Separation of church and state only when politically convenient

Now Obama's NLRB tells a church school it's not religious enough

By: Ken Klukowski

It's not enough for President Obama's National Labor Relations Board to target the Boeing plant in South Carolina. Now the NLRB thinks it can tell a church school when it's not religious enough.

Most people have heard by now of NLRB's unprecedented decree that Boeing Co. cannot build a new airline production facility in South Carolina.

But Obama's NLRB is also claiming the authority to dictate labor policies and order union elections at Catholic universities if they are not religious enough.

St. Xavier University was founded in 1846, the oldest Catholic school in Illinois. Its corporate member is a Catholic body with the "powers for the governance of" St. Xavier, that "links the University to the [Catholic] Church and makes it an officially recognized member of the Church."

St. Xavier's Board of Trustees must have at least four nuns from the order that founded the school, and, according to its bylaws, its governing body must "ensure [St. Xavier] continues its educational and religious mission."

After quoting these sources and many others, NLRB's regional director concluded in true Orwellian fashion that "the evidence establishes" that St. Xavier is "a secular educational institution or university."

To support this astounding conclusion flying in the face of the facts (not to mention common sense), NLRB claimed a 1979 Supreme Court affirms this authority.

Yet that case -- NLRB v. Catholic Bishop of Chicago -- actually says the complete opposite of what Obama's NLRB claims.

In an instance of deja vu, the Supreme Court in Catholic Bishop considered a challenge to an NLRB order asserting authority over lay teachers at Illinois Catholic high schools. (Sound familiar?)

NLRB claimed that it had no authority over a church but that it possessed power over church-related bodies that are not purely religious, such as schools. The court considered whether the National Labor Relations Act granted NLRB such power.

Noting the religious mission of Catholic schools, the Supreme Court declared, "Good intentions by government ... can surely no more avoid entanglement with the religious mission of a school" than legislation the court previously struck down as unconstitutional violations of religious liberty.

Turning to the facts of that case, the court reasoned, "The church-teacher relationship in a church-operated school differs from the employment relationship in a public ... school. There is no escape from conflicts flowing from [NLRB's] exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow."

The court then noted that nothing in the law's language suggested NLRB has power over any church-affiliated organizations. The court invoked one of the most basic principles of American law, that a federal statute "ought not to be construed to violate the Constitution if any other possible construction remains available."

Accordingly, the court held that federal law did not give NLRB the power it was claiming, so the court need not consider whether to strike down that provision. Instead, it held NLRB lacked any legal jurisdiction to judge the schools' religiosity, and vacated NLRB's order.

Far from authorizing NLRB's action against St. Xavier, the ruling does the opposite of affirming the government has no such power over church schools. NLRB's contrary assertion is a frightening power grab that must be taken to court.

So economic and social conservatives now have a common problem. Obama's NLRB is being wielded as an instrument of unfettered federal power. Congress and the courts must act to end this imperial overreach.