Am. Civil Liberties Union of N. Cal. v. Azar

• Decision Date: 11 October 2018
• Docket Number: Case No. 16-cv-03539-LB
• Court: U.S. District Court — Northern District of California
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff, v. ALEX M. AZAR, II, Secretary of Health and Human Services, et al., Defendants, v. U.S. CONFERENCE OF CATHOLIC BISHOPS, Defendant-Intervenor.

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff, v. ALEX M. AZAR, II, Secretary of Health and Human Services, et al., Defendants, v. U.S. CONFERENCE OF CATHOLIC BISHOPS, Defendant-Intervenor.

Case No. 16-cv-03539-LB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Francisco Division

October 11, 2018

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: ECF No. 116, 120, 121

INTRODUCTION

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.¹ While the ACLU claims that the government has provided millions of dollars in grant funding to the Bishops Conference while allowing the Conference to impose its religious beliefs and restrict access to abortion and contraception services to the unaccompanied minors and trafficking victims in its care, the record in this case does not bear this out. There is no evidence that any grant funding was used for any religious purpose or that any unaccompanied minor or trafficking victim who wanted an abortion or contraception 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 bringsits 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.

STATEMENT

1. The Unaccompanied Alien Children Program

1.1 Overview

Each year, tens of thousands of undocumented minors² who are unaccompanied by their parents or any legal guardian are taken into federal custody after crossing the border into the United States.³ Pursuant to statute, the U.S. Department of Health and Human Services ("HHS")and its component agency the Office of Refugee Resettlement ("ORR") are tasked with providing care and custody to those unaccompanied minors. 8 U.S.C. § 1232(b)(1) ("Consistent with section 279 of Title 6, and except as otherwise provided under subsection (a), the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services."); 6 U.S.C. § 279(b)(1) (assigning responsibilities to ORR). Subject to considerations of "danger to self, danger to the community, and risk of flight," ORR is responsible for promptly placing unaccompanied minors in "the least restrictive setting that is in the best interests of the child." 8 U.S.C. § 1232(c)(2)(A).

Most unaccompanied minors who are referred to ORR are eventually released from government custody to parents or sponsors who live in the United States.⁴ These unaccompanied minors often are held in short-term facilities or shelters while they await release to their parents and sponsors.⁵ For some unaccompanied minors, ORR cannot identify an individual who can serve as a viable sponsor.⁶ Unaccompanied minors who are expected to be in the government's custody for an extended period or those who have special needs are sometimes transferred to a group home or a foster family.⁷ For others, ORR may determine that the unaccompanied minor must be placed in a more restrictive custodian setting.⁸

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").⁹ The Flores Agreement sets minimum standards for "licensed programs" — "program[s], agenc[ies] or organization[s] that [are] licensed by an appropriate State agency to provide residential, group, orfoster care services for dependent children" — where ORR can place unaccompanied minors.¹⁰ Among other things, licensed programs must provide unaccompanied minors with living accommodations, food, clothing, personal grooming items, medical care, an individualized needs assessment, educational services, a recreation and leisure-time plan including daily outdoor activity, individual and group counseling sessions, access to religious services of the minor's choice whenever possible, visitation and contact with family members (regardless of their immigration status), a reasonable right to privacy, family reunification services, and legal-services information.¹¹ Specifically with respect to medical care, the Flores Agreement states that licensed programs must provide "[a]ppropriate routine medical and dental care, family planning services, and emergency health care services[.]"¹²

1.2 Grants

1.2.1 Funding opportunity announcement

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.¹³ The FOA provided that services must include "a complete medical examination . . .; family planning services[;] other appropriate and routine medical and dental care; emergency health care services; administration of prescribed medication and special diets; and appropriate mental health interventions when necessary."¹⁴

Both faith-based and secular organizations were eligible to apply to participate as grantees.¹⁵ Grantees are subject to federal regulations that provide that they may not engage in inherently religious activities, such as worship, religious instruction, or proselytization, as part of theprograms or services funded with direct governmental financial assistance. 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). Grantees remain independent from the government and may continue to express their religious beliefs, provided they do not use direct financial assistance from the government to support any inherently religious activities. 45 C.F.R. §§ 87.1(d), 87.2(d) (2004) (amended Jan. 20, 2016); 45 C.F.R. §§ 87.1 (d), 87.2(d) (Jan. 20, 2016) (amended May 4, 2016); 45 C.F.R. § 87.3(c) (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.¹⁶

1.2.2 Grant awards

ORR selected and entered into grant agreements with numerous grantees.¹⁷ One of these grantees was the Bishops Conference.¹⁸ The Bishops Conference in turn entered into subgrant agreements with various organizations (including Catholic Charities, His House, and Youth for Tomorrow) that operate facilities and shelters that provide services to unaccompanied minors.¹⁹ The Bishops Conference, Catholic Charities, His House, and Youth for Tomorrow received UACP grants of approximately $42.9 million in fiscal year 2015, $54.7 million in fiscal year 2016, and $72.7 million in fiscal year 2017.²⁰

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 socialteaching.²¹ There is no evidence in the record that the Bishops Conference or any of its subgrantees used any government-grant money to promote Catholicism or for religious education or proselytization, to maintain or improve churches or religious facilities, to purchase religious items, or to distribute religious literature.²² There is no evidence in the record that the Bishops Conference required any subgrantee to adopt its religious views in order to receive a subgrant.²³

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