Pastor, Church & Law

§ 8.12.06

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Key Point 8-12.06. In the Catholic Bishop case the United States Supreme Court ruled that the National Labor Relations Act did not apply to church-affiliated schools. The court applied the following test, known as the Catholic Bishop test: First, determine if the application of the NLRA to a religious organization would give rise to serious constitutional questions under the First Amendment. Second, if a serious constitutional question would arise, then the NLRA cannot be applied without a showing of an "affirmative intention of the Congress clearly expressed" that it does apply. Third, if serious constitutional questions would not arise, then no inquiry is necessary as to whether Congress clearly expressed an intention for the law to apply. This test has been applied by some courts in assessing the applicability of other federal employment laws to churches.

In a 1979 case the United States Supreme Court was faced with the issue of whether lay teachers in church-operated schools were under the jurisdiction of the National Labor Relations Board. The Court found that neither the language nor the legislative history of the National Labor Relations Act disclosed "an affirmative intention … clearly expressed" that the NLRB have such jurisdiction. Therefore, the Court declined to construe the Act in a manner that would require the resolution of "difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses."[104] NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). See also NLRB v. Bishop Ford Catholic High School, 623 F. 2d 818 (2nd Cir. 1980), cert. denied, 450 U.S. 996 (1980).

The Court's test for determining the validity of an exercise of jurisdiction by the NLRB over a religious organization may be summarized as follows:

Step #1. Determine if the exercise of jurisdiction by the NLRB over a religious organization would give rise to serious constitutional questions under the First Amendment (which guarantees the free exercise of religion).

Step #2. If a serious constitutional question would arise, then the NLRB may not exercise jurisdiction over the religious organization without a showing of an "affirmative intention of the Congress clearly expressed" to confer such jurisdiction.

Step #3. If serious constitutional questions would not arise from an exercise of jurisdiction by the NLRB over a religious organization, then no inquiry is necessary as to whether Congress clearly expressed an intention to confer jurisdiction.[105] In Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990), a federal appeals court suggested that the Supreme Court may have altered the Catholic Bishop test in a 1985 decision. In 1985, the Supreme Court ruled that "because we perceive no 'significant risk' of an infringement on First Amendment rights, we do not require any clearer expression of congressional intent to regulate these activities." Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 298 n.18 (1985). The federal appeals court observed that the Supreme Court may have intended to replace the Catholic Bishop test. If so, this objective is not clear, and has not been clarified in later decisions.

A few courts have applied the Catholic Bishop case in deciding if federal employment laws can be applied to religious organizations without violating the First Amendment.

The Catholic Bishop case is addressed more fully in section 8-23 of this text.

Case study. A federal court in Delaware ruled that a church-operated school that fired a teacher for publicly advocating abortion rights could not be sued for violating a federal nondiscrimination law. The former teacher sued the school and supervising church, claiming that it was unlawful under Title VII of the Civil Rights Act of 1964 (which bans sex discrimination in employment) for the school to terminate an employee who advocated abortion rights. The court applied the Catholic Bishop test in evaluating the teacher's Title VII claim. The court concluded that the Title VII claim raised substantial constitutional questions, and that Congress had not "clearly expressed an intent that Title VII be applied" in a case like this. [106] Curay-Cramer v. Ursuline Academy, 344 F.Supp.2d 923 (D. Dela. 2004).