AMERICAN CIVIL LIBERTIES UNION OF MA. v. Sebelius

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTINTERVENOR’S MOTION TO DISMISS

In this case, plaintiff American Civil Liberties Union of Massachusetts (ACLU) claims that officials of the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause of the First Amendment by allowing the United States Conference of Catholic Bishops (USCCB) to impose a religiously based restriction on the disbursement of taxpayer-funded services. Presently before the court are the parties’ cross-motions for summary judgment, as well as defendantintervenor USCCB’s motion to dismiss for lack of subject matter jurisdiction. The court heard oral argument on October 18, 2011.

BACKGROUND

The undisputed facts are as follows. In 2000, Congress passed the Trafficking Victims Protection Act (TVPA). See 22 U.S.C. §§ 7101-7112. 1 The purposes of the TVPA are “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Id. § 7101(a). The TVPA includes a provision directing the Secretary of HHS and other federal government officials to “expand benefits and services to victims of severe forms of trafficking in persons in the United States....” Id. § 7105(b)(1)(B). Congress appropriated “up to” $5 million “to carry out the TVPA” in fiscal year 2001, and “up to” approximately $10 million for each of the subsequent fiscal years. Gov. Defs.’ Statement of Facts (SOF) ¶ 5.

HHS initially implemented the victims’ services mandate by making grants to nonprofit organizations that worked directly with trafficking victims. In November of 2005, HHS decided to select a general contractor to administer the funds. To this end, HHS published a Request For Proposals (RFP). In response, HHS received timely proposals from two organizations: the USCCB (“a religious organization whose membership consists of the Catholic bishops in the United States”) 2 and the Salvation Army (“an evangelical part of the universal Christian Church” engaged in various charitable enterprises). 3 In its proposal, the USCCB included the following cautionary note:

as we are a Catholic organization, we need to ensure that our victim services *477 are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs. Therefore, we would explain to potential subcontractors our disclaimer of the parameters within which we can work. Specifically, subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.

Gov. Defs.’ SOF ¶ 28 (emphasis added). 4

To evaluate the two proposals, HHS appointed a four-member “technical evaluation panel.” Gov. Defs.’ SOF ¶ 32. On the initial evaluation, two of the panel members raised concerns about the USCCB’s stated intent to prohibit subcontractors from offering or subsidizing abortion services and contraceptives. 5 The panel members’ reservations were conveyed to the USCCB in the form of written questions. Among the questions, the USCCB was asked: “Would a ‘don’t ask, don’t tell’ policy work regarding the exception? What if a subcontractor referred victims supported by stipend to a third-party agency for such services?” Gov. Defs.’ SOF ¶ 43. The USCCB responded:

[w]e can not be associated with an agency that performs abortions or offers contraceptives to our clients. If they sign the written [subcontract] agreement, the “don’t ask, don’t tell” wouldn’t apply because they are giving an assurance to us that they wouldn’t refer for or provide abortion service to our client using contract funding. The subcontractor will know in advance that we would not reimburse for those services.

Id. ¶ 52.

After receiving the answers, HHS reopened the RFP process to permit the USCCB and the Salvation Army to submit revised technical proposals, which both organizations did. 6 On April 11, 2006, HHS awarded the master contract to the USCCB. The contract incorporated by reference the USCCB’s Technical Proposal and Amended Technical Proposal, including the abortion and contraception restriction. Gov. Defs.’ SOF ¶ 75. Pursuant to the award, the USCCB entered into subcontracts with over 100 service providers, many of which are not Catholic institutions. The subcontract included the restriction that “funds shall not be used to provide referral for abortion services or contraceptive materials, pursuant to this contract.” Pl.’s SOF ¶62; USCCB’s Resp. to PL’s SOF ¶ 62. The abortion/contraception restriction was also contained in the program operations manual that the USCCB distributed to its subcontractors. *478 Pl.’s SOF ¶ 63; USCCB’s Resp. to Pl.’s SOF ¶ 63. Subcontractors were further required to ensure that no staff time paid through the USCCB contract was used in providing referrals for abortions or contraceptive materials. Pl.’s SOF ¶ 64; USCCB’s Resp. to Pl.’s SOF ¶ 64.

The original HHS-USCCB contract had a term of one year, with options for four annual renewals. HHS exercised each of these options, renewing the contract for a five-year duration. During the first four years of the contract, the government defendants awarded the USCCB over $13 million. As of June of 2010, the government defendants awarded the USCCB an additional $2.9 million. 7 PL’s SOF ¶ 79; USCCB’s Resp. to PL’s SOF ¶ 79. Before the contract was set to expire (on April 10, 2011), HHS approved a six-month extension by way of a “Task Order.” The Task Order expired on October 10, 2011. While HHS no longer has the authority to obligate additional funds under the original master contract or the Task Order, it can continue to pay the USCCB for “services provided within the period of performance of the Task Order.” Timmerman Decl. ¶¶ 6-11.

On January 12, 2009, the ACLU brought this lawsuit against HHS officials, 8 alleging that they “have violated and continue to violate the Establishment Clause of the First Amendment by permitting [the] USCCB to impose a religiously based restriction on the use of taxpayer funds.” Compl. ¶ 71. On May 15, 2009, defendants filed a motion to dismiss the Complaint for lack of standing. This court denied the motion on March 22, 2010, 697 F.Supp.2d 200 (D.Mass.2010). In June of 2010, the USCCB intervened in the lawsuit as permitted by Rule 24 of the Federal Rules of Civil Procedure. All three parties now move for summary judgment.

DISCUSSION

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Threshold Issues: Standing and Mootness

A. Standing

Defendants previously challenged the ACLU’s claim to have standing to litigate this case. In a Memorandum and Order dated March 22, 2010, the court found a sufficient showing of taxpayer standing on the part of the ACLU under existing Supreme Court doctrine. In reaching this conclusion, I reasoned that the ACLU had met its prima facie burden under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which is to show “a logical link” between the plaintiffs taxpayer status and “the type of legislative enactment attacked,” as well as “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.” Id. at 102, 88 S.Ct. 1942. 9

*479 The government defendants and the USCCB now seek to revisit the issue of standing. The government defendants contend that “due to the further development of taxpayer standing principles in Arizona Christian School Tuition Organization v. Winn, — U.S. -, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011), it is now clear that plaintiff lacks taxpayer standing in this case.” Gov. Defs.’ Reply at 6. 10 In Winn, the Supreme Court held that the taxpayer plaintiffs lacked standing to mount an Establishment Clause challenge to a dollar-for-dollar tax credit (up to $500) matched against contributions to scholarship funds supporting students attending private schools, many of which are religiously based. In reaching its holding, the Court incorporated an “extracted and spent” element into the taxpayer standing analysis. It explicitly distinguished challenges to tax credits from challenges to governmental expenditures, stating that “tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are ‘extracted and spent’ knows that he has in some small measure been made to contribute to an establishment in violation of conscience.” Winn, 131 S.Ct. at 1447, quoting Flast, 392 U.S. at 106, 88 S.Ct. 1942. The Court further reasoned that in contrast to a governmental expenditure, “awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.” Winn, 131 S.Ct. at 1447. 11

*480 Here, taxpayer members of the ACLU seek to challenge a governmental expenditure — the disbursement to the USCCB of funds appropriated by Congress under the TVPA. In contrast to Winn, this case does not involve any form of tax credit that allows plaintiffs and other dissenting citizens “to retain control over their own funds in accordance with their own consciences.” Id. at 1447 (majority opinion). 12 Thus, the holding of Winn does not impeach this court’s pre-Winn holding that the ACLU has standing to proceed. 13

B. Mootness

The government defendants next argue that this case is moot in light of the expiration of the HHS-USCCB contract on October 10, 2011. 14 Both the ACLU and the USCCB disagree with this contention. “The doctrine of mootness enforces the mandate ‘that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.’ ” Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.2003), quoting Steffel v. Thompson, 415 U.S. 452, 460 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). A case is moot when a court cannot give “ ‘any effectual relief whatever’ ” to the potentially prevailing party. Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895). The distinction between standing and mootness is not always easily grasped. “The confusion is understandable, given [the Supreme Court’s] repeated statements that the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted). See also Becker v. Fed. Election Comm’n, 230 F.3d 381, 387 n. 3 (1st Cir.2000) (“[W]hile it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the *481 rubric of standing at the commencement of the case, and under the rubric of mootness thereafter.”).

“The burden of establishing mootness rests squarely on the party raising it, and ‘[t]he burden is a heavy one.’ ” Mangual, 317 F.3d at 60, quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). “Mere voluntary cessation of allegedly illegal conduct does not moot a case.... A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). See also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”); Conservation Law Found. v. Evans, 360 F.3d 21, 26-27 (1st Cir.2004) (noting that the government defendant’s “voluntary cessation of the challenged conduct does not render the challenge moot” where the government defendant has not shown that the challenged action “will not recur.”).

Here, the government defendants have failed to meet their “heavy” burden of demonstrating that it is “absolutely clear” that the circumstances giving rise to this case will not recur. Indeed, the USCCB states that it

will 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. 15

USCCB’s Supplemental Mem. at 4. There is simply no “absolute” assurance that the challenged action will not be repeated. Only two bidders (the USCCB and the Salvation Army) qualified for the original TVPA contract, which strongly suggests that the USCCB (or another faith-based organization with similar tenets) will be among the small number of qualified candidates vying for future TVPA contracts. 16 As the ACLU notes, the USCCB

has a long history of being awarded numerous government contracts. In fiscal year 2009 alone, for example, [the] USCCB received over $29 million in federal grants and contracts. And [the] *482 USCCB has admitted that in all subcontract agreements — with both Catholic and non-Catholic entities — it imposes the same restriction on the use of abortion and contraceptive referrals and services .... Thus, ACLU members who object to their tax dollars being used to promote religion are likely to be subjected to the same injury again.

Pl.’s Opp’n at 11-12; see also Gov. Defs.’ Resp. to PL’s SOF ¶ 77. 17

There is a second reason why the case is not moot: the ACLU is seeking, among other forms of relief, a declaratory judgment. See Compl. at 12. “The fact that there is no present ongoing dispute ... does not, of course, mean the case is moot.... ‘[A] federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunctions.’ ” Verizon New England, Inc. v. Int’l Bhd. of Elec. Workers, 651 F.3d 176, 187, 189 (1st Cir.2011), quoting Zwickler v. Koota, 389 U.S. 241, 254, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). 18

II. The Establishment Clause Challenge

Turning to the merits, the ACLU argues that “by authorizing [the] USCCB to impose a religiously based prohibition on the use of TVPA funds, Defendants impermissibly endorsed and advanced religious beliefs, and fostered an excessive entanglement with religion, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution.” PL’s Opp’n at 1. The Supreme Court has stated that

[t]he “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force *483 nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (citation omitted). To determine whether a government action runs afoul of the Establishment Clause,

the Supreme Court has articulated three interrelated analytical approaches: the three-prong analysis set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); the “endorsement” analysis, first articulated by Justice O’Connor in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and applied by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); and the “coercion” analysis of Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). 19

Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 7 (1st Cir.2010). The first of these analytical approaches— the Lemon test — encompasses three criteria that the government must meet if its actions are to be deemed religiously neutral.

First, the statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

Lemon, 403 U.S. at 612-613, 91 S.Ct. 2105 (citations omitted). 20 The ACLU argues that by authorizing the USCCB to impose a religiously based restriction on the use of TVPA funds, defendants have violated the second and third prongs of the Lemon test.

“Under the related endorsement analysis, courts must consider whether the challenged governmental action has the purpose or effect of endorsing, favoring, or promoting religion.” 21 Hanover Sch. *484 Dist., 626 F.3d at 10. “[T]he prohibition against governmental endorsement of religion ‘precluded] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.’ ” Cnty. of Allegheny, 492 U.S. at 593, 109 S.Ct. 3086 (citation omitted). To determine whether the government has endorsed or advanced a particular religious belief, the relevant inquiry is “ ‘whether an objective observer, acquainted with the text, legislative history, and implementation of the statute [or other challenged government action], would perceive it as a state endorsement. ...’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), quoting Wallace v. Jaffree, 472 U.S. 38, 73, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring). 22

A. Endorsement

The ACLU argues that to an objective observer, the government defendants would appear to have endorsed a Catholic belief by permitting the USCCB to place a religiously motivated restriction on reproductive services that beneficiaries of the TVPA program would otherwise have received. In support of this argument, the ACLU cites Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708-711, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), which held that a Connecticut statute that provided Sabbath observers with a right not to work on their day of worship violated the Establishment Clause because it imposed on employers and employees an absolute duty to conform their business practices to the particular religious observances of an employee. See also id. at 711, 105 S.Ct. 2914 (O’Connor, J., concur *485 ring) (finding that the Connecticut statute “conveys a message of endorsement of the Sabbath observance,” and that “an objective observer or the public at large would perceive this statutory scheme .... [as] one of endorsement of a particular religious belief, to the detriment of those who do not share it.”).

The USCCB, for its part, argues that the government’s acceptance of the abortion/eontraception restriction is an accommodation of religious belief and not an endorsement of a sectarian view. In support of this argument, the USCCB cites case law holding that an accommodation of religion is not equivalent to an endorsement of religious belief. See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (applying rational basis analysis to test the constitutionality of a statute exempting secular nonprofit activities of religious organizations from the requirements of Title VII). However, as counsel for the USCCB stated at oral argument, HHS’s authorization of the abortion/contraception restriction is “strictly speaking, not an accommodation because the TVPA does not require the provision of abortion or contraceptive services. It permits it, but it doesn’t require it. So the government, by accepting the conscience clause in this case, did not relieve [the] USCCB of a legal obligation.” Oct. 18, 2011 Hr’g Tr. at 39.

Even if viewed as an accommodation of the USCCB’s religious beliefs, the government’s authorization of the abortion/contraception restriction would not necessarity pass constitutional muster. In Amos, the Supreme Court noted that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion....’” 483 U.S. at 334-335, 107 S.Ct. 2862, quoting Hobbie v. Unemp’t Appeals Comm’n of Florida, 480 U.S. 136, 145, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987). The Supreme Court reiterated the limited nature of permissible religious accommodations in Board of Education of Kiry as Joel Village School District v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994):

accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars’ religiously grounded preferences that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference, but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners’ proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be, it is clear that neutrality as among religions must be honored.

Id. at 706-707, 114 S.Ct. 2481 (internal citations omitted).

Beliefs about the morality of abortion and the use of contraceptives need not be based on a religious viewpoint. But here there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs. 23 In this re *486 spect, the present case is distinguishable from those relied upon by the government defendants — Bowen v. Kendrick, Harris v. McRae, and McGowan v. Maryland — all of which involved challenges to government actions that coincided with religious beliefs, but were not found to be explicitly motivated by the beliefs of a particular religious group. See Bowen v. Kendrick, 487 U.S. 589, 605, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (upholding the eligibility of religious groups to receive funding under the Adolescent Family Life Act (AFLA), reasoning that AFLA’s “approach is not inherently religious, although it may coincide with the approach taken by certain religions.”); Harris v. McRae, 448 U.S. 297, 319, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (rejecting an Establishment Clause challenge to the Hyde Amendment, which limits federal funding for abortion, reasoning that “[t]he Hyde Amendment ... is as much a reflection of ‘traditionalist’ values towards abortion, as it is an embodiment of the views of any particular religion.”); McGowan v. Maryland, 366 U.S. 420, 444, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (upholding Maryland’s Sunday closing laws against an Establishment Clause challenge, reasoning that “[i]n light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United S