by Matt Kelly

In a free and democratic society, should an individual have to join a private organization as a condition of getting or keeping a job?

I don’t believe they should.

There are perfectly reasonable requirements an employer can make of someone seeking employment. Experience. Education. Training. Certification. A demonstrated ability to do the job. Those requirements relate directly to whether someone is qualified to perform the work.

But requiring someone to belong to a particular private organization is something fundamentally different.

That is why I have concerns about Vermont’s proposed constitutional amendment on collective bargaining, Proposal 3. 

The language would protect not only the right of employees to organize and collectively bargain, but would also constitutionally protect agreements requiring membership in a labor organization as a condition of employment.

To me, that raises a fundamental question about individual freedom.

Vermont has always had a rather independent streak.

Before Vermont became the 14th state, it existed as the independent Vermont Republic. That spirit of independence has remained part of the state’s character ever since.

Think of Vermonters such as Jim Jeffords, who left the Republican Party and became an independent. Think of Bernie Sanders, who has spent his political career operating outside the traditional party structure. Think of Vermont’s history of taking independent positions on issues ranging from civil unions to environmental protection.

Independence is not merely something Vermont talks about. It is part of our history.

So why would we want to place into our state Constitution a provision that could allow someone’s employment to be conditioned upon membership in an organization?

A worker should be free to decide whether to join a union. A worker should also be free to decide whether not joining one is more consistent with his or her own circumstances and beliefs.

That doesn’t mean opposing unions. It means recognizing that the freedom to join must include the freedom not to join.

A person looking for work in an increasingly competitive economy should be able to walk into a workplace, demonstrate that they are qualified, and be considered for employment without first having to belong to a particular organization.

That is the principle behind the first of these two messages:

PROTECT WORKERS. NO ON 3

Freedom should belong to the individual worker, too.

The second issue is Proposal 4, the proposed constitutional amendment concerning equal protection.

Here, the concern is different but related: equality should mean equality for everyone.

Vermont already has extensive statutory protections against discrimination in employment, including protections based on race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, age, disability and other specified characteristics.

The question raised by Proposal 4 is whether putting a specific list of protected characteristics into the Constitution could inadvertently create a distinction between people who are listed and people who are not.

That isn’t simply a political talking point. Peter Teachout, a professor of constitutional law at Vermont Law School who testified before the Legislature in support of adding an equal-protection provision, specifically raised this concern. He wrote that the current language provides protection for the groups listed but leaves unclear whether and to what extent it protects people outside those groups. He described the problem as arising in large part from the use of a closed list of protected classes.

That deserves serious consideration.

If our message is equality, then the Constitution should not inadvertently establish one class of Vermonters whose characteristics receive constitutional protection while leaving everyone else dependent upon ordinary statutory protections.

And that is why the second message is:

NO TO DISCRIMINATION. NO ON 4.

The point isn’t that discrimination is acceptable.

Quite the opposite.

The point is that Vermont should be extraordinarily careful when it writes equality into its Constitution. The words we put there will outlive the political debates of today and will be interpreted by courts for generations.

Our state motto is Freedom and Unity.

Those two words belong together.

Freedom without equality isn’t freedom for everyone.

And equality that depends upon belonging to the right category isn’t equality for everyone.

These two messages are ultimately about the same principle: the individual should not lose his or her freedom because of membership, affiliation, identity or circumstance.

Vermont has always prided itself on independence.

Let’s protect that independence, including the independence of Vermonters in the workplace and the principle that constitutional equality should truly belong to everyone.