The Supreme Court rarely goes out of its way to make sweeping pronouncements. The Justices are a small-c conservative bunch; they address big questions only when they have to. So when they say that something is probably unconstitutional, and they bend over backwards to avoid that thing, wouldn’t you assume the thing is unconstitutional?

Not, apparently, if you’re New York. In the late 1970s, the Supreme Court stripped the National Labor Relations Board of jurisdiction over religious schools. It did that because, it said, it was concerned about violating the schools’ First Amendment rights. Religious schools are effectively arms of a church,[1] and as such, they enjoy a protected sphere of autonomy over their internal affairs. Mandatory collective bargaining would have invaded that sphere and entangled the Board in knotty questions of religious doctrine. The Court, naturally, wanted to avoid that result. So it squinted hard at the law and found an exception for church-run schools.

That decision, you might have thought, would have closed the schools’ doors to government-mandated bargaining. And it would have, if only states had followed the Court’s rationale. But instead, New York and a handful of other states read the decision narrowly and exploited what they saw as a regulatory gap. With the Board out of the picture, they rushed to apply their own labor-relations laws, brushing aside the Court’s constitutional concerns. And even today, despite recent judicial warnings against government interference in the religious workplace, these states continue to mandate bargaining in church-run schools.

States have now been ignoring the Supreme Court’s guidance for decades. But an error is no less an error because it escapes notice for a long time. Eventually, states will have to wrestle with their mistake and acknowledge the Court’s rationale. And that day of reckoning may be coming sooner than they think. The Court has signaled that as early as this term, it could overhaul its free-exercise jurisprudence and expand protection for religious institutions. Such a decision would leave the states’ approach to bargaining in church-run schools even less defensible.

States shouldn’t wait for that to happen. They should instead use the Court’s recent guidance as a chance to withdraw from religious schools. If they don’t, the Court will, eventually, have to do it for them. 

A Bar to Mandatory Bargaining 

The Supreme Court first weighed in on collective bargaining in church-run schools in the late 1970s. Then, in NLRB v. Catholic Bishop of Chicago,[2] it held that the National Labor Relations Act did not cover faculty in those schools. That decision, though definitive on its face, would go on to fuel decades of litigation about the role of mandatory bargaining in the religious workplace.

The case involved a challenge by several Catholic high schools to the Board’s jurisdiction. The schools argued that by forcing them to bargain with faculty unions, the Board was interfering with their free exercise of religion. The Board, in contrast, argued that the schools were covered by the NLRA’s literal language. The Board claimed that the law made no exceptions for religious institutions; and whatever constitutional problems bargaining might raise, it could mitigate them by tailoring its approach to accommodate the schools’ special status.

The Supreme Court sided with the schools, but for a different reason. It recognized that the schools were part of a religious institution, and as such, they enjoyed a constitutionally protected sphere of autonomy over their internal affairs. Forcing them to bargain would have invaded that sphere and raised serious constitutional questions. How, for example, could the Board avoid forcing the schools to bargain over subjects grounded in religious belief or doctrine? Wouldn’t the Board have to draw a line between religious and secular subjects? And how could the Board draw those lines with any predictability or accuracy? Worse, if a faculty member accused a school of anti-union misconduct, how could the Board avoid questioning the sincerity of the school’s asserted rationale—a rationale that would often be grounded in religious belief?[3]

Rather than answer those questions directly, the Court avoided them through interpretation. It saw no evidence in the NLRA’s text or legislative history that Congress meant to give the Board jurisdiction over religious schools. Nowhere did Congress say it wanted the Board to wade into religious workplaces. So the Court assumed that Congress meant to withhold jurisdiction. In other words, to avoid answering the constitutional questions, the Court carved out an unwritten exception.

On its face, the Court’s decision seemed to bring mandatory bargaining in religious schools to an end. But the Board didn’t see it that way. In the following decades, it repeatedly tried to find a new foothold. It formulated and reformulated its jurisdictional test, first to focus on colleges and universities,[4] then to focus on a school’s “substantial religious character,”[5] then to focus on individual faculty members.[6] But no matter what form the test took, it ran straight into the teeth of Catholic Bishop. Relying on that decision, lower federal courts rejected the Board’s reformulated tests—again,[7] and again,[8] and again.[9]

Finally, after nearly fifty years of resisting, the Board capitulated. In 2020, in Bethany College,[10] it recognized that it had no authority over church-run schools. Going forward, it would respect their constitutionally protected autonomy. If a school ran as a nonprofit, was associated with a religious institution, and held itself out as providing religious instruction, the Board would respect its jurisdictional limits.[11] It would, finally, stay out of the schools’ internal affairs.

A Rush to Fill the Breach

As Aristotle once said (perhaps apocryphally), nature abhors a vacuum. Whether or not that’s true in nature, it’s certainly true in law. So almost as soon as the Court expelled the Board from religious schools, states started to move in. They reasoned that if federal law did not reach the schools, the schools were effectively unregulated. There was a void, and they rushed to fill it.

They had some precedent for that maneuver. As a general rule, the NLRA preempts state laws regulating the same subjects as federal law.[12] States cannot, for example, give unions new bargaining rights or prescribe new remedies for unfair labor practices.[13] If federal law covers an employer, state law has no role to play. If, however, federal law leaves an employer uncovered—either because the Board lacks jurisdiction or declines to exercise it—states are free to regulate. And states have used that leeway to regulate whole swaths of the labor force, including agricultural workers,[14] domestic workers,[15] and public employees.[16]

So a handful of states reacted to Catholic Bishop by extending their own labor-relations laws to church-run schools. New York was first out of the gate, claiming that the NLRB’s absence left it free to intervene.[17] Minnesota followed suit, finding that its own statute covered teachers in religious schools.[18] And in the late 1990s, New Jersey interpreted its state constitution to give those teachers a right to bargain.[19]

These states relied mostly on two premises. First, they concluded that Catholic Bishop said nothing about the First Amendment. The decision merely interpreted federal statutory law; it left the constitutional questions unanswered. Second, those unanswered questions posed no bar to state regulation, as mandatory-bargaining laws passed muster under the First Amendment. That is, the laws were permissible because they were neutral and generally applicable; they did not target religion, but applied to all covered employers equally. They were, therefore, presumptively valid exercises of state power.

An Error Perpetuated

Both premises, however, were false.

First, Catholic Bishop was more than a run-of-the-mill statutory decision. Yes, the Court grounded its conclusion in the NLRA: it explicitly held that the statute denied the Board jurisdiction over church-run schools.[20] But to get there, the Court had to twist itself into an interpretive knot. While the statute’s literal language applied broadly enough to cover church-run schools, the Court assumed that Congress didn’t mean to cover them because it never mentioned them explicitly. In other words, by remaining silent, Congress carved out an exception. But that’s not generally how statutory interpretation works. Courts don’t usually infer exceptions from silence; they give the statute a fair reading and apply it according to its terms.[21] The Court deviated from that approach in Catholic Bishop only because the usual mode of interpretation would have produced a constitutionally suspect result.[22] It would have allowed the Board to regulate the relationship between church-run schools and their teachers, and that result would have entangled the Board in intractable line-drawing between secular and religious subjects. Seeing no way around the problem, the Court maimed the statute through what could best be described as creative interpretation. It carved out a new exception to avoid a constitutional violation.[23]

That constitutional violation sat at the core of the Court’s analysis. The Court wasn’t just parsing language; it was reading around a constitutional conundrum. So by treating Catholic Bishop as merely a statutory case—one that says nothing about the First Amendment—states ignored the heart of the Court’s rationale. They accepted its literal holding while ignoring its animating spirit.

But ignoring the problem won’t make it go away. The First Amendment applies with the same force to state governments as it does to the federal government.[24] So if it would have violated the First Amendment for the Board to regulate a school’s internal affairs, the same violation occurs when a state regulates them. States can’t get around that problem by cabining Catholic Bishop to the NLRA. They still have to answer the constitutional question.

That point leads to the second premise. Each state, to its credit, recognized that there was still a constitutional question to answer: whether, given adequate statutory authority, a state agency could require bargaining in church-run schools.

Each state, however, got the answer wrong. All three concluded that mandatory bargaining presented no constitutional problem. For that conclusion, they relied[25] heavily the Supreme Court’s decision in Employment Division v. Smith,[26] which broadly approved neutral, generally applicable laws. The Smith Court held that those laws passed constitutional muster even when they incidentally burdened religious exercise. So, the states reasoned, because labor-relations laws were neutral and applied to all employers equally, they passed the Smith test. They did not interfere with the free exercise of religion.

But that analysis conflates two kinds of interference. In his classic article on employment laws in religious schools, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,[27] Professor Douglas Laycock divided interference with religion into three categories. In the first, he put government interference with religious belief: the government tells the believer what he or she can or cannot think. In the second, he put state interference with specific religious practices: the government tells the believer she cannot sacrifice animals, cannot use certain drugs, cannot dodge the draft, etc. And in the third, he put state interference in the operation of religious institutions: the government tells believers how to administer the entities through which they practice their faith.

The first type of interference is rare in this county. We seldom see examples of the government proscribing beliefs or dictating matters of faith. The second, however, occurs almost daily. The government tells people when and where they can gather, what substances they can consume, whom they can marry. It was this type of interference that the Court dealt with in Smith. There, the Court held that the state could deny unemployment benefits to believers who lost their jobs for smoking Peyote, even though Peyote was part of their religious faith. State law thus clashed with a specific religious practice.

Catholic Bishop, however, involved the third kind of interference. The schools never argued that collective bargaining itself violated any particular religious practice or tenet. Indeed, the Catholic Church enthusiastically supported collective bargaining.[28] Instead, the schools objected to the state’s interference in their internal affairs. By commanding them to bargain over conditions of employment, the state sapped the church’s authority over its internal governance. In other words, it wasn’t bargaining that violated the church’s rights; it was the government’s command to bargain.

Smith, then, has little to say about whether a state can dictate the terms of a church’s relationship with its employees. Smith dealt with a different kind of interference. It never suggested that a state could insert itself into a religious institution’s internal administration, even if the state did so in a neutral and generally applicable way. Smith tells us, in short, almost nothing about the debate over mandatory collective bargaining in religious schools.

More instructive are the Court’s recent decisions on the so-called ministerial exception. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC[29] and Our Lady of Guadalupe School v. Morissey-Berru,[30] the Court held that the First Amendment protects religious institutions from interference with their relationship with “ministerial” employees—i.e., employees who play important religious roles. Both cases involved attempts to apply antidiscrimination laws to teachers in religious schools. In rejecting those attempts, the Court reemphasized that churches enjoy a sphere of autonomy over their internal affairs, including their relationships with their teachers.[31] Laws regulating those relationships sapped the church of its internal authority and entangled the state in church administration. And that was true even when the laws were narrow, neutral, and generally applicable—like antidiscrimination laws.

The same, then, must be true for broader incursions like mandatory-bargaining laws. Unlike antidiscrimination laws, bargaining laws dictate more than just one condition of employment (nondiscrimination); they require employers to negotiate over every condition. And for teachers, those conditions can include nearly everything the school does. Class sizes, course offerings, curriculums—all these terms affect teachers’ work environments, and so are proper subjects for bargaining. Mandatory bargaining therefore represents a far greater loss of autonomy for church-run schools.

Smith said nothing about this sphere of protected autonomy. Yet even if it had, we would still have reason to doubt its continuing vitality. Just after Smith came down, religious groups started pushing the Court to overturn it.[32] And while those efforts produced no progress for decades, they may finally be about to bear fruit. In Fulton v. City of Philadelphia, the Court granted cert to address, among other things, whether to reexamine Smith.[33] That the Court would even consider this question shows that the Justices are taking religious-liberty issues seriously. And a Court willing to revisit decisions restricting religious liberty, like Smith, is unlikely to take a crabbed view of decisions protecting that same liberty, like Catholic Bishop.

So as state regulation of church-run schools enters its sixth decade, we find ourselves at an inflexion point. The Court has signaled that it views the autonomy of church-run schools expansively. And it could be on the verge of expanding protections for religious liberty more broadly. For states, these developments present an opportunity. They can, with the benefit of the Court’s recent guidance, reexamine their approach to church-run schools and peel back their regulatory regimes. If mandatory bargaining in those schools was unjustifiable after Catholic Bishop, it is even less justifiable today. States should admit their mistakes and mend their ways—before the Court does it for them.  



[1] The Court’s decisions often speak of religious concepts in Christian terms: churches, bishops, ministers. But their reasoning applies to all religious institutions.

[2] 440 U.S. 490 (1979).

[3] See id. at 503 (“Inevitably the Board’s inquiry will implicate sensitive issues that open the door to conflicts between clergy–administrators and the Board, or conflicts with negotiators for unions.”).

[4] See Cornell Univ., 183 N.L.R.B. 329, 334 (1970); Shattuck Sch., 189 N.L.R.B. 886, 886 (1971); Roman Catholic Archdiocese, 216 N.L.R.B. 249, 250 (1975).

[5] Univ. of Great Falls, 331 N.L.R.B. 1663, 1664 (2000).

[6] Pac. Lutheran Univ., 361 N.L.R.B. 1404, 1404 (2014).

[7] See Universidad Central de Bayamon v. NLRB, 793 F.2d 383, 398–99 (1st Cir. 1985) (rejecting Board’s attempt to limit Catholic Bishop to primary and secondary schools).

[8] Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1345 (D.C. Cir. 2002) (rejecting Board’s attempt to assert jurisdiction over schools that, in its view, lacked a substantial religious character).

[9] Duquesne Univ. v. NLRB, No. No. 18-1063, slip op. at 22 (D.C. Cir. Jan. 28, 2020) (rejecting Board’s attempt to certify bargaining unit of secular faculty at religious university).

[10] 369 N.L.R.B. No. 98 (June 10, 2020).

[11] Id. at 1.

[12] See NLRB v. Ins. Agents Int’l Union, 361 U.S. 477 (1960); San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236 (1959).

[13] See Robert Gorman et al., Labor Law Analysis and Advocacy 1246–51 (2013) (surveying preemption caselaw and providing examples).

[14] See, e.g., Willmar Poultry Co. v. Jones, 430 F. Supp. 573, 577 (D. Minn. 1977).

[15] See Rachel Homer, An Explainer: What’s Happening with Domestic Workers’ Rights?, On Labor (Nov. 6, 2013), (surveying state efforts to regulate domestic workers).

[16] See, e.g., Holman v. City of Flint, Bd. of Educ., 388 F. Supp. 792, 798–99 (E.D. Mich. 1975).

[17] See Catholic H.S. Ass'n of Archdiocese v. Culvert, 753 F.2d 1161, 1165–69 (2d Cir. 1985) (upholding assertion of jurisdiction by New York Labor Relations Board); Nyserb v. Christ King Sch., 90 N.Y.2d 244, 253–54 (N.Y. 1997) (same).

[18] Hill-Murray Fed’n v. Hill-Murray H.S., 487 N.W.2d 857, 863 (Minn. 1992) (upholding assertion of jurisdiction by Minnesota Bureau of Mediation Services).

[19] S. Jersey Catholic Sch. v. St. Teresa, 150 N.J. 575, 580 (N.J. 1997).

[20] See Catholic Bishop, 440 U.S. at 507.

[21] See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts loc. 813 (2012) (ebook) (describing “fair reading” method).

[22] See Catholic Bishop, 440 U.S. at 504 (“We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”).

[23] See Great Falls, 278 F.3d at 1340–41 (characterizing Catholic Bishop as a case about constitutional avoidance).

[24] See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 620–22 (1971) (holding that state scheme reimbursing parochial schools for costs of, among other things, teachers’ salaries violated the Religion Clauses). One notable dissenter from this view is Justice Thomas, who has suggested that the Religion Clauses were wrongly incorporated against the states. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring).

[25] See Hill-Murray H.S., 487 N.W.2d at 863 (relying on Smith); Nyserb, 90 N.Y.2d at 248–49 (same); St. Teresa, 150 N.J. at 597 (same).

[26] 494 U.S. 872, 879 (1990).

[27] 81 Colum. L. Rev. 1373, 1393 (1981).

[28] Id. at 1398.

[29] 565 U.S. 171, 181–90 (2012).

[30] No. 19-267 (July 8, 2020).

[31] See id. at 23 (observing that the “concept of a teacher is loaded with religious significance”).

[32] Matt Ford, Conservative Supreme Court Justices Take Aim at Scalia, New Republic (Feb. 18, 2020),

[33] See Petition for a Writ of Certiorari at i, Fulton v. Philadelphia, No. 18-2574 (July 22, 2019) (urging Court to consider “revisit[ing]” Smith); Order Granting Petition, No. 18-2574 (Feb. 24, 2020),