Sunday, October 30, 2011
Here's a series of events I found interesting. This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking. These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000. Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations. There is some speculation in the story that the reason the contract was not extended was the USCCB's unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.
In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause.The claim is that the government has permitted the USCCB to impose a "religion-based restriction" on the distribution of taxpayer-funded services. In March 2010, Judge Richard Stearns denied the defendants' motion to dismiss on the basis of lack of standing, holding that the Flast exception (as glossed by Hein) applied. See ACLU v. Sebelius, 697 F. Supp. 2d 200 (D. Mass 2010). Here is the conclusion of Judge Stearns' opinion:
In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. 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. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.
Id. at 212. Oral argument on the merits occurred on October 18. One other little footnote about the court's decision -- William Wilberforce was described by Judge Stearns as "an English politician and social reformer whose campaign to suppress the slave trade led to the passage by Parliament of the Slavery Abolition Act of 1833, ending the institution of slavery in the British Empire." Id. at 201 n.3. Wilberforce's religious background and motivations were not noted.
It may well be that the reason the contract with the USCCB was terminated was that the government determined that the provision of abortion and contraceptive services simply was a vital part of what its contractor needed to offer the victims of human trafficking. It might also be that the government determined that giving the contract to other organizations without the conscience clause needed by the USCCB was an effective way to neutralize the ACLU's Establishment Clause lawsuit, and at no cost to its favored policies.
It seems likely that both reasons operated in tandem in this case to make the decision to award the contract to other organizations an extremely easy one for the government. The news story reports that the ACLU issued this statement in response to the government's decision:
"We applaud the federal government for recognizing that trafficking victims need reproductive-health series [sic] and making awards based on those needs,” Brigitte Amiri, an attorney for the ACLU, said in an interview. “This has little to do with religion and everything to do with what the trafficking victims need.”
All's well that ends well, I suppose. But it obviously is not the ACLU's position in the lawsuit that decisions about who receives these government contracts have "little to do with religion[.]" To the contrary, for the ACLU, the initial decision to award the contract to the USCCB had everything to do with an impermissible religious establishment, so much so that it sued.
For one reason or another, the Establishment Clause claim has now served its purpose, either because the Obama administration decided on its own and for its own reasons to change course, or because it was motivated by the lawsuit to do so, or (most likely) both. But to claim now that the controversy has "little to do with religion" strikes me as disingenuous, particularly because it was the ACLU that squeezed the Establishment Clause pressure point in the first place, got a ruling which deployed the well-worn worry about the possibility of "sectarian" divisiveness to vindicate "the separation of church and state," and by hook or by crook rode that ruling to policy victory.
When one successfully brandishes the pointy stick of constitutional law to get what one wants, one ought at least to acknowledge the sharpness of the weapon. [Thanks to my colleague Rosemary Salomone for pointing out the story]