Governing from the Pulpit: How the First Circuit in ACLU of Massachusetts v. U.S. Conference of Catholic Bishops Failed to Prevent a Government Agency from Unconstitutionally Contracting its Duties to a Religious Institution

When the government delegates its discretionary power to religious institutions, it violates a fundamental right guaranteed by the First Amendment of the U.S. Constitution-the freedom from government entanglement with religion. The Establishment Clause of the First Amendment was written to protect religious freedom from intrusion by the government by preventing, to the extent possible, the imposition of either the church or the government into the confines of the other. This separation between church and state is essential to preserve the liberty of the American people and to ensure that the nation stays true to its Constitution.In 2009, the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause when it formed a master contract with the U.S. Conference of Catholic Bishops (USCCB). This contract authorized the USCCB to allocate federal funds to subcontractors pursuant to the Trafficking Victims Protection Act of 2000, a discretionary duty originally assigned to the HHS.This Comment demonstrates that such a delegation of discretionary power violates all three of the Supreme Court's Establishment Clause tests: the Lemon test, the endorsement test, and the coercion test. The master contract between the HHS and the USCCB was a direct violation of Americans' First Amendment rights. Until courts take action to prevent such contracts from being formed in the future and limit the type of business interactions in which the government and religious institutions may engage, the American people are at risk of similar unconstitutional relationships being formed. Otherwise, this continued entanglement between the government and religious institutions will erode the religious liberty the nation has worked so hard to maintain and protect throughout its history.INTRODUCTIONThe Establishment Clause of the First Amendment specifies that "Congress shall make no law respecting an establishment of religion."1 Throughout U.S. history, the Supreme Court and scholars have interpreted this clause to mean that there must be separation between religion and the government.2 Although the First Amendment does not explicitly mention this separation, the Court has concluded that there is no question that the First Amendment established that church and state should be separated.3 While Thomas Jefferson discussed the concept of a "wall of separation" between church and state,4 the Supreme Court has acknowledged that "total separation is not possible" and that "[s]ome relationship between the government and religious organizations is inevitable."5 However, the Court has determined that the Establishment Clause at least means that the "government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs."6 In addition, any idea of a "wall" between church and state is "substantially breached" when the government puts discretionary governmental powers in the hands of religious bodies.7While the Supreme Court has made it clear that giving governmental power to religious institutions is a violation of the Establishment Clause, the federal government frequently delegates such power. In 2001, for example, President George W. Bush created the Faith-Based and Community Initiatives (FBCI), which ensured that faith-based organizations could subcontract to receive federal funding to provide public social services.8 The Supreme Court has yet to rule on the constitutionality of such subcontracts;9 however, allowing religious organizations to administer these services has become a common and accepted practice.10A novel type of contract sparked debate in 2009, when the U.S. District Court for the District of Massachusetts decided ACLU of Massachusetts v. Sebelius. …