“Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,” by Douglas Laycock. Columbia Law Review, Vol. 81, No. 7 (Nov., 1981), pp. 1373-1417.
On the first page (1373) Laycock states his claim for autonomy baldly:
". . . churches have a constitutionally protected interest in managing their own institutions free of government interference.”
Right from the start, there is no “how” or “why”, but simply an assertion. He does not detail what makes these particular institutions (churches) different from the many other institutions (educational, scientific, fraternal, to name a few) that exist in American culture. What is it that lifts churches alone from the ranks of these other institutions? Why should they be enabled to operate free of government interference? What gives them that right? And where does this right come from? Laycock does not say.
His definition is important because it establishes the linkage of autonomy, and its dependence, on interference. While autonomy has been posited as a foundational right, in most of the contexts that Laycock describes here, autonomy is a corrective measure. For this reason, autonomy, when it consists only of reaction, invites the suspicion that it is a solution in search of a problem.
The more that Laycock cites interference to justify autonomy, the more vague it appears. It is tempting to define interference on the evidence of this paper as: “anything that churches don’t like” – an impossible position.
On pg. 1374, the controversial role of unions in Catholic schools is addressed; indeed, labor relations is in the title of the article, and ostensibly much of the argument about autonomy derives from how labor/management claims are addressed when they involve churches. In retrospect, it seems amazing that there are still people who dispute the fairness of applying common-sense and neutral law established in the field of labor/management to church/labor disputes. Douglas Laycock is apparently one of those people; welcome to Laycock’s world, where labor rights for workers simply do not apply, if the employer happens to be a church.
In all fairness, 1981 is a long way away. But, if you’re thinking that Laycock has changed his position, then you haven’t been following his career and subsequent public positions.
The labor angle in particular is an outrageous, if somewhat ironic, position. The spectacle of church officials striving to avoid such so-called violations of church policy as fair wages and a decent standard of living, and trying to justify the evils of arbitrary dismissal, harassment and racism might even be amusing, in a black humor sort of way, if the stakes were not so high.
Laycock explains why he thinks labor law should not apply to churches:
“The best known series of church labor relations cases resulted from the National Labor Relations Board's decision to assert jurisdiction over religious schools. (9) Two district courts and the Seventh Circuit held the NLRA unconstitutional as applied to teachers' unions in Catholic schools, on grounds of excessive entanglement between church and state, (10) and in the Seventh Circuit case, also on the more persuasive ground that collective bargaining would interfere with ecclesiastical control of church institutions."
This reasoning tends to establish the importance of control. Apparently, one of the main reasons that unions are unacceptable is that they take away control from the Bishops and give it to the rank and file. But, the fact that the Bishops view this shift in control so unfavorably may be a clue to other things. As to why, for example, they have fought the reforms of Vatican II to a standstill. It cannot be a coincidence that the implementation of Vatican II doctrine threatened to have the same effect on church governance that union recognition has had on corporations, namely, a leveling effect - one that would result in power-sharing.
On page 1391, Laycock argues that churches need an abundance of autonomy because churches are defined not only by fixed doctrine. They are organic, and change over time:
“. . . emphasis on doctrine and requirements ignores the fluidity of doctrine and the many factors that can contribute to doctrinal change. A church is a complex and dynamic organization, often including believers with a variety of views on important questions of faith, morals, and spirituality. The dominant view of what is central to the religion, and of what practices are Required by the religion, may gradually change. (46) Today's pious custom may be tomorrow's moral obligation, and vice versa.”
Well spoken. Obviously, the dynamic model of church needs protection from interference. But, when you get down to the facts of why this protection is needed (on the next page) some dissonance appears.
Laycock warns of the dangers of
“. . .the long-term effect of forcing religious leaders to share authority with a secular union, or of substituting one employee for another as a result of a discrimination charge or a union grievance. A number of such substitutions may have a cumulative effect, especially if, as seems likely, there is some bias in the process making them. Employees who are more aggressive and less deferential to authority, and therefore more litigious, are more likely to invoke remedies that result in compulsory replacement of one employee with another. . .”
It will be appreciated that “employees who are…more likely to invoke remedies that result in compulsory replacement of one employee with another…” can be shortened to “…employees who exercise their rights…” with no change in meaning.
From this (although he had just now stood up for the right of churches to evolve) we gather that he is unwilling to let individual civil rights of parishioners stand within the church, nor is he willing to let the church evolve as groups of people evolve, warts and all, realizing social justice case by case. On the contrary, Laycock believes here that the church must only evolve as the leaders of the church prefer it to evolve, without regard to the underlying structure of the church (communitarian, so-called hierarchical, or otherwise). When this evolution is challenged by the state, the state must always lose. This does not result in autonomy for the church as much as it results in primacy of theological rule, in other words, a theocracy. There are countries that are run this way, but most of them appear to be in the Middle East and Asia.
This reinforcement of the church hierarchy (as opposed to the authority of the people making up the church) negates his first argument, which was based on the “fluidity of doctrine” demanded by the evolution of the church through its members. Concluding that only the opinion of “management” matters, as opposed to members, undercuts the value of community and supports the opposite of fluidity of doctrine. Namely, rigidity of doctrine, and top-down theocratic thinking.
Faced with a choice between fixing discrimination (and altering the church) or leaving it in place (and altering the civil rights of the people who make up the church), Laycock much prefers the latter. The next paragraph goes deeper into this argument:
“Such government-induced changes in religion are too unpredictable to be avoided on a case-by-case basis. They can be minimized only by a strong rule of church autonomy.”
This formula seeks to escape the messy details of individual cases by granting a license to church authorities to impose blanket restrictions — another way of saying “church autonomy”. Nor is this license confined to members; as we all know (though the law reads differently) churches can and do engage in politicking to further their agendas.
Autonomy emerges as a cure-all to avoid social justice cases, whatever their merits. Apparently, this remedy is necessary because the outcome of the cases might change the parameters of the religion. His disapproval seems to stem from the possibility that the religion would have to change at all, rather than that it might change for the worse. Again, it must be kept in mind that there is no other institution in American society about which this claim could, or should, be made. Nor does Laycock pretend otherwise.
Laycock then broadens his claims far beyond the labor arena:
“This right of autonomy logically extends to all aspects of church operations. There is nothing in the cases to indicate that the Supreme Court would disagree. The Court has consistently extended the right of church autonomy as far as necessary to include the cases before it. Dictum suggesting possible exceptions has been disapproved in the only attempt to apply it. One early case acknowledged a possibility that church decisions could be reviewed by secular courts for "fraud, collusion, or arbitrariness," (185) and this dictum was alluded to in several subsequent decisions.(186) But when the Illinois Supreme Court relied on the "arbitrariness" exception,(187) it promptly got reversed, and the exception was squarely rejected.(188) The fraud and collusion exceptions would be equally inconsistent with the Court's rationale.(189)"
Isn’t it great to see constitutional lawyers standing up for FRAUD?
If you’re beginning to feel that only Bishops or their civil lawyers, with their gimlet-eyed training in the intricacies of canon law, could follow these arguments (and what is stranger, appear to believe in them) you’re getting warm. The most amazing thing about these convoluted, back-tracking, 19th century, egregiously unfair catalog of arguments is that the Bishops’ lawyers have not only embraced them, but gone them better.
I refer to attorney Mark Chopko’s use of the Laycock framework in order to erect a defense for child sexual abuse and for abuse directed against seminarians, among other things. All of that to come. But, for now, back to Laycock.
The reference to Illinois law in his footnotes is ironic because the conflict between that state and the diocese of Belleville has become the flash point in a huge battle over whether regulating “fraud” can become a tool for policing bishops. The Supreme Court in Illinois found that the Belleville Diocese was liable for fraud, as interpreted under Illinois statute, in a sexual abuse case. But, that 5 million dollar judgment has yet to be paid, because the Bishop is appealing, using many of the arguments which Laycock refers to above, fn. 185-189. The case remains unresolved, because the Bishop has appealed — twice — and the appeal has been rejected — twice — and Bishop Braxton appears ready to appeal again.
Laycock next takes his argument about labor relations in a slightly different direction:
“It follows that church labor relations are internal affairs, and the state's interest in interfering to protect employees must be judged accordingly. The state may not intervene to protect employees from treatment that is merely arbitrary or unfair; the remedy for that is to resign or renegotiate the terms of employment.(269) Modern labor legislation may have deprived secular employers of the fiduciary duty once owed them by their rank and file employees, but to deprive the churches of that duty would be to interfere with an interest protected by the free exercise clause.” (270)
Here the spectacle of Laycock indulging in nostalgia for the good old days (presumably, when union-busting was in flower and when every man jack was bound to his overlords by an oath of fealty, and rightfully so) is worth a few moments reflection. The ten-hour day: the beginning of the end?
In closing, here are more of Laycock’s arguments, which we will discuss next time.
As you read these, be sure to keep in mind the article by the Wall Street Journal (May 19, 1986) about thousands of retired and elderly Roman Catholic nuns being forced into applying for food stamps and welfare, as detailed in Ken Briggs' book Double-Crossed.
According to Douglas Laycock's article:
“Nor does the usual church autonomy case present any claim that would require outsiders to subsidize religion. One can imagine exceptions. If the church were allowed to pay wages so low that its employees became public charges, the subsidy would be obvious. But in the absence of such a subsidy, the mere fact that the state does not impose on a church all the costs and burdens it imposes on secular organizations is not an establishment.
“The right to church autonomy under the free exercise clause is not dependent on claims of conscientious objection. Individuals exercise their religion in ways not required by conscience, and they do so through organizations.
“Any interference with the autonomy of these organizations jeopardizes free exercise rights of their members, including the free development of religious doctrine. Consequently, any regulation of churches must be justified by a government interest that compellingly outweighs the church's interest in autonomy.
“To strike this balance, a court must consider the internal or external nature and the religious intensity of the matter regulated, the nature and extent of the interference, and perhaps other factors not yet identified. Relations between the church and its adult members and employees are especially sensitive: even a little religious intensity is enough to insulate these relationships from most regulation-perhaps from all but physical health and safety regulations.
“Such exemptions do not raise establishment clause problems, because they require no subsidy to religion: they simply recognize the churches' right to resolve their own internal disputes internally and to control their own affairs. The free exercise clause requires no less.”