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Can Public Employee Unions Forbid You from Resigning?

October 12, 2022

The Goldwater Institute this week filed a brief in the U.S. Supreme Court in support of a group of California lifeguards who want to resign from their union—but who aren’t allowed to. The reason they can’t resign: a contract the union signed that forbids its members from quitting the union for four years (and thereafter only allows them to resign during a one-month window in June of next year).

This restriction violates the First Amendment, because public employees not only have the constitutional right to decide whether to join or subsidize the union in the first place—something the Supreme Court made clear in its recent Janus decision—but they also have the right to quit if they want to.

The lawsuit is just the latest in a series of cases seeking to enforce the constitutional rights of public employees—rights the Janus decision should have made clear, but which public sector unions are still working to obstruct. In fact, as we explain in the brief, unions have a long history of making it as hard as possible to leave the union. Time and again, courts have had to block efforts by organized labor to restrict workers’ ability to resign—yet the right to resign in protest is itself a First Amendment right. In fact, it’s such an important way of expressing disagreement that even a member of the Supreme Court itself once quit in protest (over the infamous Dred Scott decision).

When California lifeguards, who joined the union before the Janus ruling made clear that they didn’t have to, challenged the constitutionality of the no-resignation rule, the Ninth Circuit threw out their case. The court held that when they signed their membership agreements, they “agreed” to give up their right to quit. Yet the prohibition on resigning wasn’t even in existence at that time—it was created years later. That alone proves that the lifeguards couldn’t have consented to the no-resignation rule. But even if they could have, the Janus decision makes clear that the government is required to prove in court that they knew they were giving up a constitutional right. The Ninth Circuit, however, didn’t bother to even ask for that evidence.

You can read about our work in defending the rights of public sector employees here, and you can read our Supreme Court brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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