Politics sometimes makes strange bedfellows. But perhaps none stranger these days than the U.S. Conference of Catholic Bishops and the Department of Health and Human Services, which jointly filed an appeal from a federal court decision recently.
What?  Isn’t the USCCB among the group of Catholic institutions suing HHS for its imposition of the health-insurance mandate as a violation of its right to free exercise of religion? Yes, it is. But in a sign of how intertwined Catholic social services are with the work of the federal government, both HHS and the USCCB are fighting off a challenge from the American Civil Liberties Union regarding the provision of benefits and services to victims of human trafficking.
In late March, a Massachusetts federal district court, in ACLU v. Sebelius, ruled that providing a grant to the USCCB to assist human-trafficking victims was a violation of the First Amendment because the USCCB would only administer those funds according to its religious principles. Specifically, the USCCB would not agree to contracts that included the provision of abortion or contraceptives.
The reasoning of the court, unfortunately, distorts both precedent and the practicalities of the process. As a matter of fact, only religious institutions were able to meet the standards to receive the grant in the first place. As the court noted, the government issued a request from interested parties to administer the approximately $5 million to carry out the Trafficking Victims Protection Act (TVPA). Only two organizations responded: the USCCB and the Salvation Army. The USCCB made no effort to conceal the fact that its ministering of the program would be done according to the principles and social teaching of the Church. Nevertheless, HHS, which has the responsibility for approving the recipients of the TVPA grants, authorized that the USCCB administer the funds with full knowledge of the USCCB’s position. Had HHS followed the rule the court announced, there would have been no aid to victims at all.
The ACLU sued HHS, arguing that this grant to the USCCB, conditioned as it was on the USCCB’s adherence to Catholic principles, violated the First Amendment. The USCCB was allowed to join the case on the side of the HHS. The lower federal court agreed with the ACLU and held that the HHS did not merely accommodate the USCCB, but its conditional grant was the constitutional equivalent of “endorsing” Catholic principles on abortion and contraception, violating the Establishment Clause of the Constitution. 
Oddly, however, the court noted that the USCCB’s positions could be based on non-religious reasons and suggested that it was only the fact that “there was no reason to question the sincerity of the USCCB’s position that the restrictions it imposed on its subcontractors on the use of TVPA funds … was motivated by deeply held religious beliefs.” This makes little sense, as there are legitimate, non-religious reasons for making conclusions similar to those of the Church. Allowing a sincerely held religious belief that also is held by non-religious persons cannot be an unconstitutional “endorsement” of religion, and no reasonable person would think it so.
Archbishop William Lori of Baltimore, in a statement accompanying the notice of appeal, put the issue bluntly: “If this precedent is allowed to stand — or worse, to find broader application — it would have a devastating practical impact. Immediately, it endangers the ability of our Migration and Refugee Services (MRS) to continue to provide, in cooperation with HHS or other agencies of the federal government, exemplary service to victims of human trafficking and others in great need. But if the rationale of this decision is adopted by others, dozens of Catholic organizations across the country that cooperate on similar terms with government agencies at all levels — federal, state and local — will have their work similarly threatened.” He went on to state that “the court’s novel rule severely restricts the ability of government to accommodate any contractor’s religious commitments, Catholic or otherwise. 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 cooperation with government.”
Archbishop Lori is correct in his assessment, but that is not the whole story. As we see with the HHS mandate itself, elite opinion, including that of the courts, government agencies and the media, no longer considers the Church an acceptable partner in providing social services. In cases from Boston to California to Chicago, these elites have been willing to harm the beneficiaries of Catholic social-service agencies in their relentless attack on the Church, which they want driven from public life. The courts assist in this by holding that any reflection of Church teaching in social services must be stricken as unconstitutional. Such rulings essentially make the Church an arm of the state, rather than true to its own mission.
Although the bishops are correct to fight the HHS mandate, which applies to all Catholic institutions, even were the USCCB to prevail, this larger issue would remain. 
The cooperative approach many Catholic agencies have taken with the government is a result both of Catholics becoming more prominent in American life and a time period in history, the 1960s and 1970s, where government was seen as a neutral provider of funding to help religious institutions fulfill both their religious obligations and its own public-policy goals. That is often no longer the case, and perhaps it is time for Catholics to reconsider their relationship with government and how they perform their social-service mission.
 

Gerald J. Russello is editor of
The University Bookman
(KirkCenter.org).