What Kind of a Deal is Duquesne v. NLRB?

"Not only did they make a deal with us and go back on it, but they are disregarding their own canon law." That’s Dan Kovalik, who is the attorney for the proposed adjunct union at Duquesne, quoted in today’s Pittsburgh City Paper,

I like that, but if you have a look at the documents posted by Duquesne University, in regard to the Church hierarchy’s challenge to a National Labor Relations Board finding that the proposed union is kosher, so to speak, you’ll find that not everybody is on board.

For instance, right near the top of the amicus brief filed by a troika of high powered Church outfits*, we find this: “the arguments set forth in this Brief are about the jurisdiction of the National Labor Relations Board (“Board”), not the natural rights of employees.”

They go on to say something about what Brother Kovalik was highlighting, but it’s not what we really have in mind: “The Catholic Church has long supported the moral right of workers to organize and bargain collectively  [but] under the First Amendment, Catholic colleges and universities must have the freedom to pursue those goals without excessive government entanglement.”

So that’s not natural law they’re talking about—or canon law either. Just the regular stuff for the rest of us, and for those who need it when they decide they want it.                                            

As, for instance, when the Amici get around to one of their favorite secularisms, a definition of “religious” that, if applied to a school, is found by some courts to come with a “Get out of NLRB Free” card. This is the famous “bright line” test we will be hearing much more about in coming months.

A real three headed pest of a test, devised in the course of a hearing in 2001-02 by the Ist Circuit Court (D.C.), in University of Great Falls v. National Labor Relations Board, it holds that the board can not claim jurisdiction over an institution that:

(1) “holds itself out to the public as

a religious institution”;

(2) “is non-profit”; and

(3) “is religiously affiliated.”

Well, we’ll see, of course, There is a lot of good stuff to draw on, if you like that sort of thing. You know, for the idea that government should take a hands-off approach to religion without, on the other hand, having any right to take part in defining what “religious” means in the first place.

Our stout Amici?  They eat it right up, gleefully concluding that “by its very nature,” almost any kind of government inquiry into the nature of religion “invites government officials to substitute their judgment about an institution’s “religious character” for the judgment of the institution and its religious community.”

I write almost any kind of inquiry, because government is apparently allowed to ask, “by the way, are your religious?” And then accept, without comment, whatever the answer may be.

Or so it seems.

Before concluding, however, I do want to point out that the three Amici are not limited, in their reliance on the “bright line” test, to only those cases when they wish to avoid a meddlesome government. They waggle the same weapon when catching the sniff of something tasty, something not at all to be avoided, something eagerly desired. 

Thus, consider the case pitting Colorado Christian University against the State of Colorado (2008), which had been so bold as to inquire about CCU’s religious character in determining whether or not students there were eligible to receive publically funded scholarships.

Wouldn’t these little subsidized cream puffs entangle our pals in the terrible volutuousities of this world?

Oh piffle, don’t be so sensitive. Gladden up, as our three jolly Amici do when quoting, from CCU v. Colorado, the 10^th Circuit Court’s opinion that the state’s inquiries into where public monies go, “were impermissible under the First Amendment,” and very likely to “embroil the government in line-drawing and second-guessing regarding matters about which it has neither competence nor legitimacy.”

But, at least, where the Church is involved, there are at least clear moral principles available, and for that, let us all be thankful, and work for the best.

 * Association of Catholic Colleges and Universities, the Lasallian Association of College and University Presidents, and the Association of Jesuit Colleges and Universities.