LAUREL BEELER, Magistrate Judge.
The American Civil Liberties Union of Northern California brings this Establishment Clause action in connection with two government programs, one that provides services to undocumented minors who arrive in the United States without being accompanied by a parent or guardian (the Unaccompanied Alien Children Program, or "UACP") and one that provides services to victims of human trafficking (the Trafficking Victim Assistance Program, or "TVAP"). The ACLU claims that the government's UACP and TVAP grant funding of, and interactions with, religious organizations such as the U.S. Conference of Catholic Bishops (the "Bishops Conference" or "USCCB") — in the face of such organizations' religious objection to providing access to abortion or contraception — violates the Establishment Clause.
Discovery has clarified that this case is not about the government or any religious organization denying access to abortion or contraception. There is no evidence in the record that any unaccompanied minor or trafficking victim who wanted an abortion or contraception during the time period relevant to this case was unable to obtain them.
The fact that certain government grantees like the Bishops Conference have religious objections to abortion has, in three or four instances, led to unaccompanied minors being transferred from one shelter to another. When an unaccompanied minor who is housed at a shelter operated by an organization with such an objection asks for an abortion, the government facilitates a transfer to another shelter that does not have objections to abortion so that the minor can obtain an abortion. The ACLU argues that this transfer process harms the minor because (1) the transfer delays her obtaining an abortion and (2) the transfer forces her to leave the support structure at her original shelter. No unaccompanied minor is a party to this case, and the ACLU — which brings its claim solely in its capacity as a taxpayer — cannot base its claim on putative harms that it did not bear itself. The ACLU also argues that the government is endorsing the Conference's religious views by participating in this process. A reasonable person would not view the government, which facilitated access to abortion by transferring unaccompanied minors who want abortions to shelters where they can obtain them, to be endorsing the Conference's anti-abortion views.
The record in this case shows that the government's UACP and TVAP grant relationships and interactions with religious organizations like the Bishops Conference (1) had a secular purpose, (2) did not have a principal or primary effect of advancing religion, and (3) did not foster an excessive entanglement with religion. Cf. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (setting out three-part Establishment Clause test). The court therefore denies the ACLU's motion for summary judgment and grants the defendants' cross-motions for summary judgment.
Each year, tens of thousands of undocumented minors
Most unaccompanied minors who are referred to ORR are eventually released from government custody to parents or sponsors who live in the United States.
ORR is subject to the terms of the class-action settlement in Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal.), that the government signed in 1997 ("Flores Agreement").
In 2013, ORR issued a "funding opportunity announcement" ("FOA") to invite licensed non-governmental organizations to apply for government grant funding to provide residential custody-and-care services to unaccompanied minors.
Both faith-based and secular organizations were eligible to apply to participate as grantees.
The FOA provided that ORR would use objective review panels comprised of experts with knowledge and experience in the area to review and evaluate grant applications.
ORR selected and entered into grant agreements with numerous grantees.
There is no evidence in the record that ORR or any government actor selected the Bishops Conference as a grantee to promote Catholicism, Catholic religious views, or Catholic social teaching.
The Catholic Church and the Bishops Conference have moral and religious objections to abortion and contraception.
If an unaccompanied minor in the custody of a Bishops Conference subgrantee asks for an abortion, the subgrantee notifies ORR and the Conference.
The government has stated in sworn interrogatory responses that in the three-year period between fiscal year 2014 and fiscal year 2016, four unaccompanied minors that had been placed in the care of faith-based grantees asked for an abortion.
The ACLU cites four specific examples of unaccompanied minors who asked for abortion services.
The first, "Rosa,"
The second, "Maria," was a victim of rape who became pregnant.
The third, "Michelle," arrived at a short-term shelter referred to as "IES Shelter" and found out there that she was pregnant.
The fourth, "Zoe," was placed at a shelter run by Youth for Tomorrow, a faith-based Bishops Conference subgrantee.
If an unaccompanied minor in the custody of a Bishops Conference subgrantee asks for contraception, the subgrantee is referred to a medical provider who is independent of the subgrantee.
The government has stated in sworn interrogatory responses that in the three-year period between 2014 and 2016, seventeen unaccompanied minors in the care of faith-based grantees asked for birth-control medication.
In 2000, Congress passed the Trafficking Victims Protection Act ("TVPA"). Pub. L. No. 106-386, div. A, 114 Stat. 1464, 1466-91 (2000). Congress found that "[t]rafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today. At least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year." 22 U.S.C. § 7101(b)(1). Congress enacted the TVPA "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." 22 U.S.C. § 7101(a). Among other things, the TVPA tasked HHS with expanding benefits and services to trafficking victims. 22 U.S.C. § 7105(b)(1)(B)(i).
To that end, HHS and its component agency the Office of Trafficking in Persons ("OTIP") oversee the Trafficking Victim Assistance Program, a grant program that funds time-limited comprehensive victim services to foreign trafficking victims who have received or are seeking HHS certification, and certain family members.
In 2005, HHS decided to select a general contractor to administer TVAP funds. ACLU of Mass. v. Sebelius, 821 F.Supp.2d 474, 476 (D. Mass. 2012) ("ACLU of Mass. I"), vacated as moot sub nom. ACLU of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44 (1st Cir. 2013) ("ACLU of Mass. II"). HHS entered into a master contract with the Bishops Conference in 2006. Id. at 477. The Conference was the only TVAP grantee selected. See id.
The Conference, in turn, entered into subcontracts with over 100 service providers. Id. The Conference's subcontracts included a restriction that "funds shall not be used to provide referral for abortion services or contraceptive materials, pursuant to this contract." Id.
The ACLU sued, alleging that the government was violating the Establishment Clause by allowing a religiously based restriction on the use of taxpayer funds. Id. at 478. On cross-motions for summary judgment, the District Court for the District of Massachusetts held that the government's arrangement with the Bishops Conference violated the Establishment Clause by effectively endorsing the Conference's religious views in allowing the Conference to place a religiously motivated restriction on TVAP funding that subcontracting organizations could not opt out of and in delegating to the Conference the authority to decide which services the TVAP would fund and which services (e.g., abortion) it would not. Id. at 486-88.
HHS's master contract with the Bishops Conference expired in 2011. ACLU of Mass. II, 705 F.3d at 48. After the expiration of its contract with the Conference, HHS awarded grants to three separate organizations. Id. at 50-51. The Conference applied for a grant, but its proposal was not selected. Id. at 51. Because the Conference's grant agreement had ended, the First Circuit on appeal vacated the ACLU of Massachusetts I decision as moot. Id. at 52-54.
The government's 2006-2011 arrangement with the Conference is not at issue in this action.
In 2015, the ORR issued a new Funding Opportunity Announcement to invite organizations to apply to enter into TVAP grant agreements.
Both faith-based and secular organizations were eligible to apply to participate as grantees.
As discussed above, federal regulations provide that faith-based grantees may not engage in inherently religious activities. 45 C.F.R. §§ 87.1(c), 87.2(c) (2004) (amended Jan. 20, 2016); 45 C.F.R. §§ 87.1(c), 87.2(c) (Jan. 20, 2016) (amended May 4, 2016); 45 C.F.R. § 87.3(b) (May 4, 2016).
The FOA provided that ORR would use objective review panels comprised of experts with knowledge and experience in the area to review and evaluate grant applications.
OTIP selected and entered into grant agreements with three grantees: the Bishops Conference, Tapestri, and the U.S. Committee for Refugees and Immigrants ("USCRI").
The Bishops Conference's original grant proposal in 2015 stated that "USCCB/MRS is committed to acting in accordance with Catholic teaching in administering the program, including the determination of allowable and unallowable costs. In carrying out the program, sub-recipients will not provide or refer for abortion, sterilization, or artificial contraceptives and no project funds will be used for that purpose."
The Conference responded:
The Conference noted that all of its subcontractors were affiliates of Catholic agencies or Bethany Christian Services that shared its religious objection to providing abortion or contraception.
OTIP responded that the language that the Bishops Conference proposed to include in its subgrant agreements would not meet the FOA requirements.will not to provide or refer for abortion, sterilization, or artificial contraceptives and no project funds will be used for that purpose."
Following a call with OTIP, the Conference proposed removing that sentence entirely and instead adding a new sentence in its agreements with subgrantees that would state, "the (named agency) voluntarily agrees that it shares the religious objections of USCCB to providing or referring clients for abortion, sterilization and artificial contraception, and to the use of program funds for those purposes."
OTIP and the Bishops Conference exchanged emails reconfirming that (1) both of the sentences the Conference had proposed for subgrant agreements — that subgrantees "will not provide or refer for abortion, sterilization, or artificial contraceptives and no project funds will be used for that purpose" and that subgrantees "voluntarily agree[] that [they] share[] the religious objections of USCCB to providing or referring clients for abortion, sterilization and artificial contraception, and to the use of program funds for those purposes" — would be removed from any TVAP-related documents and (2) the Conference would "refrain from including any language in any program-related documents, including sub-agreements, limiting the ability of subcontractors to provide any services, as provided in the TVAP FOA, for which victims are eligible."
There is no evidence in the record that OTIP or any government actor selected the Bishops Conference as a grantee to promote Catholicism, Catholic religious views, or Catholic social teaching.
There is no evidence in the record that the Bishops Conference required any subgrantee to adopt its religious views.
The record does not reveal any instance of a trafficking victim who was receiving services from a Bishops Conference subgrantee asking the Conference or its subgrantee for an abortion or contraception. This may be because trafficking victims receiving TVAP services, unlike unaccompanied minors, are generally not in the physical custody of the federal government, the Conference, or its subgrantees, and thus can seek and obtain an abortion or contraception independently.
If a trafficking victim were to ask the Conference or its subgrantee for an abortion or contraception, the Conference or the subgrantee would notify HHS.
There is no evidence in the record that any trafficking victim who asked for an abortion or contraception was unable to obtain either because of the religious objections of the Conference or any subgrantee.
The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49.
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) ("When the nonmoving party has the burden of proof at trial, the moving party need only point out `that there is an absence of evidence to support the nonmoving party's case.'") (quoting Celotex, 477 U.S. at 325).
If the moving party meets its initial burden, the burden then shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323.
In ruling on a motion for summary judgment, the court does not make credibility determinations or weigh conflicting evidence. Instead, it views the evidence in the light most favorable to the non-moving party and draws all factual inferences in the non-moving party's favor. E.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
The three-pronged test articulated in the Supreme Court's decision in Lemon v. Kurtzman, 403 U.S. 602 (1971), remains the dominant mode of Establishment Clause analysis. Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1149 (9th Cir. 2018) (citing Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1299 n.7 (9th Cir. 2015)). To avoid violating the Establishment Clause, (1) a government practice "must have a secular legislative purpose," (2) "its principal or primary effect must be one that neither advances nor inhibits religion," and (3) "it must not foster `an excessive entanglement with religion.'" Id. (internal brackets omitted) (quoting Lemon, 403 U.S. at 612-13). "Context is critical when evaluating the government's conduct." Id.
The legislative purposes underlying the UACP and the TVAP, and the government's grant awards to the Bishops Conference to provide UACP and TVAP services, satisfy the first prong of the Lemon test. The ACLU concedes that the UACP and the TVAP as a whole have secular purposes,
The ACLU acknowledges that the mere fact that a religiously affiliated organization like the Bishops Conference receives government grants, without more, does not have the principal or primary effect of advancing religion.
The fact that religiously affiliated organizations like Bishops Conference received government UACP and TVAP funding, standing alone, does not establish that the government's actions had the principal or primary effect of advancing religion.
The ACLU argues that the government violates the Establishment Clause when it goes beyond being neutral and "convey[s] or attempt[s] to convey a message that religion or a particular religious belief is favored or preferred."
"Governmental action has the primary effect of advancing or disapproving of religion" — and thus fails the second prong of the Lemon test — "if it is `sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as disapproval, of their individual religious choices.' . . . from the point of view of a reasonable observer who is `informed and familiar with the history of the government practice at issue.'" Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1256 (9th Cir. 2007) (internal brackets and ellipsis omitted) (quoting Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378 (9th Cir. 1994)). The government's grant relationship and interactions with the Bishops Conference in the record in this litigation are not sufficiently likely to be perceived as an endorsement of the Conference's religious beliefs.
If anything, the government acted in a manner that is in opposition to the Conference's religious beliefs. The Conference has a moral and religious objection to abortion. In the UACP, the government took affirmative steps to transfer unaccompanied minors who wanted abortions to other UACP shelters that did not have objections to abortion and appears to have arranged for every such minor to have access to abortion services.
The ACLU argues that "delegating a government function to a religious entity unconstitutionally advances religion."
The record does not support the ACLU's assertion that the government delegated to the Bishops Conference the ability to determine which health services, including abortion or contraception services, that unaccompanied minors are permitted to access. To the contrary, the record shows that (1) if unaccompanied minors wanted access to abortion services to which the Conference or its subgrantees objected on religious grounds, the government transferred them to other shelters where they could access those services, and (2) if unaccompanied minors wanted access to contraception services, they could obtain them directly from their medical providers without the involvement of or denial by the Conference or its subgrantees.
The record does not support the ACLU's assertion that the government delegated to the Bishops Conference the ability to prohibit TVAP subgrantees from using grant funds to pay for abortion counseling and services and abortive prescriptions. The government did not delegate to the Conference the ability to prohibit subgrantees from using grant funds to pay for services such as abortion or contraception. Instead, the government required the Conference to agree to "refrain from including any language in any program-related documents, including sub-agreements, limiting the ability of subcontractors to provide any services, as provided in the TVAP FOA, for which victims are eligible."
The Bishops Conference's alleged power to prohibit TVAP subgrantees from using grant funds to pay for certain services is further limited by the presence of the other two secular TVAP grantees, Tapestri and USCRI. At most, the Conference has the ability to select or veto the organizations that serve as its subgrantees. The Conference does not have the ability to select or veto organizations that serve as TVAP subgrantees generally, or to control the TVAP funding those organizations receive or what services they provide. Subgrantees with views that run contrary to the Conference's religious beliefs can enter into subgrant agreements with Tapestri and USCRI.
This distinguishes the government's arrangement here from the arrangement in ACLU of Massachusetts I. There, the Bishops Conference was the only TVAP grantee. The Conference thus could exercise the government's full power to exclude certain subgrantees and services from receiving any TVAP government funding at all. The District of Massachusetts held that this was an unconstitutional delegation of a governmental function to a religious organization. See ACLU of Mass. I, 821 F. Supp. 2d at 487 ("[T]he government defendants' delegation of authority to the USCCB to exclude certain services from government funding `provides a significant symbolic benefit to religion,' in violation of the Establishment Clause."). Here, by contrast, the Conference cannot exclude subgrantees or services from government funding.
Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), another case the ACLU cites, is distinguishable for the same reason. That case involved a law that gave churches an unqualified right to veto liquor-license applications for any premise located within 500 feet of the church. Id. at 117. The Supreme Court held that the law was unconstitutional, as the "power to veto certain liquor license applications . . . . is a power ordinarily vested in agencies of the government," and delegation of that power to churches — which could employ that power "for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith" — violated the Establishment Clause. Id. at 122, 125-26. Here, by contrast, the Conference has no similar veto power over what organizations can be TVAP subgrantees, what funding they might receive, or what services they might provide.
The ACLU argues that the government violates the Establishment Clause when it "authoriz[es] religiously affiliated grantees to impose their faith on marginalized populations in the context of a government program."
To establish standing, "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). "It requires allegations — and, eventually, proof — that the plaintiff `personally' suffered a concrete and particularized injury in connection with the conduct of which he complains." Trump v. Hawaii, 138 S.Ct. 2392, 2416 (2018) (internal brackets omitted) (citing Spokeo, 136 S. Ct. at 1547-48). "In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that [it] is `directly affected by the laws and practices against which [its] complaints are directed.'" Id. (quoting Sch. Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963)).
The ACLU has not suffered a concrete and particularized injury and is not directly affected by the practice of transferring unaccompanied minors or trafficking victims. The ACLU is not itself an unaccompanied minor or trafficking victim (and does not represent any unaccompanied minor or trafficking victim in this case). It thus does not have standing to bring a claim for any injuries that unaccompanied minors or trafficking victims might have suffered (e.g., injuries from any purported delays in receiving abortions) that it did not suffer itself.
The only injuries the ACLU alleges in this case that it suffered itself were putative injuries borne in capacity as a taxpayer. ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2016 WL 6962871, at *1 (N.D. Cal. Nov. 29, 2016) (ACLU of N. Cal. I); ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2017 WL 4551492, at *1 (N.D. Cal. Oct. 11, 2017) (ACLU of N. Cal. II).
The record here shows that the government's UACP and TVAP grant money was used to provide general secular care services to unaccompanied minors and that no government money was used for proselytization, religious education, religious facilities, religious items, religious literature, or other religious activity.
The court expresses no opinion about whether an unaccompanied minor who may have suffered harm from being transferred or being delayed abortion services might be able to bring a claim. Cf. Winn, 563 U.S. at 145 ("[I]f a law or practice . . . disadvantages a particular religious [party] or a particular nonreligious [party], the disadvantaged party would not have to rely on Flast [taxpayer standing] to obtain redress for a resulting injury. . . . If an establishment of religion is alleged to cause real injury to particular individuals, the federal courts may adjudicate the matter."). But the ACLU cannot fit an unaccompanied minor's challenge to harm she suffered into a taxpayer-standing suit. Because there is no evidence that government tax money has been used to subsidize religion, the ACLU's third-party-harm theory fails and cannot serve as the basis for the its Establishment Clause claim.
The Supreme Court has held that "grant monitoring" by the government of programs set up by recipients of federal grants, including "a review of . . . materials that a grantee proposes to use" or "hav[ing] Government employees visit the clinics or offices where [the grantee's] programs are being carried out to see whether they are in fact being administered in accordance with statutory and constitutional requirements. . . . does not amount to `excessive entanglement,' at least in the context of a statute authorizing grants to religiously affiliated organizations that are not necessarily `pervasively sectarian.'" Bowen, 487 U.S. at 616-17.
The ACLU points to no evidence in the record and makes no real argument that the government's grant relationship and interactions with the Bishops Conference fosters an excessive entanglement with religion. To the extent that the government had to monitor the Conference to review whether it was acting in compliance with statutory and constitutional requirements, there is no evidence that it rose to the level of fostering excessive entanglement.
As the undisputed evidence presented to the court in this case shows that all three Lemon factors were satisfied with respect to the UACP and the TVAP, summary judgment for the defendants is appropriate.
The court denies the ACLU's motion for summary judgment and grants the defendants' cross-motions for summary judgment.
