Pitting religious freedom against other civil rights is one of the Right’s favorite legal strategies. In recent years, the Supreme Court’s conservative majority has handed it a number of high-profile victories: Burwell v. Hobby Lobby Stores (2014), for instance, held that corporations with religious objections need not cover employees’ contraceptives, while 303 Creative LLC v. Elenis (2023) permitted a Christian graphic designer to deny same-sex couples service. These cases sparked public outcry — yet few realize that in 2020, Donald Trump’s National Labor Relations Board (NLRB) used a similar argument to take away the rights of thousands of workers at religious colleges and universities.

The NLRB has never asserted jurisdiction over religious workers like priests, though it has sometimes chosen to cover church employees whose duties are secular or clearly commercial. To interfere in the explicitly religious operations of faith organizations, it has held, would go beyond the scope of the National Labor Relations Act (NLRA) and raise First Amendment issues. Employees of church-sponsored institutions like hospitals and orphanages have had no trouble convincing the NLRB that their workplaces are nonreligious enough to merit coverage. But instructors at religiously affiliated schools have struggled to claim NLRB jurisdiction, since their responsibilities may include educating students about religion. In 1979, the Supreme Court ruled that the NLRa does not cover most teachers at religious secondary schools. And in 2002, the DC Circuit excluded most church-
operated college faculty too. Though some religious schools nevertheless extended voluntary recognition to their unions, the decision left many workers without important forms of legal recourse.

Then, in Pacific Lutheran University (2014), Barack Obama’s NLRB changed its position on religious colleges. Even if their institutions promise students a religious education, it ruled, faculty who do not perform a specifically religious function can seek NLRB protections — a description that clearly applies to most professors at schools like Georgetown University. The decision enabled a brief boom in organizing at religiously affiliated colleges and universities, which lasted until 2020, when Trump’s NLRB handed down its Bethany College decision. Bethany College reimposed the 2002 standard: if a college presents itself publicly as a religious institution, is a nonprofit, and has the backing of a religious organization, the First Amendment exempts its faculty from NLRB jurisdiction. In the wake of Bethany, administrators have crushed existing unions at schools like Wilberforce University and Edward Waters University and ignored new organizing drives at schools such as Boston College and Duquesne University. One derecognized faculty union at Saint Leo University appealed to Joe Biden’s NLRB, but the judge rebuffed it.