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Freedom From Religion Foundation, Inc. v. Nicholson

August 5, 2008


Appeal from the United States District Court for the Western District of Wisconsin. No. 06 C 212-John C. Shabaz, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before RIPPLE, ROVNER and TINDER, Circuit Judges.

Plaintiffs, including Freedom From Religion Foundation, Inc. and three individual federal taxpayers (collectively, "Freedom From Religion"), commenced this civil rights action under 42 U.S.C. § 1983, alleging that the defendants, five high-level employees of the Department of Veterans Affairs (collectively, the "VA"), were violating the Establishment Clause. The complaint sought both declaratory and injunctive relief. The district court granted the VA's motion for summary judgment. Freedom From Religion filed a timely appeal.

For the reasons set forth in this opinion, we vacate the judgment of the district court; the case is remanded to the district court with instructions to dismiss for lack of jurisdiction based on lack of taxpayer standing.


A. The Department of Veterans Affairs and the Chaplain Service

The Department of Veterans Affairs (the "VA") is an executive agency, see 38 U.S.C. § 301(a), that traces its history to the Veterans Administration, an agency that President Herbert Hoover created by Executive Order.*fn1 The VA subsequently was elevated to cabinet-level status. See Department of Veterans Affairs Act, Pub. L. No. 100-527, 102 Stat. 2635 (Oct. 25, 1988). The Department is charged with the responsibility for, among other things, providing healthcare to the veterans of our armed forces as well as to their eligible family members and survivors. See 38 U.S.C. §§ 301(b), 1710, 7301(b). Congress created, within the organizational structure of the VA, the Veteran's Health Administration (the "VHA"); it mandated that the VHA "provide a complete medical and hospital service for the medical care and treatment of veterans," as provided for by other portions of Title 38.

38 U.S.C. § 7301(b).

The VA's healthcare system is extensive; it includes: 154 medical centers, with at least one in each state, Puerto Rico and Washington, D.C.; 875 ambulatory care and community-based outpatient clinics; 136 nursing homes; 43 residential rehabilitation treatment programs; 206 Veterans Centers; and 88 comprehensive home-care programs. In 2005, approximately 5.3 million people received care in a VA healthcare facility. The VA-following the lead of private healthcare providers, it claims-has adopted a holistic approach to health-care. Accordingly, it offers pastoral care, administered by VA chaplains, to veterans who receive VA healthcare.

Chaplains have a venerable history in the armed forces of our Republic. The Continental Army was first authorized to employ chaplains on July 29, 1775, when the Continental Congress authorized payment for a Continental Chaplain;*fn2 shortly thereafter, General George Washington ordered that regimental chaplains be assigned.*fn3 After the adoption of the Constitution, the First Congress authorized the appointment of a commissioned Army chaplain, Act of 1791, Ch. 28, § 5, 1 Stat. 222, and subsequent Congresses have increased the number of chaplains in the armed forces.*fn4

By the Civil War, the Army chaplains assisted in the provision of veterans' healthcare. On March 3, 1865, President Abraham Lincoln signed legislation establishing the National Home for Disabled Volunteer Soldiers.*fn5 The by-laws adopted by the board of managers*fn6 of the National Home created the position of chaplain, and the by-laws also directed that he "perform all the duties incident to his profession and position, administering to the spiritual wants and comforts of the members of the Branch to which he is appointed."*fn7 Nearly one hundred years later, on November 28, 1945, VA Administrator General Omar N. Bradley authorized the Director of Chaplains to station chaplains in all VA hospitals. R.20, Ex. 6, at 6.

Beginning in 1953, the Chaplain Service was organized as a professional care discipline under the Department of Medicine and Surgery within the VA. In 1962, Congress authorized the Secretary to "designate a member of the Chaplain Service of the Department as Director, Chaplain Service." See 38 U.S.C. § 7306(e)(1). That is the extent of congressional authorization for the VA's Chaplain Service. Recent relevant congressional appropriations bills neither appropriate funds expressly to be used in connection with the Chaplain Service nor require that the VA provide such services.*fn8

B. Aspects of the Chaplain Service Under Challenge

Freedom From Religion does not challenge the overall existence of the VA's Chaplain Service; rather, it objects to four specific aspects of the chaplaincy: (1) the clinical focus of the Chaplain Service; (2) the spiritual assessments that the VA gives to its patients; (3) the provision of pastoral care to VA outpatients; and (4) the integration of spirituality/religion into VA treatment programs.

According to Freedom From Religion, the historical focus of the Chaplain Service was sacramental in nature and involved caring for the seriously ill and dying patients, leading worship and administering the sacraments. In the past ten years, however, the Chaplain Service has shifted to clinical, direct patient care-termed "pastoral care." The VA believes that the spiritual dimension of health must be integrated into all aspects of patient care, research and healthcare education. The Service has been reorganized to reflect this change, and current VA policy requires that the chaplaincy maintain a clinical focus. Under this reorganization, VA chaplains must be educated professionally in Clinical Pastoral Education ("CPE") and endorsed ecclesiastically by a particular faith tradition.

CPE, an interfaith professional education for ministry, teaches its students to help hospital patients as they deal with existential questions. According to the VA, a chaplain who employs CPE principles allows patients to direct the conversation and to identify both the patients' concerns and the available resources for dealing with their situations. CPE-trained chaplains avoid initiating or guiding religious instruction; however, they are trained to encourage helpful religious and spiritual coping processes.

It is undisputed that VA policy prohibits proselytizing. Indeed, the VA patients' bill of rights states that each VA patient has a right not to "be coerced into engaging in any religious activities against his or her desires." 38 C.F.R. § 17.33(b)(7). It is further undisputed that the provision of pastoral care is overtly religious in content only if the patient wishes; Freedom From Religion, nonetheless, disputes whether pastoral care can be completely non-religious.

According to the VA, pastoral care describes a relationship characterized by expressions of compassionate care, including "spiritual" counseling, guidance, consolation, empathetic listening and encouragement. The VA notes that the term "spiritual" refers not only to the practice of a philosophy, religion or way of living but also to "that which gives meaning and purpose to life."

R.20, Ex. 2 at 1.Accordingly, chaplains have three main responsibilities to patients at every VA facility: ensuring that inpatients and outpatients receive appropriate clinical pastoral care; protecting each patient's constitutional right to free exercise of religion; and ensuring that patients do not have religion imposed upon them.

To facilitate the provision of pastoral care and to allow VA chaplains to tailor their services to specific patients, the VA conducts, what it terms, "spiritual assessments" to measure each patient's religious characteristics. The VA explains that these spiritual assessments also are required for accreditation by the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO"), an independent, not-for-profit, nationally recognized organization that evaluates and accredits healthcare organizations and programs in the United States, including VA healthcare facilities. According to the JCAHO manual, "[s]pirtual assessment[s] should, at minimum, determine the patient's denomination, beliefs, and what spiritual practices are important to the patient." R.21 ΒΆ 11. The VA does not mandate any particular standard spiritual assessment. It has, however, collected examples of the various assessments that have been developed over the years, and it has made them available to VA chaplains ...

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