What public unions and gay marriage have in common
The political fireworks in Wisconsin, culminating in the recent unsuccessful recall election of the Republican governor, Scott Walker, have a lot of people saying good riddance to public-sector unions. Last year, Walker and the Wisconsin state legislature enacted Wisconsin Act 10, stripping most – though crucially not all – of the state’s public unions of their most fundamental powers, including collective bargaining and the ability to deduct dues from workers’ paychecks. Many observers – and not only Republicans – have signaled their approval, arguing that public unions – representing teachers, bus drivers, healthcare workers – shouldn’t exist in the first place.
“Public sector unions have reached their high water mark,” a Forbes columnist cheered last week. “Let the cleanup begin as the red ink recedes.”
It turns out, however, that killing off public-sector unions is a lot harder than most people imagine. And, curiously, the reason is related to recent court decisions about gay marriage. Late last month, the U.S. Court of Appeals for the First Circuit ruled that the 1996 Defense of Marriage Act is unconstitutional and cannot be enforced. The principle is equal protection under the law: If you allow same-sex couples to marry – as eight states and the District of Columbia now do – you can’t economically discriminate against them (by denying the ability to file joint tax returns or withholding Social Security benefits) simply because they are not heterosexual.
A related principle holds for public-sector unions. If you allow workers to join labor unions, there are significant legal limits to how much the state can discriminate between “good” unions and “bad” unions. In other words, those that shouldn’t be quashed and those that can be. In fact, while few outside of Wisconsin appear to have noticed, in late March a U.S. court struck down as unconstitutional key provisions of Wisconsin Act 10. And while we didn’t hear much about it through the din of the recall effort, a few weeks ago many of Wisconsin’s public unions returned to automatically deducting dues from their members’ paychecks.
From a legal perspective, the Wisconsin law has something of an Achilles’ heel. It created an unprecedented distinction between “public safety” employees (basically police and firefighters) and “general” state employees (everybody else), and did not restrict the organizing or collective-bargaining abilities of unions in the former group. The stated rationale for this disparate treatment was that restricting the bargaining rights of police and firefighters might make it more likely for them to strike, which would threaten public safety. (This is a somewhat strange argument, particularly since Wisconsin already prohibits those workers from striking. It has been widely noted that police and firefighters’ unions are the only ones in the state that back Walker politically, and even his supporters acknowledge that the law was unlikely to pass without those the backing of those unions.)
Regardless, creating two classes of labor unions is a legal minefield, just as two classes of marriage is. After seven labor unions sued the state, the U.S. District Court for the Western District of Wisconsin threw out two of three contested provisions of the law. Act 10 had forced the general unions – but not the public safety unions – to recertify themselves with a members’ vote every year. Judge William Conley wrote: “Even if not itself a direct violation of plaintiffs’ First Amendment rights, the appearance of a partisan division of the two classes of unions is troubling.”
Intriguingly, both the public union case and the gay-marriage case refer back to some common decisions about government discrimination. One such case is U.S. Department of Agriculture v. Moreno (1973), in which the Supreme Court ruled that the government cannot deny food stamp benefits to economically qualified households simply because the people in them are not related by blood or marriage – even though Congress had voted to do precisely that, evidently to prevent hippie communes from taking advantage of food stamps. In that case, the Supreme Court declared: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
The idea of equal protection is hardly a permanent life raft for public unions, and indeed the Wisconsin court accepted the public safety rationale for keeping collective bargaining for police and firefighter unions while denying it to others. It’s conceivable that Walker and the legislature could go back and deny all union privileges to all public employees – the court made it clear that the state has that right – though it’s hard to see how such a law would pass. Other states are experimenting with their own ways of curbing public unions. But beyond all the political complaints about how public unions behave, beyond the “principled objections” to their very existence, critics are going to find it difficult to get around the fact that much of what unions do is constitutionally protected. It may be true that the Constitution doesn’t say anything about labor unions – but it doesn’t say anything about getting married, either.
PHOTO: Protesters return to occupy the state capitol, as the Wisconsin State Assembly takes up the budget bill that was proposed by Wisconsin Republican Governor Scott Walker, in Madison, June 14, 2011. REUTERS/Darren Hauck