While we all had our eyes on the oral arguments at SCOTUS recently on a more famous case, word came of an extremely bad decision handed down by a federal judge in Massachusetts.
The short version: The HHS used to have a contract with the USCCB to run anti-trafficking programs to help women who have been trafficked into prostitution in the United States. The USCCB contracts specified that no sub-contractors under them could provide contraception or abortion "counseling or referrals" (or, presumably, actual contraception or abortion). The judge ruled that for the HHS to contract with a Catholic organization that put these allegedly "religiously motivated" restrictions on sub-contractors constituted an establishment of religion. Let that one sink in for a moment.
Richard Garnett at NRO has an excellent legal take-down of the decision, which it would be gilding the lilies for me to add much to. Some choice quotations from Garnett:
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.
This article also has a quotation from Steve Wagner, a former director of the HHS human trafficking program, pointing out that it would have been illegal anyway for federal funds to be used for abortions because of the Hyde Amendment. Wouldn't it? Makes you wonder, doesn't it? Is the Hyde Amendment going to be the next ACLU target? Or is the weaseling taking place here on the grounds that the USCCB also wouldn't allow them to provide "counseling or referrals"? One wonders if that's supposed to mean that counseling and referral for abortion is now some sort of federal right even while federal law prohibits use of federal funds to pay for abortion! Or is it only "unconstitutional" to block such funding if done by a religious organization? As Garnett says, the wooliest of wooly-headed reasoning.
I cannot let this opportunity pass to draw a moral: Stay as far away as possible from dependence on government money. Now, to be clear, our current totalitarian federal government is only too happy to go after religious people and organizations that aren't taking federal money. So this is not a route to some sort of full safety. They will still come after you. But you are a lot more vulnerable, and have been more vulnerable for a long time, if you take government money. This is all the more true if your organization's very existence becomes dependent on government money.
One reason I bring this up, at the risk of seeming un-ecumenical, is that Catholic organizations, like mainline Protestant organizations but generally unlike fundamentalist Protestant organizations, have always sort of yearned for a comfortable, mutually beneficial relationship with the government, including the federal government. "Look at Europe!" we're often told. "Look how they fund Christian schools!" Yes, and how's that workin' out for you?
It's not like there haven't been plenty of warnings. This federal court ruling is just another.