Commonwealth v. Davis and Commonwealth v. Kentucky Education Association

In 2023, the Kentucky General Assembly passed SB 7, which prohibits public employers from deducting amounts for union dues and union political activities from their employees’ wages. The General Assembly purports to have done so to prevent the appearance that public resources are being used to support political activity. But SB 7 expressly exempts labor organizations that primarily represent police, fire, and corrections officers. According to the State, this exemption is intended to provide convenience to public employees in these specific vocations—but the State does not explain why it is denying the same convenience to all other public employees.

The Kentucky Education Association and the Nicholas County Education Association sued under the state constitution, claiming that SB 7’s distinction between protective-vocation unions and other unions violates the state’s equal protection guarantee. Two circuit courts agreed, and the Court of Appeals affirmed. Each of these three courts found that there was no rational basis for the law’s distinction, rendering it invalid under the Kentucky Constitution. The State has now appealed the case to the Kentucky Supreme Court.

Our amicus brief argues that the lower courts are correct. The text, structure, and history of the Kentucky Constitution all require that its equality guarantee be construed independently and more expansively than the U.S. Constitution’s Equal Protection Clause. This conclusion is reinforced by past Kentucky Supreme Court decisions, which have required legislative classifications like SB 7 to be justified by a “reasonable” or “substantial” basis. That is a higher bar than the standard under federal law (known as “rational basis”). And SB 7 fails Kentucky’s “reasonable basis” test: there is no justification for granting special privileges to protective-vocation labor organizations, let alone one that is supported by the legislative record. That is especially so because SB 7 selectively burdens the fundamental speech rights of certain unions and their members. At its core, the law reflects bare animus toward unions that the State disfavors. Our brief argues that this renders it invalid under the Kentucky Constitution.