A cluster of recent developments has brought to the fore (again) this key question: what makes a religious college or university a “religious organization” such that the government must accord it religious freedom?

In February, the National Labor Relations Board asked for comments on whether its jurisdiction extends to religious colleges or whether it must decline to require such colleges to accept votes by adjunct or other faculty to unionize. Or perhaps more accurately the question at stake is whether the NLRB has been respecting, or rather defying, court decisions that have instructed it on how it should identify religious colleges-colleges outside the bounds of its authority. The specific question here has to do with a unionization move at Pacific Lutheran University.

In April, the NLRB decided that Seattle University, a Jesuit institution, is not a real religious institution of higher education, because it does not have a “substantial religious character”: no major funding from the Catholic Church or Jesuit sources, only some of the students are Catholic, professors are not require to be Jesuits . . . So it is subject to the jurisdiction of NLRB and thus subject to unionization.

Earlier this month, the Kentucky Supreme Court issued two rulings concerning Lexington Theological Seminary, which laid off tenured professors and then defended itself by claiming the ministerial exception to employment law. That judge-made concept was vindicated by the US Supreme Court’s unanimous 2012 Hosanna-Tabor decision protecting the freedom of religious organizations to determine without government restriction who their “ministerial employees” should be. One Kentucky decision says that one of the dismissed faculty members cannot be regarded as a ministerial employee, so the seminary’s decision in his case can be challenged. The other decision gave the go-ahead to another professor’s lawsuit on the ground that the dispute is not about religion but only whether the Seminary violated its contract with tenured professors by dismissing the professor for reasons not authorized by the contract.

A further development concerns the exemption for religious colleges that is part of Title IX of the 1964 Civil Rights Act (as amended in 1972), which states: “this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization” (20 U.S.C. § 1681(a)(3)). This language suggests that no college or university can be considered religious itself but only receives a religious character from an actual religious organization (a church? a denomination) that controls it.

What to make of all this? A few points, sticking to the broader issues of institutional religious freedom:

* The federal government is inconsistent in how it identifies religious organizations. That inconsistency is evident with regard to the HHS contraceptives mandate: churches are exempt; businesses are fully subject; faith-based service organizations (such as colleges and health clinics) have an accommodation that does little to honor their moral objections. And that inconsistency is evident here. Consider: many evangelical colleges have mandatory chapel, religiously based conduct standards for students and faculty, a curriculum shaped by religious understandings, and a religious hiring policy for faculty and staff. But some of them are independent from any denominational control. It seems that the NLRB, intent though it is to expand its jurisdiction, would have to regard them to be religious entities that it must not control, while the administrators of Title IX, required to exempt religious colleges, might try to deny that the colleges are religious, and to assert the government’s control.

* The Kentucky Supreme Court is right to ask questions, left unanswered by the US Supreme Court, about how encompassing the “ministerial exception” is–or in other words, who all can be counted as a “minister.” On the other hand, the justices seem overly confident of being able neatly to divide the “religious” from the “secular.” One of the laid-off professors, the court claims, only taught “academically” about religion as he guided students in courses such as Values and Religion in American Culture, Jewish-Christian Dialogue, and War and Peace in Biblical Tradition. But is it so obvious that these courses did not contribute integrally to the Seminary’s religious mission of preparing students for ministry?

* The federal government is treading on dangerous ground, and likely overstepping its constitutional bounds, when it rummages through the statements, policies, and practices of a religious organization to try to determine how central religion is to the organization in its effort to decide whether it must be counted as a religious entity. The NLRB is sharply called to task in a brief from the Cardinal Newman Society and others submitted in response to the NLRB’s call for comment. Rather than such illicit and entangling investigations and line-drawing, the brief looks to several federal court rulings to propose a simple two-part test that does not require delving into the inner life of an organization: Is the organization a non-profit? and Does it hold itself out to the public as a religious organization? If both are true, then it is a religious organization, eligible for all the rights and freedoms due to such organizations.

* But why the requirement that the organization be a “nonprofit”–even if some courts have said that can be an important requirement? If one college is operated as a for-profit but otherwise does everything just the way a nonprofit religious college does, should the former be excluded from the religious freedom protections that the latter receives? Why? And what will happen to this nonprofit requirement if (or when) the US Supreme Court, in the Hobby Lobby and Conestoga Woods cases, rules that profit-making does not per se disqualify a corporate body from being regarded as religious? Just asking.

Further reading:

Patrick Reilly, “The NLRB’s Assault on Religious Liberty ,” Studies in Catholic Higher Education, May 2011.

Michael P. Moreland (Villanova Law School), Testimony to the joint subcommittee hearing on the NLRB, House Education and the Workforce Committee, Sept. 12, 2012.