Can a Church Use Taxpayer Dollars to Deny Birth Control to Sex Trafficking Victims?

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Under a government-funded program run by Catholic bishops, health-care providers are not allowed to recommend contraception or abortion.

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Imagine this: The Department of Heath and Human Services (HHS) contracts with the Church of Scientology to administer a federal program for emotionally disabled adults. The contract authorizes the church to disburse federal funds to direct service providers. In keeping with its religious beliefs, and with the consent of HHS, the church prohibits these providers from offering psychiatric treatment to the disabled adults they serve.

This is, I admit, a fanciful scenario, but only because Scientology is an unpopular, fringe religion on which HHS would not bestow its largess. There's nothing fanciful about a hypothetical government contract empowering a religious organization to administer a federal welfare program, despite its stated intent to deny recipients essential services for religious reasons. In fact, this isn't exactly a hypothetical. It's history.

From 2006 to 2011, HHS contracted with the United States Conference of Catholic Bishops (USCCB) to administer a federal social service program established by the Trafficking Victims Protection Act. The bishops subcontracted with service providers, on the condition that they would not offer sex trafficking victims contraceptives or abortions. HHS consented to this condition and awarded nearly $16 million to the USCCB during a 5 year period, over $5 million of which was retained by the USCCB for services and expenses.

Did this contract violate the First Amendment's establishment clause prohibiting the government from sponsoring or adopting sectarian religious practices? The ACLU sued the government in 2009 (representing its members as injured taxpayers), and three years later, in March 2012, it won a federal district court ruling declaring the HHS contract with the bishops unconstitutional. The court found that the contract "delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds," and "implicitly endorsed the religious beliefs of the USCCB and the Catholic Church."

Naturally, the USCCB appealed (having intervened as a defendant in 2010). So did the Obama Administration, and last week their appeal was argued before the First Circuit Court of Appeals in Boston.

Was the District Court correct in ruling that this contract violated the establishment clause? The First Circuit may avoid the question by deciding that the District court was incorrect in ruling that the ACLU had standing to raise it. Or the court may find the case moot, since the contract with the USCCB has expired.

In disbursing taxpayer funds, the bishops didn't just talk about Catholic articles of faith; they actually imposed them on victims of trafficking.

On the merits, the establishment clause argument against the USCCB contract is strong. The government should not be empowered to advance sectarian beliefs and impose them on people by proxy -- in this case, through a contract with the Catholic Church. But as a matter of process, the legal argument for reaching the merits is vulnerable.

Process issues are often less than compelling. (I cried the first day of law school, reading the first paragraph of my civil procedure book.) But rules of procedure shape the way we administer and conceive of justice, so bear with me:

The federal judiciary is not a proactive advisory body with general power to declare laws unconstitutional. Article 111 of the Constitution limits federal court jurisdiction to "cases" and "controversies," meaning particular disputes between plaintiffs alleging distinct, personal injuries caused by defendants' allegedly unlawful or unconstitutional acts. As a general rule, individual taxpayers are not deemed to have suffered distinct injuries when they challenge laws generally applicable to all taxpayers.

The Supreme Court carved out an exception to this rule years ago, recognizing taxpayer standing in a limited category of claims. In 1968, in Flast v Cohen, the court upheld the right of taxpayers to challenge a federal law authorizing aid to religious schools. To establish standing under Flast, taxpayers were required to show that they were challenging an exercise of Congressional power under the Constitution's taxing and spending clause, and that the exercise of power violated specific constitutional provisions, notably First Amendment prohibitions on state established religion.

But in the 45 years since Flast was decided, the Supreme Court has become friendlier to church-state partnerships and more hostile to litigants challenging them. In 2007, in Hein v Freedom from Religion Foundation (FRRF), the Court seized an opportunity to limit taxpayer standing in establishment clause cases, unwittingly provided by FFRF. An aggressive, legally unsophisticated group of non-theists, FFRF sued the Bush Administration's Office of Faith Based and Community Initiatives (as taxpayers) for holding conferences that "single out (religious groups) as being particularly worthy of federal funding" and "extolled" belief in God.

But Congress had no direct role in establishing the White House faith-based office; its funds derived from general executive branch appropriations. So, while FFRF prevailed in the 7th Circuit Court of Appeals, it ultimately lost a war it might not have intended to fight, when the Supreme Court denied it taxpayer standing to challenge the White House initiative. The Court limited Flast to cases involving "express congressional mandates" and "specific congressional appropriations," which were not at issue in this case involving executive-branch actions disbursing generally appropriated funds.

How does this affect the ACLU's taxpayer challenge to the HHS contract with the Catholic bishops?

The Obama Administration and the bishops argue that Hein limited taxpayer standing in establishment clause cases to facial challenges -- meaning challenges to legislation that is expressly or intentionally religious. The ACLU argues that Hein allows "as applied" challenges -- meaning challenges to executive branch decisions implementing legislation by funding or otherwise endorsing religion. In addition, the ACLU stresses that Congress reauthorized the Trafficking Victims Protection Act in 2008 knowing that program funds were being directed to the USCCB and made subject to prohibitions on abortion and contraceptive care.

The District Court agreed and granted taxpayer standing to the ACLU, but the 1st Circuit appeared skeptical of standing during argument last week, on December 5. Chief Judge Sandra Lynch began by confirming that denying taxpayer standing in this case would not immunize the government from all establishment clause challenges. Trafficking victims and social service providers that offer victims abortions or contraceptives would still have standing to sue -- although their rights to sue seem mostly theoretical: Victims seeking reproductive health care can gain little from the slow process of litigation; it took nearly four years for the ACLU challenge to reach the court of appeals. Service providers hesitate to sue the hand that might someday be persuaded to feed them.

So, if the court denies the ACLU standing or declares the case moot since the contract expired (although the administration could enter into similar contracts at any time), a clear First Amendment violation will be allowed to stand. How clear? You can measure the strength of the ACLU's case on the merits by the weakness of the arguments against it:

The contract between HHS and the bishops had a secular purpose. This is true but irrelevant, since the contract had the effect of imposing sectarian religious restrictions on publicly funded social services. (Pursuant to longstanding precedent, the First Amendment bars government actions that have religious purposes or effects or that "entangle" government and religion.)

The Church was not engaged in proselytizing. Also true, but irrelevant. The USCCB engaged in something worse than proselytizing. In disbursing taxpayer funds, it didn't just talk about Catholic articles of faith; it actually imposed them on social service providers and victims of trafficking. Proselytizing would have been offensive (and unconstitutional), but less consequential.

Social service providers were free to offer reproductive health care financed by private donors. So what? The government couldn't justify building Christian churches by pointing to the right of private groups to build synagogues or mosques.

The government was merely "accommodating" the Catholic Church, respecting its religious freedom, by agreeing to its ban on abortions and contraception. That's what the USCCB argues. The government disagrees, stating plainly that "the contract did not involve ... the accommodation of the religious views of a private contractor."

On the merits, this is a fairly simple case: The Church has no particular right to administer government contracts. Women have very particular rights to abortion and contraception, for which trafficking victims have very particular needs. The government may (and sometimes must) accommodate religious views, but it may not incorporate religious rules.

But if these simple, fundamental principles are not terribly controversial in theory, in practice they're apt to be ignored. The Supreme Court now tends to favor religion. Democrats as well as Republicans pay tribute to it. A government contract authorizing the Catholic Church to impose its beliefs on victims of sex trafficking is a distressing but not anomalous example of a dangerously permissive approach to church-state entanglements. It imbues select religious groups with power over social needs and secular rights.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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