The [Un]Constitutionality of the NLRA's Religious Accommodation Provision
41 Pages Posted: 26 Mar 2008
Section 19 of the National Labor Relations Act requires unions to permit employees to accommodate employees on the basis of religion by permitting religious objectors to opt out of a union notwithstanding a union shop agreement. Section 19, however, violates the First Amendment in at least two ways. First, it defines religion by referring to specific denominations, thus creating a denominational preference. Second, it applies only to employees who belong to a bona fide religion, thus creating a preference for established religions and entangling courts in religion by requiring courts to evaluate religious content.
Title VII similarly contains a religious accommodation clause which has been interpreted to permit religious objectors to opt out of a union. It does not, however, contain the same constitutional infirmities as Section 19, because Title VII defines religion broadly without referring to specific denominations and without requiring inquiry into whether a religion is bona fide. Because Title VII offers employees at least as much religious protection as Section 19, without violating the constitutional rights of employees, this article argues that Section 19 should be repealed.
Keywords: religion, labor, discrimination, religious discrimination, title vii, nlra, bona fide
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