Scales Of Justice

Janus vs. Obergefell: Are union fees different from same-sex marriage?

This piece originally appeared at

Jim Obergefell wanted the state of Ohio to recognize his same-sex marriage. Mark Janus wanted the Illinois chapter of the American Federation of State, County, and Municipal Employees (AFSCME) to stop forcing him to fund its political agenda. The U.S. Supreme Court sided with both men, but lower courts’ eagerness—or lack thereof—to implement the high court’s respective rulings offers a case in contrasts.

In both Obergefell v. Hodges, the landmark 2015 decision declaring bans on same-sex marriage unconstitutional, and Janus v. AFSCME, the 2018 ruling rejecting public unions’ ability to force non-members to pay “agency fees”—money charged to employees who were part of bargaining unit but not union members—the Supreme Court ruled on the specific state laws before it. This meant laws in Michigan, Kentucky, Ohio, and Tennessee (Obergefell) and Illinois (Janus).

Still, statutes—theoretically unenforceable—counter to the court’s opinions remained on the books in other states. For these laws to be removed, either lower courts or lawmakers had to act.

Post-Obergefell, courts moved swiftly to do just that. Months after the ruling, the Eighth Circuit Court of Appeals struck down Nebraska’s same-sex marriage ban (Waters v. Ricketts), despite the state’s argument that the legal challenge to its statute was moot given the Supreme Court’s decision.

That same year, the Fifth Circuit Court of Appeals remanded a case challenging Louisiana’s same-sex marriage ban to district court, ordering the court to rule in favor of the plaintiffs (Robicheaux v. Caldwell). The Fifth Circuit Court did the same regarding laws in Mississippi (Campaign for Southern Equality v. Bryant) and Texas (De Leon v. Abbott).

In notable contrast, in the year since the Janus ruling, not one court has struck down agency fees in non-Janus states. Instead, in nearly a dozen cases nationwide, courts have declared legal challenges to agency fees moot in light of Janus.

One such case is in my state of Pennsylvania, where despite the Janus ruling, state law still allows public sector unions to force agency fees from non-members against their will. The U.S. District Court for the Middle District of Pennsylvania had stayed a case challenging this law—Hartnett v. Pennsylvania State Education Association (PSEA)—pending the outcome of Janus.

Recently, however, instead of striking down Pennsylvania’s law, the District Court dismissed the Harnett case as moot, allowing our unconstitutional statute to remain unchanged. The court based its decision on PSEA’s promise to comply with Janus. Yet if compliance were assured, why object to aligning state law with the Janus ruling?

Unfortunately, Pennsylvania is not alone. Courts have dismissed on grounds of mootness similar cases challenging agency fees in states including Maryland (Akers v. Maryland State Education Association), Washington (Danielson v. AFSCME Council 28 and Carey v. Inslee), Massachusetts (Branch v. Commonwealth Employment Relations Board), Oregon (Cook v. Brown), California (Yohn v. California Teachers Association and Babb v. California Teachers Association), Connecticut (Lamberty v. Connecticut State Police Union), and Ohio (Lee v. Ohio Education Association).

As a result, agency-fee laws remain intact in states across the country. This breeds confusion for public workers and invites union violation. In Pennsylvania, for example, the PSEA continues to bargain for agency fees in contracts in at least a dozen school districts in direct violation of Janus.

Inexplicably, courts’ eagerness to implement Obergefell has become reticence to apply Janus.

Absent court action, lawmakers must align state statutes with the Supreme Court’s ruling. In Pennsylvania, House Bill 785, introduced by Rep. Kate Klunk, and Senate Bill 371, offered by Sen. Scott Martin, would do just that.

Due to court intervention, individuals like Jim Obergefell don’t wonder if the Supreme Court’s ruling has been implemented in their state. Due to court inaction, people like Mark Janus do.

The inconsistency lacks logic. State lawmakers in Pennsylvania and nationwide should act swiftly to assure public workers that the rights the Supreme Court restored to them in Janus stand equally protected by state law.

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 Matthew J. Brouillette is president and CEO of Commonwealth Partners Chamber of Entrepreneurs, a membership association that engages entrepreneurs in collaborative partnership to improve Pennsylvania’s business and economic climate. For more information, visit