SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2593-94T3
SOUTH JERSEY CATHOLIC SCHOOL
TEACHERS ASSOCIATION,
Plaintiff-Appellant,
v.
ST. TERESA OF THE INFANT JESUS
CHURCH ELEMENTARY SCHOOL, SAINT
BARTHOLOMEW CHURCH ELEMENTARY SCHOOL,
THE CHURCH OF ST. JUDE ELEMENTARY
SCHOOL, SAINT JOSEPH PRO-CATHEDRAL
CHURCH ELEMENTARY SCHOOL, SAINT
JOSEPH CHURCH ELEMENTARY SCHOOL
AND SACRED HEART ELEMENTARY SCHOOL,
Defendants-Respondents,
and
UNITED STATES OF AMERICA,
Intervenor.
____________________________________________
Argued: February 15, 1996 - Decided: May 16,
1996
Before Judges King, Kleiner and Humphreys.
On appeal from the Superior Court of New
Jersey, Chancery Division, Camden County.
Benjamin Eisner argued the cause for appellant
(Spear, Wilderman, Borish, Endy, Spear and
Runckel, attorneys; Katherine L. Schreiber, of
counsel and on the brief).
Martin F. McKernan, Jr., argued the cause for
respondents (McKernan, McKernan & Godino,
attorneys).
Patricia A. Millett argued the cause for intervenor (Faith S. Hochberg, U.S. Attorney, Department of Justice, attorney; Frank W.
Hunger, Assistant Attorney General, Michael
Jay Singer, John L. Jacobus and Ms. Millett,
on the brief).
Marc D. Stern, attorney for amicus curiae
Coalition for the Free Exercise of Religion,
filed a brief.
The opinion of the court was delivered by
KING, P.J.A.D.
This case involves the right of parochial elementary school lay teachers to organize and bargain collectively with the six parish schools where they work. The schools are operated by these parishes under the auspices of the Diocese of Camden. These Catholic elementary school teachers claim the right to organize and bargain collectively secured to persons in private employment under Art. I, par. 19 of the New Jersey Constitution of 1947: "Persons in private employment shall have the right to organize and bargain collectively." The Diocese contends that it has the absolute right to refuse to recognize and to bargain collectively with any union because of the Religion Clauses of the First Amendment to the United States Constitution.
The Chancery Division judge agreed with the schools and the Diocese and dismissed the suit by the plaintiff, South Jersey Catholic School Teachers Association (SCTO), on federal constitutional grounds. We disagree and reverse.
We conclude that the compelling state governmental interest expressed in the grant of the fundamental right to organize and bargain collectively by the New Jersey State constitution prevails
over the claim of an unconstitutional burden on the parish schools'
and Diocese's free exercise of religion. We remand and direct the
Chancery Division to order an official representational election
and require defendants to bargain collectively with the chosen
representative of the lay teachers.
On August 24, 1994 the plaintiff filed this complaint seeking a mandatory injunction compelling the Diocese's six elementary schools named as defendants to recognize it as the representative of the lay teachers and to bargain over terms and conditions of employment. In the alternative, the plaintiff sought an order requiring a secret-ballot election among the lay teachers to determine if plaintiff was indeed the majority representative. If so, plaintiff sought an order to compel collective bargaining.
On September 30, 1994 defendants filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. On November 10, 1994 the defendant cross-moved for summary judgment. On December 16, 1994, after argument, the Chancery Division judge rendered an oral opinion in defendants' favor. The judge expressed concern that defendants' First Amendment free exercise of religion rights would be impaired by a requirement that the schools recognize a teachers' union and bargain with it over terms and conditions of employment. He was also concerned that church-state entanglement would occur if plaintiff obtained relief. He granted summary judgment to the defendants.
The Diocese of Camden was established by Pope Pius XI in 1938. The counties of Atlantic, Camden, Cape May, Cumberland, Gloucester and Salem comprise the Diocese. Saint Joseph Camden's Pro-Cathedral, Saint Bartholomew's Church in Camden, The Church of Saint Teresa of the Infant Jesus in Runnemede, Saint Jude's Church in Gloucester Township, Sacred Heart Church in Vineland and Saint Joseph's Church in Hammonton, the six named defendants, all own, operate and maintain Catholic elementary schools. According to the certification of Reverend Monsignor Leonard Scott, Judicial Vicar of the Diocese of Camden, these schools are called "Catholic" because
they are supervised by an ecclesiastical
juridic person, that is, the parish. It is
their supervision by the parish that makes
them "Catholic." The respective pastors of
these six parishes are responsible for the
operation and maintenance of these schools and
they are charged with the supervision and
administration of these institutions. These
pastors are answerable to the Bishop of the
Diocese of Camden who . . . is to maintain
"vigilance" over the schools which are
operated by the parishes and who is authorized
"to issue prescriptions dealing with the
general regulation of Catholic schools[.]"
The Bishop of the Diocese is, in turn,
answerable to the Pope.
The heads of the six parish schools submitted nearly identical certifications which demonstrate that either an overwhelming majority or all the teachers in each of the six schools are laypersons. The certifications stressed the importance of these
lay teachers:
[T]he example of these adult lay teachers is
perhaps even more crucial than the example
that could be offered by priests or nuns.
These lay teachers are expected, by their very
word and action, by their lifestyle and by
everything that they do or say, to uphold and
live by the teachings of the Roman Catholic
Church, to inculcate these teachings wherever
and whenever possible and to serve as living
witnesses of a faith-filled life. As the
Pastor I would dismiss any teacher who
expressed positions in the classroom contrary
to the teachings of the Catholic Church.
[The elementary school], unlike Catholic
high schools and colleges, works with children
at an extremely impressionable and formative
age when the inculcation of the Faith is
especially important. The School works with
the Catholic students to prepare them for the
sacraments of First Penance, First Holy
Communion and Confirmation which means that
the School is especially important in
preparing the young for the sacramental
element of their lives that will be the
bedrock of their religious faith in the years
to come.
Plaintiff is a member of the National Association of Catholic
School Teachers. Members of the Association represent lay
elementary and lay high school teachers for purposes of collective
bargaining in other parts of the nation, including high school
teachers in the dioceses in Trenton and Camden, New Jersey.
Since 1984 the Camden Diocese has recognized plaintiff SCTO as
the collective bargaining representative of the approximately 223
lay high school teachers in the high schools it sponsors.
Plaintiff and the Diocese have negotiated a series of collective
bargaining agreements covering these secondary-school lay teachers.
On August 9, 1993 union activists held a meeting at the home
of William Blumenstein, plaintiff's president and a teacher at one
of the Diocese's high schools. Four members of the union's
executive board and five lay teachers from two of the elementary
schools in the Diocese met to discuss plaintiff undertaking
organizing efforts on behalf of the lay elementary teachers. In
September 1993 plaintiff's executive board approved organizing
efforts and expenditures for printing and copying an informational
distribution to the elementary school teachers. The SCTO
Chronicle, the union's newsletter, was distributed to teachers
outside regional in-service locations in October and November 1993.
The newsletter contained an authorization form on which the
teachers could designate plaintiff as their representative in
collective bargaining with the Diocese. Throughout this time,
plaintiff's members met with teachers at the various schools who
were interested in representation.
According to certifications by Blumenstein and Christopher
Ehrmann, plaintiff's regional representative, plaintiff was
designated as the representative of a majority of the lay
elementary teachers at the six elementary schools. According to
Blumenstein, plaintiff's majority status can be confirmed by
conducting an in camera review of the authorization cards signed by
the teachers and a comparison of the signatures with the teachers'
signatures on their W-4 forms. The authorization cards are not
contained in the record. However, defendants do not dispute the
claim that plaintiff SCTO has received majority support as the
elementary school teachers' representative.
Beginning in November 1993, plaintiff opened a dialogue with
the Diocese regarding its desire to represent the lay elementary
teachers. In March 1994, Blumenstein met with Bishop James McHugh
who presented him with a document entitled Minimum Standards for
Organizations Wishing to Represent Lay Teachers in a Parish or
Regional Catholic Elementary School in the Diocese of Camden
(minimum standards). Bishop McHugh told Blumenstein that
plaintiff's agreement to the minimum standards was a precondition
both for recognizing the union and for permitting the teachers to
vote on the question of union representation. Blumenstein was also
told that the minimum standards were not negotiable.
The preamble of the minimum standards first acknowledges the
Roman Catholic Church's recognition of the dignity of labor,
stating:
The Catholic Church, beginning with the
Encyclical Letter of Pope Leo XIII in 1891,
The Condition of Labor (Rerum Novarum), and
continuing over 100 years until the recent
Encyclical Letter of Pope John Paul II in
1991, Centesimus Annus, has developed an
admirable body of teaching on social,
economic, political and cultural matters.
This rich heritage of the social teaching of
the Church has evolved in response to very
differing economic and political contexts.
While it is thus marked by significant shifts
in both attitude and methodology, it
represents the Catholic Church's evolving
response to the Evangelical challenge to live
a responsible Christian life amidst the
complexities of rapidly-changing modern
society.
During the past Century Catholic social teaching has supported, in the strongest
possible terms, the right of workers to
organize into bona fide unions. Such unions
are intended to counter working conditions
which are unfair or unjust, so that the
working man or woman may not be exploited by
employers who denigrate the dignity of the
human person in favor of profit and power. We
fully affirm and endorse this teaching of the
Church.
The preamble of the minimum standards then relates the role of
Catholic elementary schools:
At the same time we must recognize that the
Catholic elementary schools, operated and
administered by the various parishes as part
of their teaching mission, have a special
nature and purpose that must be respected and
preserved. They are an essential part of the
religious mission of the Church on the parish
level, and it is impossible to separate their
educational function from their primary
religious purpose, which, of course, is the
reason for their existence. The Catholic
elementary school teacher, too, as a
professional who, through the local pastors,
shares in the teaching and sanctifying
missions of the Church and the bishop,
exercises a special and privileged role in the
Church in transmitting and conveying the Faith
to those of such an impressionable age. Bound
by charity to one another and to their
students, and penetrated by an apostolic
spirit, Catholic school teachers in the parish
and regionalized elementary schools, are
called to give a special witness to Christ,
the unique Teacher, by their lives as well as
by their teachings. Theirs is a calling which
requires extraordinary qualities, to challenge
the minds and hearts of youth, to bring them
knowledge and truth, and to be role models of
what every Christian is called to be by Christ
and by his Church. However, it is a distinct
calling since it is in these especially
formative years that their young students are
most susceptible to both explicit teaching and
personal example and during which the pastors
are charged by the Church to prepare them ....
with the help of others .... for life's
sacramental journey through the reception of
First Penance, First Communion and
Confirmation.
With respect to labor relations, the minimum standards provide
that because of the unique nature of the Catholic elementary
school, "neither the courts nor any governmental labor relations
board or similar entity shall be involved in any way whatsoever in
the enforcement, interpretation or application of these minimum
standards or any other agreement between the parties." The minimum
standards further provide that the right to hire, suspend,
discharge or otherwise discipline a teacher shall be reserved to
the parishes; disputes shall be resolved by the pastor; any dispute
relating to disciplinary action against a lay teacher resulting in
suspension or termination shall be appealable to a Pastors' Appeal
Board; any teacher who by public action or statement contradicts or
subverts the teachings of the Catholic Church or the policies of
the Diocese shall be subject to immediate dismissal; the judgment
of the Bishop on these questions shall be final; and the matters
addressed in the minimum standards are not subject to negotiation
by the organization chosen by the lay teachers to represent them.See footnote 1
Blumenstein certified that the minimum standards were unacceptable to plaintiff as the basis for conducting an election among the elementary teachers because these standards required the plaintiff to agree, in advance, to certain matters that are properly the subject of collective bargaining. In late June 1994, plaintiff wrote to each of the defendant schools requesting recognition as the collective bargaining representative of the lay elementary teachers. Shortly after this, each school responded with an identical letter refusing to recognize plaintiff or to hold
an election without prior agreement to the minimum standards. In
early July 1994 plaintiff informed defendants that although it
recognized that matters affecting the teachings of the Catholic
Church, whether in faith and morals or the policies of the Diocese
in that regard, are within the sole province of the Bishop, it
could not sign the minimum standards and would seek relief through
the courts.
We first address the issue of "lack of subject matter jurisdiction" because this was nominally the reason the Chancery Division judge declined relief. Generally, there are three types of federal preemption in the field of labor relations: (1) Supremacy Clause preemption, where the validity of a state statute or regulation is attacked as violative of the federal Supremacy Clause; (2) claim or choice-of-law preemption, where federal law must be applied even though both the state and federal courts have concurrent jurisdiction; and (3) choice-of-forum preemption, which is jurisdictional, because it relates to whether the state court has any adjudicatory power. Maher v. New Jersey Transit Rail Operations, 239 N.J. Super. 213, 220-21 (App. Div. 1990), modified, 125 N.J. 455 (1991). The third type of federal preemption is the issue in this case.
In the labor-management field, under the National Labor Relations Act (Act), Congress has not expressly provided for exclusive federal jurisdiction. Chamber of Commerce of U.S. v.
State,
89 N.J. 131, 142-43 (1982). Nonetheless, states are
preempted from acting on matters even arguably subject to the Act
unless the NLRB has declined or would decline to assert
jurisdiction. Lay Fac. Ass'n v. Newark Archdiocese,
122 N.J.
Super. 260, 269 (App. Div. 1973). In Lay Fac. Ass'n an association
alleged to represent the majority of the lay faculty members of the
Archdiocese's secondary schools claimed that the Archdiocese had
violated Article I, paragraph 19 of the New Jersey Constitution by
failing to bargain collectively with the association and sought an
order requiring collective bargaining. The Chancery Division judge
entered judgment requiring the Archdiocese to bargain collectively.
We held that the NLRB should determine whether it would exercise
jurisdiction over the controversy because there was no provision in
the Act exempting the employment relationship in issue and we
instructed the parties to seek an advisory opinion from the NLRB on
that question, while retaining jurisdiction. We said that if the
NLRB declined to exercise jurisdiction, we would order an
affirmance of the judgment in the Chancery Division. Id. at 273.
The matter returned to this court after the NLRB would not exercise
jurisdiction. We summarily affirmed the judgment, ordering
collective bargaining. Lay Faculty Ass'n v. Newark Archdiocese,
124 N.J. Super. 369, 372 (App. Div. 1973).
Six years later, in NLRB v. Catholic Bishop of Chicago,
440 U.S. 490,
99 S.Ct. 1313,
59 L. Ed.2d 533 (1979), the Supreme Court
addressed the question whether teachers in schools operated by a
church which taught both religious and secular subjects were within
the jurisdiction of the Act. The Court held that in the absence of
a clear intention on the part of Congress that such teachers were
covered by the Act, and in view of the serious First Amendment
questions that would follow from the NLRB's exercise of
jurisdiction over teachers in church-operated schools, the NLRB was
prevented from exercising jurisdiction over these teachers. 440
U.S. at 504-07,
99 S.Ct. 1313, 59 L. Ed.
2d at 543-545. Catholic
Bishop was decided strictly on statutory construction grounds and
did not reach the constitutional issues.
In light of this Supreme Court decision, similar to the
situation where the NLRB declines jurisdiction because of the
subject matter's minimal impact on interstate commerce, "state
tribunals are free to exercise jurisdiction over the subject
matter." Cooper v. Nutley Sun Printing Co.,
36 N.J. 189, 194
(1961) (holding that in light of the NLRB's refusal to take
jurisdiction, the Chancery Division was not barred by federal
preemption from assuming jurisdiction.) See also Christ the King
Regional High Sch. v. Culvert,
815 F.2d 219, 222-23 (2d Cir.)
(holding that under Catholic Bishop, the Act did not preempt New
York State's Labor Relations Board from exercising jurisdiction
over a labor dispute between a church-affiliated high school and a
union of lay faculty teachers), cert. denied,
484 U.S. 830,
108 S.
Ct. 102,
98 L. Ed.2d 63 (1987). Finally, the absence of
regulatory labor legislation in New Jersey with respect to private
employment and the disinclination of the Legislature to provide
bureaucratic machinery for the control of intrastate private-sector
labor matters, permits a state court of general jurisdiction to
address this action. Johnson v. Christ Hosp.,
84 N.J. Super. 541,
545 (Ch. Div. 1964), aff'd per curiam,
45 N.J. 108 (1965).
The plaintiff maintains that the judge incorrectly analyzed defendants' free exercise claim by relying on the Establishment Clause concept of "entanglement." Plaintiff contends that Article I, paragraph 19 of the New Jersey Constitution is neither an establishment of religion nor a substantial burden on defendants' free exercise of religion because it requires only that the parties bargain. No state regulatory agency or mechanism for enforcement or review of the collectively bargaining process is implicated. Plaintiff points out that defendants are required to comply with secular laws, i.e., educational standards and safety codes, among others. Plaintiff maintains that defendants' free exercise concerns can be accommodated by the judiciary's application of neutral principles of contract and labor law with respect to any dispute that might arise and by plaintiff's assurance that it intends to bargain only on secular issues, such as wages, hours, tenure, work assignments, vacation and personal time, illness and disability leave, and health and retirement benefits, not on matters touching faith, morals or religious polity.
Defendants, in contrast, contend that Article I, paragraph 19 violates the First Amendment religion clauses if applied in this case, transgressing the Establishment Clause, injecting government into religion, creating an entanglement of the two, and burdening
free exercise rights.
The First Amendment states in pertinent part: "Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof[.]" These protections apply to the
states. Cantwell v. Connecticut,
310 U.S. 296,
60 S. Ct. 900,
84 L. Ed. 1213 (1940). The distinction between the two clauses is the
presence of coercion, which need not be attendant for a violation
of the Establishment Clause. Abington School District v. Schempp,
374 U.S. 203, 223,
83 S. Ct. 1560,
10 L. Ed.2d 844, 858 (1963).
The United States Supreme Court uses, at least nominally, the
now-familiar three-prong test for determining whether there has
been a violation of the establishment clause: whether the
challenged law or conduct has a secular purpose; whether its
principal or primary effect is to advance or inhibit religion; and
whether it creates an excessive entanglement of government with
religion. Lemon v. Kurtzman,
403 U.S. 602, 612,
91 S. Ct. 2105,
29 L. Ed.2d 745, 755 (1971). See also Rosenberger v. University of
Va., 515 U.S. __,
115 S. Ct 2510,
132 L. Ed.2d 700,
63 SLW 4702
(1995); Capitol Sq. Rev. and Advisory Bd. v. Pinette, __ U.S. __,
115 S. Ct. 2440,
132 L.Ed.2d 650,
63 SLW 4684 (1995). Faced with
an issue similar to the issue raised by this appeal, one court
concluded that "the church-labor relations issues presented here
are most appropriately analyzed under the free exercise clause" and
that "the establishment clause challenge . . . is actually a free
exercise question." Hill-Murray Federation of Teachers v. Hill-Murray H.S.,
487 N.W.2d 857, 863 (Minn. 1992). Another court has
explicitly considered the two clauses jointly because of its belief
that "there has been some blurring of sharply honed
differentiations" between them. NLRB v. Catholic Bishop of
Chicago,
559 F.2d 1112, 1131 (7th Cir. 1977), aff'd on other
grounds,
440 U.S. 490,
99 S. Ct. 1313,
59 L. Ed.2d 533 (1979).
Or, as a third court presented with a similar scenario noted:
"[T]he claims under the Establishment Clause and the Free Exercise
Clause involve the same considerations and are not easily divided
and put into separate pigeon holes." Catholic High School Ass'n of
Archdiocese of N.Y. v. Culvert,
753 F.2d 1161, 1166 (2d Cir. 1985).
Thus, for various reasons, courts have tended to analyze church-labor relations issues under both the establishment and the free
exercise clauses. See, e.g., Culvert, supra, 753 F.
2d at 1166
("Nonetheless, for organizational purposes, we will discuss the
clauses independently of each other").
We fail to see defendants' contention as an Establishment
Clause claim. This is clearly a free exercise claim. This case
does not involve government support for religion but rather
government's claimed encroachment on religious exercise and
observance. We agree with the academic view expressed by Professor
Laycock:
Government support for religion is an element of every establishment claim, just as a burden or restriction on religion is an element of every free exercise claim. Regulation that burdens religion, enacted because of the government's general interest in regulation, is simply not establishment. Magic words like "entanglement" cannot make it so. Such regulation is properly challenged under the
free exercise clause; courts that have
analyzed the church labor relations cases in
establishment clause terms have invoked the
wrong provision. [Douglas Laycock, Towards a
General Theory of the Religion Clauses: The
Case of Church Labor Relations and the Right
to Church Autonomy,
81 Colum. L. Rev. 1373,
1394 (1981) (footnote omitted).]
Accord Robert J. Pushaw, Jr., Note, Labor Relations Board
Regulation of Parochial Schools: A Practical Free Exercise
Accommodation, 97 Yale L.J. 135, 147 (1987) (footnotes omitted)
("Courts have weakened their First Amendment analyses by applying
establishment clause rules prohibiting `entanglement' . . . to
parochial school labor relations cases, which more properly turn on
the free exercise issue of government `burdens' on religion
resulting from enforcement of impartial regulatory laws").
We have great difficulty viewing the uniform application of a
state constitutional provision to parochial schools as an
establishment of religion. Rather, as Professor Pushaw points out,
the parochial schools here are really requesting the benefit of a
special exemption from a neutral labor-relations law of
constitutional dimension. Pushaw, supra, 97 Yale L.J. at 148. The
issue should be analyzed solely under the Free Exercise Clause.
In Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 10 L. Ed.2d 965, 970 (1963), the Court held that any incidental burden on the free exercise of religion may be justified only by a compelling state interest in the regulation of a subject that is
within the State's constitutional power to regulate. "[I]n this
highly sensitive constitutional area, `[o]nly the gravest abuses,
endangering paramount interests, give occasion for permissible
limitation.'" 374 U.S. at 406, 10 L. Ed.
2d at 972,
10 L. Ed.2d 965 (quoting Thomas v. Collins,
323 U.S. 516, 530,
65 S. Ct. 315,
89 L. Ed.2d 430, 440 (1945)). In Wisconsin v. Yoder,
406 U.S. 205,
92 S. Ct. 1526,
32 L. Ed.2d 15 (1972), the Court reiterated
this test, and added:
But to agree that religiously grounded conduct
must often be subject to the broad police
power of the State is not deny that there are
areas of conduct protected by the Free
Exercise Clause of the First Amendment and
thus beyond the power of the State to control,
even under regulations of general
applicability. . . .
A regulation neutral on its face may, in its
application, nonetheless offend the
constitutional requirement for government
neutrality if it unduly burdens the free
exercise of religion.
[406 U.S. at 220, 32 L. Ed.
2d at 28.]
When faced with such a claim, we must closely examine the interests the State seeks to promote and the impediments to those objectives that would flow from recognizing an exemption from a generally applicable law. Yoder, supra, 406 U.S. at 221, 32 L. Ed. 2d at 28. The Sherbert/Yoder test is at bottom a balancing test requiring consideration of whether: (1) the claims presented were religious in nature and not secular; (2) the state action burdened the religious exercise; and (3) the state interest was sufficiently compelling to override the constitutional right of free exercise of
religion. Culvert, supra, 753 F.
2d at 1169.
In Employment Div. v. Smith,
494 U.S. 872, 885,
110 S. Ct. 1595,
108 L. Ed.2d 876, 889 (1990), the Court discarded the
Sherbert/Yoder approach to free exercise challenges. See Diaz v.
Collins,
872 F. Supp 353 (E.D. Tex. 1994) (recognizing abrogation
of Yoder). In its place, the Court held that a generally
applicable and otherwise valid regulatory law which is not
specifically intended to regulate religious conduct or belief and
which incidentally burdens the free exercise of religion does not
violate the Free Exercise Clause of the First Amendment. 494 U.S.
at 878, 108 L. Ed.
2d at 885. The Court retained the compelling
interest test for instances where the regulatory law impacts the
Free Exercise Clause in conjunction with another constitutional
protection, such as freedom of speech and of the press, or the
right of parents to direct the education of their children. 494
U.S. at 881-82, 108 L. Ed.
2d at 887-88.
In response to the Smith decision, the Religious Freedom
Restoration Act (RFRA),
42 U.S.C.A.
§2000bb, was adopted in
November 1993. Its stated purpose was to restore the compelling
interest test set forth in Sherbert and Yoder, and to guarantee its
application in all cases where free exercise was substantially
burdened by otherwise neutral laws.
42 U.S.C.A.
§2000bb(a) and
(b). RFRA further provides in pertinent part:
(a) In general.---Government shall not
substantially burden a person's exercise of
religion even if the burden results from a
rule of general applicability, except as
provided in subsection (b) of this section.
(b) Exception.---Government may
substantially burden a person's exercise of
religion only if it demonstrates that
application of the burden to the person---
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
[
42 U.S.C.A.
§2000bb-1.]
RFRA is applicable to all federal and state law, whether statutory
or otherwise, and whether adopted before or after the enactment of
the Act. 42 U.S.C.A § 2000b-3(a).
The Fifth Circuit has recently declared RFRA constitutional in
the face of a separation of powers challenge. Flores v. City of
Boerne,
73 F.3d 1352 (5th Cir. 1996). We agree with Judge
Higginbottom's decision in Flores that RFRA was a valid exercise of
Congress' power under Section 5 of the Fourteenth Amendment to
enforce the provisions of that article, here the Due Process
Clause. U.S. Const., Amend. XIV, § 5. There is "little room for
doubt" that Congress intended to strengthen the rights guaranteed
by the Free Exercise Clause of the First Amendment in adopting
RFRA. Id. at 1358. See also Abordo v. Hawaii,
902 F. Supp. 1220
(D. Haw. 1995); Smith v. Fair Employment and Housing Commission,
1
996 WL 163908,
64 SLW 2651, ___ Cal. Rptr. ___, ___ P.2d ___
(1996) (decided April 9, 1996) (divided court held that Free
Exercise Clause and RFRA did not sanction religiously motivated
rental housing discrimination against unmarried couples in
violation of state law against discrimination). The Eighth Circuit
recently avoided deciding the issue. Hamilton v. Schriro,
74 F.3d 1545 (8th Cir. 1996). The Eleventh Circuit did likewise. Fawaad
v. Jones, ___ F.3d ___, 1
996 WL 172342, *3 n.3 (11th Cir. 1996).
Plaintiff claims that the proper test in this instance is not
the Sherbert/Yoder test, as redefined or readopted by RFRA, but the
Smith test, because the former test only applies when free exercise
rights are substantially or unduly burdened, and, in this instance,
Article I, paragraph 19 does not substantially burden defendants'
free exercise rights. We consider this question largely a matter
of semantics. As the Third Circuit has recently stated: "The
`substantial burden' requirement was developed in the Supreme
Court's free exercise jurisprudence, and codified in the Religious
Freedom Restoration Act . . . in order to balance the tension
between religious rights and valid government goals advanced by
`neutral and generally applicable laws' which create an incidental
burden on religious exercise." Brown v. Borough of Mahaffey,
35 F.3d 846, 849 (3d Cir. 1994). The confusion regarding "incidental"
and "substantial" burdens was evident in cases interpreting Supreme
Court jurisprudence prior to Smith. Thus, the Fourth Circuit
stated: "[C]ourts must distinguish incidental burdens on free
exercise in the service of a compelling state interest from burdens
where the `inroad on religious liberty' is too substantial to be
permissible." Rayburn v. General Conf. of Seventh-Day Adventists,
772 F.2d 1164, 1169 (4th Cir. 1985), cert. denied,
478 U.S. 1020,
106 S. Ct. 3333,
92 L. Ed.2d 739 (1986). The Delaware Supreme
Court, in analyzing Sherbert, noted:
[W]hile the Court in Sherbert thought the
situation there demonstrated a "substantial
infringement" of religious freedom, even an
"incidental burden" on the free exercise of
religion must be justified by a "compelling
state interest." Once the individual
demonstrates some Constitutional burden,
whether substantial or incidental, direct or
indirect, upon his free exercise of religion,
the State must show a "substantial interest"
sufficient to sustain its acts.
[Keegan v. University of Delaware,
349 A.2d 14, 17 (Del. 1975), cert. denied,
424 U.S. 934,
96 S. Ct. 1148,
47 L. Ed.2d 342 (1976).]
RFRA probably has not cleared up this confusion. In fact, an
argument has been made that RFRA only exacerbated the confusion.
See Arlin M. Adams, Recent Decisions by the United States Supreme
Court Concerning the Jurisprudence of Religious Freedom,
62 U. Cin.
L. Rev. 1581, 1595 (1994) (noting that one of RFRA's sponsors
expressed the concern that the "substantial burdens" requirement
added a tone of indefiniteness which could render the law void for
vagueness). Apparently, under RFRA, the Smith analysis applies
only if the burden on free exercise is insubstantial. Id. at 1593.
Consequently, a court must make a threshold determination as to
whether the burden on free exercise is substantial or incidental,
in order to determine which level of scrutiny to apply. Id. at
1595. The discussion over the extent to which free exercise rights
are burdened is perhaps somewhat academic. Regardless of whether
the burden is substantial or incidental, there still must be a
determination of whether the State's interest is compelling. As
the Supreme Court has stated:
The mere fact that the petitioner's
religious practice is burdened by a
governmental program does not mean that an
exemption accommodating his practice must be
granted. The state may justify an inroad on
religious liberty by showing that it is the
least restrictive means of achieving some
compelling state interest.
[Thomas v. Review Bd. of Indiana Employment
Sec. Div.,
450 U.S. 707, 718,
101 S. Ct. 1425,
1432,
67 L. Ed.2d 624, 634 (1981).]
In addition, while defendants do not precisely denote the
particular free exercise rights that will be infringed by
application of Article I, paragraph 19 to them, there is no
question that their concern is genuine and not feigned or
speculative. As the United States Supreme Court has stated:
... [P]arochial schools constitute[] "an
integral part of the religious mission of the
Catholic Church." The various characteristics
of the schools make them "a powerful vehicle
for transmitting the Catholic faith to the
next generation." This process of inculcating
religious doctrine is, of course, enhanced by
the impressionable age of the pupils, in
primary schools particularly. In short,
parochial schools involve substantial
religious activity and purpose.
[Lemon, supra, 403 U.S. at 616,
91 S. Ct. 2105, 2112, 29 L. Ed.
2d at 757.]
Church-state relations also implicate the right of church
autonomy. Thus, churches may object to modest or even minimal
government regulation to avoid creating an adverse precedent that
might support some greater, more objectionable regulation in the
future. Laycock, supra,
81 Columbia L. Rev./u>. at 1398-99. In light
of these concerns, we turn to the relevant cases.
Two cases favor the union position. In Hill-Murray, supra, lay teachers of a religiously affiliated high school sought to be certified as an appropriate bargaining unit under Minnesota's Labor Relations Act (MLRA). 487 N.W. 2d at 859. The mission of the high school was to provide "a well-rounded quality education in a Christian context." Ibid. The school was operated by a nonprofit corporation (the association) which leased the school premises from a church. Id. at 860. The association was comprised of fifteen individuals, two of whom were appointed by the Archbishop, and three of whom were appointed by the head of the local church. The teachers were required to support the Catholic Church with respect to faith, morals and specific doctrines. In addition, the Minnesota Supreme Court noted that the character and purpose of the school were intertwined with the Catholic religion; Catholicism was a pervasive influence at the school; and that while it was not possible to resolve whether secular education or sectarian education was the primary mission of the school, it was very clear that the religious aspect of the school was inseparable from its overall purpose. Id. at 864. The court analyzed the association's claims under the holding in Smith and held that the application of the MLRA to labor relations at the school did not violate the Free Exercise Clause because "the right to free exercise of religion does not include the right to be free from neutral regulatory laws which regulate only secular activities within a church affiliated institution." Id. at 862-63. In the Establishment Clause context, the court held that because the level of state intervention was
minimal, "[any] potential entanglement does not include the
potential for the state to mandate religious beliefs nor does it
contemplate that the MLRA will force the parties to agree to
specific terms." Id. at 864. Thus, the court concluded:
The obligation imposed upon Hill-Murray by the
application of the MLRA is the duty to bargain
about hours, wages, and working conditions. We
decline to categorize this minimal responsibility
as excessive entanglement. Allowing lay teachers,
almost all of whom are Catholic, to bargain
collectively will not alter or impinge upon the
religious character of the school. The first
amendment wall of separation between church and
state does not prohibit limited governmental
regulation of purely secular aspects of a church
school's operation.
[Ibid.]
In Catholic High School Ass'n v. Culvert, supra, a union representing lay teachers in eleven church-operated high schools under New York's State Labor Relations Act, which explicitly includes religious associations and corporations, filed charges with the State Labor Relations Board alleging unfair labor practices. 753 F. 2d at 1163. The Board issued a complaint, and the union alleged that the Board's assertion of jurisdiction violated the First Amendment. Id. at 1164. In its free exercise analysis, the Second Circuit cited the fact that many matters pertaining to private schools, such as building and zoning regulations, fire inspections, teacher testing and compulsory school attendance laws, are already subject to governmental regulation. Id. at 1169-70. The court also pointed out that the association did not contend that collective bargaining is contrary
to the beliefs of the Roman Catholic Church and that the Church has
been among the staunchest supporters of the right of employees to
organize and engage in collective bargaining. "[T]he Encyclicals
and other Papal Messages make clear that the Catholic Church has
for nearly a century been among the staunchest supporters of the
rights of employees to organize and engage in collective
bargaining." Id. at 1170. Because the association failed to show
that the Board's exercise of its power would have a coercive effect
on its religious practices or be contrary to its beliefs, the court
held that there was no burden on the association's free exercise
rights. The court also held that any indirect and incidental
burden on the association's free exercise rights was justified by
a compelling state interest, namely, the fact that state labor laws
are "essential to the preservation of industrial peace and a sound
economic order," and that unions and employers have a duty to
bargain collectively and in good faith. Id. at 1171.
Three cases have reached the opposite conclusion. In finding
in favor of the schools in Catholic Bishop, supra, the Seventh
Circuit held:
The Board's order to bargain unquestionably . . . inhibits the bishops' authority to maintain parochial schools in accordance with ecclesiastical concern. If a bishop, for example, should refuse to renew all lay faculty teacher contracts because he believed that the union had adopted policies and practices at odds with the religious character of the institutions, or because he wanted to replace lay teachers with religious-order teachers who had become available, under ecclesiastical law he would have the right if not the duty to take that action. Yet, under the National Labor Relations Act, he might well be found guilty of an unfair labor
practice. . . . The real difficulty is found in
the chilling aspect that the requirement of
bargaining will impose on the exercise of the
bishops' control of the religious mission of the
schools. To minimize friction between the Church
and the Board, prudence will ultimately dictate
that the bishop tailor his conduct and decisions to
"steer far wider of the unlawful zone" of
impermissible conduct.
[559 F.
2d at 1123-24 (citations omitted).]
The court held that the case presented "not only . . . sovereign
involvement in the religious activity under the establishment
clause but . . . also curtailment of the free exercise of religion
. . ." Id. at 1131. As we have discussed, the United States
Supreme Court affirmed on the statutory ground that the NLRB did
not have jurisdiction over parochial high school labor relations.
NLRB v. The Catholic Bishop of Chicago,
440 U.S. 490,
59 L. Ed.2d 553,
99 S. Ct. 1313 (1979).
An older case, McCormick v. Hirsch,
460 F. Supp. 1337 (M.D.
Pa. 1978), involved a challenge to the NLRB's attempt to exercise
jurisdiction over a parochial high school which employed lay
teachers seeking to organize. The court noted the possible
conflict with the Free Exercise Clause due to the various powers of
the NLRB. Id. at 1353. The court also noted that in separating
the school into two discrete and possibly conflicting camps, lay
and religious, "divisiveness between the lay and religious members
seems inevitable." Ibid. The very determination of the
appropriate unit would involve the NLRB in making a decision that
concerns the internal structure of the church school, according to
the court. Id. at 1354. The court concluded that the NLRB's
interest in extending the NLRA into areas not considered by
Congress was not a compelling interest sufficient to justify the
intrusion upon the free exercise rights and religious liberties of
the school. Id. at 1356. "[T]he harm to the [school], and the
Catholic church as an Institution is so great and direct that an
extraordinary showing of interest on the part of the NLRB would be
needed to outweigh these interests." Ibid. The intrusion on
religious liberty by the NLRB, with its extensive investigatory
powers, would, according to the court, "require it to enter upon
questions right at the heart of the religious mission of the
church." Ibid.
In Caulfield v. Hirsch,
95 L.R.R.M. 3164, 1
977 WL 15572 (E.D.
Pa.), cert. denied,
436 U.S. 957,
98 S. Ct. 3071,
57 L. Ed.2d 1122
(1978) (related decision at
410 F. Supp. 618 (E.D.Pa. 1976)), the
pastors of the Archdiocese of Philadelphia's elementary schools
sought an injunction against the NLRB to prevent a representational
election among the schools' lay teachers. In analyzing the free
exercise question, the court focused on the fact that the NLRB has
broad investigatory powers in a wide variety of circumstances that
would focus on the internal affairs of the archdiocese. The court
concluded:
[T]he special circumstances surrounding the religious mission of these parish schools, the relationships of lay teachers with their pastors, religious teachers, and fellow lay teachers, the inseparable intertwining of factors such as curriculum and teacher discipline with the religious mission of the
schools, and the pervasive authority of the
NLRB over the employment area, persuade me
that an interference with religious activity
has occurred . . . . [1
977 WL 15572, *14.]
The court also observed that the division of lay teachers from
religious teachers, by placing the lay teachers in a separate
bargaining unit, burdened free exercise by undermining the schools'
belief in a "single undivided community of faith." Thus, the court
held: "To governmentally compel the pastors or the Archdiocese to
bargain with a union over ecclesiastical concerns would certainly
. . . constitute a constraint upon the free exercise of religion."
There are a number of distinguishing features between these
cases and the case before us. For example, in Hill-Murray the
school and its governing body were not pervasively religious and
the case was decided while Smith was the applicable law. Culvert
involved lay teachers in high schools, not elementary schools.
While defendants make much of this distinction, we do not find it
conclusive in their favor. In Tilton v. Richardson,
403 U.S. 672,
685-86,
91 S. Ct. 2091,
29 L. Ed.2d 790, 803 (1971), the Court
observed that there are generally significant differences between
the religious aspects of church-related institutions of higher
learning and parochial and elementary schools, and that there was
substance to the contention that college students are less
impressionable and less susceptible to religious indoctrination.
However, we find no persuasive case law supporting defendants'
attempted distinction between secondary and elementary schools on
the grounds of the degree of religious indoctrination with respect
to First Amendment analysis. However, unlike the Culvert court,
753 F.
2d at 1169-70, we do not find significant for free exercise
analysis the schools' duty to abide by other governmental
regulations. As the Court of Appeals in Catholic Bishop, supra,
stated: "Laws on matters such as fire inspections and compulsory
attendance do not have the clear inhibiting potential upon the
relationship between teachers and employers with which the present
[NLRB] Board order is directly concerned." 559 F.
2d at 1124. See
also McCormick, supra, 460 F. Supp. at 1356 ("Such matters such as
police, fire and wage laws are simply of a different order than the
interest the government offers here"). Nor do we think that
defendants' concerns regarding the possible conflicts that will
stem from union recognition are merely speculative or hypothetical.
See Catholic Bishop, supra, 559 F.
2d at 1126 (noting that the
Church's concerns were not "speculative or fanciful" and that there
does not have to be "an actual trial run" to determine whether
there has been a violation of the First Amendment religion
clauses); and Caulfield, supra, 1
977 WL 15572 (noting that mere
potential for interference with schools' right to freely exercise
their religious belief is sufficient to invoke the protection of
the First Amendment).
However, for purposes of the defendant's facial constitutional
challenge on the New Jersey right to organize, we conclude that
there is a compelling State interest which outweighs the claimed
burden on defendants' free exercise rights. Article I, paragraph
19 is a fundamental State constitutional right guaranteed to
private employees. Cooper, supra, 36 N.J. at 197. This
constitutional provision "reaches beyond governmental action. It
also protects employees against the acts of individuals who would
abridge these rights." Id. at 196. In addition to the lay
teachers' fundamental right guaranteed by the State Constitution is
the fact, observed in Culvert, supra, 753 F.
2d at 1171, that the
State has a compelling interest in the "preservation of industrial
peace and a sound economic order." Moreover, defendants' concerns
over the infringement on their free exercise rights are alleviated
to a great extent by the fact that New Jersey, unlike the NLRB and
jurisdictions such as New York and Minnesota, does not have a labor
board regulating private employees. Rather, any legal relief
sought by plaintiff must come from the courts. The judiciary can
avoid or prevent any undue interference in the ecclesiastical
concerns of the schools through the application of "neutral
principles" and insure that the "least restrictive means" are
employed in the bargaining relationship.
42 U.S.C.A.
§2000bb.
A longstanding principle of First Amendment jurisprudence
forbids civil courts from deciding issues of religious doctrine or
ecclesiastical polity. This prohibition does not apply to civil
adjudication of purely secular legal questions. Elmora Hebrew
Ctr., Inc. v. Fishman,
125 N.J. 404, 413 (1991). Courts can decide
secular legal questions in cases involving some background issues
of religious doctrine, so long as they do not intrude into the
determination of the doctrinal issues. Id. at 414. In such cases,
courts must confine their adjudications to their proper civil
sphere by accepting the authority of a recognized religious body in
resolving a particular doctrinal question, while, where
appropriate, applying neutral principles of law to determine
disputed questions which do not implicate religious doctrine.
Ibid. "Neutral principles" are wholly secular legal rules whose
application to religious parties does not entail theological or
doctrinal evaluations. Id. at 414-15. Our Court in Fishman
pointed to the example, at issue in that case, of an orthodox rabbi
the scope of whose duties only a religious authority could decide,
but whose contract, or non-religious condition of employment, a
civil court could determine. Nonetheless, our Court has stressed
that neutral principles "must always be circumscribed carefully to
avoid courts' incursions into religious questions that would be
impermissible under the first amendment," id. at 415, because
"there are many cases in which court intervention is simply
inappropriate because judicial scrutiny cannot help but violate the
first amendment." Id. at 416.
Professor Laycock criticizes reliance on neutral principles in
this context. In his view, such reliance ignores the church's
resulting loss of autonomy and avoids the required in-depth
constitutional analysis. In addition, Laycock is concerned that
distinctions required by such an approach are difficult for secular
courts, unversed in theological subtleties. Laycock, supra,
81
Colum. L. Rev. at 1400, 1409 n.270. A similar concern was voiced
by the Court of Appeals in Catholic Bishop, supra:
We are unable to see how the Board can avoid
becoming entangled in doctrinal matters if,
for example, an unfair labor practice charge
followed the dismissal of a teacher either for
teaching a doctrine that has current favor
with the public at large but is totally at
odds with the tenets of the Roman Catholic
faith, or for adopting a lifestyle acceptable
to same, but contrary to Catholic moral
teachings.
[559 F.
2d at 1125.]
However, in spite of these concerns, we conclude that reliance
on the doctrine of neutral principles will prove proper and
efficacious. The concerns of secular intrusion expressed in
Catholic Bishop are not nearly as substantial here because of the
absence of a leviathan-like governmental regulatory board. Concern
over a court's ability to make the necessary distinctions between
the secular and the theological is, in our view, no obstacle given
the anticipated nature of the collective bargaining process which
we will discuss. As for the concerns regarding church autonomy:
while these are legitimate, they are outweighed in this situation
by the compelling governmental interest expressed in our State's
constitutional provision guaranteeing the rights of working men and
women.
In illustration, the scope of the extant collective bargaining
agreement between the Diocese and plaintiff regarding the lay
secondary or high school teachers carefully recognizes and
preserves the Diocese's autonomy:
Recognition and Scope of Agreement
A. The organization is hereby recognized by the Diocese as the sole and exclusive
collective bargaining agent for the following
lay employees at diocesan sponsored secondary
school:
1. All full-time classroom teachers;
2. All full-time guidance counselors;
3. All full-time nurses and librarians;
4. All full-time special education
teachers within the diocese;
5. All long term substitutes; long term
substitutes are defined as those hired to
teach one semester or the equivalent of one
semester in school days.
6. All permanent part-time employees;
permanent part-time employees are defined as
those teaching or working the equivalent of an
average of three classes per day.
7. Full-time positions shall not be
filled with part-time employees.
Excluding all others including:
1. All principals, all vice principals
appointed by the Bishop of the Diocese, and
all deans of students.
[a] In schools with enrollment over 500,
these administrators shall teach no more than
(2) periods per day.
[b] In schools with enrollment under 500,
these administrators shall teach no more than
three (3) periods per day.
4. All short term substitute teachers,
clerical employees, custodial maintenance
personnel, cafeteria employees and teacher
aides.
B. The subjects covered by this Agreement are
wages, benefits and other terms and conditions
of employment.
C. Excluded from the scope of negotiations
are the following:
1. Decisions involving educational
policies and/or ecclesiastical considerations
involving religious-moral qualifications.
2. The administrator's right to assign,
supervise, discipline and demand responsible
teacher accountability in all curricular and
extra curricular areas.
3. The school ratio.
D. The parties hereto recognize that Sacred
Heart High School, Wildwood Catholic High
School and Gloucester Catholic High School are
not diocesan sponsored, secondary school, but
rather sponsored by their respective parishes.
However, notwithstanding this difference of
sponsorship, the Diocese is willing to
continue their participation in high school
collective negotiations in view of the past
history of doing so. Nothing herein shall be
construed to apply to any other situation.
E. The Organization declares that its aim is
to provide a quality education for the
students who attend the schools.
F. The Diocese and the Organization recognize
the uniqueness of the Catholic school:
established to provide education within the
framework of Catholic principles, and that
nothing in the agreement shall be considered
as interfering in any way with the function
and duties of the Diocese insofar as they are
canonical or religious.
G. The Diocese and the Organization recognize
the importance of employees giving witness to
their faith.
H. The Organization recognizes the non-profit
nature of the diocese and that it is a non-tax
supported enterprise, primarily dependent upon
tuition, and fees and voluntary offerings of
the people, and that, accordingly, it is non-compatible to tax-supported enterprises.
I. The Organization recognizes the sole right and duty of the Bishop of the Diocese functioning through the Diocese to see that the schools are operated in accordance with the philosophy of Catholic education, the
doctrine, the teachings, the laws and norms of
the Catholic Church.
J. The superintendent and the officers of the
Organization shall meet on a regular basis at
the request of either party.
K. The right to hire, suspend, discharge or
otherwise discipline a teacher for violation
of such rules or for other proper and just
cause is reserved to the Diocese.
L. The diocese retains the sole right to
operate the school system and nothing shall be
deemed to limit or restrict it in any way in
the exercise of all its functions in
management operations. This includes the
right to make such rules relating to its
operation as it shall deem advisable providing
they are not inconsistent with the terms of
the agreement.
The agreement also contains a grievance procedure and a no-strike/no-lockout clause. It has a detailed salary scale and a
schedule of various fringe benefits. The secondary school contract
even contains a tenure provision not unlike the public-sector
tenure provision which says:
Tenure
A. Tenure is defined as full-time employment
by a degree holding employee for three (3)
successive years and one (1) day. The
calculation of tenure shall begin on the first
paid day of employment.
B. An employee having tenure shall not be discharged except for reasons of serious and/or public