Freedom to Bankroll or Not Bankroll a Union ‘Protected by the First and Fourteenth Amendments of the U.S. Constitution’

As has been widely reported in media coverage of the U.S. Supreme Court’s June 30 ruling in Harris v. Quinn, the 37-year-old High Court precedent that first upheld the constitutionality of laws and other public policies authorizing the termination of public employees for refusal to pay union dues or fees for bargaining activities appears to be in big trouble.

While the 5-4 Harris majority found that the plaintiffs in the case are not public employees subject to forced union dues under 1977’s Abood v. Detroit Board of Education, Justice Sam Alito’s majority opinion nevertheless described Abood’s reasoning as “questionable on several grounds.”

Specifically, Alito doubted that Abood had actually identified a “compelling government interest” to warrant the abridgment of employee free speech that forced unionism obviously constitutes, and he also doubted that, even if such a compelling interest were to be found, forced unionism is “narrowly tailored” to achieve it.

(See the first part of the link below for Alito’s opinion.)

Justice Elena Kagan’s dissent (starting on page 40 of the link below) argued tersely that the eight home health caregivers who sued Illinois Gov. Pat Quinn in Harris have enough in common with “full-fledged” public employees to make them fair game for forced unionization under Abood, but focused mostly on defending the correctness of this precedent.

In attempting to rebut Alito’s critique of Abood, Kagan, joined by three other justices, insisted that government-imposed restrictions on public employees’ freedom to disassociate from a union should not be subject to “strict scrutiny.”   This is the technical term for the type of judicial review in which a law is upheld only if it advances, as Alito indicated should be the case for statutes permitting compulsory union dues for public employees, a “compelling government interest” and is “narrowly tailored” for that purpose.

Kagan contended that the First Amendment issues at stake in Abood and Harris were of a piece with those in precedents like Pickering v. Bd. of Ed. (1968), in which the High Court required only that the government have “an adequate justification” for curtailing public employees’ free speech, one that balances the interests of the employee as citizen and the interest of the government, as an employer, in “promoting the efficiency of public services . . . .”

What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have such wide “constitutional latitude” to limit the First Amendment freedom of public employees to join a labor union.

In 1969, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join and assist labor organizations, finding them to be “an abridgment of the freedom of association as protected by the First and Fourteenth Amendments of the U.S. Constitution.

This conclusion by a three judge panel on a U.S. district court in Atkins v. City of Charlotte quickly gained wide acceptance in federal courts across the country.

Of course, other established court precedents make it clear that, if an employee’s choice to associate with a labor union is constitutionally protected, his or her choice not to associate must be similarly protected.  As the High Court declared 71 years ago in W.Va. Bd. of Ed. v. Barnette, the government has no legitimate authority to “prescribe what shall be orthodox” in the realm of politics, conscience and ideas.

Consequently, since government restrictions on the individual public employee’s freedom to join a union have been subject to the “strict scrutiny” test for nearly half a century, restrictions on the freedom not to join a union, pace Justice Kagan, ought to have to pass the same test.

In the 19th Century classic Democracy in America, Alexis de Tocqueville observed, “The right of association appears to me to be almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.” Yet today forced-unionism apologists claim the government may drastically curtail public employees’ freedom not to join a union as long as they have “an adequate justification.” Image:


Harris vQuinn – Supreme Court of the United States