The Supreme Court & Unions

by Michael Sean Winters

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Yesterday, an employee at Google took his case to the U.S. Supreme Court, arguing that his First Amendment right to free speech permitted him to publish on his own website the algorithms Google uses to drive its search engines. Google argued that the algorithms were intellectual property, and that publishing them defrauded the company of their millions of dollars of investment and gave their competitors an unfair advantage, because they could use the trade secrets for free.

Of course, that did not happen yesterday. The Supreme Court has long held that companies have a right to protect their intellectual property and trade secrets. How about this scenario? Yesterday, a new big box chainstore took its case to the U.S. Supreme Court, defending its right to call its stores “WalMart.” The original Walmart chain sued, arguing that its name was protected by trademark laws, that the company had invested millions of dollars in advertising and branding, and that the new company could not legally use the very same name without causing confusion to customers and damaging Walmart’s ability to shape its own identity.

That did not happen either. But, these two fanciful scenarios are not hugely different from what did happen, as several teachers in California argued that they should not be required to pay the union that represents all teachers a fee for the unions’ efforts to negotiate and enforce contracts with their employers. The plaintiffs argue that the union takes political stands with which they do not agree, essentially compelling them to pay for speech that they do not support. In fact, the unions cannot collect money from employees who decline to join the union for political activities, only for the costs associated with negotiating and enforcing a contract.

This assault on unions is not really about the First Amendment at all. It is a political effort, mounted by anti-union groups like the Koch Brothers’ political empire, to denude the labor movement from exercising any political influence. Corporations and rich folk? They can do whatever they want to influence elections and elected officials. But, organized labor, which remains the most forceful advocate for social justice in the country, they must be hobbled and, if possible, sidelined from the political process. That is the agenda and it has no place in a court of law. After all, there is a political remedy for the concerns raised by the plaintiffs: The prior Court holding allowed state legislatures to decide whether or not to allow unions to collect fees for the costs associated with collective bargaining.

The lawyers for the plaintiffs argued that even the costs associated with negotiating a contract are inherently political, entailing a commitment to a certain view of work place rules with which they may have objections. Okay, but how is that different from the fanciful case of the Google employee above? He may think that Google’s power is too great, the source of that power is its algorithm, and that he is doing society a favor by distributing that algorithm and consequently shrinking the influence of Google on the gathering of information. That surely is as political as arguing about paid leave.

There is a deeper issue here. There is no single article to which this blog has directed attention more frequently than Lew Daly’s 2011 article in Democracy Journal entitled “The Church of Labor.” Daly argued:

[W]idespread indifference and even hostility toward religion among progressives and Democrats in recent years has helped reinforce certain trends in our political and legal culture that are equally hostile to the goals of organized labor and, indeed, to the very idea of organized labor. This is the little-told part of the story of labor’s decline how the very same liberalism that has separated church and state and strengthened individual rights on social issues such as gay marriage has helped to undermine collective rights in the economy.

Daly surveys the recent academic literature in the fields of comparative law and political development to make the case that labor rights are rooted in largely Catholic corporatist ideas which contested the emergent, Enlightenment view that only the individual has rights. He writes:

In corporatist thinking, natural associations – including the family, religious bodies, occupational guilds and trade unions, and various other communal structures – should be legally enfranchised in their corporate nature, empowered both as subjects and creators of public policy, and protected as vital instruments of the common good. Corporatism addresses issues as fundamental as family formation and faith–based social ervices, and as a heritage of the guild system, it was also a source of modern labor law and industrial policy. 

Daly notes that the countries that once had some kind of established or state-supported church also had the highest rates of union membership, and that such countries also, unlike the U.S., have legal histories in which groups, as well as individuals, can assert their rights at bar. He goes on to note that the Catholic Church’s period of greatest influence on political life came during the New Deal when, unsurprisingly, the country also adopted its most progressive pro-labor laws. And, noting the criticism of many on the left of President George W. Bush’s initiation of a “faith-based” office, Daly writes:

Liberal secularism, of course, wants to limit the role of religion in the public sphere, and the hostile response of many progressives to Bush’s faith-based initiatives reflects that point of view. But proscribing religious associations from public benefits and an established place in public life has helped reinforce a legal culture that also has no meaningful place for families, communities, or organized labor, and the resulting secular-religious divide has helped to drive a politics that seems more and more likely to destroy them all.

I would note that the concurring opinion of Justices Samuel Alito and Elena Kagan in the Hosanna-Tabor case spoke directly to this issue. The justices wrote:

Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” Roberts  United States Jaycees468 U. S. 609, 619 (1984) . In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies “independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff  Saint Nicholas Cathedral of Russian Orthodox Church in North America344 U. S. 94, 116 (1952) .

Unions have acted similarly, not primarily as buffers between the individual and the power of the State, but as a buffer between an individual worker and the power of a large corporation. They embody the subsidiarity that is at the heart of Catholic Social Teaching and was the point being made by Justices Alito and Kagan. Unions, like our government, must be run by majority vote: I support the right of any group of workers to decline to form a union, but if the majority of the workers do agree to form one, the minority needs to abide by that decision. If one dissenter can frustrate the entire enterprise, than no group, a church or a union, could meaningfully define itself in the culture or defend itself in the courts. Indeed, later this year, the Supreme Court will hear the challenge of many Catholic ministries to the HHS mandate and while the lawyers are leading with a bad argument, based on conscience, there is a good argument that I hope the Court upholds: Society benefits when groups, as well as individuals, have rights.

If you have never read Daly’s piece, I encourage you to do so. It is truly one of the smartest pieces I have read this decade and has profoundly shaped the way I think about these issues. Regrettably, in the Obama years, people like Daly do not get enough of a hearing and groups like Emily’s List are awarded far too much influence over administration decision-making, even when that influence runs counter to the interests and the values of other important groups in the Democratic coalition. But, yesterday’s oral arguments were not dominated by Daly’s concerns either. Instead, regrettably, the Court seemed open to using its own power to limit the influence of the last great bastion against oligarchy in this country. And, though you wouldn't know it from listening to the USCCB and their lawyers, it is this case about unions that may have as much of an impact on the Catholic Church as does the case against the HHS mandate. 

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