Solidarity, Legitimacy, and the Janus Double Bind

Abstract

In Janus v. AFSCME, the Supreme Court effectively allowed a conscience-based plea for an exemption to undermine the public-sector labor regimes of over twenty states, the District of Columbia, and Puerto Rico. This sort of phenomenon is increasingly common under the Roberts Court, which seems eager to allow conscience-based exemptions to undermine antidiscrimination, public-health, and labor regulations nationwide. Janus’s failure to recognize a compelling state interest in labor organizing has extra bite. Labor organizing—along with other forms of political association like political parties, churches, NGOs, and debtors’ and tenants’ organizations—plays a crucial role in developing civic trust and solidarity. A background culture of civic trust is a prerequisite for legitimate state efforts at accommodating conscience-based exemptions claims because only in such a culture will citizens accept the sort of rights-balancing approach essential to accommodation. Put differently, the state has a legitimacy-based duty to seek accommodations where it can, but citizens can only accept accommodations under conditions of civic trust or solidarity. The state therefore must promote such conditions. Recognizing a state interest in promoting labor organizing reframes labor legislation and litigation. In addition to promoting industrial peace and equal bargaining, states pursue a vital goal of legitimacy by promoting labor organizing. When that goal conflicts with individual rights rooted in conscience, the state must seek an accommodation, but one which does not externalize excessive costs of accommodation onto third-party workers.

Keywords: Constitutional law, labor law, exemptions, political legitimacy