The National Catholic Review

However uncomfortable has been their association of late, the U.S.C.C.B. and the Department of Health and Human Services have been partners in millions of dollars in federally funded social services and over the past year or so on one court docket. Now a U.S. District Court decision in Massachusetts has added another layer of complexity to the ongoing dispute over religious liberty between the Obama administration and U.S. bishops. Judge Richard Stearns ruled yesterday that the terms of a Department of Health and Human Services contract with the U.S. bishops’ Office of Migration and Refugee Services indeed, as the American Civil Liberties Union of Massachusetts charged, constituted a violation of the Establishment Clause. Stevens decided a religious accommodation over abortion and birth control built into the contract allowed M.R.S. to impose a religiously based restriction on the disbursement of taxpayer-funded services. The contract permitted M.R.S. to restrict its health services sub-contactors from providing abortion or contraception counseling or services to trafficking victims.

The Massachusetts ACLU had sued H.H.S. because of the five-year contract for services for human trafficking victims with M.R.S., which had been hired as a national general contractor for counseling and other social services for women escaping trafficking. The office was not selected for a renewal of that service, launching one of the U.S.C.C.B.’s ongoing conflicts over religious liberty with the Obama administration, and in this case, partly over the meaning of the term itself when associated with entities receiving government contracts.

The Docket reports:

The services were provided under a contract awarded by the HHS under the Trafficking Victims Protection Act, the aim of which is “to combat … a contemporary manifestation of slavery whose victims are predominantly women and children.”

The USCCB entered into subcontracts with over 100 service providers, with each subcontract including the restriction that “funds shall not be used to provide referral for abortion services or contraceptive materials.”

The American Civil Liberties Union of Massachusetts argued that the government “would appear to have endorsed a Catholic belief” and impermissibly delegated discretion to the USCCB.

Judge Richard G. Stearns agreed.

“Here, … 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,” Stearns emphasized. “[T]he 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,” he added.

“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,” the judge reasoned.

You can read the complete ruling here

Stevens added a final observation worth noting: "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)."

The ruling will surely complicate future contracts between government entities and social service agencies run by religious bodies when they intersect such contested matters as abortion or contraception. Could it jeopardize a recent detente between Catholic Relief Services and U.S. Agency for International Development?

There is little chance that federal or state grant writers will be able to disregard this decision when composing requests for proposals in the future. For many complicated social service needs that are outside the current capabilities of government, religious providers like CRS, Catholic Charities USA and the Salvation Army are the only qualified bidders out there. It appears time for creative thinking, either within the bureacracies of government or churches or among state and federal legislatures, to work around such obstacles.


Michael Appleton | 3/29/2012 - 5:26pm
Tom Maher: Your comment suggests unfamiliarity with both the procedural and substantive elements of the decision.  The court was not weighing evidence or issuing a judgment following the trial of disputed facts. Instead, it was ruling on motions for summary judgment filed by both parties. What that means is that the parties were in essential agreement with respect to the material (i.e., important) facts in the case, but disagreed on the legal consequences of those same facts. The court's job was to determine the principles of law applicable to those facts and render a legal conclusion accordingly. Therefore, your assertion that the court accepted "as valid raw claims made by a partisan group" is not a proper criticism of the work of Judge Stearns. It is rather a statement of disagreement with the factual record adopted by both parties. 
Michael Barberi | 3/28/2012 - 8:36pm
Thank you Mike for the Court ruling. I also found it reasonable and not over-reaching. 

The HHS permitted the USCCB to impose a religious restriction, namely no counseling or referral of abortion or contraceptive services, to these victims who consist of Catholic, non-Catholic, and non-religious citizens or legal aliens. When these services are one of many options for these victims to understand and consider, then to prevent such counseling is to impose a penalty on these victims simply because such services are considered immoral by a third party. It also denies them a right to all the facts. Only armed with such facts can anyone decide what is appropriate or not for their health and well-being. Such decisions are often an issue of conscience and not a univeral moral code of ethics or religious belief to be imposed by a third party under contract to serve the needs of such victims. 

In some ways, this decision questions whether the Obama contraceptive mandate violates the constitution. Can a Catholic institution, or any employer, restrict the healthcare benefits of their religious and non-religious employees based solely on the religious beliefs of the organization or employer? If so, can an organization closely associated with the Jehova Witnesses deny blood transfusions to its religious and non-religious employess merely based on the religious beliefs of the employer? Where will we draw the line? Will the line be drawn around one or two services? Based on what premise...that such services reduce the total cost of healthcare are are consider some form of preventative services? If that be the case, there are many services that reduce the total cost of healthcare.
Jack Barry | 3/27/2012 - 2:34pm
Clarification:  No one publicly noticed   -  ''On the initial evaluation, two of the panel members raised concerns about the USCCB’s stated intent …''
Tom Maher | 3/30/2012 - 10:27am
Mike Appleton # 29

Noone agreed that the facts are the government allowed the church to impse its doctrine on anyone or the government endorsed the Church's doctrine implicitly or actually.  Yet this is the distorted basis of facts that Judge Stears makes his decisonon.  From these distorted facts Judge Stearns concludes the government deligated authority to the church.  These facts and conclusions are not supported in by direct observation. 

This ruling has uses is factually and logically very flawed and will likely be overturned on appeal.
Tom Maher | 3/28/2012 - 11:51pm
In reading the judge's decison it is amazing to see how suggestable people are  including the judge in this case in their analysis of the facts.  The judge accepts as valid raw claims made by a partisan group, the ACLU. without question or test of whether these basic claims are valid.  Accepting claims without validating the claims is very poor analysis.  Judge Stearns' decision will likely have a very short life as a legal precedent. 
Michael Appleton | 3/28/2012 - 2:02pm
I have read the opinion by Judge Stearns. There is nothing radical about it. It is well-reasoned and follows traditional principles of judicial analysis of Establishment Clause claims. Many of the reactions to the decision on this thread are similar to those on other contraception-related topics recently, long on emotionalism and short on logic. The outrage over the decision by Judge Stearns follows a pattern which ignores precedent and urges the adoption of special exemptions for faith-based institutions engaged in the provision of services to the general public. But I suppose the clash was inevitable once we began providing public tax dollars to private religious groups.

For those who are more interested in reason than in ranting, the court's ruling can be found here:
Vince Killoran | 3/28/2012 - 1:59pm
The dogma is being "imposed" when the Catholic provider deletes certain otherwise legal services-the result, then, is a society in which certain things become unavailable because a group's religious doctrines/dogma forbides it. The particular religious organization has succeeded in imposing its religious beliefs on non-believer citizens.

There's nothing "implied" or "fuzzy" about this. 

Gabriel's argeument is the "fuzzy" one: is it that since an organization provides some services that are valuable it should get a pass for violating the Constitution?
Gabriel Marcella | 3/28/2012 - 11:50am
What a sad day in America! The culture of death advances through the sophistry of a judge and commentors on this blog. Has any one asked the victims of human trafficking if the Catholic Church is imposing its beliefs by helping them? For some sanity read Richard Garnett in his blog Mirror of Justice.
Tom Maher | 3/28/2012 - 11:33am
An endorsement of Catholic dogma is not made in the MRS service contract with the government,  The terms of the contract simply agree to provide certain services nothing more which the governemnt in 2005 agreed to.  The complain against MRS does not come from the governemnt put from an outside third parties the ACLU which has known activist secular political agenda that are over many decsdes are often on appeal found not to have any legal basis but are all politcal.    

The idea of endorsing religion or impositing religon is not even a valid metapor since no mention of endorsing religion or imposing religion is made in the contract nor intention or action can be shown.  Court must deal with concrete facts that can be clearly show and not invent imaginary impositions and endorsements that have not taken place and do not exist.  The idea of implied or symbolic indorsement or impositions of religion  is fuzzy thinking without logical rigor.  The attemp is being made by the ACLU to read minds and hearts, something that no human can do and is not valid evidence of any intent or action.  The like-minded Judge Stearns invents a "delegation of authority"  without showing or citing the law that all contractors must priovide certain services such as abortion services.

Intent or actual ?i?m?p?o?s??i?t?o?n? ?o?f? ??religio?u?s? ?do?gma o?r? endorsemen?t? ?o?f? ?r?e?l?i?g??io?n? ??i?s? ?n?o?t? ??s?h?o?w?n? ???????????????f?????????????????????????????????????ro?m a contractor saying they wil not provide certain services for whatever reason.  ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????
Marie Rehbein | 3/28/2012 - 8:08am

The Constitution does guarantee freedom from government imposed religion.  When my tax dollars are used to fund something religious, like the practice of preventing women from getting the full range of legal medical care, it is an imposition of religious practice on the part of the government. 

I fully agree with the ACLU and the judge as mentioned in the following from the article:

"...the government 'would appear to have endorsed a Catholic belief' and impermissibly delegated discretion to the USCCB."
Crystal Watson | 3/27/2012 - 10:50pm

I wrote "legally" because who knows how many of those victims of human trafficking being served by the Catholic agency are Catholic, and if they aren't, why should their benefits be limited by the religious beliefs they don't share?
Tom Maher | 3/27/2012 - 5:34pm
Jack Barry # 14

So what exactly was you point in # 10 and #11 with the  fact the governemnt contract with the church insittution did have restrictive terms in the contact with the federal government?  Obviously restrictive terms of interest to the religious institution were in the  in the government contract in 2005. Did you have a problem with these terms being in the contract?  They seem to make a lot of sense to explicitly delimit to the other  parties to a contract that certain tasks such as abortion services will not be performed, subcontracted or funded.  What is the objection to these resrictive terms in the 2005 government  contract?  These terms seem very normal and are essential to delimit what service will or will not be provided as tecnical matter.  You seem to imply that there is something unusual or objectionable in having these restrictive terms in a cgovernemnt contract. 
Crystal Watson | 3/27/2012 - 5:29pm
I remember when this was in the news a few months ago.  The Rev. Susan Brooks Thistlethwaite had a post about it at the Washington Post that I thought was really good ....

I think the bottom line is that the victims of human trafficking deserve access to all the options legally available to them.  If the church won't give even information and referrels about those options, they shouldn't be a provider.
Jack Barry | 3/27/2012 - 3:54pm
Tom Maher  - 
When the US Govt procures goods and services, the final contract, willingly signed by both parties, is defined by the government, which has the requirements, funds, and legal authority.  An interested bidder, if judged qualified by the Govt and evaluated as satisfactory in its proposal, voluntarily signs  if it wishes.  
A US government contract means the government applies US laws and regulations, defines the process and criteria, and decides on bidder qualification, proposal merits and adequacy, funding, and deliverables.  Bidders may propose terms, alternatives, variations, etc. on their own initiative or on request, and the government decides what to do about such.   The Golden Rule applies.  
Vince Killoran | 3/27/2012 - 3:42pm
Thanks Jack for the important additional information. Boy, I wish people would read the relevant documents before commenting.

Tom-the problem is the use of taxpayer dollars, not the ability to practice one's religion.  Judge Stearns makes this obvious point.  Churches are not entitled to taxpayer dollars. 
Tom Maher | 3/27/2012 - 2:54pm
Of course a church instistuion would put restrictive terms in a contract with the governemnt.  Any contract is a mutual, voluntary agreement between two or more parties.  A government contract only means the governemnt is one of the parties to a contract.  A governement contract like any contract is not madatory, non-voluntary or forced.  All parties to a contract must mutually agree to all of the terms of the  contract.  The government can not force a contractor to enter into a contract that the contactor does not agree to.  It therefore is no surprise that a church institution would make  explicit restrictive terms to a contract that it would not perform or fund abortion services which the church morally not agree to.   The Church like any other person or entity has a constitutional right to form and enter into contracts even with the government. Forming a contract and entering into a legally enforceable contract is a basic right everyone has in America. 
Jack Barry | 3/27/2012 - 2:02pm
A key part of the HHS-MRS issue can be traced back to the USCCB's initial proposal in about 2005, referenced on p.3 of the court decision, and Footnote 4 of the decision on the same page.   It surprises me that no one noticed earlier the USCCB ending up defining restrictive terms of the government-issued contract.    
''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. ….. subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.'
''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.”  
Marie Rehbein | 3/27/2012 - 1:57pm
When the bishops sent out their letter regarding the violation of religious freedom, there was some expression of dismay from some bishops that the Church is being relegated to cult status because of its position on contraception. 

The problem is not that some outsiders are relegating the Church to cult status.  It's simply the fact that this belief about contraception being evil is a very cultish belief and the avoidance of contraception is a cultish practice. 

There may be a theological consistency within Catholic teaching such that contraception can be viewed as not being God's will.  However, there is no theological baiss for this cultish equating of contraception with abortion. 

Personally, the freedom to not have someone else's religious practices imposed upon me is much more important to me than the concern that some religious organization might have to modify its practices in order to function in the larger society.

Tom Maher | 3/27/2012 - 1:43pm
Vince Killoran

There is no legal requirement or cause of action to, in your words, " .. neglects to offer the full range of legally permissable services ..." .  For example, because abortion is legal does not require an organization to offer abortion and in fact most secular hospitals and clinics do not.  There is no "neglect" to do somehting just because it is allowed expect in the minds of people who already have prejudged the issue of accomodationwher not all legal services need be offered by every contractor.  

Iif people are asserting a requirement to do something especially a judge they should cite the law not thier own personal secular beleifs on how religous organization shoulkd be uniquely disadvantaged or excluded from bidding on contracts which is a illegal attack the free expression of religion.   But as every junior high school student knows the free expression of religion is a fundemental consisutional right.  One does not even have to graduate from high school to know that let alone be a judge in a federal court.??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????
ROBERT NUNZ MR | 3/27/2012 - 1:25pm
I thought the nub of the issue here was who is being served.
There's several pieces at NCR the past few days by Melinda henneberger on sexual assaultsin ciollege and focusing on Notre dame.
When the ideals of the institution  seem compromised or hypocritical, it asks what happens to njustice for the innocent(who are supposed to be served)
So what about the needs of terribly abused women and Children vs. the rights of the institution?
Vince Killoran | 3/27/2012 - 1:24pm
A correction: "Stearns' decision is actually UNremarkable."
Vince Killoran | 3/27/2012 - 12:42pm
Stearns' "own secular beliefs"?!  What does that mean?  

Every decision with which we disagree on such hot button church-state issues is not a case of judicial partiality.  By your loose criteria we could all reject any decision by a jurist who is a practicing Christian on the grounds that they are imposing their faith. Every first year law student knows the critieria for making such a charge is considerably different from yours.

Stearns notes, quite correctly, that the USCCB is clear that it is advancing its "religious and moral obligations."  I urge you to follow the link provided and read Stearns' decision. If a church-sponsored organization is excluding certain persons, or if  neglects to offer the full range of legally permissable services on religious grounds they are imposing their religious views on others. Stearns decision is actually remarkable.
Tom Maher | 3/27/2012 - 11:08am
Vince Killoraon

Judge Stearns' role as a judge is to be impartial and objective based on the law and the facts.  But Judge Stearn's insted inmposes his own secular beleifs by altering the facts and misrepresenting what the law is. 

Judge Stearns or the ACLU can not show "... government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others ..."

No ????? ?r?e?l?i?g?i?o?u?s? ??b?e?l?i?e?f?s? ????????????????????????? are being imposed factually or even metaphorically.  Accommodation of religious beliefs does not consistute any imposition ?o?f? ?r?e?l?i?g?i?o?u?s?? ?b?e?l?e?i?f?s???????? on a third party.  ??F?u?r?t?h?e?r? ?t?h?e? ?l?a?w? ?d?o?e?s? ?n?o?t? ?r?e?q?u?i?r?e? ?a?b?o?r?t?i?o?n? ?s?e?r?v?i?c?e?s? ?b?e? ?p?r?o?v?i?d?e?d??? ?b?y? ?t?h?e? ?g?o?v?e?r?n?m?e?n?t???.?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????
Vince Killoran | 3/27/2012 - 9:30am
"[T]his 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)."

So true. This is First Amendment 101, not "radical secular activism." I don't want my tax money used for religious organizations that place restricitons on legal activities.
Tom Maher | 3/27/2012 - 2:28am
Most of the problem here is the radical secular actitvism, appointments and policies of the  host Democratic party establisnhment.  Once again this is not your grandfather's Democratic party anymore.  This is someone else's Democratic party campaigning against Religous Liberties in America.  The intent is to gain politcally by harming religion generally and the Church in particular.  This is the politcs of destruction aimed at deminishing religion and religion's participation and role in America.

The gratuitous pronouncements of the Judge Stearns that " ... 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)."  is an affont to impartial justice. Judge Stearns is caught going ways beyond the law and the facts of the case to promoite his own private secular political agenda.  The judge is giving testimony in favor of the plaintiff's radical secular causes.   Judge Stearn statement that the Church is using taxpayer money to impose its beleifs on others ..." is not supported by facts.  This is not impartial justice.  This is an increasingly widespread pattern in all branches of government of radical secular political activiist agressively attacking religion and Religous Liberties in America.