Case: 12-1466
Document: 00116421964
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Date Filed: 08/22/2012
Entry ID: 5668563
Nos. 12-1466, 12-1658
United States Court of Appeals
for the First Circuit
AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, (ACLUM),
Plaintiff - Appellee,
v.
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Defendant - Appellant,
KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services;
GEORGE SHELDON, Acting Assistant Secretary for the Administration of Children and
Families; ESKINDER NEGASH, Director of the Office of Refugee Resettlement,
Defendants.
AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, (ACLUM),
Plaintiff - Appellee,
v.
KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services;
ESKINDER NEGASH, Director of the Office of Refugee Resettlement; GEORGE
SHELDON, Acting Assistant Secretary for the Administration of Children and Families,
Defendants – Appellants,
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Defendant.
Appeals from the United States District Court for the
District of Massachusetts in Civil Action No. 09-10038-RGS
BRIEF OF AMICUS CURIAE JUSTICE AND FREEDOM FUND
IN SUPPORT OF UNITED STATES CONFERENCE OF CATHOLIC
BISHOPS SEEKING TO REVERSE THE DISTRICT COURT OPINION
DEBORAH J. DEWART
JUSTICE AND FREEDOM FUND
620 E. SABISTON DRIVE
SWANSBORO, NC 28584-9674
(910) 326-4554 / Fax (877) 326-4585
debcpalaw@earthlink.net
JAMES L. HIRSEN
505 S. VILLA REAL DRIVE, STE. 208
ANAHEIM HILLS, CA 92807
(714) 283-8880 / FAX (714) 283-8885
hirsen@earthlink.net
Counsel for Amicus Curiae Justice and Freedom Fund
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICUS CURIAE............................................................................ 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................... 1
ARGUMENT ............................................................................................................. 3
I.
II.
THE
DISTRICT
COURT
RULING
REQUIRES
THE
GOVERNMENT TO DISFAVOR RELIGION AND UNDERMINES
THE RELATIONSHIP BETWEEN CHURCH AND STATE....................... 3
A.
The District Court Opinion Creates An Unconstitutional
Inequality Requiring The Government To Disfavor Religion. ............. 3
B.
This Case Involves No Religious Indoctrination Or Content. .............. 5
C.
There Is No Fusion Of Church And State Because HHS Has
Not Purposefully Delegated Civic Authority To USCCB On
The Basis Of Its Religious Identity. ...................................................... 9
USCCB’S REFUSAL TO REFER FOR ABORTIONS IS NOT
“FAIRLY ATTRIBUTABLE” TO THE GOVERNMENT.......................... 11
A.
USCCB’s Government Contract Does Not Convert Its Conduct
Into State Action. ................................................................................. 16
B.
The Government’s “Mere Acquiescence” Is A Reasonable
Accommodation That Does Not Convert USCCB’s Conduct
Into State Action. ................................................................................. 18
C.
Assistance To Sex Trafficking Victims Is Not An Exclusively
Public Function That Would Convert USCCB’s Conduct Into
State Action. ........................................................................................ 20
1.
Improper Delegation To A Religious Entity Hinges On
The Performance Of An Exclusively Public Function. ............. 21
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2.
Religious Organizations May Cooperate With
Government To Address Social Problems. ............................... 25
3.
The Government’s Accommodation Of USCCB
Facilitates The Exercise Of Constitutional Rights—It
Does Not Evade The Government’s Constitutional
Obligations. ............................................................................... 26
No Other Factors—Including USCCB’s Receipt Of
Government Funds—Create A “Symbiotic Relationship” That
Would Convert Its Conduct Into State Action. ................................... 26
CONCLUSION ....................................................................................................... 28
CERTIFICATE OF COMPLIANCE ....................................................................... 29
CERTIFICATE OF SERVICE ................................................................................ 30
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TABLE OF AUTHORITIES
CASES
Abington Sch. Dist. v. Schempp,
374 U.S. 203 (1963) ............................................................................................ 11
ACLU of Mass. v. Sebelius,
821 F. Supp. 2d 474 (2012) ......................................................................9, 12, 20
Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth.,
567 F.3d 278 (6th Cir. 2009) ................................................................................ 5
Americans United for Separation of Church & State v. Prison Fellowship
Ministries, Inc.,
509 F.3d 406 (8th Cir. 2007) ..................................................6, 14, 16, 19, 23, 24
Barghout v. Bureau of Kosher Meat & Food Control,
66 F.3d 1337 (4th Cir. 1995) ......................................................10, 11, 16, 20, 21
Bd. of Educ. v. Mergens,
496 U.S. 226 (1990) ............................................................................................ 13
Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687 (1994) .....................................................................................passim
Blum v. Yaretsky,
457 U.S. 991 (1982) .....................................................................................passim
Bowen v. Kendrick,
487 U.S. 589 (1988) ........................................................................4, 6, 7, 8, 9, 25
Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993) ............................................................................................ 13
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001) ............................................................................................ 18
Burton v. Wilmington Parking Auth.,
365 U.S. 715 (1961) ..........................................................................13, 16, 26, 27
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Capitol Square Review and Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ............................................................................................ 13
Comm. for Pub. Educ. & Religious Liberty v. Nyquist,
413 U.S. 756 (1973) ............................................................................................ 25
Commack Self-Service Kosher Meats, Inc. v. Hooker,
2012 U.S. App. LEXIS 9538 (2d. Cir., May 10, 2012) ........................................ 7
Commack Self-Service Kosher Meats, Inc. v. Weiss,
294 F.3d 415 (2d Cir. 2002) ...................................................9, 10, 11, 16, 20, 21
Cooper v. U. S. Postal Service,
577 F.3d 479 (2d Cir. 2009) ...............................................................6, 14, 16, 23
Corp. of the Presiding Bishop v. Amos,
483 U.S. 327 (1987) ................................................................................13, 15, 19
Estades-Negroni v. CPC Hosp. San Juan Capestrano,
412 F.3d 1 (1st Cir. 2005) ................................................................................... 17
Estate of Thornton v. Caldor, Inc.,
472 U.S. 703 (1985) ............................................................................................ 25
Freedom From Religion Found. v. Hanover Sch. Dist.,
626 F.3d 1 (1st Cir. 2010) ..................................................................................... 8
Harris v. McRae,
448 U.S. 297 (1980) .......................................................................................... 6, 8
Jackson v. Metro. Edison Co.,
419 U.S. 345 (1974) ....................................................................................passim
Larkin v. Grendel’s Den, Inc.,
459 U.S. 116 (1982) ................................................................3, 10, 11, 16, 20, 21
Lemon v. Kurzman,
411 U.S. 192 (1973) .............................................................................................. 5
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Lynch v. Donnelly,
465 U.S. 668 (1984) ........................................................................................4, 25
McGowan v. Maryland,
366 U.S. 420 (1961) .............................................................................................. 6
Mitchell v. Helms,
530 U.S. 793 (2000) .............................................................................................. 5
Perkins v. Londonderry Basketball Club,
196 F.3d 13 (1st Cir. 1999) ..........................................................................passim
Rendell-Baker v. Kohn,
457 U.S. 830 (1982) .....................................................................................passim
Roemer v. Bd. of Pub. Works of Md.,
426 U.S. 736 (1976) .............................................................................................. 4
Rust v. Sullivan,
500 U.S. 173 (1991) .......................................................................................... 8, 9
Santiago v. Puerto Rico,
655 F.3d 61 (1st Cir. 2011) .................................................. 17, 18, 19, 22, 23, 27
Webster v. Reprod. Health Servs.,
492 U.S. 490 (1989) .............................................................................................. 9
West v. Atkins,
487 U.S. 42 (1988) ........................................................................................14, 19
Zorach v. Clauson,
343 U.S. 306 (1952) .......................................................................................... 3, 4
STATUTES
Trafficking Victims Protection Act (“TVPA”),
22 U.S.C. § 7101, et seq. .............................................................................passim
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OTHER AUTHORITIES
Developments in the Law: State Action and the Public/Private Distinction:
The State Action Doctrine and the Establishment Clause, 123 Harv. L.
Rev. 1278 (2010) ................................................................................................ 12
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INTEREST OF AMICUS CURIAE1
Justice and Freedom Fund, as amicus curiae, respectfully submits that the
District Court decision should be reversed.
Justice and Freedom Fund is a California non-profit, tax-exempt corporation
formed on September 24, 1998 to preserve and defend the constitutional liberties
guaranteed to American citizens, through education and other means. JFF has
made numerous appearances as amicus curiae in the U.S. Supreme Court and
several federal circuits, including a number of cases involving the Establishment
Clause. JFF’s founder is James L. Hirsen, professor of law at Trinity Law School
and Biola University in Southern California and author of New York Times
bestseller, Tales from the Left Coast, and Hollywood Nation.
Mr. Hirsen has
taught law school courses on constitutional law. Co-counsel, Deborah J. Dewart,
is the author of Death of a Christian Nation, published in 2010.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Only the thinnest of threads links the federal government to religion in this
case. The Department of Health and Human Services (“HHS”) is connected to the
U. S. Conference of Catholic Bishops (“USSCB”) through a contractual
1
The parties have consented to the filing of this brief. Amicus curiae certifies that
no counsel for a party authored this brief in whole or in part and no person or
entity, other than amicus, its members, or its counsel, has made a monetary
contribution to its preparation or submission.
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relationship to administer funding under the Trafficking Victims Protection Act
(“TVPA”), 22 U.S.C. § 7101, et seq., not the intentional delegation of an
exclusively public function. The objectionable conduct—USSCB’s refusal to refer
sex trafficking victims for abortion—is not inherently religious.
Plaintiff’s
position would create an inequality between secular organizations that decline to
refer for abortions and religious organizations that engage in the same conduct.
The government could accommodate the secular but not the religious entities.
Under relevant precedent in both the Supreme Court and this Circuit,
USCCB’s restriction on abortion referrals does not constitute state action—the
prerequisite for any constitutional violation. The District Court fails to grapple
with an entire line of cases about government contracts and state action. Under
that precedent, HHS’s “mere acquiescence” is a reasonable accommodation. The
government negotiated contract terms that avoided requiring USCCB to violate its
religious doctrine in performing its contractual duties.
Although the act of
awarding the contract and granting the accommodation are state actions, the
private conduct being accommodated is not thereby imputed to the government.
That is particularly true in this context, where no tax dollars subsidize any religious
indoctrination or activity. (App. Br. 29 (“[P]laintiff is not even alleging that any
federal funds were extracted and spent on religious items and services.”))
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ARGUMENT
I.
THE DISTRICT COURT RULING REQUIRES THE GOVERNMENT
TO
DISFAVOR
RELIGION
AND
UNDERMINES
THE
RELATIONSHIP BETWEEN CHURCH AND STATE.
The District Court bypasses the twofold purpose of the Religion Clauses:
to foreclose state interference with the practice of religious faiths, and to
foreclose the establishment of a state religion familiar in other 18th-century
systems. Religion and government, each insulated from the other, could
then coexist.
Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122 (1982). The government neither
established nor endorsed a particular religion in this context, particularly since no
religious indoctrination or content is at issue. When HHS granted the contract to
USCCB on the basis of religiously neutral criteria and accommodated its objection
to abortion referrals, the government “follow[ed] the best of our traditions”
(Zorach v. Clauson, 343 U.S. 306, 314 (1952)), foreclosing interference with
religious conscience. To do otherwise would exclude many religious organizations
from even bidding on the contract, creating an unconstitutional inequality between
them and other potential contractors who object to abortion referrals on nonreligious grounds. (See App. Br. 46, 53.)
A.
The District Court Opinion Creates An Unconstitutional
Inequality Requiring The Government To Disfavor Religion.
“Absent the most unusual circumstances, one’s religion ought not affect
one’s legal rights or duties or benefits.” Bd. of Educ. of Kiryas Joel Village Sch.
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Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring) (“Grumet”).
But the District Court decision does exactly that: It affects USCCB’s legal rights
and duties under its government contract for one reason only—its religious status.
In so ruling, the Court transgresses the fundamental principle of government
neutrality toward religion.
Religious organizations need not be quarantined or disabled from
participating in government-financed social welfare programs. Bowen v. Kendrick,
487 U.S. 589, 609 (1988); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 746
(1976) (“[T]he State may send a cleric . . . to perform a wholly secular task.”). On
the contrary, excluding them sends the message of “callous indifference” never
intended by the Establishment Clause. Lynch v. Donnelly, 465 U.S. 668, 673
(1984), citing Zorach v. Clauson, 343 U.S. at 314. The Constitution “affirmatively
mandates accommodation, not merely tolerance, of all religions, and forbids
hostility toward any.” Id.
Plaintiff objects to the government’s accommodation of USCCB based
solely on the religious aspects of the organization’s refusal to refer for abortion.
But objection to abortion is not necessarily religious in this context. A secular
organization might contract with HHS but decline to refer for abortion on some
non-religious basis. A contractor might wish to avoid the abortion controversy
altogether or be persuaded by research studies about the negative medical and
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psychological impact of abortion on women. The Establishment Clause poses no
impediment to the government’s accommodation of these non-religious concerns.
The District Court ruling thus creates inequality between religious contractors—
excluded from participation except on the condition they sacrifice their religious
convictions—and secular contractors, whose views can be accommodated. One of
the concerns expressed in Grumet was whether the legislature, after carving out a
public school district along religious lines, would “provide equally to other
religious (and nonreligious) groups.” Grumet, 512 U.S. at 702. The District Court
departs from this principle and virtually guarantees not only unequal treatment, but
outright hostility toward religion.
B.
This Case Involves No Religious Indoctrination Or Content.
The absence of religious content is a critical factor in this case.
A
government program may have the primary effect of advancing religion—thus
violating the second prong of Lemon v. Kurzman, 411 U.S. 192 (1973)—if it leads
to religious indoctrination that “could reasonably be attributed to government
action.” Mitchell v. Helms, 530 U.S. 793, 809 (2000).
The same is true where
“the benefit itself has an inherently religious content.” Am. Atheists, Inc. v. City of
Detroit Downtown Dev. Auth., 567 F.3d 278, 292 (6th Cir. 2009) (allowing
reimbursement of repairs that “lack[ed] any content at all, much less a religious
content”).
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This unusual Establishment Clause case involves a contract between the
government and a religious entity, but there is no religious indoctrination, display,
practice, or content. In other government contract cases, Establishment Clause
violations implicated express religious content: Cooper v. U. S. Postal Service,
577 F.3d 479 (2d Cir. 2009) (religious display in contract postal unit); Americans
United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509
F.3d 406 (8th Cir. 2007) (“Prison Fellowship”) (Christian rehabilitation program
operated inside state prison). This case is about what USCCB is not doing—not
what it is doing or saying. Plaintiff uses taxpayer status to complain about how tax
dollars are not being spent—not on how they are being spent. And there is no sex
trafficking victim in the case complaining about her ability to obtain an abortion,
raising serious issues about whether standing is present.2 Cf. Harris v. McRae, 448
U.S. 297, 303 (1980) (plaintiffs included “a New York Medicaid recipient then in
the first trimester of a pregnancy that she wished to terminate”).
The core issue (abortion) can be discussed with or without religious content.
Although opposition to abortion “happens to coincide or harmonize with the tenets
of some...religions,” that fact is not conclusive. McGowan v. Maryland, 366 U.S.
420, 442 (1961); see also Bowen v. Kendrick, 487 U.S. at 604 n. 4, 621, Harris v.
2
This cases hinges on taxpayer standing. As the opening Appellant’s Brief
explains, this case is about how tax dollars are not being spent, so taxpayer
standing is questionable. (App. Br., Sect. I, 29-45.)
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McRae, 448 U.S. at 319-320, Commack Self-Service Kosher Meats, Inc. v. Hooker,
2012 U.S. App. LEXIS 9538, *30 (2d. Cir., May 10, 2012) (“Commack II”). In
Bowen, the Supreme Court upheld a neutrally available funding program that
allowed religious grant recipients to engage in teaching about abortion consistent
with their religious doctrine. Bowen v. Kendrick, 487 U.S. at 612. The dissent
asserted that the “risk of advancing religion at public expense...is much greater
when the religious organization is directly engaged in pedagogy.” Id. at 641
(Blackmun, J., dissenting). But the majority rejected the idea that there is an
“impermissible symbolic link” between church and state whenever the government
provides funding “in an area in which the [religious] organization also has an
interest.” Id. at 613.
Even the Bowen dissent recognized the “fundamental difference between
government’s employing religion because of its unique appeal to a higher
authority...and government’s enlisting the aid of religiously committed individuals
or organizations without regard to their sectarian motivation.”
Id. at 641
(Blackmun, J., dissenting). USCCB was not awarded the contract because of its
religious affiliation, but rather for entirely secular reasons. (See App. Br. 46-47,
49, 59.) There are no complaints about religious indoctrination—only that USCCB
disburses the grant funds in a manner consistent with its religious convictions. If
government funds can be distributed to religious organizations and used for
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religiously oriented teaching about abortion—as in Bowen—then surely the
government can accommodate an organization that merely declines to refer for
abortions in the course of performing its contractual duties.
The District Court relies heavily on a First Circuit case upholding the Pledge
of Allegiance against an Establishment Clause challenge.
In that ruling, this
Circuit thought it “relevant that the religious content of the phrase ‘under God’
[was] couched in a non-religious text.”
Freedom From Religion Found. v.
Hanover Sch. Dist., 626 F.3d 1, 13 (1st Cir. 2010). Here, there is even more
reason to reject Plaintiff’s argument because there is no religious content
whatsoever.
Even if USCCB’s conduct—motivated partially or even wholly by religious
doctrine—could be attributed to HHS, the government itself may prefer childbirth
to abortion and encourage that choice through selective funding. Harris v. McRae,
448 U.S. at 315; Rust v. Sullivan, 500 U.S. 173, 201 (1991). Opposition to
abortion does not become constitutionally suspect merely because religious
believers or institutions are against it—any more than opposition to the evils of
human trafficking would become constitutionally suspect merely because people of
faith oppose it on religious grounds.
If the government itself (or a secular
contractor charged with distributing funds) determined that TVPA funds should
not be used by anyone to fund abortion or contraception services, that decision
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would not violate the Establishment Clause. The government has “no affirmative
duty to ‘commit any resources to facilitating abortions.’” Rust v. Sullivan, 500
U.S. at 201, quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 511 (1989).
This stands in stark contrast to the Establishment Clause, which prohibits
government preference for a particular religious viewpoint.
HHS has merely
allowed USCCB to do what the government itself could do—and has done. Bowen
v. Kendrick, 487 U.S. at 596-597 (the Adolescent Family Life Act restricts funding
to “programs or projects which do not provide abortions or abortion counseling or
referral”).
C.
There Is No Fusion Of Church And State Because HHS Has Not
Purposefully Delegated Civic Authority To USCCB On The Basis
Of Its Religious Identity.
The District Court founds its ruling on decisions where civic authority was
delegated to an organization because of its religious identity, creating a “fusion” of
church and state that violates the Establishment Clause.
ACLU of Mass. v.
Sebelius, 821 F. Supp. 2d 474, at *35-40 (2012) (“ACLUM”). But here is how the
Supreme Court framed the issue:
Where “fusion” is an issue, the difference lies in the distinction between a
government’s purposeful delegation on the basis of religion and a delegation
on principles neutral to religion, to individuals whose religious identities are
incidental to their receipt of civic authority.
Grumet, 512 U.S. at 699 (emphasis added); quoted in Commack Self-Service
Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 429 (2d Cir. 2002) (“Commack I”).
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In Grumet, the government intentionally drew village boundaries so as to
exclude all but the religious enclave of Satmar Hasidim, thus carving out a special
school district to serve only this religious community. Grumet, 512 U.S. at 690.
The Supreme Court found that action “tantamount to an allocation of political
power on a religious criterion.” Grumet, 512 U.S. at 690. Religion is the driving
force in the delegation cases—”a State may not delegate its civic authority to a
group chosen according to a religious criterion.” Grumet, 512 U.S. at 698, quoting
Larkin v. Grendel’s Den, Inc., 459 U.S. at 126. This thread runs consistently
through the relevant case law:
 In Larkin, a statute expressly delegated zoning powers to churches by
granting them absolute veto power over liquor license applications. Larkin,
459 U.S. at 125.
 In Grumet, the government “delegat[ed] the State’s discretionary authority
over public schools to a group defined by its character as a religious
community.” Grumet, 512 U.S. at 696.
 In Barghout, “investigative, interpretive, and enforcement power” was
vested “in a group of individuals [ordained Orthodox Rabbis] based on their
membership in a specific religious sect.” Barghout v. Bureau of Kosher
Meat & Food Control, 66 F.3d 1337, 1342 (4th Cir. 1995) (bureau created to
enforce prohibition on fraudulent sale of kosher food).
 In Commack I, a New York statute prohibited the fraudulent sale of kosher
food, tying its definition to religious doctrine—”prepared in accordance with
the orthodox Hebrew religious requirements.” Commack I, 294 F.3d at 418.
Contrary to these cases, USCCB was not selected on the basis of any
religious criterion. Its relationship with HHS was contractual—not the prohibited
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“fusion of governmental and religious functions” that forms the “core rationale
underlying the Establishment Clause.”
Larkin, 459 U.S. at 126-127, quoting
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 222 (1963). Such a contract does
not “enmesh churches in the exercise of substantial governmental powers....”
Larkin, 459 U.S. at 126. HHS accepted USCCB’s bid on the basis of its ability to
effectively administer the program and later its proven track record—not its
religious identity.
The contract terms merely allow USCCB to opt out of
performing a task contrary to conscience. This static position departs from the
ongoing exercise of discretion that doomed the laws at issue in Grumet, Larkin,
Barghout, and Commack I.
Moreover, Plaintiff’s rationale would exclude
USCCB—and many other religious organizations—solely because its objection to
abortion has religious roots. USCCB is treated differently because of its religious
status, generating the callous indifference and hostility the Establishment Clause
was never meant to create.
II.
USCCB’S REFUSAL TO REFER FOR ABORTIONS IS NOT
“FAIRLY ATTRIBUTABLE” TO THE GOVERNMENT.
This Court should bear in mind the “public/private dichotomy that remains
embedded in our constitutional jurisprudence” (Perkins v. Londonderry Basketball
Club, 196 F.3d 13, 18 (1st Cir. 1999)) and refuse to attribute USCCB’s private
conduct to HHS—a governmental agency that merely accommodated its religious
convictions in negotiating the terms of a contract. The act of awarding the contract
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and granting the accommodation is state action, but the conduct being
accommodated remains private conduct. Neither that conduct nor the underlying
religious motivation can be imputed to the government. Plaintiff ACLU objects to
the government’s action in “permitting [the] USCCB to impose a religiously based
restriction on the use of taxpayer funds. Compl. ¶71.” ACLUM, 821 F. Supp. 2d
at *8. But it is USCCB—a private entity—that imposes the restriction in the
course of selecting subcontractors and disbursing funds.
HHS is merely
“permitting” (id.) or “allowing” (id. at *2) USCCB to do so. Such permission, or
acquiescence, is the essence of accommodation. It is clearly not the case that the
religiously inspired policies and practices of institutions that receive public funds
someone become, for constitutional purposes, the government’s own policies and
practices.
State action is the launching pad for any constitutional violation, and a
logically coherent framework for Establishment Clause analysis:
[I]t is precisely because the Establishment Clause is a structural limitation on
government and not private actors that the state action question is important.
The First Amendment prohibits religious behavior by the state but protects
that same behavior when performed by private entities; the crucial dividing
line between the two is state action.
Developments in the Law: State Action and the Public/Private Distinction: The
State Action Doctrine and the Establishment Clause, 123 Harv. L. Rev. 1278, 1284
(2010). Constitutional rights are protected against state interference—not private
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conduct. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993);
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). Where religion is
implicated, “[t]here is a crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses protect.”
Capitol
Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 765 (1995), citing Bd. of
Educ. v. Mergens, 496 U.S. 226, 250 (1990). Here, the link is especially tenuous
because there is no affirmative action to fund religion, but rather inaction—the
refusal to refer for abortions—and there is no financial subsidy for any religious
activity. (See App. Br. 3.)
Accommodation cases typically involve religious exemptions granted by
statute. These statutory exemption cases are analytically distinguishable from
government contract cases. For example, Congress relieved churches of Title
VII’s ban on religious discrimination, and the Supreme Court upheld the
accommodation. Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987)
(“Amos”). There was no suggestion that a church’s religious discrimination might
be imputed to the government—but there was no contractual relationship between
the government and the church that might raise that as an issue. Cf. Burton v.
Wilmington Parking Auth., 365 U.S. 715 (1961) (lessee restaurant’s racial
discrimination attributed to government lessor).
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This case does not involve a statutory exemption, but rather a contract
between the government and a religious entity. An instructive line of cases address
state action in the context of a government contract. The contractual relationship
sometimes generates litigation alleging that the private contractor’s conduct should
be attributed to the government.3 Some of these are actions brought against the
private party, alleging it should be deemed a state actor responsible for a
constitutional violation. To prevail, the private party’s conduct must be “fairly
attributable to the state.”
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)
(private school teachers terminated because of their speech); Blum v. Yaretsky, 457
U.S. 991, 993 (1982) (nursing home transferred Medicaid patients); Jackson v.
Metro. Edison Co., 419 U.S. at 351 (private utility terminated services for nonpayment); West v. Atkins, 487 U.S. 42, 54 (1988) (contract physician provided
medical care to state inmate). Where the private contractor’s conduct is religious,
the government may be sued for an Establishment Clause violation—but again, the
conduct must be “fairly attributable to the state.” Cooper v. U. S. Postal Service,
577 F.3d at 491 (contract postal unit operated by religious entity); Prison
3
These cases are not analogous in every respect and often involve constitutional
issues not relevant to this case. The common thread is the existence of a contract
between the government and a private entity, and the issue of whether the private
contractor’s conduct can be imputed to the state for constitutional purposes. The
principles that emerge from these cases are relevant to determining whether
USCCB’s restriction on abortion (e.g., in dealing with its subcontractors) is
attributable to HHS for Establishment Clause purposes.
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Fellowship, 509 F.3d at 422 (Christian rehabilitation program operated inside state
prison).
Where the private contractor is sued, “constitutional standards are invoked
only when it can be said that the State is responsible for the specific conduct of
which the plaintiff complains.” Blum, 457 U.S. at 1004. The plaintiff must show
“a sufficiently close nexus between the State and the challenged action of
the...entity so that the action of the latter may be fairly treated as that of the State
itself.”
Id. at 1004; Jackson, 419 U.S. at 351.
Similar principles apply in
Establishment Clause challenges: “For a law to have forbidden ‘effects’ under
Lemon, it must be fair to say that the government itself has advanced religion
through its own activities and influence.” Amos, 483 U.S. at 337.
Here, Plaintiff cannot connect the dots. “HHS itself” has not advanced
religion. It is USCCB—not HHS—that restricts abortion referrals and funding. In
fact, HHS expressed considerable reluctance about granting the contract to USCCB
in light of its position on abortion but awarded the contract because of its superior
qualifications, based on secular criteria. (See App. Br. 9-10, 18, 61.) Moreover,
USCCB’s action (or inaction) is not the expressly religious indoctrination, display,
symbol, exercise, or content that would violate the Establishment Clause even if it
were attributable to the government.
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USCCB’s Government Contract Does Not Convert Its Conduct
Into State Action.
The mere existence of a contract between the government and a private party
“is insufficient to render all of the contractor’s conduct state action.” Cooper, 577
F.3d at 492; see Rendell-Baker v. Kohn, 457 U.S. at 841 (the “[a]cts of . . . private
contractors do not become acts of the government by reason of their significant or
even total engagement in performing public contracts”). (See App. Br. 21, 54, 57.)
The delegation cases all implicate state action, because an exclusively public
function has been delegated to a group defined by religious criteria: Grumet, 512
U.S. 687 (authority over public schools); Larkin, 459 U.S. 116 (zoning and
licensing); Barghout, 66 F.3d 1337 (enforcement of kosher food rules); Commack
I, 294 F.3d 415 (requirement that kosher foods conform to standards of Orthodox
Judaism). Government contract cases are not as straightforward. Some of them
involve private action attributable to the state:
 Cooper, 577 F.3d 479 (religious display in contract postal unit)
 Prison Fellowship, 509 F.3d 406 (religious residential inmate program)
 Burton v. Wilmington Parking Auth., 365 U.S. 715 (restaurant lease in public
parking garage)
Other decisions, in both the Supreme Court and this Circuit, have held that a
private contractor’s conduct was not state action:
 Rendell-Baker, 457 U.S. 830 (termination of private school teachers)
 Jackson, 419 U.S. 345 (termination of utility services)
 Blum, 457 U.S. 991 (nursing home transfer of Medicaid patients)
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 Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011) (alleged sexual abuse
by school bus driver)
 Perkins, 196 F.3d 13 (gender discrimination in basketball tournament)
“In cases that involve indirect state action, courts conventionally have
traveled a trio of analytic avenues.” Perkins, 196 F.3d at 18. In this fact-specific
approach, state action may occur in one of three ways:
 The private actor “assumes a traditional public function.”
 The state coerces or significantly encourages the challenged conduct.
 The state and private actors are in a position of such interdependence that
they become joint participants in the challenged activity. See EstadesNegroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 5 (1st Cir. 2005)
(involuntary commitment proceedings initiated by private hospital and
physicians was not state action).
Santiago v. Puerto Rico, 655 F.3d at 68-69. The contract between HHS and
USCCB fails to fit any of these three:
 HHS accommodated USCCB’s religious convictions—such “mere
acquiescence” does not constitute the coercion or substantial encouragement
required under this second test.
 Social assistance is not an exclusively public function. Private entities—
including religious organizations—may cooperate with government in such
endeavors and even receive funding without being deemed state actors.
 Plaintiff does not even allege the type of interdependence or “symbiotic
relationship” that would render HHS and USCCB “joint participants” in a
program that advances religion.
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The Government’s “Mere Acquiescence” Is A Reasonable
Accommodation That Does Not Convert USCCB’s Conduct Into
State Action.
HHS awarded the contract to USCCB because of its superior qualifications,
in spite of the organization’s unwillingness to fund abortion and contraception.
USCCB’s anti-abortion position was a factor HHS held against it. (See App. Br. 910, 46-47.)
HHS’s reluctant acquiescence is an accommodation, not an
endorsement of USCCB’s religious views or even its position on abortion
generally.
A private entity’s conduct may be state action “if, though only if, there is
such a close nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that of the State itself.” Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (emphasis
added); Jackson, 419 U.S. at 351; Perkins, 196 F.3d at 19. This “close nexus”
must exist between the state and the alleged violation—not merely between the
government and a private actor.
This is “[t]he one unyielding requirement.”
Brentwood Acad., 531 U.S. at 295. Extensive government regulation of the private
entity is insufficient, “unless the [rights-depriving] conduct itself is compelled (or,
at least, heavily influenced) by a state regulation.” Santiago, 655 F.3d at 71; Blum,
457 U.S. at 1004-05; Rendell-Baker, 457 U.S. at 840-841. A physician retained by
the state to treat inmates can be deemed a state actor, because incarceration
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restricts the prisoners’ ability to seek medical care elsewhere. West v. Atkins, 487
U.S. at 55; see also Prison Fellowship, 509 F.3d at 425-426 (prisoners had no
alternatives to the religious rehabilitation program contracted by the state). But
where a student enjoys a statutory right to transportation to and from school—yet
has other options available—the actions of a private transportation company are
not attributed to the state. Santiago, 655 F.3d at 70.
The government’s “mere approval or acquiescence in the initiatives of a
private party is not sufficient” to generate state action. Blum, 457 U.S. at 1004-05;
Perkins, 196 F.3d at 19. The bar is much higher:
[A] State normally can be held responsible for a private decision only when
it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be
deemed to be that of the State.
Blum, 457 U.S. at 1004-05 (emphasis added).
By accommodating USCCB’s
religious conscience, HHS has merely acquiesced—it has not exercised the
“coercive power” or “significant encouragement” required for state action. Such
acquiescence is the very essence of accommodation. It does not generate an
Establishment Clause violation, but passes the second Lemon prong—neither
advancing nor inhibiting religion, but rather allowing a religious organization to
act in accordance with its religious doctrine. Amos, 483 U.S. at 337 (“A law is not
unconstitutional simply because it allows churches to advance religion, which is
their very purpose.”)
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The delegation cases involve far more than the government’s “mere
acquiescence” or accommodation. Each one implicates a legal mandate that some
exclusively public function be delegated to organization(s) or person(s) on the
basis of religious identity: Grumet, 512 U.S. at 690 (state statute); Larkin, 459
U.S. at 122 (state statute); Barghout, 66 F.3d at 1338-39 (city ordinance);
Commack I, 294 F.3d at 418 (state statutory scheme). This case involves no
comparable legal requirement.
Even where “the State has specifically authorized and approved” the practice
of a private party, that is insufficient for a finding of state action. Jackson, 419
U.S. at 354 (emphasis added). And “authorization” is precisely the way the ACLU
and the District Court have characterized the challenged government action in this
case:
[T]he ACLU challenges only the government’s authorization of the
religiously based restriction on the use of TVPA funds. For purposes of the
endorsement analysis, the court will define the challenged government
action as plaintiff ACLU has.
ACLUM, 821 F. Supp. 2d at *26-27 (emphasis added). HHS’ authorization is an
accommodation under Jackson that fails the test for state action.
C.
Assistance To Sex Trafficking Victims Is Not An Exclusively
Public Function That Would Convert USCCB’s Conduct Into
State Action.
Religious organizations may serve the public and even use government
funds to do so. It is only when the private entity performs an exclusively public
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function that its conduct may morph into state action or point to improper
delegation by the state.
The critical exclusivity factor is absent in this case.
Moreover, the purpose of the public function test is to ensure that government does
not avoid its constitutional duties. Accommodation of a religious organization’s
conscience does not obstruct that purpose, but rather facilitates First Amendment
principles.
1.
Improper Delegation To A Religious Entity Hinges On The
Performance Of An Exclusively Public Function.
HHS has not delegated any exclusively governmental power to USCCB.
(See App. Br. 56.) The delegation cases consistently implicate one or more such
functions:
 Grumet, 512 U.S. at 698 (“[a]uthority over public schools belongs to the
State”)
 Larkin, 459 U.S. at 121 (“[t]he zoning function is traditionally a
governmental task”) and 122 (the “power to veto certain liquor license
application...is a power ordinarily vested in agencies of government”)
 Barghout, 66 F.3d 1337 (enforcement of city ordinance prohibiting the
fraudulent sale of kosher food)
 Commack I, 294 F.3d at 427 (interpretation and application of state statute
prohibiting the fraudulent sale of kosher food)
Government contract cases are more complex, but exclusivity is still a
critical qualifier:
[T]he relevant question is not simply whether a private group is serving a
“public function.” We have held that the question is whether the function
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performed has been “traditionally the exclusive prerogative of the State.”
Jackson, supra, at 353; quoted in Blum v. Yaretsky, post, at 1011 (emphasis
added).
Rendell-Baker, 457 U.S. at 842.
Both the Supreme Court and this Circuit
acknowledge that exclusivity is a necessary prerequisite for state action:
 [T]he required nexus may be present if the private entity has exercised
powers that are “traditionally the exclusive prerogative of the State.”
Blum, 457 U.S. at 1005, quoting Jackson, 419 U.S. at 353.
 Exclusivity is an important qualifier, and its presence severely limits the
range of eligible activities. See Rendell-Baker, 457 U.S. at 842 (“That a
private entity performs a function which serves the public does not make its
acts state action.”).
Santiago, 655 F.3d at 68.
 [A] plaintiff must show more than the mere performance of a public function
by a private entity; she must show that the function is one exclusively
reserved to the State.
Perkins, 196 F.3d at 19.
The absence of exclusivity precludes a finding of state action:
 Rendell-Baker, 457 U.S. at 842 (education of maladjusted students is a
public function the state chose to finance, but “[t]hat legislative policy
choice in no way makes these services the exclusive province of the State”)
 Jackson, 419 U.S. at 353 (“while the Pennsylvania statute imposes an
obligation to furnish service on regulated utilities, it imposes no such
obligation on the State”)
 Blum, 457 U.S. at 1011 (“We are...unable to conclude that the nursing
homes perform a function that has been traditionally the exclusive
prerogative of the State.”)
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 Santiago, 655 F.3d at 70 (“student transportation falls outside the exclusive
purview of the state”)
 Perkins, 196 F.3d at 19 (“the administration of an amateur sports program
lacks the element of exclusivity and therefore is not a traditional public
function”)
In two Establishment Clause contract cases, an exclusively government
function was undeniably implicated:
 Cooper, 577 F.3d at 485 (“Article I, Section 8 of the Constitution provides
that Congress shall have power . . . [t]o establish Post Offices and post
Roads’”) and 492 (“Congress granted to the USPS the exclusive duty to
create and operate Post Offices....”)
 Prison Fellowship, 509 F.3d at 423 (“the state effectively gave InnerChange
its 24-hour power to incarcerate, treat, and discipline inmates”)
There was state action in both cases—and both are distinguishable.
The
Constitution grants Congress the authority to establish post offices, and Cooper
involved a contract postal unit directly associated with the U. S. Postal Service.
Only the government may incarcerate persons convicted of crimes, as in Prison
Fellowship. Both cases involved explicit religious content—a religious display in
Cooper and religious indoctrination in Prison Fellowship. In Cooper, the court
was careful to prohibit the religious display only in the area reserved for postal
services.
Cooper, 577 F.3d at 497.
In Prison Fellowship, the religious
rehabilitation program was the sole option available to prisoners. Prison
Fellowship, 509 F.3d at 425-426. Those who voluntarily participated received
enhanced privileges—greater privacy, more family visits, increased computer
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access. Id. at 424. Prisoners are far more restricted than USCCB’s subcontractors
or the sex trafficking victims themselves—who are not even participating in this
litigation.
Moreover, neither of these cases involved the government’s
accommodation of a religious organization’s refusal to perform an act or offer a
service on grounds of conscience.
Plaintiff’s position is more consistent with dissenting opinions in relevant
Supreme Court precedent. In Rendell-Baker, “[t]he State ha[d] delegated to the
New Perspectives School its statutory duty to educate children.” Rendell-Baker,
457 U.S. at 844 (Marshall, J., dissenting). The majority was not persuaded, even
though “the State is required to provide a free education to all children, including
those with special needs.” Id. at 848 (Marshall, J., dissenting).
Here, HHS
contracted with USCCB to perform its statutory duties under TVPA. The optional,
supplemental assistance it authorizes is not comparable to the free public education
the state must provide. Similarly, the Court refused to consider utility services an
exclusive public function, even though utilities are an “essential public service.”
Jackson, 419 U.S. at 352. Justice Douglas argued that the actions of a “monopolist
providing an essential public service” were “sufficiently intertwined with those of
the State” to find state action.” Id. at 362 (Douglas, J., dissenting). Justice
Marshall asserted that the private utility company “supplie[d] an essential public
service that is in many communities supplied by the government.” Id. at 371
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(Marshall, J., dissenting). But the majority insisted that state action required “the
exercise by a private entity of powers traditionally exclusively reserved to the
State.” Id. at 352. If the essential public services at issue in Rendell-Baker
(education) and Jackson (utilities) are not exclusively public functions, then surely
TVPA’s optional assistance is not.
2.
Religious Organizations May Cooperate With Government
To Address Social Problems.
TVPA provides supplemental funding to address a critical social issue—sex
trafficking. Not only is social assistance not an exclusively public function—on
the contrary, both Congress and the Supreme Court acknowledge that religious
organizations can help solve these pressing problems. Bowen, 487 U.S. at 606;
App. Br. 47-48. Any benefit to religion is at most “incidental and remote.” Id. at
607, citing Lynch v. Donnelly, 465 U.S. at 683; Estate of Thornton v. Caldor, Inc.,
472 U.S. 703, 710 (1985); Comm. for Pub. Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 771 (1973). As in Bowen, TVPA authorizes a program of “facially
neutral projects”...”not themselves ‘specifically religious activities,’ and they are
not converted into such activities by the fact that they are carried out by
organizations with religious affiliations.” Bowen, 487 U.S. at 613.
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The Government’s Accommodation Of USCCB Facilitates
The Exercise Of Constitutional Rights—It Does Not Evade
The Government’s Constitutional Obligations.
The government’s accommodation of USCCB is hardly an attempt to avoid
its constitutional obligations and surreptitiously advance religion:
The public function analysis is designed to flush out a State’s attempt to evade
its responsibilities by delegating them to private entities.
Perkins, 196 F.3d at 18-19.
In Burton, the government tried to evade its
constitutional responsibilities by leasing a restaurant to a private entity rather than
operating it directly. The restaurant’s racial discrimination was attributed to the
government. “[N]o State may effectively abdicate its responsibilities by either
ignoring them or by merely failing to discharge them whatever the motive may
be....” Burton, 365 U.S. at 725. The government cannot “accommodate” racial
discrimination. Here, the government’s accommodation of religious conscience
facilitates the exercise of constitutional rights, and what USCCB is doing—or
rather, not doing—is something the government itself could do directly.
D.
No Other Factors—Including USCCB’s Receipt Of Government
Funds—Create A “Symbiotic Relationship” That Would Convert
Its Conduct Into State Action.
The contract between HHS and USCCB is insufficient to create the type of
“symbiotic relationship” present in Burton, where “the State had so far insinuated
itself into a position of interdependence with the restaurant that it was a joint
participant in the enterprise.” Jackson, 419 U.S. at 357-358 (finding no “symbiotic
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relationship” between government and a private utility company). The private
restaurant in Burton was located on government premises and its lease payments
made it financially viable to operate the public parking garage. Rendell-Baker, 457
U.S. at 842-843, citing Burton, 365 U.S. at 723. In both Rendell-Baker (private
school) and Jackson (private utility company) the Supreme Court rejected
arguments of an interdependent relationship comparable to what occurred in
Burton. In Burton, the restaurant would not have existed independently—apart
from the lease and intertwining relationship with government. Here, USCCB is an
entirely independent organization that engages in many activities that are
independent of its function as TVPA’s general contractor.
Even substantial government funding and/or regulation of an organization
does not alter the result:
 Rendell-Baker, 457 U.S. at 840 (“[W]e conclude that the school’s receipt of
public funds does not make the discharge decisions acts of the State.”)
 Blum, 457 U.S. at 1011 (“That programs undertaken by the State result in
substantial funding of the activities of a private entity is no more persuasive
than the fact of regulation of such an entity in demonstrating that the State is
responsible for decisions made by the entity in the course of its business.”)
 Santiago, 655 F.3d at 72 (“A private party cannot be transformed into a state
actor simply because it is paid with government funds for providing a
service.”)
In contexts where the private entity to a government contract receives virtually all
of its funding from the government, there might seem to be an interdependent
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relationship giving rise to state action. But the Supreme Court has rejected that
argument. Rendell-Baker, 457 U.S. at 847 (Marshall, J., dissenting) (“The New
Perspectives School receives virtually all of its funds from state sources.”); Blum,
457 U.S. at 1027-1028 (Brennan, J., dissenting) (“The State subsidizes practically
all of the operating and capital costs of the facility, and pays the medical expenses
of more than 90% of its residents.”). Here, the vast majority of USCCB’s funding
comes from sources outside TVPA.
CONCLUSION
Amicus curiae respectfully urges this Court to reverse the erroneous decision
of the District Court.
Respectfully submitted,
/s/ James L. Hirsen
James L. Hirsen
505 S. Villa Real Drive, Ste. 208
Anaheim Hills, CA 92807
(714) 283-8880
Fax (714) 283-8885
hirsen@earthlink.net
Deborah J. Dewart
Justice And Freedom Fund
620 E. Sabiston Drive
Swansboro, NC 28584-9674
(910) 326-4554
Fax (877) 326-4585
debcpalaw@earthlink.net
Counsel for Amicus Curiae
Justice and Freedom Fund
Dated: August 22, 2012
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P. Fed.
R. App. P. 29(d) and 32(a)(7)(B) because this brief contains 6,420 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Word in 14-point
Times New Roman.
/s/ James L. Hirsen
James L. Hirsen
505 S. Villa Real Drive, Ste. 208
Anaheim Hills, CA 92807
(714) 283-8880
Fax (714) 283-8885
hirsen@earthlink.net
Counsel for Amicus Curiae
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CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2012, I electronically filed the foregoing
document with the United States Court of Appeals for the First Circuit by using the
CM/ECF system. I certify that the following parties or their counsel of record are
registered as ECF Filers and that they will be served by the CM/ECF system:
Brigitte Amiri
Andrew D. Beck
Rose Ann Saxe
American Civil Liberties Union
125 Broad St.
18th Flr
New York, NY 10004-0000
Email: bamiri@aclu.org
Email: abeck@aclu.org
Email: rsaxe@aclu.org
Catalina E. Azuero
Henry C. Dinger
Goodwin Procter LLP
53 State St
Exchange Place
Boston, MA 02109-2881
Email: cazuero@goodwinprocter.com
Email: hdinger@goodwinprocter.com
Dina Michael Chaitowitz
US Attorney’s Office
1 Courthouse Way
Suite 9200
Boston, MA 02110-0000
Email: USAMA.ECFAppeals@usdoj.gov
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Matthew M. Collette
US Dept of Justice
Civil Division
Ste 7513
950 Pennsylvania Ave NW
Washington, DC 20530-0001
Email: Matthew.Collette@usdoj.gov
Daniel Mach
Heather L. Weaver
American Civil Liberties Union
915 15th Street NW, 6th Flr.
Washington, DC 20005
Email: dmach@aclu.org
Email: hweaver@aclu.org
Peter Joseph Phipps
US Dept. of Justice
Civil Division
PO Box 883
Ben Franklin Station
Washington, DC 20044-0000
Email: peter.phipps@usdoj.gov
Anthony R. Picarello Jr.
US Conference of Catholic Bishops
3211 4th St NE
Washington, DC 20017
Email: apicarello@usccb.org
Lowell Vernon Sturgill Jr.
US Dept of Justice
Civil Division
Room 7241
950 Pennsylvania Ave NW
Washington, DC 20530-0001
Email: Lowell.Sturgill@usdoj.gov
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Sarah R. Wunsch
American Civil Liberties Union of Massachusetts
211 Congress St.
Boston, MA 02110-2485
Email: swunsch@aclum.org
/s/ James L. Hirsen
James L. Hirsen
505 S. Villa Real Drive, Ste. 208
Anaheim Hills, CA 92807
(714) 283-8880
Fax (714) 283-8885
hirsen@earthlink.net
Counsel for Amicus Curiae
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