Archbishop William Lori, chairman of the USCCB' Ad Hoc Committee on Religious Liberty

U.S. bishops appeal ruling that Constitution forbids religious accommodation

By  Dennis Sadowski, Catholic News Service
  • April 19, 2012

WASHINGTON - The U.S. Conference of Catholic Bishops has appealed a federal judge's ruling that the Constitution forbids religious accommodation in the delivery of services under a federal contract.

The appeal challenges the decision of District Court Judge Richard Stearns, who said in a March 23 ruling that the Department of Health and Human Services violated the Establishment Clause of the Constitution in delegating to the bishops' conference the decision on which services to offer or not offer to foreign-born victims of human trafficking under a federal contract.

The case, originally filed by the American Civil Liberties Union in Massachusetts in 2009, revolved around the legality of the government allowing the USCCB, through its Migration and Refugee Services Department, to decline to offer abortion and contraception services to trafficking victims under the contract. The USCCB joined the lawsuit in mid-2010 as a defendant-intervenor.

Attorneys for the bishops' conference also requested a stay of Stearns' decision pending the appeal's outcome. The request for a stay cites the likelihood that other existing contracts between the USCCB and the government were at risk of being cancelled, thus harming those being served under them.

Attorney Henry Dinger, representing the USCCB, told Catholic News Service April 18 that the appeal questioned whether the ACLU had standing to file the original case. He argued that the organization did not based on previous Supreme Court decisions that narrowly defines which taxpayers have standing to file lawsuits in certain kinds of cases.

The second argument, Dinger explained, revolves around whether the Department of Health and Human Services' decision to allow the USCCB to limit the services it offered was an endorsement of religion. Dinger said it was not.

In its filing, the conference argued that neither did the contract for services to trafficking victims nor the law authorizing government funds for such services require that abortion and contraception be offered. No trafficking victim complained that such services were not being provided, the USCCB added.

The USCCB also maintained that it did not impose a restriction on access to abortion and contraception to its nationwide list of subcontractors under the program, but only that it would not reimburse any subcontractor for such services. The bishops' conference maintained that subcontractors were free to provide such services and trafficking victims were free to obtain such services through other means.

Calling Stearns' decision "poorly reasoned" and "dangerous," two USCCB leaders said the conference had little choice but to file an appeal.

Archbishop William Lori, chairman of the bishops' Ad Hoc Committee on Religious Liberty, and Archbishop Jose Gomez, chairman of the bishops' Committee on Migration, said Stearns' decision stretches earlier Supreme Court precedents regarding religious accommodation "almost beyond recognition."

They also cited comments from Supreme Court Justice William Douglas in a 1952 ruling (Zorach v. Clauson) that a government act to accommodate religion "follows the best of our traditions." In that case, the Supreme Court ruled that schoolchildren could be excused from public schools for religious observances and education without violating the Establishment Clause.

"This decision (by Stearns) says and does the opposite," the archbishops said.

If Stearns' decision is allowed to stand, the statement added, the ability of the bishops' Migration and Refugee Services to provide services to human trafficking victims through government agencies in the future would be endangered. Other services offered by any faith-based organization also would be at risk, the archbishops said.

"If the rationale of this decision spreads, dozens of Catholic organizations across the country that co-operate on similar terms with government agencies at all levels — federal, state and local — will have their work similarly threatened," they said.

The work of all faith-based service providers is threatened because the court's "novel rule severely restricts the ability of government to accommodate any contractor's religious commitments, Catholic or otherwise," the statement added. "The people most in need of human services — the poor, the sick, the marginalized — would suffer the most from such a broad exclusion of faith-based providers from co-operation with government."

No hearing on the case had been set as of April 18.

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