Catholic university declares First Amendment right to be not Catholic

by Corey Robin on December 4, 2015

Loyola University, a Catholic university in Chicago, is opposing a union drive among its contingent academic workers. On the grounds that it would violate the university’s First Amendment religious liberty.

What is at stake here, is Loyola’s guaranteed First Amendment rights of religious freedom and autonomy—essentially our right to define our own mission and to govern our institution in accordance with our values and beliefs, free from government entanglement. The United States Supreme Court long ago ruled that the First Amendment provides an exemption from NLRB jurisdiction in order to protect an institution’s religious liberty and identity. We are not alone in raising this issue, as religious institutions across the country have opposed NLRB jurisdiction in similar union-organizing situations on the same grounds that we have raised. Our position before the NLRB is not driven by anti-worker sentiment or hostility to organized labor. By raising the jurisdictional issue at the hearing, we are simply seeking to maintain our right to religious freedom, to protect the heart and soul of our institution and its mission.

Here’s what Pope Leo XIII had to say on the topic of labor unions and Catholic teaching in Rerum Novarum (1891):

The most important of all [workers’ associations] are workingmen’s unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers’ guilds of olden times. They were the means of affording not only many advantages to the workmen, but in no small degree of promoting the advancement of art, as numerous monuments remain to bear witness. Such unions should be suited to the requirements of this our age – an age of wider education, of different habits, and of far more numerous requirements in daily life. It is gratifying to know that there are actually in existence not a few associations of this nature, consisting either of workmen alone, or of workmen and employers together, but it were greatly to be desired that they should become more numerous and more efficient. We have spoken of them more than once, yet it will be well to explain here how notably they are needed, to show that they exist of their own right, and what should be their organization and their mode of action.

Ninety years later, Pope John Paul II reiterated that position in Laborem Exercens (1981):

All these rights [of workers], together with the need for the workers themselves to secure them, give rise to yet another right: the right of association, that is to form associations for the purpose of defending the vital interests of those employed in the various professions. These associations are called labour or trade unions….Their task is to defend the existential interests of workers in all sectors in which their rights are concerned. The experience of history teaches that organizations of this type are an indispensableelement of social life, especially in modern industrialized societies.

As did the National Conference of Catholic Bishops in their 1986 pastoral letter Economic Justice for All:

The Church fully supports the right of workers to form unions or other associations to secure their rights to fair wages and working conditions. This is a specific application of the more general right to associate. In the words of Pope John Paul II, “The experience of history teaches that organizations of this type are an indispensable element of social life, especially in modern industrialized societies.”(58) Unions may also legitimately resort to strikes where this is the only available means to the justice owed to workers.(59) No one may deny the right to organize without attacking human dignity itself. Therefore, we firmly oppose organized efforts, such as those regrettably now seen in this country, to break existing unions and prevent workers from organizing.

And just a few months ago, the Archbishop of Chicago had this to say on the topic:

Similarly, the Church has consistently taught that workers have a right to have a voice in the workplace, to form and join unions, to bargain collectively and protect their rights. And the Church has never made a distinction between private and public sectors of the work. It was not 4 Msgr. Higgins who called unions “indispensable,” but Pope, now Saint, John Paul II in his powerful and still timely encyclical “On Human Work’” Work and unions are important not simply for what a worker “gets,” but how they enable a worker to provide for a family and participate in the workplace and society. Unions are important not simply for helping workers get more, but helping workers be more, to have a voice, a place to make a contribution to the good of the whole enterprise, to fellow workers and the whole of society….Across the twentieth century and into the twenty-first, ten Popes have affirmed and expanded this very vision.

For example in view of present day attempts to enact so-called right-to-work laws the Church is duty bound to challenge such efforts by raising questions based on longstanding principles. We have to ask, “Do these measures undermine the capacity of unions to organize, to represent workers and to negotiate contracts? Do such laws protect the weak and vulnerable? Do they promote the dignity of work and the rights of workers? Do they promote a more just society and a more fair economy? Do they advance the common good?” Lawmakers and others may see it differently, but history has shown that a society with a healthy, effective and responsible labor movement is a better place than one where other powerful economic interests have their way and the voices and rights of workers are diminished.

…Ad [sic] I have to admit not every claim of religious freedom is valid and the law has to protect the basic rights of all.

The Archdiocese of Chicago employs 15,000 full and part-time employees in its agencies, seminaries, schools and parishes. We strive to be a just employer. I have asked our Archdiocesan staff to review all of our human resource policies to ensure we are practicing what we preach about the dignity of work and the rights of workers. We will work earnestly to address any gaps. After all, like everyone we also need to be accountable. Because the Archdiocese is an employer, some employees and some unions may want to organize in our workplaces. Some Archdiocesan employees are already organized and we work with their union to advance our mission and our mutual obligations to workers. Others are not. And that is because some “jobs” in the Church are really ministerial positions, and must answer to a higher law than those passed by legislatures, we may have differences in this area. But if we stay firm in our commitment to principled dialogue, we can resolve differences and move forward together.

The position of the Catholic Church on the right of workers to form trade unions, even within Catholic institutions (that exception that the Archbishop of Chicago carves out at the end of his address is pretty limited and certainly does not apply to adjunct instructors at a university that does not impose denominational or sectarian obligations on its faculty or students), is clear.

In the name of the First Amendment, in the name of a religious freedom to be Catholic and to follow Catholic teachings, Loyola claims the right not to be Catholic and to suspend Catholic teachings.



adam.smith 12.04.15 at 3:30 pm

This is a problem even in places with much more robust labor legislation. In Germany, e.g., the churches are exempt from much of labor law, so they can (and do) e.g. fire people for homosexuality or divorce. And just like in the US, that includes church-based social institutions, hospitals, and schools (which, to add insult to injury, receive a large share of their funding from the government).


Nate 12.04.15 at 4:13 pm

That is rather concerning. Personally, my opinion is that in the case of labor laws, churches should not be able to have special liberties to do whatever they wish. It is a difficult balance.


Salem 12.04.15 at 4:45 pm

It is irrelevant under US law what other Catholics, or the Catholic hierarchy, think is the correct position. As long as they are genuinely held, Loyola’s religious beliefs get the same protection under both the 1st Amendment and the RFRA, regardless of how idiosyncratic they may be.

[A religious-exemption case] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others …. [He] drew a line, and it is not for us to say that the line he drew was an unreasonable one.

[Courts should not give] weight to the fact that another [co-religionist] had no scruples about [the act in question]; for that other [co-religionist], at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences ….. [Protection] is not limited to beliefs which are shared by all of the members of a religious sect…. [I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow [co-religionist] more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

Thomas v Review Board.


steven johnson 12.04.15 at 5:10 pm

I’m not sure what the point is here. By custom and incompetent jurisprudence, religion is privileged. Religions in general are notably inconsistent. I suppose outsiders can levy charges of hypocrisy, but that’s only true for those who claim to be consistent. I’m not sure this is true of any religion.

For what it’s worth, in my judgment, the free exercise of religion never requires exemption from the law. The point of the first amendment is supposed to be that it’s the laws which prevent the free exercise of religion which are unconstitutional, and none should obey. Properly understood the burden of proof that any law does must be met by the religious parties. Yes, this burden is a heavy one in every aspect that touches upon public life (as opposed to private exercise.) But really, that’s as it should be.

So far as I know, Spinoza’s Tratatus Theologico-Politicus still gets it pretty much right.


CJColucci 12.04.15 at 5:39 pm

The position may be hypocritical, but it seems to be legally correct. The Supreme Court so held a long time ago.


Manta 12.04.15 at 5:51 pm

What is exactly a “catholic university”? How can the LU openly contradict one hundred years of well-established catholic doctrine, and still call itself catholic?


MPAVictoria 12.04.15 at 6:44 pm

“What is exactly a “catholic university”? How can the LU openly contradict one hundred years of well-established catholic doctrine, and still call itself catholic?”



Lynne 12.04.15 at 7:30 pm

I am surprised that Second Amendment religious freedom applies to institutions as well as individuals. I think that’s a mistake. We have something like it here in Canada, too. One consequence is a woman who gives birth in a Catholic hospital and wants to have her tubes tied can’t have it done at the same time, even if it’s a Caesarean birth; she has to go across town to another hospital and have another surgery. I would like to think this isn’t the case any more (the case I refer to happened twenty years ago) but as far as I know the law hasn’t changed since then.


matt regan 12.04.15 at 8:11 pm

Loyola is not only a Catholic university, but a Jesuit one. Jesuits, as we know, take a special vow of obedience to the Pope. Maybe a quick note to Francesco could recall them to conformance with Rerum Novarum, Quadragesimo Anno et seq.


Chip Daniels 12.04.15 at 8:13 pm

I know you meant First Amendment, but the way you typed it is not only darkly amusing, but sadly prescient in our current cultural trajectory.


Lynne 12.04.15 at 8:40 pm

Chip Daniels, oops. I actually don’t know the Amendments, but then I guess everyone knows that now.


MPAVictoria 12.04.15 at 8:51 pm

“Chip Daniels, oops. I actually don’t know the Amendments, but then I guess everyone knows that now.”

Don’t feel bad. Most actual Americans don’t know them either. :-)


Al 12.04.15 at 9:22 pm

Loyola University seems to be telling its staff and students not to take seriously Catholic theology regarding the right to unionize. Perhaps the staff and students should feel free to ignore Catholic theology regarding abortion as well.


rea 12.04.15 at 10:47 pm

Even though Loyola’s position on unions turns out to be heretical, courts deciding religious liberty issues (in US) only get to determine whether a claim of religious liberty is sincere, not whether it is sound theologically.


Watson Ladd 12.04.15 at 11:19 pm

The argument seems to be that teaching at a Catholic university is ministerial in nature. This doesn’t seem that wild a claim.


RJ 12.04.15 at 11:25 pm

Perhaps just summarizing what others have said, but if it’s really true that Loyola is operating within the bounds of what’s allowable by ‘religious freedom’, then the evidence is conclusive that the American regime of religious freedom is a joke, and transparently an expression of elite privilege.


ZedBlank 12.05.15 at 12:24 am

@Salem, 3:

If I understand the OP correctly, the point is to show that, contrary to the claim of bosses at Loyola, the view here is not, in fact, genuinely held. Or at least that we ought to be very skeptical of such claims.

I looked through the links, and there’s very little in-depth discussion of exactly why a drive to unionize precarious workers would in any way interfere with the religious freedom of Loyola.


ZM 12.05.15 at 12:40 am

I looked up the Australian Catholic University I went to, and they allow for unions and have a policy for staff leave for union training days.

For the primary and secondary Catholic education sector here in Australia, they had specific Catholic education unions until about the 1980s, then these unions joined a larger union for workers in Independent (non-government) Education.

I was wondering if the reason Loyola University was objecting to this unionisation on the grounds of religious freedom was because the union is just a general service workers union (Service Employees International Union, Local 73) which represents public sector workers in Illinois and NW Indiana.

But the university does seem opposed to unions in general from reading their website.


Robert Halford 12.05.15 at 6:50 am

The thing is, the Supreme Court ruled (years ago, during the Burger Court) that the NLRA simply didn’t apply to religious, specifically Catholic, high schools — not as a matter of the First Amendment, but as a (pretty dubious) matter of statutory construction, clearly made in order to forestall a Constitutional ruling. There are differences between high school and college which mean that it’s not clear whether exactly the same rule would apply to a Catholic University, but Loyola is on pretty strong ground when it says that the NLRA doesn’t apply to it — it’s not pushing the cutting edge of the law or anything, and, because of the Supreme Court, it’s not even really a First Amendment issue but a statutory one.

Note too that Loyola could choose to recognize the union voluntarily while still maintaining that it’s not subject to the jurisdiction of the NLRB — apparently many Catholic dioceses have done precisely this and (at their discretion) allowed “unionized” high school teachers. Of course, the problem with that is that if Loyola takes away what it grants, the union has no legal recourse, but there’s nothing stopping (in theory) Loyola from conforming to Catholic teaching on unions while still arguing that it is exempt from NLRA organizing procedures.

All that said, to be clear, I personally think the college is dead wrong and should just recognize the union, but it’s maybe worth pointing out that there are some additional layers of complexity.


Robespierre 12.05.15 at 7:59 am

I would be so much happier if the concept of religious freedom were interpreted leas as “rules don’t apply to religious organizations/practices” and more along the lines of “we won’t make legislation to deliberately punish or inconvenience religious people, but if acting on your beliefs happens to break a law, well tough luck”


RJ 12.05.15 at 3:56 pm

Careful, Robespierre, your expressed position has too much common sense and obvious justice to it. Someone might want to send you to the guillotine.


Tom M 12.05.15 at 11:09 pm

Corey gets it exactly right. The law in the US is or should be irrelevant since the leadership at Loyola, if truly imbued with the Catholic (Roman) faith, would never have considered forestalling unionization. But then, the church is a religiously corrupt organization as an institution.
See all of the bankruptcies, scandals, the Argentine cooperation with the murders of left-wing dissidents and adoption of the orphans, the shady bookkeeping in Rome etc, etc ad nauseum. Putting in the boot to adjuncts is wholly consistent with colleges in the US.


Teachable Moe 12.06.15 at 12:02 am

It’s insane that “beliefs” are attributed to organizations.


Lynne 12.06.15 at 10:30 am

@23 I don’t know about insane, but giving organizations the rights of citizens has huge consequences.


kidneystones 12.06.15 at 11:26 am

@ 13 and @ 15 address the key issues, as for as some Catholics are concerned:

I read a sample of the Loyola statements and these seem to be inline with those identified in the linked article. As we might expect, Loyola encourages everyone involved to obtain as much information as possible, and then to vote not just for what might best for workers, but what will be best for the Catholic and Jesuit values Loyola believes are core to the relatively rare educational experience that Loyola offers.

I have some long direct experience one important Jesuit scholar who will remind anyone in any doubt that his first obligation and duty is to the church, not the pope, oaths not withstanding. His scholarly expertise in other areas is a secondary concern. Indeed, it is the independence of the Jesuits that makes them so formidable a force proportionate to their actual numbers.

@3 links to a Labor case involving a Jehovah’s Witness. The linked article in this comment was published Feb 2015 and cites several recent precedents that provide context to the Loyola case.

“…The NLRB has taken it upon itself to assess whether the employees of several Catholic colleges and universities are actually contributing to the religious mission of these institutions by “performing religious functions.” The NLRB knows that if the faculty actually uphold and advance Catholic teachings, they may be viewed by the courts as performing a religious function.

On January 6, 2015, the NLRB issued a “Certification of Representation” allowing adjunct professors and lecturers at St. Mary’s College in Moraga, California to join the Service Employees International Union (SEIU)…”

The article is short and informative.


kidneystones 12.06.15 at 11:30 am

Should read, ‘the linked article in my comment’ (again here)

Sorry about sloppy construction.


larrybob 12.06.15 at 3:48 pm

but there’s so much property in Rogers Park that needs developing. surely you don’t expect LUC to be held back from its competition with the UofC by mere theological considerations.


Alan Bostick 12.07.15 at 10:15 pm

US law seems clear: a religious university can claim exemption from labor laws on religious grounds. If the administrators of Loyola University claim that their faith prohibits unionization, they have that right.

The proper avenue of correction here, is through the Church. Perhaps a letter should be sent to the Inquisition Congregation for the Doctrine of the Faith.


David Jacobs 12.07.15 at 10:46 pm

Catholic Scholars for Worker Justice would have something to say about Loyola.
Here is a statement on the larger issue from Joseph Fahey:


sanbikinoraion 12.11.15 at 1:45 pm

Can someone sue Loyola for whatever the American equivalent of trade descriptions is, for advertising that they are a Catholic university without actually following Catholic teaching?

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