Even during a week when the attention of the Whole World is fixed on a certain Big Case in the Supreme Court of the United States, it would be a mistake to overlook a ruling — handed down late last Friday night by a federal trial-court judge in Massachusetts — that surely ranks among the worst manglings of the First Amendment ever to emanate from a judge’s chambers. The case is ACLU v. Sebelius, and the opinion is available here.
In a nutshell, Judge Richard Stearns ruled that it would violate the Establishment Clause for the federal government to cooperate with the nation’s Catholic bishops in the fight against human trafficking, because the bishops require that those with whom they sub-contract in this effort not to use any of the federal monies to pay for counseling or referrals for abortion and contraception. So, here’s the argument: Because the bishops’ requirement reflects their “religious” opposition to abortion and contraception, it amounts to an “establishment” of religion — and an unconstitutional delegation of secular authority to religious institutions — for the government to fund their anti-trafficking efforts. According to Judge Stearns, the policy of the bishops becomes, by virtue of their (generous, humane, and useful) cooperation with the government, the policy of the government, and the Constitution does not permit the government to have such a policy of imposing “religious” requirements as conditions of receiving government aid.
This is the wooliest of wooly-headed reasoning. For starters, it would not violate the Establishment Clause for the government to decide its human-trafficking funds should not be used, by anyone, to pay for abortion- and contraception-related counseling. To understate the matter, the government is not required to subsidize or support abortions, and opposition to abortion is no more suspect because many religious believers oppose it than opposition to human trafficking is suspect because many religious believers oppose it.
Next, it is not the case that the religion-inspired policies and practices of institutions that receive public funds somehow become, for constitutional purposes, the government’s own policies. If Judge Stearns were right (and he certainly is not), then it is unconstitutional for a Catholic school that receives some special-education-related or school-lunch funding for low-income students to have morning chapel or First Communion classes. If Judge Stearns were right (and, again, he isn’t), the federal government would be required to forbid any religious institutions that participate in “charitable choice” and “faith-based initiative” programs from taking religious-mission into account when hiring.
People at places like Mother Jones are, no surprise, crowing. For some, any loss for the bishops is a win, which explains the headline, “Catholic Bishops Lose a Big Battle Over Contraception.” Actually, the loss here is by those victims of human trafficking whom the bishops and other religious institutions help, but — it appears — symbolic thumpings of Catholic prelates count for more than alleviating the very non-symbolic suffering of real, vulnerable people.
In recent days, many bien-pensant commentators have embraced the unattractive tactic of asserting that the challenges to the health-insurance mandate are, of course, frivolous, and that the only explanation for a Court decision striking it down would be low politics. These commentators know better, but are merely and transparently trying to condition the environment to receive their outraged denunciations of a ruling — if one comes — limiting the Affordable Care Act. The loopy ruling in ACLU v. Sebelius, however, shows us what inexplicably erroneous rulings and frivolous arguments actually look like, and they are not pretty.
— Richard Garnett is professor of law and associate dean at Notre Dame Law School.