Two-Faced With Janus

WASHINGTON D.C. - Lawyers with the National Right to Work Legal Defense Foundation gave Seventh-day Adventists one of their biggest religious liberty victories in the U.S. Supreme Court just a few days ago.  In return, Adventist religious liberty officials rose from the grave to kick the Foundation’s lawyers in the shin.  Or, something like that.

Adventists face two major religious liberty challenges in the workplace.  One is accommodation of their belief that they should not work from sundown Friday to sundown Saturday.  The second is compulsory unionism.  What many Adventists do not know is that the Church has historically taught that members should not join or financially support labor unions. 

In Janus v. AFSCME Council 31, the United States Supreme Court finished up its current term by declaring that compulsory union fees could not, consistent with the U.S. Constitution, be imposed upon any governmental workers.  It is a huge victory for all public employees, and it eliminates the second religious liberty problem for most Adventists.  Only about six percent of private sector workers are unionized, thus eliminating compulsory union fees for government workers eradicates most of the problem.

There is a long, and sometimes not very pretty history of the Church working to protect its members from compulsory unionism.  For decades, the Church funded litigation and worked with Congress and the various states to pass statutes protecting its members from compulsory unionism.  At one time on the legislative front, the Adventist Church was a solid ally of the National Right to Work Committee.  The Committee, a sister organization to the Right to Work Foundation, is dedicated to the passage of Right to Work laws.  Right to Work laws give employees the right to work without having to join or financially support a labor union.

Unfortunately, the relationship between the Committee and the Church unraveled decades ago when the Church cut a private deal with the AFL-CIO.  The unions of the AFL-CIO undoubtedly thought that the religious liberty voice of the Church gave a special urgency to the Committee’s work to pass Right to Work laws.  When Congress voted to allow labor unions to organized health care institutions, the problem of compulsory unionism took on a special urgency for the Church which employs many members in its vast health care network.

The deal cut between the Church and organized labor would have made the Indians who sold Manhattan for beads nod their heads in satisfaction.  The Church agreed to stop promoting Right to Work laws and the AFL-CIO promised to help pass an amendment to the National Labor Relations Act which would, among other things, allow Seventh-day Adventists to pay their compulsory union dues to a non-religious, non-union charity.   The result was 29 U.S.C. Section 169, known as “Section 19.”

Section 19 has a couple of nasty features.  One of them is that only Adventists are protected.

The second is that if an Adventist paying the dues amount to a charity needs to file a grievance under the union contract, the Adventist must personally pay the cost of the grievance.  In union contracts, the union is always the “exclusive bargaining representative.”  The result is that Adventist employees suffering from mistaken or unjust discipline in the workplace have no option other than to use the union grievance procedure.  They must pay to the charity the dues amount and also write a blank check to the union for whatever costs it incurs in the grievance.  Of course, supporting the union violates the Adventist employee’s religious beliefs.  The practical result of Section 19 is that Adventists cannot do anything to protect themselves against unjust discipline and remain faithful to their religious beliefs.

While it should strike anyone as odd that the Church would agree to leave its members so exposed to injustice in the workplace, that is not the major problem with Section 19.  Historically, the religious liberty officials of the Church have been virulent church state separationists.  Anything that even hinted of a state benefit to a religion, or worse, the Catholic Church, came in for stern denunciation and opposition.  Imagine then the “inconsistency” (to be polite) of getting a federal statute passed that protected only the religious beliefs of Adventists.  Section 19 did not include the words “Seventh-day Adventist,” but it closely described the Adventist Church in such a way as to include only Adventists, and various strains of the Amish and Mennonite denominations.  Baptists, Catholics and most Christians, in contrast, could pound sand.  Section 19 was worse than beads.  It left members vulnerable, and was an extraordinary example of a federal statute intended to extend a special benefit not only to religion, but to one denomination – the Seventh-day Adventist Church.  Not content with passing Section 19, religious liberty officials in various areas of the Church passed “little Section 19” statutes in eleven states.

All of the main religious liberty officials involved in the passage of Section 19 have passed on, and are no longer around to defend their decisions.

The Church was also active in the federal courts to protect its members against compulsory unionism.  Prior to the passage of Section 19, Lee Boothby was hired by the Church to litigate on behalf of Adventists whose employment was at issue because they refused to support the union.  Boothby, who also recently passed away, was a very successful lawyer.  Boothby’s work, along with the work of non-Adventist David Watkins on behalf of the Church, created a series of victories under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e et seq.). These cases established the right of Adventists to keep their jobs and redirect their union fees to a charity.  Nothing in those cases required Adventists to pay for union grievance filing. 

Sometimes church members advance the Kingdom of God more effectively outside the Church, and this situation is no exception.  The two most senior litigators at the National Right to Work Foundation, Milton L. Chappell and Bruce N. Cameron, are Seventh-day Adventists. Both have been with the Foundation for over four decades.

Cameron, in Foundation-funded cases, built upon Boothby’s and Watkins’ victories and pioneered the right of religious accommodation for union dues objections for all sincere religious believers.  Not only did these Foundation-funded cases obtain accommodations for members of many different denominations, but Cameron successfully defended non-Christians. All of Cameron’s clients who were willing to persist in their Title VII litigation were accommodated.

Cameron and Chappell, in a Foundation-funded case, caused Section 19 to be struck down as an obvious violation of the Establishment Clause.  In a later case litigated by Cameron, a “little Section 19” that was part of Ohio law was also declared unconstitutional.  Both the federal and Ohio statutes fell in attempts to broaden Section 19 to protect the religious beliefs of non-Adventists.

Chappell and Cameron are part of the small band of Foundation lawyers which has been extensively involved in federal litigation designed to free all employees from compulsory unionism.  This small group of Foundation lawyers was able to persuade the U.S. Supreme Court to accept for argument at least seventeen cases – a remarkable record.  All of these cases had to do with various aspects of compulsory unionism. 

At the last term of the U.S. Supreme Court, Cameron and Chappell worked together on a national class action intended to strike down compulsory unionism for all employees under the Railway Labor Act and, by analogy, all public employees.  The Supreme Court did not agree to review their case, but the following term after Justice Gorsuch took his seat on the Court, the High Court agreed to review the Foundation’s Janus case.  The victory in Janus ended compulsory union fees for governmental employees.

Or did it?  Remember Section 19?  A footnote in the Janus decision made reference to one of the “little Section 19” statutes inspired by the Church’s deal with the AFL-CIO, and noted that perhaps public employee unions might charge non-members for grievances.  Well into their fifth decade at the Foundation, Chappell and Cameron and the merry band of Foundation litigators still have work to do.

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Bruce N. Cameron is the Reed Larson Professor of Labor Law at Regent University School of Law and is on staff with the National Right to Work Legal Defense and Education Foundation.