By Anna M. Lashley | 63 Am. U. L. Rev. 607 (2013)
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.