American Civil Liberties Union of Massachusetts v. Leavitt
Filing
105
Judge Richard G. Stearns: MEMORANDUM AND ORDER entered. The ACLUs motion for summary judgment is ALLOWED. It is therefore ADJUDGED and DECLARED that the government defendants violated the Establishment Clause of the First Amendment to the United St ates Constitution, insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church. The government defendants motion for summary judgment is DENIED. The USCCBs motion to dismiss and motion for summary are DENIED. (RGS, law2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 09-10038-RGS
AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS
v.
KATHLEEN SEBELIUS, et al.
MEMORANDUM AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT AND
DEFENDANT-INTERVENOR’S MOTION TO DISMISS
March 23, 2012
STEARNS, D.J.
In this case, plaintiff American Civil Liberties Union of Massachusetts (ACLU)
claims that officials of the U.S. Department of Health and Human Services (HHS)
violated the Establishment Clause of the First Amendment by allowing the United
States Conference of Catholic Bishops (USCCB) to impose a religiously based
restriction on the disbursement of taxpayer-funded services. Presently before the court
are the parties’ cross-motions for summary judgment, as well as defendant-intervenor
USCCB’s motion to dismiss for lack of subject matter jurisdiction. The court heard
oral argument on October 18, 2011.
BACKGROUND
The undisputed facts are as follows. In 2000, Congress passed the Trafficking
Victims Protection Act (TVPA). See 22 U.S.C. §§ 7101-7112.1 The purposes of the
TVPA are “to combat trafficking in persons, a contemporary manifestation of slavery
whose victims are predominantly women and children, to ensure just and effective
punishment of traffickers, and to protect their victims.” Id. § 7101(a). The TVPA
includes a provision directing the Secretary of HHS and other federal government
officials to “expand benefits and services to victims of severe forms of trafficking in
persons in the United States . . . .” Id. § 7105(b)(1)(B). Congress appropriated “up to”
$5 million “to carry out the TVPA” in fiscal year 2001, and “up to” approximately $10
million for each of the subsequent fiscal years. Gov. Defs.’ Statement of Facts (SOF)
¶ 5.
HHS initially implemented the victims’ services mandate by making grants to
nonprofit organizations that worked directly with trafficking victims. In November of
2005, HHS decided to select a general contractor to administer the funds. To this end,
HHS published a Request For Proposals (RFP). In response, HHS received timely
proposals from two organizations: the USCCB (“a religious organization whose
1
The TVPA was reauthorized in 2003, 2005, and 2008. See Trafficking Victims
Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875;
Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119
Stat. 3558; William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008, Pub. L. No. 110-457, 122 Stat. 5044.
2
membership consists of the Catholic bishops in the United States”)2 and the Salvation
Army (“an evangelical part of the universal Christian Church” engaged in various
charitable enterprises).3 In its proposal, the USCCB included the following cautionary
note:
as we are a Catholic organization, we need to ensure that our victim
services are not used to refer or fund activities that would be contrary to
our moral convictions and religious beliefs. Therefore, we would explain
to potential subcontractors our disclaimer of the parameters within which
we can work. Specifically, subcontractors could not provide or refer for
abortion services or contraceptive materials for our clients pursuant to this
contract.
Gov. Defs.’ SOF ¶ 28 (emphasis added).4
To evaluate the two proposals, HHS appointed a four-member “technical
evaluation panel.” Gov. Defs.’ SOF ¶ 32. On the initial evaluation, two of the panel
members raised concerns about the USCCB’s stated intent to prohibit subcontractors
2
Pl.’s SOF ¶ 27; USCCB’s Resp. to Pl.’s SOF ¶ 27.
3
A b o u t : M i s s i o n S t a t e m e n t , T h e S a l v a t i o n A r my ,
http://www.salvationarmyusa.org/usn/www_usn_2.nsf/vw-local/About-us (last visited
Mar. 23, 2012).
4
This frank statement that the abortion/contraception restriction was motivated
by Catholic dogma is at odds with the argument advanced by the government
defendants that “[t]he funding restrictions at issue here simply represent a coincidental
overlap between legitimate governmental objectives and religious tenets.” Gov. Defs.’
Mem. at 10.
3
from offering or subsidizing abortion services and contraceptives.5
The panel
members’ reservations were conveyed to the USCCB in the form of written questions.
Among the questions, the USCCB was asked: “Would a ‘don’t ask, don’t tell’ policy
work regarding the exception? What if a subcontractor referred victims supported by
stipend to a third-party agency for such services?” Gov. Defs.’ SOF ¶ 43. The
USCCB responded:
[w]e can not be associated with an agency that performs abortions or
offers contraceptives to our clients. If they sign the written [subcontract]
agreement, the “don’t ask, don’t tell” wouldn’t apply because they are
giving an assurance to us that they wouldn’t refer for or provide abortion
service to our client using contract funding. The subcontractor will know
in advance that we would not reimburse for those services.
Id. ¶ 52.
After receiving the answers, HHS reopened the RFP process to permit the
USCCB and the Salvation Army to submit revised technical proposals, which both
5
In enacting the TVPA, Congress made a finding that female trafficking victims
are often forced into prostitution and subjected to rape and other forms of sexual abuse.
See 22 U.S.C. § 7101(b)(6). The TVPA specifies that trafficking victims “shall be
eligible for benefits and services under any Federal or State program or activity funded
or administered by any official or agency . . . to the same extent as” refugees. Id. §
7105(b)(1)(A). “Medicaid and Refugee Medical Assistance pay for contraception and
abortions in the case of rape, incest, and when the woman’s life is in danger.” Pl.’s
SOF ¶ 59; USCCB’s Resp. to Pl.’s SOF ¶ 59. The RFP made no reference to
restrictions on the use of TVPA funds for contraception or abortion services. The
USCCB apparently raised the issue on the understanding that abortions and
contraceptives are among the clinical services that victims of human trafficking might
request.
4
organizations did.6 On April 11, 2006, HHS awarded the master contract to the
USCCB. The contract incorporated by reference the USCCB’s Technical Proposal and
Amended Technical Proposal, including the abortion and contraception restriction.
Gov. Defs.’ SOF ¶ 75. Pursuant to the award, the USCCB entered into subcontracts
with over 100 service providers, many of which are not Catholic institutions. The
subcontract included the restriction that “funds shall not be used to provide referral for
abortion services or contraceptive materials, pursuant to this contract.” Pl.’s SOF ¶ 62;
USCCB’s Resp. to Pl.’s SOF ¶ 62. The abortion/contraception restriction was also
contained in the program operations manual that the USCCB distributed to its
subcontracters. Pl.’s SOF ¶ 63; USCCB’s Resp. to Pl.’s SOF ¶ 63. Subcontractors
were further required to ensure that no staff time paid through the USCCB contract was
used in providing referrals for abortions or contraceptive materials. Pl.’s SOF ¶ 64;
USCCB’s Resp. to Pl.’s SOF ¶ 64.
The original HHS-USCCB contract had a term of one year, with options for four
annual renewals. HHS exercised each of these options, renewing the contract for a
five-year duration. During the first four years of the contract, the government
defendants awarded the USCCB over $13 million. As of June of 2010, the government
6
The USCCB’s Amended Technical Proposal included the same prohibition on
the use of contract funds to pay for abortion services and contraceptive materials. Pl.’s
SOF ¶ 46; USCCB’s Resp. to Pl.’s SOF ¶ 46.
5
defendants awarded the USCCB an additional $2.9 million.7 Pl.’s SOF ¶ 79; USCCB’s
Resp. to Pl.’s SOF ¶ 79. Before the contract was set to expire (on April 10, 2011),
HHS approved a six-month extension by way of a “Task Order.” The Task Order
expired on October 10, 2011. While HHS no longer has the authority to obligate
additional funds under the original master contract or the Task Order, it can continue
to pay the USCCB for “services provided within the period of performance of the Task
Order.” Timmerman Decl. ¶¶ 6-11.
On January 12, 2009, the ACLU brought this lawsuit against HHS officials,8
alleging that they “have violated and continue to violate the Establishment Clause of
the First Amendment by permitting [the] USCCB to impose a religiously based
restriction on the use of taxpayer funds.” Compl. ¶ 71. On May 15, 2009, defendants
filed a motion to dismiss the Complaint for lack of standing. This court denied the
motion on March 22, 2010. In June of 2010, the USCCB intervened in the lawsuit as
permitted by Rule 24 of the Federal Rules of Civil Procedure. All three parties now
move for summary judgment.
7
Of this $15.9 million, the USCCB allocated over $5.3 million to pay for its
administrative services and expenses. Pl.’s SOF ¶ 79; USCCB’s Resp. to Pl.’s SOF
¶ 79.
8
The Complaint originally named Michael O. Leavitt, the former Secretary of
HHS. Leavitt’s successor, Kathleen Sebelius, has since been substituted as a defendant
in Leavitt’s place.
6
DISCUSSION
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A ‘genuine’ issue is one that could be resolved
in favor of either party, and a ‘material fact’ is one that has the potential of affecting
the outcome of the case.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st
Cir. 2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986).
I. Threshold Issues: Standing and Mootness
A. Standing
Defendants previously challenged the ACLU’s claim to have standing to litigate
this case. In a Memorandum and Order dated March 22, 2010, the court found a
sufficient showing of taxpayer standing on the part of the ACLU under existing
Supreme Court doctrine. In reaching this conclusion, I reasoned that the ACLU had
met its prima facie burden under Flast v. Cohen, 392 U.S. 83 (1968), which is to show
“a logical link” between the plaintiff’s taxpayer status and “the type of legislative
enactment attacked,” as well as “a nexus” between such taxpayer status and “the
precise nature of the constitutional infringement alleged.” Id. at 102.9
9
I further reasoned that, for purposes of standing, “the TVPA expenditures at
issue here appear more like the funds disbursed under the AFLA [the Adolescent
7
The government defendants and the USCCB now seek to revisit the issue of
standing. The government defendants contend that “due to the further development of
taxpayer standing principles in Arizona Christian School Tuition Organization v. Winn,
131 S. Ct. 1436 (2011), it is now clear that plaintiff lacks taxpayer standing in this
case.” Gov. Defs.’ Reply at 6.10 In Winn, the Supreme Court held that the taxpayer
plaintiffs lacked standing to mount an Establishment Clause challenge to a dollar-fordollar tax credit (up to $500) matched against contributions to scholarship funds
Family Life Act, at issue in Bowen v. Kendrick, 487 U.S. 589 (1988)] than those spent
to support the activities of the OFBCI [the White House Office of Faith-Based and
Community Initiatives, at issue in Hein v. Freedom From Religion Foundation, Inc.,
551 U.S. 587 (2007)]. The TVPA, like the AFLA, designated a group of intended
beneficiaries – in the case of the TVPA, victims of human trafficking abuse, in the case
of the AFLA, sexually active adolescents – and like the AFLA, the TVPA required the
funding of services for the group.” Mar. 22, 2010 Mem. & Order at 14.
10
The USCCB offers the additional argument that “[s]ince [the] ACLU
challenges only the failure to use appropriated funds to pay for abortion and
contraception services, the interests of [the] ACLU’s members as taxpayers will not
support standing in this case.” USCCB’s Mem. in Support of its Mot. to Dismiss at
8. I question whether this framing of the case accurately characterizes the position
taken by counsel for the ACLU, that the focus of the lawsuit is not on the defense of
a right of access to abortion services, but instead on an objection to the use of taxpayer
dollars to enforce a religiously based restriction on access to such services. At a
hearing on December 3, 2009, I asked ACLU counsel directly whether this lawsuit
would have been brought “if Congress had insisted the money be given to religious
organizations that as a matter of faith believed in promoting abortion rights.” Dec. 3,
2009 Hr’g Tr. at 24. She replied, “Yes, your Honor, I think to the extent that there is
any sort of furthering of religion with taxpayer dollars, that rises to the level of an
Establishment Clause claim, regardless of what the specific contours are, and it also
means that taxpayers have standing to bring that case.” Id. at 25.
8
supporting students attending private schools, many of which are religiously based. In
reaching its holding, the Court incorporated an “extracted and spent” element into the
taxpayer standing analysis. It explicitly distinguished challenges to tax credits from
challenges to governmental expenditures, stating that “tax credits and governmental
expenditures do not both implicate individual taxpayers in sectarian activities. A
dissenter whose tax dollars are ‘extracted and spent’ knows that he has in some small
measure been made to contribute to an establishment in violation of conscience.”
Winn, 131 S. Ct. at 1447, quoting Flast, 392 U.S. at 106. The Court further reasoned
that in contrast to a governmental expenditure, “awarding some citizens a tax credit
allows other citizens to retain control over their own funds in accordance with their
own consciences.” Winn, 131 S. Ct. at 1447.11
11
Justice Scalia, joined by Justice Thomas, concurred. He stated that he “would
repudiate” Flast, as it is “an anomaly in our jurisprudence, irreconcilable with the
Article III restrictions on federal judicial power that our opinions have established.”
Id. at 1450 (Scalia, J., dissenting). Nevertheless, he joined the majority opinion
“because it finds respondents lack standing by applying Flast rather than distinguishing
it away on unprincipled grounds.” Id.
Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice
Sotomayor, dissented. She noted that the majority opinion’s “novel distinction in
standing law between appropriations and tax expenditures has as little basis in principle
as it has in our precedent.” Id. at 1450 (Kagan, J., dissenting). She reasoned that
“[c]ash grants and targeted tax breaks are means of accomplishing the same
government objective – to provide financial support to select individuals or
organizations.” Id. Thus, “[t]axpayers experience the same injury for standing
purposes whether government subsidization of religion takes the form of a cash grant
9
Here, taxpayer members of the ACLU seek to challenge a governmental
expenditure – the disbursement to the USCCB of funds appropriated by Congress under
the TVPA. In contrast to Winn, this case does not involve any form of tax credit that
allows plaintiffs and other dissenting citizens “to retain control over their own funds in
accordance with their own consciences.” Id. at 1447 (majority opinion).12 Thus, the
holding of Winn does not impeach this court’s pre-Winn holding that the ACLU has
standing to proceed.13
B. Mootness
The government defendants next argue that this case is moot in light of the
or a tax measure.” Id. at 1452.
12
See also id. at 1448 (“[W]hat matters under Flast is whether sectarian
[organizations] receive government funds drawn from general tax revenues, so that
moneys have been extracted from a citizen and handed to a religious institution in
violation of the citizen’s conscience.”). Here, a sectarian organization (the USCCB)
has received government funds drawn from general tax revenues, implicating “Flast’s
narrow exception to the general rule against taxpayer standing.” Winn, 131 S. Ct. at
1440.
13
It may be the case, as a prominent law journal suggests, that the Supreme
Court will further restrict taxpayer standing in Establishment Clause cases at the next
opportunity, or abolish it altogether (as Justice Scalia advocates). See The Supreme
Court, 2010 Term – Leading Cases, 125 Harv. L. Rev. 172, 181-182 (2011). This
court, however, does not have the freedom to blaze predictive trails. In the absence of
any clear direction from higher authority, it must apply the law as the Supreme Court
presently declares it to be.
10
expiration of the HHS-USCCB contract on October 10, 2011.14Both the ACLU and the
USCCB disagree with this contention. “The doctrine of mootness enforces the
mandate ‘that an actual controversy must be extant at all stages of the review, not
merely at the time the complaint is filed.’” Mangual v. Rotger-Sabat, 317 F.3d 45, 60
(1st Cir. 2003), quoting Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974). A case
is moot when a court cannot give “‘any effectual relief whatever’” to the potentially
prevailing party. Church of Scientology of California v. United States, 506 U.S. 9, 12
(1992), quoting Mills v. Green, 159 U.S. 651, 653 (1895). The distinction between
standing and mootness is not always easily grasped. “The confusion is understandable,
given [the Supreme Court’s] repeated statements that the doctrine of mootness can be
described as the doctrine of standing set in a time frame: The requisite personal interest
that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks omitted). See
14
Although the HHS-USCCB contract and Task Order have expired, HHS is
authorized to pay the USCCB for activities performed under the Task Order with
federal taxpayer funds. See Timmerman Decl. ¶ 11 (“USCCB may submit invoices for
services provided within the period of performance for the Task Order. On the basis
of those invoices, HHS can pay for services rendered with the funds obligated under
the Task Order.”). At the hearing on October 18, 2011, counsel for the government
defendants confirmed that “USCCB may still submit further invoices or have certain
intellectual property transferred back to the federal government . . . .” Oct. 18, 2011
Hr’g Tr. at 24.
11
also Becker v. Fed. Election Comm’n, 230 F.3d 381, 387 n.3 (1st Cir. 2000) (“[W]hile
it is true that a plaintiff must have a personal interest at stake throughout the litigation
of a case, such interest is to be assessed under the rubric of standing at the
commencement of the case, and under the rubric of mootness thereafter.”).
“The burden of establishing mootness rests squarely on the party raising it, and
‘[t]he burden is a heavy one.’” Mangual, 317 F.3d at 60, quoting United States v. W.T.
Grant Co., 345 U.S. 629, 633 (1953). “Mere voluntary cessation of allegedly illegal
conduct does not moot a case . . . . A case might become moot if subsequent events
made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” United States v. Concentrated Phosphate Exp. Ass’n., 393 U.S.
199, 203 (1968). See also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,
289 (1982) (“It is well settled that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of the
practice.”); Conservation Law Found. v. Evans, 360 F.3d 21, 26-27 (1st Cir. 2004)
(noting that the government defendant’s “voluntary cessation of the challenged conduct
does not render the challenge moot” where the government defendant has not shown
that the challenged action “will not recur.”).
Here, the government defendants have failed to meet their “heavy” burden of
demonstrating that it is “absolutely clear” that the circumstances giving rise to this case
12
will not recur. Indeed, the USCCB states that it
will continue to seek opportunities to collaborate with the government to
provide [social] services if, but only if, it can do so without violating its
moral and religious obligations not to facilitate the provision of abortion
and contraception. The government’s filings give no indication that HHS
has decided to reject such conscience protections in future contract and
grant applications under the TVPA, and, even if such a decision were
made, policies (and administrations) can change. Moreover, although the
particular case management contract involved in this litigation has
expired, [the] USCCB currently has under other programs similar
arrangements with HHS that contain the same exclusion of abortion and
contraception purposes.15
USCCB’s Supplemental Mem. at 4. There is simply no “absolute” assurance that the
challenged action will not be repeated. Only two bidders (the USCCB and the
Salvation Army) qualified for the original TVPA contract, which strongly suggests that
the USCCB (or another faith-based organization with similar tenets) will be among the
small number of qualified candidates vying for future TVPA contracts.16 As the ACLU
15
“For example, HHS’s Office of Refugee Resettlement administers a federal
grant program to provide long-term foster care placements, transitional foster care
services and related follow up services to unaccompanied undocumented children who
have been apprehended and are in federal custody. USCCB has recently received
grants under this program under terms that accept that USCCB will not participate in
funding abortion or contraception services. USCCB’s Migration and Refugee Services
operation participates in several other similar programs. See
http://nccbuscc.org/mrs/funding-sources.shtml. In all of them, USCCB has insisted on
a conscience provision that stipulates that USCCB will not provide or fund abortion or
contraception services.” USCCB’s Supplemental Mem. at 4 & n.1.
16
Congress has not indicated that it will not continue funding the TVPA.
13
notes, the USCCB
has a long history of being awarded numerous government contracts. In
fiscal year 2009 alone, for example, [the] USCCB received over $29
million in federal grants and contracts. And [the] USCCB has admitted
that in all subcontract agreements – with both Catholic and non-Catholic
entities – it imposes the same restriction on the use of abortion and
contraceptive referrals and services. . . . Thus, ACLU members who
object to their tax dollars being used to promote religion are likely to be
subjected to the same injury again.
Pl.’s Opp’n at 11-12; see also Gov. Defs.’ Resp. to Pl.’s SOF ¶ 77.17
There is a second reason why the case is not moot: the ACLU is seeking, among
other forms of relief, a declaratory judgment. See Compl. at 12. “The fact that there
is no present ongoing dispute . . . does not, of course, mean the case is moot. . . . ‘[A]
17
The government defendants argue that the voluntary cessation exception to the
mootness doctrine does not apply because “HHS did not voluntarily terminate the
contract;” rather, “[t]he contract expired due to the operation of law – HHS had no
further options to renew the contract or extend the life of task orders under the
contract.” Gov. Defs.’ Opp’n to USCCB’s Supplemental Mem. at 6. While this is
true, HHS could have awarded the new TVPA contract to the USCCB. It chose
instead to divide the TVPA funds among three other organizations. See USCCB’s
Supplemental Mem. at 5-6. The record does not disclose whether the USCCB’s
abortion/contraception restriction was a determinative factor in HHS’s decision not to
award a new contract to the USCCB. The decision may well have been a political one
that a successor administration with a different view of the issue could easily reverse.
In any event, one effect of awarding the TVPA grants to other organizations is that
HHS has (at least for the time being) voluntarily ceased its challenged endorsement of
the USCCB’s religiously motivated abortion/contraceptives restriction. However, the
USCCB has emphatically stated that it “is not going away and . . . it is very likely to
seek funding in the future under terms that include the conscience protections
concerning abortion and contraception services that ACLU has challenged in this case.”
Id. at 6.
14
federal district court has the duty to decide the appropriateness and the merits of the
declaratory request irrespective of its conclusion as to the propriety of the issuance of
the injunctions.’” Verizon New England, Inc. v. Int’l Bhd. of Elec. Workers, 651 F.3d
176, 187, 189 (1st Cir. 2011), quoting Zwickler v. Koota, 389 U.S. 241, 254 (1967).18
II. The Establishment Clause Challenge
Turning to the merits, the ACLU argues that “by authorizing [the] USCCB to
impose a religiously based prohibition on the use of TVPA funds, Defendants
impermissibly endorsed and advanced religious beliefs, and fostered an excessive
entanglement with religion, in violation of the Establishment Clause of the First
Amendment to the U.S. Constitution.” Pl.’s Opp’n at 1. The Supreme Court has stated
that
[t]he “establishment of religion” clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a
18
The government defendants argue that a request for declaratory relief cannot
sustain this case. In support of this argument, they cite Golden v. Zwickler, 394 U.S.
103 (1969), in which the Supreme Court concluded that no case or controversy of
“sufficient immediacy and reality” allowed for a declaratory judgment where it was
“most unlikely” that the plaintiff would ever again be subject to the statute at issue. Id.
at 109. See also Knight v. Mills, 836 F.2d 659, 671 (1st Cir. 1987) (concluding that
plaintiff’s request for declaratory relief was moot where the record did not demonstrate
“a reasonable expectation that the feared violation will recur.”). Here, in contrast to
Zwickler and Knight, it is not at all improbable that the challenged government action
will recur.
15
church. Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a person
to go to or to remain away from church against his will or force him to
profess a belief or disbelief in any religion. No person can be punished
for entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or small, can
be levied to support any religious activities or institutions, whatever they
may be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations or groups
and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect “a wall of
separation between Church and State.”
Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15-16 (1947) (citation omitted).
To determine whether a government action runs afoul of the Establishment Clause,
the Supreme Court has articulated three interrelated analytical
approaches: the three-prong analysis set forth in Lemon v. Kurtzman, 403
U.S. 602, 612-613 (1971); the “endorsement” analysis, first articulated
by Justice O’Connor in her concurrence in Lynch v. Donnelly, 465 U.S.
668, 688 (1984), and applied by a majority of the Court in County of
Allegheny v. ACLU, 492 U.S. 573 (1989); and the “coercion” analysis of
Lee v. Weisman, 505 U.S. 577, 587 (1992).19
Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 7 (1st Cir. 2010).
The first of these analytical approaches – the Lemon test – encompasses three criteria
that the government must meet if its actions are to be deemed religiously neutral.
First, the statute must have a secular legislative purpose; second, its
19
The coercion analysis does not apply here, as the ACLU does not argue that
the government defendants have coerced support of or participation in a particular
religion.
16
principal or primary effect must be one that neither advances nor inhibits
religion; finally, the statute must not foster “an excessive government
entanglement with religion.”
Lemon, 403 U.S. at 612-613 (citations omitted).20
The ACLU argues that by
authorizing the USCCB to impose a religiously based restriction on the use of TVPA
funds, defendants have violated the second and third prongs of the Lemon test.
“Under the related endorsement analysis, courts must consider whether the
challenged governmental action has the purpose or effect of endorsing, favoring, or
promoting religion.”21 Hanover Sch. Dist., 626 F.3d at 10. “[T]he prohibition against
20
In Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court treated the
excessive entanglement inquiry as part of the effects prong, rather than as a separate
prong. Id. at 232-233. The First Circuit recently noted that “[a]lthough the Lemon
analysis has been often criticized, including by members of the Supreme Court, the
Court has never expressly rejected it in cases such as this, and we have continued to
apply it in the First Circuit. The Lemon factors have, in the years since their first use
in 1971, been described as ‘no more than helpful sign posts.’” Hanover Sch. Dist., 626
F.3d at 9 n.16 (citations omitted).
21
Defendants define “the challenged government action” in this case variably:
at times they frame it as the entire contract between HHS and the USCCB, see, e.g.,
Gov. Defs.’ Mem. at 10, while at other times they focus on the enactment of the TVPA,
see id. at 12. However, the ACLU does not claim that the enactment of the TVPA or
the HHS-USCCB contract in its entirety violates the Establishment Clause. Rather, the
ACLU challenges only the government’s authorization of the religiously based
restriction on the use of TVPA funds. For purposes of the endorsement analysis, the
court will define the challenged government action as plaintiff ACLU has. At the
hearing on October 18, 2011, counsel for the government defendants agreed with the
court’s statement that “under an endorsement test, I think all we look at is the
government action, not the statute or the statutory purposes as a whole.” Oct. 18, 2011
Hr’g Tr. at 14. See Cnty. of Allegheny, 492 U.S. at 592 (holding that the display of a
17
governmental endorsement of religion ‘preclude[s] government from conveying or
attempting to convey a message that religion or a particular religious belief is favored
or preferred.’” Cnty. of Allegheny, 492 U.S. at 593 (citation omitted). To determine
whether the government has endorsed or advanced a particular religious belief, the
relevant inquiry is “‘whether an objective observer, acquainted with the text, legislative
history, and implementation of the statute [or other challenged government action],
would perceive it as a state endorsement . . . .’” Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 308 (2000), quoting Wallace v. Jaffree, 472 U.S. 38, 73 (1985) (O’Connor,
J., concurring).22
crèche in a county courthouse violated the Establishment Clause and stating that “[i]n
recent years, we have paid particularly close attention to whether the challenged
governmental practice either has the purpose or effect of ‘endorsing’ religion, a
concern that has long had a place in our Establishment Clause jurisprudence.”)
(emphasis added); Hanover Sch. Dist., 626 F.3d at 10 (stating that under the
“endorsement analysis, courts must consider whether the challenged governmental
action has the purpose or effect of endorsing, favoring, or promoting religion.”)
(emphasis added).
22
The government defendants state that “the endorsement test is most commonly
applied in the context of religious displays and religious expression,” and that “no
Supreme Court majority opinion has applied the endorsement test to a funding case.”
Gov. Defs.’ Reply at 4. However, defendants cite no authority that explicitly limits the
applicability of the endorsement test to cases involving religious displays and
expression, and there is no reason to assume that the endorsement analysis would not
be equally applicable here. There are cases outside of the religious display context in
which the endorsement test has been at least implicitly applied. See, e.g., Santa Fe
Indep. Sch. Dist., 530 U.S. at 305 (holding that a school’s policy of allowing studentled “invocations” prior to football games “involve[d] both perceived and actual
18
A. Endorsement
The ACLU argues that to an objective observer, the government defendants
would appear to have endorsed a Catholic belief by permitting the USCCB to place a
religiously motivated restriction on reproductive services that beneficiaries of the
TVPA program would otherwise have received. In support of this argument, the
ACLU cites Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708-711 (1985), which
held that a Connecticut statute that provided Sabbath observers with a right not to work
on their day of worship violated the Establishment Clause because it imposed on
employers and employees an absolute duty to conform their business practices to the
particular religious observances of an employee. See also id. at 711 (O’Connor, J.,
concurring) (finding that the Connecticut statute “conveys a message of endorsement
of the Sabbath observance,” and that “an objective observer or the public at large
would perceive this statutory scheme . . . . [as] one of endorsement of a particular
religious belief, to the detriment of those who do not share it.”).
endorsement of religion.”); Commack Self-Service Kosher Meats, Inc. v. Weiss, 294
F.3d 415, 431 (2d Cir. 2002) (finding kosher food statutes unconstitutional where they
“produce an actual joint exercise of governmental and religious authority,” which is
“prohibited by the Establishment Clause because of the danger that the government’s
action will be ‘perceived by [some] as an endorsement of their religious choices, or by
[others] as a disapproval of their own.’”); Foremaster v. City of St. George, 882 F.2d
1485, 1489 (10th Cir. 1989) (concluding that “the Constitution required the City to
terminate the electric subsidy” to a local Mormon temple because the subsidy
“conveyed a message of City support for the [Mormon] faith.”).
19
The USCCB, for its part, argues that the government’s acceptance of the
abortion/contraception restriction is an accommodation of religious belief and not an
endorsement of a sectarian view. In support of this argument, the USCCB cites case
law holding that an accommodation of religion is not equivalent to an endorsement of
religious belief. See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (applying rational basis analysis
to test the constitutionality of a statute exempting secular nonprofit activities of
religious organizations from the requirements of Title VII). However, as counsel for
the USCCB stated at oral argument, HHS’s authorization of the abortion/contraception
restriction is “strictly speaking, not an accommodation because the TVPA does not
require the provision of abortion or contraceptive services. It permits it, but it doesn’t
require it. So the government, by accepting the conscience clause in this case, did not
relieve [the] USCCB of a legal obligation.” Oct. 18, 2011 Hr’g Tr. at 39.
Even if viewed as an accommodation of the USCCB’s religious beliefs, the
government’s authorization of the abortion/contraception restriction would not
necessarily pass constitutional muster. In Amos, the Supreme Court noted that “[a]t
some point, accommodation may devolve into ‘an unlawful fostering of religion . . . .’”
483 U.S. at 334-335, quoting Hobbie v. Unemp’t Appeals Comm’n of Florida, 480
U.S. 136, 145 (1987). The Supreme Court reiterated the limited nature of permissible
20
religious accommodations in Board of Education of Kiryas Joel Village School District
v. Grumet, 512 U.S. 687 (1994):
accommodation is not a principle without limits, and what petitioners seek
is an adjustment to the Satmars’ religiously grounded preferences that our
cases do not countenance. Prior decisions have allowed religious
communities and institutions to pursue their own interests free from
governmental interference, but we have never hinted that an otherwise
unconstitutional delegation of political power to a religious group could
be saved as a religious accommodation. Petitioners’ proposed
accommodation singles out a particular religious sect for special
treatment, and whatever the limits of permissible legislative
accommodations may be, it is clear that neutrality as among religions
must be honored.
Id. at 706-707 (internal citations omitted).
Beliefs about the morality of abortion and the use of contraceptives need not be
based on a religious viewpoint. But here there is no reason to question the sincerity of
the USCCB’s position that the restriction it imposed on its subcontractors on the use
of TVPA funds for abortion and contraceptive services was motivated by deeply held
religious beliefs.23 In this respect, the present case is distinguishable from those relied
23
As discussed previously, the USCCB’s Technical Proposal and Amended
Technical Proposal (which were both incorporated into the final contract between HHS
and the USCCB) stated, “as we are a Catholic organization, we need to ensure that
our victim services are not used to refer or fund activities that would be contrary to our
moral convictions and religious beliefs. Therefore, we would explain to potential
subcontractors our disclaimer of the parameters within which we can work.
Specifically, subcontractors could not provide or refer for abortion services or
contraceptive materials for our clients pursuant to this contract.” See USCCB’s Resp.
to Pl.’s SOF ¶¶ 28, 46 (emphasis added); USCCB’s Supplemental Mem. at 2 (citing
21
upon by the government defendants – Bowen v. Kendrick, Harris v. McCrae, and
McGowan v. Maryland – all of which involved challenges to government actions that
coincided with religious beliefs, but were not found to be explicitly motivated by the
beliefs of a particular religious group. See Bowen v. Kendrick, 487 U.S. 589, 605
(1988) (upholding the eligibility of religious groups to receive funding under the
Adolescent Family Life Act (AFLA), reasoning that AFLA’s “approach is not
inherently religious, although it may coincide with the approach taken by certain
religions.”); Harris v. McCrae, 448 U.S. 297, 319 (1980) (rejecting an Establishment
Clause challenge to the Hyde Amendment, which limits federal funding for abortion,
reasoning that “[t]he Hyde Amendment . . . is as much a reflection of ‘traditionalist’
values towards abortion, as it is an embodiment of the views of any particular
religion.”); McGowan v. Maryland, 366 U.S. 420, 444 (1961) (upholding Maryland’s
Sunday closing laws against an Establishment Clause challenge, reasoning that “[i]n
light of the evolution of our Sunday Closing Laws through the centuries, and of their
more or less recent emphasis upon secular considerations, it is not difficult to discern
that as presently written and administered, most of them, at least, are of a secular rather
the USCCB’s “moral and religious objections to facilitating abortion or contraception”);
Gov. Defs.’ Mem. at 1-2 (acknowledging that “the funding restriction on abortion
services and contraceptive materials was proposed by [the] USCCB for religious
reasons . . . .”).
22
than of a religious character, and that presently they bear no relationship to
establishment of religion as those words are used in the Constitution of the United
States.”).
This case is also distinguishable from Hanover School District, in which the
First Circuit held that the New Hampshire School Patriot [Pledge of Allegiance] Act
did not violate the Establishment Clause. In its analysis, the First Circuit emphasized
the voluntary nature of the Pledge of Allegiance ceremony, under which “both the
choice to engage in the recitation of the Pledge and the choice not to do so are entirely
voluntary.” Hanover Sch. Dist., 626 F.3d at 11. Here, by contrast, the restriction on
the use of TVPA funds for abortion services and contraceptive materials is not a subject
of truly voluntary participation; subcontracting organizations and trafficking victims
cannot “opt out” of the restriction without shouldering the financial burden of doing
so.24
B. Delegation of Authority
The ACLU further argues that by impermissibly delegating discretion to the
24
The government defendants note that despite the restriction, “subcontractors
may use their own funding to provide abortion and contraceptive services.” Gov.
Defs.’ Reply at 5. The pertinent issue, however, is not the allocation of financial
burdens among the service providers; rather, it is whether the shifting of costs based
on religious dogma violates the Establishment Clause when taxpayer money is
involved.
23
USCCB to decide which services would be offered under the TVPA, and which would
not, the government defendants violated their constitutional obligations under the
second and third prongs of the Lemon test.25 In support of this argument, the ACLU
cites Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), which held that a
Massachusetts statute that vested in the governing bodies of schools and churches the
power to block the issuance of liquor licenses for establishments within a 500-foot
radius of the church or the school could “be seen as having a ‘primary’ and ‘principal’
effect of advancing religion,” and “enmeshe[d] churches in the exercise of substantial
governmental powers contrary to our consistent interpretation of the Establishment
Clause . . . .” Id. at 126. In reaching this conclusion, the Supreme Court reasoned that
the “Framers did not set up a system of government in which important, discretionary
governmental powers would be delegated to or shared with religious institutions.” Id.
at 127. See Kiryas Joel, 512 U.S. at 696; see also Commack Self-Serv. Kosher Meats,
294 F.3d at 430 (holding that the challenged kosher food statutes “fail the second prong
of the Lemon test . . . . because they (1) have a primary effect that both advances
religion, by preferring the dietary restrictions of Orthodox Judaism over those of other
25
Under the TVPA, and pursuant to the statutory authority for the RFP, 8 U.S.C.
§ 1522(c)(1)(A), the government defendants are charged with providing services to
individuals trafficked into the United States. See Pl.’s SOF ¶¶ 20-21; USCCB’s Resp.
to Pl.’s SOF ¶¶ 20-21.
24
branches, and inhibits religion, by effectively prohibiting other branches from using the
kosher label in accordance with their religious beliefs, and (2) create an impermissible
joint exercise of religious and civic authority that advances religion.”); Barghout v.
Bureau of Kosher Meat & Food Control, 66 F.3d 1337, 1345 (4th Cir. 1995) (stating
that under the second prong of the Lemon test, the relevant question “is not the
subjective intent of the [governmental body] in enacting the [challenged action], but
whether the objective effect of [the challenged action] is to suggest government
preference for a particular religious view or for religion in general”; and finding that
“[a]lthough the City has not expressly endorsed Orthodox Judaism or encouraged its
practice by passing the [kosher food consumer fraud municipal] ordinance, the
incorporation of the Orthodox standard creates an impermissible symbolic union of
church and state.”).
Here, as in Grendel’s Den, Kiryas Joel, Commack, and Barghout, the
government defendants’ delegation of authority to the USCCB to exclude certain
services from government funding “provides a significant symbolic benefit to religion,”
in violation of the Establishment Clause. See Grendel’s Den, 459 U.S. at 125-126.
This conclusion is buttressed by the fact that the government defendants’ authorization
of the abortion/contraception funding restriction represents a deviation from their
ordinary practices. In Kiryas Joel, the Supreme Court held unconstitutional a New
25
York state statute that “ran counter to customary [school] districting practices in the
State” and “delegat[ed] the State’s discretionary authority over public schools to a
group defined by its character as a religious community, in a legal and historical context
that gives no assurance that governmental power has been or will be exercised
neutrally.” 512 U.S. at 696, 700.
The government defendants attempt to distinguish Kiryas Joel from the present
case with the conclusory statement that here, “HHS evaluated [the] USCCB’s proposal
in response to the RFP using ‘customary and neutral principles’ without any religious
motivation.” Gov. Defs.’ Reply at 4 n.2, quoting Kiryas Joel, 512 U.S. at 702. This
may have been true at the outset. However, during the bidding process, the USCCB
made clear its intention to distribute the TVPA funds in a manner it deemed consistent
with Catholic beliefs. HHS’s ultimate delegation to the USCCB of the discretion to
prohibit the use of TVPA funds for abortion services and contraceptive materials was
neither customary nor neutral. It is not a matter of dispute that prior to awarding the
TVPA contract to the USCCB, the government defendants “did not impose any
prohibition on the use of TVPA funds for abortion or contraception referrals, or
contraceptive services.” Pl.’s SOF ¶ 17; Gov. Defs.’ Resp. to Pl.’s SOF ¶ 17.
Moreover, the government defendants now take the position that “HHS no longer
intends to assist human trafficking victims through a single, nationwide contract;
26
instead funding is provided through multiple grant awards that give strong preference
to organizations that will make referrals for the full range of legally permissible
obstetrical and gynecological services, including abortion and contraception.” Gov.
Defs.’ Opp’n to USCCB’s Supplemental Mem. at 7-8 (emphasis added).
As I stated in my March 22, 2010 Memorandum and Order, “I have no present
allegiance to either side of the debate, only a firm conviction that the Establishment
Clause is a vital part of the constitutional arrangement envisioned by the Framers, and
perhaps a reason we have not been as riven by sectarian disputes as have many other
societies.” Mar. 22, 2010 Mem. & Order at 21. That conviction remains unshaken.
To insist that the government respect the separation of church and state is not to
discriminate against religion; indeed, it promotes a respect for religion by refusing to
single out any creed for official favor at the expense of all others. See Kiryas Joel, 512
U.S. at 696 (“A proper respect for both the Free Exercise and the Establishment
Clauses compels the State to pursue a course of neutrality toward religion, favoring
neither one religion over others nor religious adherents collectively over
nonadherents.”) (internal quotations omitted); Cnty. of Allegheny, 492 U.S. at 610
(“The government does not discriminate against any citizen on the basis of the citizen’s
religious faith if the government is secular in its functions and operations. On the
contrary, the Constitution mandates that the government remain secular, rather than
27
affiliate itself with religious beliefs or institutions, precisely in order to avoid
discriminating among citizens on the basis of their religious faiths.”).26
ORDER
For the foregoing reasons, the ACLU’s motion for summary judgment is
ALLOWED. It is therefore ADJUDGED and DECLARED that the government
defendants violated the Establishment Clause of the First Amendment to the United
States Constitution, insofar as they delegated authority to a religious organization to
impose religiously based restrictions on the expenditure of taxpayer funds, and thereby
impliedly endorsed the religious beliefs of the USCCB and the Catholic Church. The
government defendants’ motion for summary judgment is DENIED. The USCCB’s
motion to dismiss and motion for summary are DENIED.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE
26
Let me add one final note. This case is not about government forcing a
religious institution to act contrary to its most fundamental beliefs. No one is arguing
that the USCCB can be mandated by government to provide abortion or contraceptive
services or be discriminated against for its refusal to do so. Rather, this case is about
the limits of the government’s ability to delegate to a religious institution the right to
use taxpayer money to impose its beliefs on others (who may or may not share them).
28
29
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