of a college or university’s religious practices. The institution must publicly claim to provide a “religious educational environment,” it must be a nonprofit institution, and it must be affiliated with or controlled, “directly or indirectly,” by a religious organization.

The court has said it is confident this test “avoids the constitutional infirmities” of the NLRB’s subjective evaluations: “Our approach … does not intrude upon the free exercise of religion nor subject the institution to questioning about its motives or beliefs. It does not ask about the centrality of beliefs or how important the religious mission is to the institution. Nor should it.”

That argument seems to hold sway for the Supreme Court. In Boy Scouts of America v. Dale, the court ruled that if an institution publicly holds itself out to be religious, federal judges “cannot doubt that [it] sincerely holds this view.”

So why, after twice being scolded by the federal court for failing to comply with Supreme Court precedent, hasn’t the NLRB stopped harassing Catholic colleges and universities?

The answer may be pure politics for an agency that often yields to the interests of labor unions. Union organizers see great potential in college-faculty organizing to help replenish their declining memberships. The Manhattan College appeal to the NLRB has the potential for permanently opening the doors to religious colleges and universities.

But the opposite is also true: The case could force a Supreme Court decision that would better protect the rights of all religious employers, not just religious higher education. That would be a welcome change.

Meanwhile, the NLRB has forced Catholic colleges and universities to take a careful look inward at their Catholic identity. They may succeed in arguing that the NLRB has no business evaluating their religious practices, but it’s difficult to dispute the NLRB’s finding of a weak Catholic identity at most of the colleges and universities it has evaluated.

The Vatican and the U.S. Catholic bishops have been urging a renewal of Catholic identity for some time. Perhaps such a renewal might also be a positive outcome of the NLRB’s excesses.

Patrick J. Reilly is president of the Cardinal Newman Society (CNS) and author of “The NLRB’s Assault on Religious Liberty,” published by the CNS Center for the Advancement of Catholic Higher Education.

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