Defending Duquesne: The university must fend off another assault on religious liberty

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In the new Andy Garcia movie "For Greater Glory," based on a true story of 1920s Mexico, Catholics rebel against a national government determined to suppress their church. Their battle cry is "Viva Cristo Rey!" ("Long live Christ the King").

In the United States, our cherished freedom of religion means that we need not fear government interference in the practice of our faith. It's enshrined in the First Amendment to the Constitution and the federal Religious Freedom Restoration Act.

But as of Monday, Duquesne University is facing a threat to its religious liberty, just one more example of our federal government's increasing tendency to erode protections for religious organizations.

A regional director of the National Labor Relations Board ruled Monday that the university must accept board jurisdiction over personnel matters, even though Duquesne is a Catholic institution and the federal courts have instructed the NLRB to exempt religious universities from its oversight. Duquesne appears to be prepared for an appeal to the full NLRB in Washington, and then possibly a court showdown.

Duquesne is not alone. Two other Catholic institutions -- Manhattan College in New York and St. Xavier University in Chicago -- are appealing similar NLRB regional rulings issued last year. Indeed, disputes between the NLRB and Catholic colleges and universities have gone on for decades without long-term resolution.

Pittsburgh's NLRB director has needlessly put Duquesne in a bad spot. Adjunct faculty members want to organize and won't be happy waiting for a protracted legal battle over First Amendment rights. The United Steelworkers are desperate for new members. Their usual course of action is to ask the NLRB to oversee union elections and collective bargaining.

But in this case, NLRB oversight is unconstitutional. The involvement of a federal agency in personnel matters at a Catholic university would necessarily entangle the government in religious matters.

The Obama administration should have learned that lesson by now. Its mandate that employers' health insurers provide coverage for contraceptives, abortion-causing drugs and sterilizations has brought on lawsuits from at least 54 Catholic dioceses, colleges, charities and other employers. This week the Catholic bishops begin their "Fortnight for Freedom" -- a period of intense prayer from today through Independence Day that seeks relief from this encroachment on religious freedom.

If the president's health insurance mandate has caused such an uproar from Catholic and other religious groups -- including many Catholic colleges and universities -- then how can the NLRB expect to oversee union negotiations over health benefits without getting entangled in such religious matters? There are many other potential entanglements with religion, such as negotiating paid holidays (should they include Catholic feast days?) or requirements for faculty teaching and behavior that conform to Catholic doctrine.

The NLRB's position rests on the assertion that many Catholic colleges and universities today are so weak and inconsistent in their religious identity that they are almost secular -- and on that, they're correct. My work at The Cardinal Newman Society is to help renew and strengthen Catholic identity in Catholic higher education, and it's a daunting task. We reported just this week that Duquesne hosted a book-signing event for former Gov. Ed Rendell, a staunch supporter of abortion rights, which would seem to contradict the university's claim that Catholic teaching -- including strong opposition to abortion -- is essential to its programs and policies.

But faith and fidelity is a matter for the Catholic Church to resolve. Since 1990, when Pope John Paul II issued the Vatican's constitution on Catholic universities, the church has been striving for more faithful Catholic education. A federal agency has no business deciding whether an organization is "sufficiently religious."

In 1979, the U.S. Supreme Court ruled in NLRB v. The Catholic Bishop of Chicago, et al., that the NLRB had violated the Constitution by asserting jurisdiction over Catholic schools. In 2002 and again in 2008, the D.C. Circuit Court firmly instructed the NLRB to stop interfering with any college or university that "holds itself out to students, faculty and community as providing a religious educational environment." That certainly applies to Duquesne.

If the NLRB continues to declare jurisdiction over Catholic colleges and universities, the only resolution may be another Supreme Court decision. A university that appeals its case to the D.C. Circuit Court will almost certainly win on precedent, but the NLRB seems intent on continuing to harass Catholic institutions despite the federal court's instructions.

Catholics have another recourse: prayer. During the bishops' "Fortnight for Freedom" which begins today, there might be a lot of prayer going on at Duquesne University. Catholics across the country will have one more thing to pray for, too.


Patrick J. Reilly is president of The Cardinal Newman Society and author of the report "The NLRB's Assault on Religious Liberty." First Published June 21, 2012 12:00 AM


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