Think of the Obama Administration's alleged "war on religion" as a three-legged stool. One leg is Hosanna Tabor, the case in which the Supreme Court ruled 9-0 in January against the Justice Department's position that there should be no automatic exemption from discrimination law for those whom religious bodies deem to be ministers. The second leg is Obamacare's contentious mandate that employees of all but narrowly defined religious institutions have free access to contraceptive services.
The third leg is last year's decision by HHS not to renew a five-year contract with the United States Conference of Catholic Bishops (USCCB) to act as nationwide contractor for agencies providing services to victims under the Victims of Trafficking and Violence Protection Act of 2000. Last November, Sister Mary Ann Walsh, who handles the USCCB's media relations, insinuated that the non-renewal was an anti-Catholic conspiracy in a Patheos column titled "Human Trafficking: No Catholics Allowed." Last Friday, a federal judge in Massachusetts kicked the leg away by ruling that the contract represented an unconstitutional establishment of religion in a case brought by the ACLU.
The issue was that, in distributing some $15 million in federal funds to more than 100 participating service providers (many of them non-Catholic), the USCCB insisted that none of the money could be used for abortion or contraceptive services. Judge Richard G. Stearns found that this violated the Establishment Clause because, as the Supreme Court put it in Larkin v. Grendel’s Den, Inc., the “Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions." The Justice Department itself opposed the ACLU, but unlike the USCCB on the grounds that the termination of the contract rendered the case moot.
The bishops, to the contrary, were (and presumably remain) eager to be able to get judicial recognition of their right to administer federal grants according to their religious rules. The USCCB would, they informed the court,
continue to seek opportunities to collaborate with the government to provide [social] services if, but only if, it can do so without violating its moral and religious obligations not to facilitate the provision of abortion and contraception. The government’s filings give no indication that HHS has decided to reject such conscience protections in future contract and grant applications under the TVPA, and, even if such a decision were made, policies (and administrations) can change. Moreover, although the particular case management contract involved in this litigation has expired, [the] USCCB currently has under other programs similar arrangements with HHS that contain the same exclusion of abortion and contraception purposes.
Quoting from the Supreme Court's 1994 decision in Board of Education of Kiryas Joel Village School District v. Grumet, Judge Stearns noted that accommodation of religion "is not a principle without limits," concluding in his own words: "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."
As the country proceeds to wrestle with the extent of religious liberty rights for institutions and individuals, it will be interesting to see how those pushing for maximal accommodation will justify the kind of religiously based restrictions that the USCCB employed in handing out government grants. For an early example, there's NCR's Michael Sean Winters, who thinks Judge Stearns' interpretation of the Establishment Clause is "horrible." Pace MSW, but while there might be circumstances--such as the availability of alternative providers--under which a religious service provider might unproblematically receive public money to render help to victims according to its own religious lights, it's wrong as a matter of principle to permit a religious administrator to determine public policy the way HHS permitted the USCCB to do. That's the state's business, not the church's.