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DYS: The Nation’s Second-Highest Court Preserves Religious Liberty
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The reach of the First Amendment is extensive in securing the religious liberty of individuals and organizations, including colleges and universities.

This week, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Duquesne University of the Holy Spirit v. NLRB. When Duquesne refused to bargain with a group of adjunct faculty seeking to unionize, the National Labor Relations Board (NLRB) stepped in, recommending that the union be certified. But, in a decision authored by Judge Thomas B. Griffith, the D.C. Circuit rejected the NLRB’s jurisdiction over the Catholic university.

Duquesne distinguishes itself as “Catholic University in the Spiritan Tradition.” Its mission statement reads simply: “Duquesne serves God by serving students.” Like many religious colleges and universities, Duquesne’s commitment to its religious identity permeates throughout its entire campus. Adjunct faculty are a critical part of that mission.

Jude Griffith notes from the outset that our Constitution restrains government agencies from excessive involvement with religious organizations. “The Establishment Clause,” he writes, “limits governmental involvement in the affairs of religious groups, and the Free Exercise Clause safeguards the freedom to practice religion, whether as an individual or as part of a group.”

That is critical, he said, because it means religious institutions retain the independence required to pursue religious activity, inculcate its religious identity, and teach according to its religious tradition. Indeed, he notes, “For many Americans, religion cannot be exercised apart from religious organizations.” Thus, their institutions must be — and are — protected by the First Amendment. After all, the Constitution is meant to restrain government, not empower its creep into every aspect of our lives.

Nonetheless, the NLRB has been trying since the 1970s to assert its regulatory control over religious schools. Thankfully, the courts have thus far roundly rejected those efforts. In the seminal case, NLRB v. Catholic Bishop of Chicago, the U.S. Supreme Court explained that it is teachers who hold a critical role in fulfilling the mission of a religious school — whether or not any individual teacher provides actual religious instruction.

Thus, the Court in Catholic Bishop observed that even minimal involvement by the NLRB in a church-operated school presents a “significant risk that the First Amendment will be infringed.”

That logic would later be extended to higher education through subsequent decisions, which led the D.C. Circuit to create what it labeled a “bright-line test” that exclusively determines whether the NLRB may impose its jurisdiction upon a religious institution. If a religious institution (a) holds itself out as religious to the public, (b) is a not-for-profit institution, and (c) is religiously affiliated, the NLRB has no jurisdiction. Period.

But, in Duquesne, the NLRB ignored that test, opting instead to create its own rule requiring an institution to prove that its faculty in question actually perform a religious function. This would demand that a religious institution essentially prove the sincerity and sufficiency of its religious convictions — and that of its faculty.

Judge Griffith rightly explains the danger of the NLRB’s unilateral rule: “Defining which [faculty] roles qualify would be far outside the competence of [NLRB] members and judges.”

The importance of this decision cannot be understated. Its immediate impact should be welcomed by religious colleges and universities around the country. Furthering the autonomy of religious institutions to be unapologetically religious and free from government intrusion is an unambiguous goal of the First Amendment.

In the 2000 decision of Mitchell v. Helms, the U.S. Supreme Court noted that a court’s inquiry into the sincerity of a citizen’s religious views is “not only unnecessary but also offensive.” Likewise, to permit a government agency to require Duquesne to subject itself to examination by an independent federal agency like the NLRB that demands the university prove the authenticity of their religious mission is unnecessary and offensive.

Yet something is missing in all of this. Where are those who advocate the strict separation of church and state? Ought they not to be first in line to agree that the NLRB — a government agency — has no business involving itself in governing the affairs of a religious institution? Or is their mythical wall of separation merely one-sided, to be opposed only when the religious wander into the public arena?

The Duquesne decision reminds us that government agencies — despite nearly four decades of decisions against them — will often attempt to arrogate to themselves greater, and more intrusive, authority over religious institutions. Thankfully, this federal court has rightly checked that bloat. In doing so, it has made the promise of the First Amendment all the more meaningful for religious institutions.


Jeremy Dys (@JeremyDys) is Special Counsel for Litigation and Communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at

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