From the day the justices agreed to decide whether employers with religious objections to birth control can refuse to follow a federal rule requiring employer-provided health plans to cover contraception, a broad array of Court watchers have treated the Hobby Lobby litigation as the single most important issue facing the justices this term. Indeed, based on the sheer volume of pieces ThinkProgress has published discussing Hobby Lobby, this site has probably given this impression as well.
Hobby Lobby is a major case, with tremendous implications for whether religious conservatives must obey the same rules that apply to the rest of society, but there is another case pending before the Court that has even greater implications for what kind of nation America will become. On Monday, the Supreme Court is expected to hand down two cases, Hobby Lobby and a lesser-known case called Harris v. Quinn. Of the two, more is actually at stake in Harris than in Hobby Lobby.
Harris arises from a group of home-based aides for Medicaid patients in Illinois, a majority of whom voted to unionize. When a majority of a workforce, but not every single worker, votes to be represented by a union, the union is still required to represent the interests of the non-union workers. That means all workers must be treated equally at the bargaining table — a union cannot entice workers into joining the union by bargaining for one set of wages for union members and another, lower set of wages for non-members.
By any reasonable objective measure, the union struck a very good deal for Illinois’ home health aides. Before the union negotiated a collective bargaining agreement, the aides’ wages were just $7.00 an hour. Now they are $11.65 an hour, and they are scheduled to increase to $13.00 per hour in December. Nevertheless, the National Right to Work Legal Defense Foundation (NRWLDF), an anti-union litigation shop, found a handful of home health aides who object to this arrangement. Those objectors are now the plaintiffs in Harris.
Specifically, these plaintiffs object to a provision in the collective bargaining agreement requiring non-members to pay what is known as “agency fees” or “fair-share payments” in order to reimburse the union for the costs of bargaining on their behalf. Bargaining on behalf of hundreds or thousands of workers can be an expensive task. It often requires bargaining agents with a sophisticated understanding of an employer’s finances, and lawyers who can trace out the full consequences of every contract provision under discussion. If non-union members can enjoy the benefits of belonging to a unionized workplace — according to one study, unionization raises wages by about 12 percent on average — then they will get something for nothing while their co-workers who join the union will bear the costs.
If the Supreme Court complies with NRWLDF’s request to halt the non-union members’ fair-share payments, there will be little incentive for most workers to reimburse the union for the costs of collective bargaining — after all, why pay for higher wages when you can get them for free? Indeed, such a decision could set off a death spiral endangering the unions themselves. If non-members can suddenly stop paying agency fees, then unions will have to raise dues on their members in order to cover these losses. But, if unions raise their dues, more members will decide to drop out rather than pay the increased fees. Which will force even higher dues. Which will cause more members to drop out. Which will force even higher dues. The loss of agency fees potentially presents an existential threat to the union in Harris and to public sector unions across the country.
A Rule Without Limit
NRWLDF’s legal argument is, to put it kindly, not a model of clarity. But understanding three concepts can help make it clearer.
First, the First Amendment’s free speech protections are generally understood to be a two-sided coin. Government can neither prohibit someone from speaking their mind nor force someone to say something they disagree with. This is why, for example, public school students cannot be forced to recite the Pledge of Allegiance if they object to doing so.
Second, the First Amendment also protects the right “to petition the Government for a redress of grievances.” NRWLDF argues that this right is also a two-sided coin, that it also prohibits arrangements that lead to someone petitioning the government on their behalf if they object to this petition. Alternatively, they also claim that the agency fees create a kind of “mandatory association” that also violates the First Amendment.
Third, NRWLDF claims that, because the union in Harris is bargaining with a government agency regarding what sort of wages will be paid out by a government program, the union is effectively petitioning the government for a redress of grievances on behalf of the home health aides in Illinois. Requiring non-union members to pay agency fees, according to NRWLDF, is the same thing as requiring them to sign onto a petition that they disagree with — even if the costs of those agency fees comes out of higher wages that the plaintiffs never would have received in the first place if it wasn’t for the union.
If you are confused by this argument, don’t worry. So was Justice Antonin Scalia. As Scalia pointed out at oral arguments, there are few logical limits on the NRWLDF’s argument if the Court decides to go down this rabbit hole.
“Suppose you have a policeman,” Scalia asked the attorney from NRWLDF, “who is dissatisfied with his wages. So he makes an appointment with the  police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary  I don’t want to see this man again. Has he violated the Constitution?”
The anti-union attorney responded, “no,” but under the logic of his legal argument, the correct answer is “yes.” As Scalia went on to explain, a police commissioner who slams his door on a cop seeking higher wages has “prevented a petition for a redress of grievances” no less than if he had slammed the door on a group of 10 policemen seeking higher wages, or, for that matter, on a union of policemen seeking a wage increase. If a government employee asking for higher wages constitutes a petition for redress of grievances under the First Amendment, then there is no principled distinction between a union collectively making a request from a government employer and an individual making the exact same request. Every single time a supervisor tells a government worker that she does not have time to talk about the worker’s grievances, she risks violating the First Amendment.
Later in the oral argument, Scalia raised another problem with NRWLDF’s argument. Though the anti-union attorneys dressed this case up as a violation of the right to “petition the Government for a redress of grievances,” Scalia said that Harris is really just a run-of-the-mill free speech case — the anti-union employees “are being required to support speech that they don’t agree with.”
A Return To The Dark Ages
If the Court ultimately embraces Scalia’s suggestion that bargaining over wages or working conditions is a form of First Amendment-protected free speech, then this has stunning implications for nearly every single worker in the country. When a worker is hired to do a job, they typically have a conversation with their boss about the terms of the employment. The two individuals bargain over wages, benefits, job expectations and similar arrangements.
Yet, the law also places important limits on this negotiation. Because the federal minimum wage is $7.25 per hour, an employer is not allowed to negotiate with most employees to pay them only $5 per hour. A federal law known as the Employee Retirement Income Security Act (ERISA) places similar limits on what kind of employee benefits an employer can offer to their employees. The birth control rules at issue in Hobby Lobby also place limits on what kind of bargaining may take place between an employer and an employee. An employer may wish to offer their employee a health plan that does not cover birth control, but under these rules they cannot.
Indeed, all of these laws can be framed as a form of compelled speech. The minimum wage compels an employer who wants to say “I will pay you $5 an hour” to instead say “I will pay you $7.25 an hour.” ERISA and the federal birth control rules prevent an employer from saying that they will provide their employees with a certain kinds of employee benefit packages. Speech is an essential element of any contract negotiation — as every first-year law student learns early in their legal education, a contract requires an offer and an acceptance. But if every single contract negotiation becomes a First Amendment-protected activity, then government regulation of the workplace becomes virtually impossible.
This danger was not lost on Justice Stephen Breyer, who noted near the end of oral argument in Harris that “we have some experience” with the Court trying to limit the scope of federal labor law “in the 1930s.”
Breyer’s reference to this decade was almost certainly an allusion to the Lochner Era, when the Supreme Court struck down minimum wage laws, laws protecting union rights, and laws preventing employers from overworking their employees. The case that set these events in motion, the Court’s 1905 decision in Lochner v. New York held that a so-called “liberty of contract” placed strict limits on the government’s ability to regulate the workplace. Lochner was overruled in 1937.
There are some academic distinctions between Lochner and the kind of regime that could emerge from an expansive decision in Harris. Lochner relied on the Due Process Clause of the Fourteenth Amendment, while Harris is a First Amendment case. But it’s not clear that these distinctions matter. If the Court actually holds that contract negotiations are governed by the First Amendment, then Breyer is right to fear a return to something much like the early 1930s.
Hobby Lobby v. Harris
This brings us back to Hobby Lobby. Hobby Lobby’s brief asks the Court for a truly expansive religious liberty regime — all laws that a religious person objects to, according to Hobby Lobby, must survive “the most demanding test known to constitutional law,” before they can be enforced against that person. If the Supreme Court goes this far, it is likely that a religious business owner will step forward claiming that they object to following federal labor law on religious grounds. Indeed, several lawsuits have made similar claims in the past.
But there is a logical limit on how far employers could push Hobby Lobby to undermine workers’ rights in the workplace, even if the Court does issue a sweeping decision on Monday. As the federal appeals court that heard Hobby Lobby explained, an employer may only make a religious liberty claim if it is rooted in a “sincere” religious belief. It’s hard to imagine how, say, Walmart would convince a court that it had suddenly converted to a faith that objects to paying the minimum wage.
The First Amendment’s free speech protections, by contrast, apply to religious and non-religious alike. And, as the Court recently reminded us in Citizens United v. FEC, for First Amendment purposes, corporations are people.
There is reason to believe that unions will have a very bad day on Monday once the Court hands down its Harris decision. As a general rule, the justices try to spread work evenly among themselves and, because of this, SCOTUSBlog’s Tom Goldstein has pioneered the art of predicting which justice will author a particular decision by examining who has not yet written a case that was argued in a particular month. Harris was argued in January:
If Justice Samuel Alito — the hole in this chart — does indeed have the writing assignment in Harris, then that is almost certainly a bad thing for unions. Alito authored an opinion in 2012 that strongly suggests that agency fees paid to public sector unions are unconstitutional. An even more important question, however, is whether the Court will rally behind Justice Scalia’s suggestion that contract negotiations may be a form of First Amendment-protected speech. Should they do so, then Justice Breyer’s allusion to the 1930s could prove prescient.