Three years ago, in Janus v. American Federation of State, County and Municipal Employees, the Supreme Court ruled that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s contract negotiation costs. In Baisley v. International Association of Machinists and Aerospace Workers, the justices have been asked to weigh in on whether Janus and the court’s other decisions involving public-sector union fees apply to a challenge by a United Airlines employee to the requirement that he opt out of paying full union dues.
Under the Railway Labor Act, an airline employee like Arthur Baisley may be automatically represented by a union, but he cannot be required to pay for the union’s political or ideological activities. Baisley went to federal court to challenge the requirement that he opt out of paying those fees. He pointed to decisions like Janus to support his argument, but the U.S. Court of Appeals for the 5th Circuit rejected that reasoning. Janus, the court of appeals wrote, specifically said that it is uncertain whether “the First Amendment applies at all” to private-sector unions. And in any event, the court continued, those cases were challenges involving public-sector unions and therefore different interests. Only the Supreme Court, the court concluded, can overrule its decisions – which include the 1961 case International Association of Machinists v. Street, which sanctioned the “opt-out” procedure.
Baisley came to the court in May, urging the justices to take his case. The Supreme Court has made clear, he contended, that the First Amendment applies to a situation like this one, involving union fees from employees covered by the RLA. Moreover, He added, the court has also made clear that “opt-out procedures violate the First Amendment.”
The union countered that the justices should stay out of the dispute. The question that Baisley has asked them to review, the union stressed, was settled in Street, and nothing in Janus undermined it. “Janus,” the union emphasized, “rests on the proposition that the First Amendment rights of public sector employees . . . are entirely distinct form the statutory rights of private sector employees under the RLA.”
Boardman v. Inslee is a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide the information to the union that represents the providers. In 2014, the Supreme Court ruled in Harris v. Quinn that home health care workers who do not join a union cannot be required to pay a fee to cover the costs of collective bargaining on their behalf. After the court’s decision in Harris, the challengers in this case – home health care workers and a non-profit group – began a campaign to notify other workers of the ruling and to try to unseat one of the unions representing the workers. But after the law barring disclosure of the information was passed (as a ballot initiative), the challengers’ access to the information was stymied.
The challengers went to court, where they argued that the law violates the First Amendment because (among other things) it denies them access to information because of their views on collective bargaining. The U.S. Court of Appeals for the 9th Circuit rejected that argument. It reasoned that the law doesn’t address any speaker’s viewpoint, and that the current union gets access to information based on its status as the providers’ exclusive bargaining agent, rather than its views. The challengers came to the Supreme Court in March, asking the justices to weigh in.
In Roman Catholic Diocese of Albany v. Lacewell, the justices have been asked to take up a challenge to a New York regulation that requires employers to fund abortions through their employee health plans. The regulation carves out an exemption for religious employers that primarily serve and employ people of the same religion, but that exemption does not extend to other religious groups, such as Catholic Charities. The diocese, represented by former U.S. Solicitor General Noel Francisco, went to federal court, arguing that the regulation violates the Constitution. An intermediate state appellate court upheld the regulation, concluding that it is a “neutral and generally applicable” rule that can survive under the court’s 1990 decision in Employment Division v. Smith.
Telling the court that the regulation “imposes enormous burdens” because of the religious groups’ opposition to abortion, the diocese urged the court to weigh in on whether the regulation is neutral and generally applicable when it “burdens a subset of religious organizations by forcing them to cover abortions” and whether the regulation interferes with the autonomy of religious entities. And if the regulation passes muster under current law, the diocese added, the court should consider whether to overrule Smith. “It cannot be,” the diocese concluded, that the “Constitution allows New York to require religious groups to participate in a practice so fundamentally in conflict with their religious beliefs.”
New York countered that the justices should deny review because the requirement only applies to insurance companies who provide insurance in New York. Employers don’t have to provide health insurance at all, New York stressed, and in any event adding coverage for abortions doesn’t impose any additional costs for insurance coverage. Moreover, New York added, the diocese didn’t raise its religious autonomy claims in the lower courts, so they are not properly before the Supreme Court now.