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

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

Lucas Jackson/Reuters

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.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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