January 15, 2013
Establishment Clause Challenge to Government Contract with Bishops Moot
The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract. The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.
The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act. USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract. The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.
The district court ruled for the ACLUM on the merits. It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others. As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.
The First Circuit reversed. It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review. Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.
The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.
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I was afraid it would turn out this way. I was interested in hearing the the merits of the Establishment argument.
Posted by: Matthew Lun | Jan 16, 2013 7:03:35 AM