Overview
The Supreme Court's restrictive view of taxpayer standing, announced in Hein v. Freedom From Religion Foundation, Inc.[1] (2007), has led to the dismissal of another significant lawsuit. On August 5, 2008, a panel of the U.S. Court of Appeals for the 7th Circuit ordered a dismissal of Freedom From Religion Foundation's lawsuit, aimed at practices of chaplains in the Department of Veterans Affairs (VA), against VA officials.[2] In its complaint, Freedom From Religion Foundation, Inc. (FFRF) alleged that the VA's hospital chaplaincy program violates the Establishment Clause of the U.S. Constitution because the program systematically integrates spirituality into the VA's delivery of health care. Judge John Shabazz (U.S. District Court, Western District of Wisconsin) had earlier ruled that the challenged programs and policies do not violate the Constitution,[3] but the appeals court did not address that question, because it ruled that taxpayers could not maintain the suit.
Taxpayer standing depends on a showing of a nexus between the challenged practices and a congressional decision to tax and spend, and the taxpayers here failed to make such a demonstration. In this case, Judge Kenneth Ripple's opinion for the panel reasoned that Congress did not specifically authorize the VA programs of pastoral care challenged in the suit. Rather, Congress only appropriated monies for the VA's general program of health care, and the VA itself – located in the executive branch – made the challenged decisions to employ chaplains and use them in particular ways in VA facilities. Accordingly, the panel ordered that the case be returned to the district court to be dismissed.
Description
FFRF originally filed suit against the VA on April 18, 2006, alleging that the department's health care chaplaincy program violates the Establishment Clause because it integrates spirituality into the treatment of all patients.[4] While FFRF acknowledged that the Constitution would permit some form of hospital chaplaincy, designed to accommodate the religious needs of patients, the organization claimed that the VA's program exceeds the scope of what is constitutionally permissible. According to FFRF, the VA chaplains perform a spiritual needs assessment for every patient receiving care at a VA facility, whether or not the patient requests contact with a chaplain. FFRF also challenged the explicitly religious programming offered through VA programs that treat post-traumatic stress and substance abuse. FFRF additionally claimed that VA chaplains' contact with outpatients exceeds the constitutional limits of accommodation, because outpatients are not dependent on government-provided chaplains.
Prior to the Supreme Court's decision in Hein, the government challenged FFRF's description of VA chaplaincy practices, and defended their constitutionality. At the district court level, the government did not even bother to raise the question of whether taxpayers had standing to pursue the case. In January 2007, the district court judge granted summary judgment in favor of the government, and dismissed FFRF's complaint. The district court concluded that the VA chaplaincy program has the secular purpose of promoting holistic health of patients. The court also ruled that the government was not responsible for any religious indoctrination of patients because patients could choose whether or not to interact with chaplains, and chaplains are forbidden to engage in proselytizing. Therefore, the district court concluded, the VA's chaplaincy program falls within the range of permissible accommodations of the religious needs of VA patients, and does not violate the Establishment Clause.
FFRF appealed to the U.S. Court of Appeals for the 7th Circuit. While that appeal was pending, the U.S. Supreme Court decided Hein. Soon thereafter, the United States argued to the 7th Circuit that the taxpayer plaintiffs in FFRF lacked standing to maintain the suit.[5] The 7th Circuit panel, composed of Judges Ripple, Rovner, and Tinder, agreed with the government that the plaintiffs lacked standing and ordered dismissal of the case.
The panel opinion by Judge Ripple began by describing in considerable detail the operation of the VA chaplaincy program,[6] and the proceedings in the district court.[7] Judge Ripple noted that the VA's policies prohibit proselytizing, and contain assurances that no patient will be coerced into unwanted religious experience. The key sections of the panel opinion, however, were devoted to describing the precise role of Congress in the funding of the chaplaincy, summarizing the law of taxpayer standing, and applying that law to these circumstances.
With respect to the role of Congress in the structure and function of the VA chaplaincy, Judge Ripple's opinion emphasized that Congress had done little more than mandate the provision of health care to veterans and authorize expenditures for the provision of such care. There was evidence that Congress was aware of the VA chaplaincy, because Congress had authorized that a member of the chaplains' service be designated as its Director.[8] But, the opinion continued, "no specific congressional action mandates, requires or even intimates that chaplains be used in any particular way. . . ."[9] Congress's substantial annual appropriation to the VA for medical care, the court emphasized, does not "‘expressly authorize' or ‘direct' the specific expenditures about which [FFRF] complains."[10] The FFRF had challenged particular practices within the VA chaplaincy, and the court attributed virtually all of those practices to decisions made exclusively within the Executive Branch (that is, the VA itself).
In light of Hein's emphasis on congressional rather than executive responsibility for the challenged expenditures,[11] the panel opinion concluded that FFRF failed to make the necessary showing of specific legislative authorization of the relevant practices. Like Hein, this case involved federal taxpayers only, and (also like Hein) did not involve external expenditures to religious organizations. The panel opinion thus treated the relatively minimal connection of Congress to the challenged VA practices as being closer to the facts of Valley Forge Christian College[12] and Hein, where taxpayer standing was denied, than to the facts of Flast v. Cohen [13] and Bowen v. Kendrick,[14] where taxpayer standing was upheld. In the latter two decisions, but not the former two, Congress had manifested strong awareness that monies would be distributed to religious groups. In light of these comparisons, and the heavy presumption against taxpayer standing, the panel concluded that FFRF had not met the burden of demonstrating a sufficient nexus between congressional action and the challenged practices. The court accordingly granted the government's request to dismiss the case.
Analysis
Judge Ripple is no stranger to the controversy over taxpayer standing in Establishment Clause cases. He dissented from the 7th Circuit's ruling that FFRF had standing in the Hein case itself,[15] and he later dissented from the denial of the petition to the full Circuit Court by the United States to rehear the Hein case en banc.[16] And Judge Ripple is the author of the panel opinion in Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly,[17] which ruled in late 2007 that taxpayers could not challenge the Indiana House's practice of using prayer, frequently sectarian, to open its legislative sessions.[18]
Nevertheless, the dismissal on standing grounds in this case seems less surprising in light of Hein than the recent dismissals in several cases involving state support for religiously affiliated foster homes. Those earlier decisions, which we analyzed in prior Updates,[19] presented questions of the extent to which the reasoning of Hein applied to state and local taxpayers. The decisions also involved state support of religiously affiliated group homes for the foster care of children. In both cases, the longstanding practice of extensive payments to such group homes and the likelihood of legislative awareness of those patterns appeared to support some reasonable inference of legislative responsibility for whatever religious indoctrination those payments supported. At the very least, we suggested that the district courts in those cases might have more closely analyzed the degree of legislative awareness and involvement in the challenged pattern of payments.
The panel opinion in FFRF v. Nicholson is not nearly so open to these questions. The court looked very closely at the history of formal congressional involvement in the VA chaplaincy. It found virtually nothing to support the idea that Congress was involved in any decisions about how much of the VA's medical care budget to allocate to spiritual care, or in the development of any policies about the role of pastoral care for patients. Indeed, the court examined the VA's protocols for spiritual assessments and other contexts in which VA chaplains interact with patients. With respect to virtually all of the challenged practices, the court determined that VA decisions, entirely disconnected from any congressional input or impetus, have put the practices into operation.
Despite this remoteness of legislative connection with the challenged practices, we can imagine a court coming out differently on the question of taxpayer standing in FFRF v. Nicholson. In Hein, the challenged expenditures for conferences to promote the Bush Administration's Faith-Based and Community Initiative had come from the very general administrative budgets for the White House and other executive branch agencies. In FFRF v. Nicholson, the challenged expenditures had come from the budget appropriation for medical care by the VA. Congress no doubt had some general and ongoing awareness that VA chaplains played some part in that system of care. A court more receptive to the importance of maintaining the practice of taxpayer suits in Establishment Clause cases, and therefore inclined to read Hein very narrowly, would have been able to sustain a plausible argument that Congress had authorized the challenged practices to a greater degree than was the case in Hein.
In addition, had FFRF challenged the institution of the VA chaplaincy itself, the panel in Nicholson might have found sufficient nexus among the budgeted appropriation, the general legislative awareness of the chaplaincy, and the assertion of illegality of the institution as a whole, to permit the case to go forward as a taxpayer suit.[20] But FFRF had a much more substantial burden to show on behalf of taxpayers – the requisite legislative nexus to specific practices of pastoral care – and the court's finding of an inadequate showing of legislative nexus to any of those practices does not seem surprising.
FFRF has announced its intention of finding new plaintiffs for its challenge to the VA's practices.[21] Instead of taxpayers, FFRF is looking for VA patients who are willing to complain that they are being subjected to unwanted religious experience. Such new plaintiffs may appear, but a case brought in their names would be limited to the injuries that these plaintiffs would have suffered – that is, some sort of religious coercion. These plaintiffs would not be able to raise the more basic question of whether the government may finance such care exclusively for those who demonstrate a desire for it.
Nonetheless, a claim brought by patients would raise very interesting and important issues about standing to bring Establishment Clause challenges. Patients would undoubtedly have standing to claim that the VA was requiring them to accept religious counseling as a condition of receiving medical care. If plaintiffs could prove those allegations, the remedies in such a case would likely be limited to orders that the VA stop engaging in coercive religious practices, rather than more sweeping orders to cease all efforts at spiritual assessment and pastoral care.
If they sought a more sweeping remedy, patients might claim that VA chaplaincy policies effectively compel them to receive care in a religion-saturated environment. In other words, they might argue that the integration of spiritual and medical care has made it impossible for patients to avoid exposure to religion in the VA healthcare system.
Patients' standing to raise that claim is certainly open to doubt. The strongest analogy for such a claim is that it resembles Establishment Clause challenges to official display of religious messages, such as a Ten Commandments monument. Those who observe allegedly unconstitutional conduct – such as cruel and unusual punishment – generally do not have standing to challenge that conduct unless they are personally injured by the conduct. But those who regularly observe official religious monuments have traditionally been granted standing to challenge the displays as violations of the Establishment Clause.
In the wake of Hein, however, some courts have raised questions about whether a more restrictive understanding of injury should be applied to observers as well as taxpayers.[22] After all, observers can either avert their eyes from an offensive message or opt out of offensive practices (such as a pre-meeting prayer). This ability to opt out is constitutionally insufficient in the case of schoolchildren who are exposed to official promotion of prayer, but adults can generally remove themselves from religiously charged atmospheres if they so choose.
If courts adopt this more restrictive understanding of observers' standing, patients are unlikely to be able to challenge their exposure to a pervasive religious atmosphere in the VA healthcare system. But if courts are willing to grant patients standing to challenge their alleged exposure to a religion-saturated environment, they may be able to seek the broad remedies previously available in taxpayer lawsuits, including an injunction against the integration of spirituality into VA patient care. As we explained in our earlier Update on the case – and the district court concluded – the VA's chaplaincy is highly likely to survive constitutional scrutiny of its merits, but the relevant question is whether plaintiffs should have standing to present their claims before a federal court. Now that taxpayer plaintiffs have been ousted, beneficiary plaintiffs present an intriguing second-best choice for organizations such as FFRF.
Conclusion
FFRF is highly unlikely to appeal this dismissal to the Supreme Court. The organization's chances of having the Supreme Court grant a certiorari petition, and then reverse the 7th Circuit, seem extremely slim. For reasons we have offered in prior Updates on this case,[23] we do not believe that FFRF had a good chance to prevail on its Establishment Clause claim, even if the taxpayers had been free to pursue the case in the lower courts.
The dismissal of FFRF v. Nicholson, though no surprise, is powerful evidence of how far the law of taxpayer standing has changed in the one year since the Supreme Court's decision in Hein. In 2006, the United States did not bother to raise the standing issue pre-Hein, probably because the government's lawyers saw little chance of prevailing. After Hein, the law was sufficiently transformed that FFRF v. Nicholson appeared to be a relatively easy case for the government to get dismissed on standing grounds.
In the past fourteen months, several district court decisions and several appeals court decisions have dismissed taxpayer suits in the wake of Hein. To our knowledge, other than in cases involving legislative earmarks for religious organizations,[24] no court has ruled against the government in Hein-based motions to dismiss for lack of taxpayer standing. FFRF has long been the most aggressive litigator against government supported, faith-based social services. But FFRF's lawsuit that led to the decision in Hein is now proving to be the source of a significant impediment in the effort to use litigation to keep such social services in line with the Constitution.
Notes:
[1] 127 S. Ct. 2553 (2007).
[2] Freedom from Religion Foundation, Inc. v. Nicholson, 2008 U.S. App. Lexis 16551 (7th Cir., Aug. 5, 2008).
[3] We analyzed Judge Shabazz's opinion in an Update published in January, 2007, at http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=55
[4] Details of FFRF's challenge, along with our analysis of the complaint, can be found online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=48.
[5] Because the issue of standing affects the jurisdiction of the court, the defendant can question the plaintiff's standing at any time in the litigation. Indeed, the court itself can raise the question of standing at any time, even if the parties do not raise it. So the failure of the United States to challenge FFRF's standing in the district court in no way waived the right of the United States to bring up the issue on appeal.
[6] 2008 U.S. App. Lexis 16551, at *7-*15.
[7] Id. at *15-*18.
[8] Id. at *31-*32.
[9] Id. at *32.
[10] Id. at *32-*33.
[11] We develop the theme of legislative responsibility for the challenged executive action in our prior Updates on Hein, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=60, Pedreira v. Kentucky Baptist Homes, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=65, and FFRF v. Olson, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=66, and so do not repeat here all the relevant particulars from the prior case law.
[12] Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982).
[13] 392 U.S. 83 (1968).
[14] 487 U.S. 589 (1988).
[15] FFRF v. Chao, 433 F.3d 989, 997-1001 (7th Cir. 2006) (Ripple, J., dissenting).
[16] 447 F.3d 988, 990-91 (7th Cir. 2006) (Ripple, J. dissenting from denial of rehearing en banc).
[17] 2007 U.S. App LEXIS 25363 (7th Cir., Oct. 30, 2007).
[18] Judge Ripple was joined on the panel in FFRF v. Nicholson by two Republican appointees -- Judge Ilana Rovner, appointed to the 7th Circuit by President George H.W. Bush in 1992, and Judge John Tinder, appointed to the 7th Circuit by President George W. Bush in 2007.
[19] See the Update on FFRF v. Olson, published 7/29/08, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=66; and the Update on Pedreira v. Kentucky Baptist Homes for Children, published 4/8/08, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=65.
[20] As we noted in our earlier Updates on this case, a general Establishment Clause challenge to the VA chaplaincy would have been highly unlikely to succeed on the merits. See notes 3 and 4.
[21] FFRF has so announced in a press release, "VA Immune from Challenge over Religion," http://ffrf.org/news/2008/VAdecision.php (August 7, 2008).
[22] See In re Navy Chaplaincy, (D.C. Cir., Aug. 1, 2008), available at: http://pacer.cadc.uscourts.gov/common/opinions/200808/07-5359-1130996.pdf
[23] See notes 3-4 above for links to our prior Updates on FFRF v. Nicholson.
[24] The leading post-Hein case upholding standing to challenge a legislative earmark for a religious program is Americans United v. Prison Fellowship Ministries, Inc., 509 F.3d 406 (8th Cir. 2007); see our Update on the case at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=64.
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