I blogged about this issue back in October. During the Bush Administration years, HHS had awarded a contract to the United States Conference of Catholic Bishops for providing services to victims of human trafficking. But the Obama Administration, in keeping with the general approach of its HHS, chose not to renew the contract, awarding it to another organization. Just before that, the ACLU sued HHS claiming that its decision to award the contract to the Bishops violated the Establishment Clause.
And now Judge Richard Stearns (D. Mass.) has pronounced that awarding a government contract to a Catholic organization for the provision of services to victims of human trafficking, when that organization declines to refer victims for abortion services or to distribute contraceptives, violates the Establishment Clause. There were standing issues involved here, but the merits determination apparently comes down to the judge’s belief that allowing the placement of restrictions on the implementation of the contract amounts to an endorsement of Catholicism, as well as an impermissible delegation of governmental functions to a religious entity (see, e.g., Larkin v. Grendel’s Den and Kiryas Joel). On the latter point, Judge Stearns claims that the awarding of a government contract to the USCCB provides a “significant symbolic benefit to religion.” I am not persuaded by this argument. Even though I think the decision in Kiryas Joel is wrongly decided, I fail to see how the situation in Grendel’s Den is analogous to this case. Grendel’s Den involved the delegation of a kind of blanket veto power to religious institutions as to liquor licenses within a certain distance from the institution. The benefit there was hardly symbolic. The benefit here is to much more attenuated, much more symbolic, and of different orders of substantiality. The judge also saw fit to include long tracts of Justice Black’s separationist spiel in Everson, notwithstanding the fact that the current Supreme Court has largely abandoned the separationist view of the Establishment Clause.
At all events, the Obama Administration could not have gotten a more favorable outcome for its interests, it seems to me. Its own decision to withdraw the contract from the USCCB has now been declared the only constitutionally viable option.