Catholic Identity Can Protect Religious Liberty
BY Patrick Reilly
July 3-16, 2011 Issue | Posted 6/24/11 at 5:56 PM
The National Labor Relations Board and the Vatican agree: Catholic colleges should have a strong Catholic identity.
And given increasing threats to the religious liberty of Catholic institutions, that may be a valuable lesson to learn. Legal experts warn that a weak Catholic identity makes for a weak defense against religious-liberty violations.
On May 26, the NLRB’s Chicago director concluded that St. Xavier University, a Sisters of Mercy apostolate, could not demonstrate a “substantial religious character” and, therefore, must accept the NLRB’s authority over faculty union organizing. In January, the agency’s New York office also claimed jurisdiction over Manhattan College, a Christian Brothers institution.
In particular, the Chicago director wrote, “A faculty member’s religious values, or lack thereof, play no role in their hiring or retention at the [St. Xavier] university and are not a subject of their evaluations.”
And despite acknowledging that Manhattan College is recognized as Catholic by the New York Archdiocese, the NLRB took it upon itself to evaluate the college’s curriculum and policies, finding “that the purpose of the college is secular and not the ‘propagation of a religious faith.’”
What defense can these colleges raise?
On the one hand, neither Catholic nor government officials seem persuaded that many Catholic colleges are still very Catholic. The Vatican has been rather clear that a renewal of Catholic identity is needed in Catholic higher education. And the NLRB has ruled against most Catholic-college exemptions from federal labor law for decades.
Facts are facts. When nearly one in eight Catholic students leave the faith while attending a Catholic college, it’s hard to argue that the education is adequately faith-centered. When polls show that students become more opposed to Catholic moral teaching by graduation, no one can dispute the identity crisis in Catholic higher education.
On the other hand, there is the important point that regardless of whether the NLRB’s judgment is accurate, no federal agency has the right to decide whether Catholic colleges are sufficiently religious according to Catholic standards: That authority is reserved to the Catholic bishops.
The U.S. Court of Appeals for the District of Columbia Circuit has said as much, twice ordering the NLRB to stop judging colleges’ religious identity, in 2002 and 2008. The argument, first proposed by now-Supreme Court Justice Stephen Breyer, is that federal courts have no constitutional right to question a college’s religious identity if it is publicly declared. If the college is being deceptive, let market forces and religious leaders resolve the hypocrisy.
Therefore, even if Manhattan College and St. Xavier University can’t convince the NLRB to reverse its decisions, they can probably win their cases at the federal-court level.
So that means that authentic Catholic identity is not legally necessary, right? Not so, warn top religious-liberty experts.
The problem is that the NLRB’s attempts to force Catholic colleges to comply with federal labor laws are part of a larger trend, described by Kevin Theriot of the Alliance Defense Fund in a recent analysis for the Center for the Advancement of Catholic Higher Education.
“Federal and state laws are increasingly being used to coerce religious institutions into actions and commitments that violate deeply held religious convictions and moral principles,” Theriot writes. He cites laws mandating that employee and student health-insurance plans cover contraceptives and that employers provide employee benefits for same-sex couples.
While Catholic colleges can engage in public relations and lobbying efforts to combat such laws, ultimately the only protection may be in citing the First Amendment’s Free Exercise Clause and obtaining exemptions to offensive laws.
“But an educational institution that veers from a religious founding will probably not be able to demonstrate that it is a religious organization,” Theriot warns. Authentically Catholic colleges have an “advantage” over other religious colleges because they have been given clear standards to follow in the 1990 apostolic constitution Ex Corde Ecclesiae (On Catholic Higher Education).
Likewise, attorneys at the Becket Fund for Religious Liberty advise Catholic institutions to ensure that they can demonstrate that their religious identity is “bona fide” and “sincerely held,” or they may be unable to claim religious exemptions to federal laws.
How does a college demonstrate its Catholic identity? The Cardinal Newman Society released a tool last month that should help. The Assessing Catholic Identity handbook summarizes key instructions from the Vatican and the U.S. Conference of Catholic Bishops, sorted according to functional categories and accompanied by questions that colleges can ask of their employees to gauge progress toward a stronger Catholic identity.
For Catholic colleges, this is an urgent matter. The NLRB is currently weighing Manhattan College’s appeal for a reversal of the New York regional director’s ruling. Belmont Abbey College is awaiting a response to its appeal to the Equal Employment Opportunity Commission, which has charged the college with discrimination against women for refusing to provide insurance coverage for contraceptives. And new Education Department regulations force states to be more active in chartering colleges, which invites state politicians to interfere with college policies and curricula.
Even as secularism threatens Catholic identity, government threatens to exert greater control over colleges that have compromised their Catholic missions. Ex Corde Ecclesiae never looked so good.
Patrick J. Reilly is president of the Cardinal Newman Society and author of The NLRB’s Assault on Religious Liberty, published by the CNS Center for the Advancement of Catholic Higher Education.
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