District Court Judge Richard Stearns ruled last Friday against the Department of Health and Human Services, siding with the Massachusetts’ American Civil Liberties Union that HHS’s contracts with the United States Conference of Catholic Bishops for services to the victims of human trafficking violated the Establishment Clause. Those contracts included an “accommodation” sought by the USCCB that the services would not include contraceptive or abortion services.
It is ironic that HHS has more recently abandoned its own prior accommodation and did not renew the contract with the USCCB’s Migrants and Refugees Services. The HHS decided abortion and contraceptive services were too important to ignore and awarded the contracts to other agencies that would provide them, even though those other agencies were less able to deliver the full range of other services to those in need. I think HHS was wrong to so decide, nor do I think the USCCB or any other religious entity has a “right” to a government contract. But, Judge Stearns’ ruling is more troubling still, because it raises the constitutional hurdle so high that, in the future, governments and religiously affiliated social service agencies will both face a stark choice. Either the government will simply avoid all but secular agencies to carry out the social services needed, or the religious social service providers will need to completely abandon their moral scruples to obtain government assistance to provide those much-needed services.
I have written before that while I do not perceive a general culture war against religion, at least not in the U.S., our legal culture has been increasingly hostile to the role of religion in society and Judge Stearns’ decision shows why. He is not that far out of the mainstream. He claims in his opinion that he is, essentially, only applying the Lemon test previously adopted by the Supreme Court when adjudicating Establishment cases. It gets pretty complicated, and you can read Stearns’ decision in full here. Kevin Clarke, at America magazine, has a good piece of analysis of the decision here.
The First Amendment contains two religion clauses, the Establishment Clause and the Free Exercise Clause. If religion were just about what we do on Sunday, there would be no problem. In this case, as in the fight over the HHS contraception mandates, the Catholic Church is at the center of the discussion not so much because we have a quirky view about contraception. We are at the center of the discussion because we provide so many social services to so many people: Catholic Relief Services, Catholic Charities, the St. Vincent de Paul societies, the USCCB’s work with migrants and refugees, our network of Catholic hospitals. We do not do this because we have nothing better to do with our time. We do this because we believe, as Catholics, that our Christian faith calls us to comfort the dying, feed the hungry, care for the migrant, heal the sick.
Recently, the editors of the lefty on-line journal Daily Kos took after my friend E.J. Dionne. They wrote:
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With all due respect to the editors at Daily Kos, why do they get to decide if running a hospital or running a school is a secular activity? Surely, the editors at Daily Kos are smart enough to recall that long before there were any such things as “secular” governments, indeed long before such an idea could even be conceived, Catholics were running hospitals and schools. In the fourteenth century, were our hospitals and schools secular? Alas, I may have imputed too much in the way of historical knowledge to the editors at Daily Kos: It is one of the hallmarks of ideologues that they tend to be ignorant of the kinds of societal variousness that history reveals.
Judge Stearns may not share this ignorance of history, but he displays an ignorance of how social services are largely provided. The Catholic Church and other churches have long worked with different levels of government to provide needed services. As far back as the Civil War, the federal government contracted with religious sisters to provide hospital services to wounded soldiers.
Stearns serves in Massachusetts, he is undoubtedly aware of the recent expulsion of Catholic Charities from the provision of adoption services in the Bay State because they refused to place children with same-sex couples. To be clear: I think the Church is wrong on this. My friends who are social workers tell me that it is often the gay and lesbian couples who will take the children who are most difficult to place. It is one thing to say, as I think we Catholics must, that we want every child to grow up with a mom and a dad. But, in this broken world, many kids do not grow up with a mom and a dad, and indeed the kids in foster care and the kids up for adoption are there because something didn’t work right with their biological moms and dads. I am sure that a child is better off with a loving gay couple than in foster care forever. But, it just seems crazy to me that because the Church does not view the matter as I do, and thinks it cannot in good conscience place children with same-sex couples, they should be barred from placing any children with any parents. The demands put upon all of us in a pluralistic society must permit a broad sense of accommodation in all of us. Put differently, pluralism has to cut both ways.
I understand the difficulty in reconciling the Establishment and Free Exercise Clauses. In the case of school prayer, it seems to me, that the only option that reconciles the two would be to allow different kinds of prayers on different days, inviting an indifferentism that I find more troubling than the complete absence of public prayer in the schools. In the case of Christmas crèches on public property, the case is more difficult but highlights the falsity of the secularists’ claims that they only seek a neutral public sphere: If there is no crèche because it would violate the Establishment Clause, then we do not have a neutral public square, we have a secular public square, one from which God is barred.
In the case at bar, I think Judge Stearns over-reached badly. And, in the event, I can think of no finer argument against his decision that the concurring opinion in Hosanna-Tabor signed by Justices Alito and Kagan:
The idea that private associations, such as churches, or unions, or the National Association of Manufacturers, all play a vital role as “critical buffers between the individual and the power of the State” seems to me to tip the scale away from this hyper-emphasis on a strict reading of the Establishment Clause and towards a proper and more fulsome reading of the Free Exercise Clause. It is not only a good thing for the victims that the USCCB helps the victims of human trafficking. It is a good thing for the health of our society that we have churches engaged in charitable work. When the charitable instincts of the Church coincide with the needs of the society as defined by the government, surely a sense of “accommodation” should prevail on all sides. Judge Stearns did not see it that way, and I think he is wrong. I will leave it to my lawyer friends to find the citations and legal arguments to rebut him. But, I will invite my readers to do something different. Imagine how many injustices will persist if we were to live in a society in which, as Judge Stearns suggests, our government was prevented from working with churches to meet immediate human needs.