Freedom Religion v. Nicholson, R. James

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1292
FREEDOM FROM RELIGION FOUNDATION,
INCORPORATED, ANNE GAYLOR, ANNIE
L. GAYLOR, et al.,
Plaintiffs-Appellants,
v.
R. JAMES NICHOLSON, JONATHAN
PERLIN, HUGH MADDRY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 212—John C. Shabaz, Judge.
____________
ARGUED JANUARY 17, 2008—DECIDED AUGUST 5, 2008
____________
Before RIPPLE, ROVNER and TINDER, Circuit Judges.
RIPPLE, Circuit Judge. Plaintiffs, including Freedom From
Religion Foundation, Inc. and three individual federal
taxpayers (collectively, “Freedom From Religion”), com-
menced 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
2 No. 07-1292
complaint sought both declaratory and injunctive relief.
The district court granted the VA’s motion for sum-
mary 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.
I
BACKGROUND
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.1 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 man-
dated that the VHA “provide a complete medical and
hospital service for the medical care and treatment of
1
See Proclamation No. 4763, 45 Fed. Reg. 41,119 (June 16, 1980)
(explaining that President Herbert Hoover established the
Veterans Administration on July 21, 1930).
No. 07-1292 3
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 autho-
rized to employ chaplains on July 29, 1775, when the
Continental Congress authorized payment for a Con-
tinental Chaplain;2 shortly thereafter, General George
Washington ordered that regimental chaplains be
assigned.3 After the adoption of the Constitution, the
First Congress authorized the appointment of a com-
missioned Army chaplain, Act of 1791, Ch. 28, § 5, 1 Stat.
222, and subsequent Congresses have increased the
number of chaplains in the armed forces.4
2
Katcoff v. Marsh, 755 F.2d 223, 225 (2d Cir. 1985) (citing II
Cont. Cong. Jour. 220 (1975)).
3
Id. (citing V The Writings of George Washington From The
Original Manuscript Sources 244-45 (J. Fitzgerald ed. 1932)).
4
See, e.g., Act of October 6, 1917, ch. 94, 40 Stat. 394, 394; Act of
May 20, 1862, ch. 80, § 2, 12 Stat. 403, 404; Act of March 2, 1849,
(continued...)
4 No. 07-1292
By the Civil War, the Army chaplains assisted in the
provision of veterans’ healthcare. On March 3, 1865,
President Abraham Lincoln signed legislation estab-
lishing the National Home for Disabled Volunteer
Soldiers.5 The by-laws adopted by the board of managers6
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, administer-
ing to the spiritual wants and comforts of the members
of the Branch to which he is appointed.”7 Nearly one
hundred years later, on November 28, 1945, VA Adminis-
trator 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
4
(...continued)
ch. 83, § 3, 9 Stat. 351, 351; Act of February 11, 1847, ch. 8, § 7, 9
Stat. 123, 124; Act of January 11, 1812, ch. 14, § 24, 2 Stat. 671,
674; Act of April 12, 1808, ch. 43, § 7, 2 Stat. 481, 483.
5
See, e.g., Act of May 20, 1862, ch. 80, § 2, 12 Stat. 403, 404
(authorizing the President to appoint a chaplain for each
permanent hospital).
6
Among others appointed to constitute this public body were
General Ulysses S. Grant, Admiral David G. Farragut, Vice-
President Hannibal Hamlin, Chief Justice Salmon P. Chase,
Secretary of War Edwin M. Stanton, General William Tecumseh
Sherman, Henry Ward Beecher and, future Supreme Court
Justice, Oliver Wendell Holmes.
7
R.22 (By-Laws of The National Home for Disabled Volunteer
Soldiers, Articles II and XVII, published in Laws and Regula-
tions, National Home for Disabled Volunteer Soldiers (1883)).
No. 07-1292 5
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.8
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
8
See, e.g., Consolidated Appropriations Act, 2008, Div. I, Title
II, Pub. L. No. 110-161, 121 Stat. 1844, 2262-74 (2007); Military
Quality of Life and Veterans Affairs Appropriations Act, 2006,
Title II, Pub. L. No. 109-114, 119 Stat. 2372, 2382-86 (2005)
amended by Pub. L. No. 110-92, 21 Stat. 989 (2007); Consolidated
Appropriations Act, 2005, Div. I, Title I, Pub. L. No. 108-447, 118
Stat. 2809, 3287-90 (2004); Consolidated Appropriations Act,
2004, Div. G, Title I, Pub. L. No. 108-199, 118 Stat. 3, 365-67
(2004).
6 No. 07-1292
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 ed-
ucated 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 pro-
cesses.
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, none-
theless, disputes whether pastoral care can be completely
non-religious.
According to the VA, pastoral care describes a rela-
tionship characterized by expressions of compassionate
care, including “spiritual” counseling, guidance, con-
No. 07-1292 7
solation, 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 constitu-
tional 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 ¶ 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 to
help them develop their own assessments. Despite the
differences among the various spiritual assessments that
are used by VA chaplains, Freedom From Religion asserts
that all of the assessments emphasize formal religious
belief systems and resources.
8 No. 07-1292
In the early 1990s, VA Chaplain Gary Berg, stationed
at the VA Medical Center in St. Cloud, Minnesota, devel-
oped the Computer Assessment Program (“CAP”). CAP
specifically was intended to help in understanding the
role of religious faith in the maintenance of health, and
it focuses on the alleged importance of assessing religious
beliefs in order to make accurate religious diagnoses. To
this end, CAP asks questions such as: (1) How often do
you attend religious services during the year? (2) How
much is religion (and/or God) a source of strength
and comfort to you? (3) How often do you privately pray?
(4) How often do you read the Bible or other religious
literature? There is some dispute between the parties as
to whether CAP is still used.9 The parties, nevertheless,
agree that many VA chaplains used CAP as a source for
creating their own assessments.
The spiritual assessment recommended by the VA
includes a scoring index whereby a “score on the Religious
Resource Index of 15 or lower indicates that the patient
should be referred to Chaplain Service.” R.26, Ex. 17 at 4.
Patients’ religiosity or spirituality is measured using
four categories: (1) Organized Religious Activity Scale;
(2) Subjective Religious Scale; (3) Non-organized Religious
Activity Scale; and (4) Spiritual Injury Scale.
Another example of a spiritual assessment is that of the
VA Healthcare Network in Upstate New York. This
9
The VA claims that VA computers no longer support CAP
software as originally developed. Freedom From Religion,
however, asserts that the VA Chaplain Center is still using CAP,
now known as the “Living Water Computer Assessment
Program,” and that the Berg Spiritual Assessment Form is
still being presented at VA Basic Chaplain Orientation Courses.
No. 07-1292 9
assessment explains that “[c]ompleting this assessment
questionnaire will help us to better understand your
spiritual care needs” and emphasizes that the VA
“believe[s] that faith plays an important role in a person’s
sense of health and wellness.” R.27, Ex. 23 at 1. The assess-
ment also asks questions such as: (1) What is your religious
preference? (2) How often do you attend church, syna-
gogue, or other religious meetings? (3) Do you consider
religious or spiritual beliefs systems to be important in
your life? (4) Does your faith or beliefs influence the
way you think about your health or the way you take
care of yourself? (5) Would you like to receive any devo-
tional materials while you are hospitalized? (6) Would
you like to address any religious or spiritual issues with
a chaplain?
The VA concedes that some VA assessments are very in-
depth, but it asserts that the assessment will end if a
patient indicates that he or she has no interest in re-
ceiving spiritual or pastoral care. Additionally, the VA
distinguishes between two types of assessments that
chaplains employ. The first type, which is given at intake,
asks patients whether they identify with a particular
faith group and whether there are any religious prac-
tices that they view as important to their health. The
second type, a more in-depth assessment, is reserved
for patients who indicate in the intake assessment that
they are interested in receiving pastoral care.
The VA also uses spiritual assessments for outpatients,
who comprise 80% of patients at some VA facilities. The
VA offers pastoral care to outpatients regardless of
whether outpatients’ ability and opportunity to practice
their religion are in any way burdened. The VA’s goal is
to provide pastoral care from a veteran’s initial visit
10 No. 07-1292
that continues as he or she receives any VA medical
services. According to the VA, research has shown that
the result of giving outpatients access to quality spiritual
and pastoral care is significant improvement in quality
of life, reduced inpatient admissions and costs savings.
Freedom From Religion also challenges the treatment
programs currently implemented at four separate VA
facilities. Dayton VA Medical Center integrates the Lament
and Fowler’s Stages of Faith Development into the treat-
ment of patients with post-traumatic stress disorder.
Veterans are introduced to the Lament, which is ad-
dressed either to God or to a higher power, as a form of
prayer. Sheridan VA Medical Center provides a drug
and alcohol treatment program entitled the Spiritual
Recovery Support Group (“SRSG”). SRSG provides inter-
vention and support to veterans suffering from low self-
esteem because of significant spiritual injuries, as mea-
sured by a Multi-Level Spiritual Assessment (“MLSA”).
SRSG is a “vehicle for change and growth” because,
according to the VA, “[w]hen God’s gift of spiritual faith
and grace is applied, it is good medicine.” R.27, Ex. 26 at 1.
A recommendation is made to veterans at Sheridan to
attend SRSG whenever a veteran shows a significant
spiritual injury as measured by the MLSA, which is
offered to all patients at the Sheridan Medical Center.
The VA Medical Center in Gainsville, Florida also
incorporates spirituality into its detoxification treatment
program. Its program is entitled “Spirituality in Sub-
stance Abuse Detoxification Treatment.” Finally, the
Detroit VA Medical Center likewise integrates spir-
ituality into its chemical dependency program. Its
purpose is to “integrate the spiritual side of chemical
dependency program into the multi-disciplinary treat-
No. 07-1292 11
ment plan” so treatment can be approached “from a
holistic perspective.” R.27, Ex. 28 at 4. The VA claims
that these spiritual programs are offered on a voluntary
basis, and Freedom From Religion does not put forth any
evidence suggesting that there are no alternative, non-
religious/spiritual programs available to veterans who
refuse to participate in the programs to which Freedom
From Religion objects.
C. District Court Proceedings
On April 19, 2006, Freedom From Religion commenced
this civil rights action under 42 U.S.C. § 1983 challenging
the VA’s integration of pastoral care into the medical
care that it provides veterans and its use of chaplains
for that purpose. Freedom From Religion sought three
remedies from the district court: a judgment declaring
that congressional taxpayer disbursements made by
defendants have been used in violation of the Establish-
ment Clause; an order enjoining the VA from continuing
to disburse and use appropriations in violation of the
Establishment Clause; and an order requiring the defen-
dants to establish rules, regulations, prohibitions, stan-
dards and oversight to ensure that future disbursements
are not used to fund activities that include religion as
a substantive integral component of the VA’s medical
treatment protocols.
On October 16, 2006, after the district court denied its
motion to dismiss the complaint, the VA moved for
summary judgment. Applying Lemon v. Kurtzman, 403
U.S. 602 (1971), and Agostini v. Felton, 521 U.S. 203 (1997),
the district court granted the VA’s motion. Under the
first prong of the Lemon test, it determined that all four
12 No. 07-1292
aspects of the Chaplain Service that Freedom From Reli-
gion was challenging had a secular purpose. The
clinical focus of the chaplaincy and its integration of
religion/spirituality into VA treatment programs is
intended to assist in healing the sick. The district court
held that this was a valid secular purpose, as the Eighth
Circuit held in Carter v. Broadlawns Medical Center, 857
F.2d 448, 454-55 (8th Cir. 1988). The use of the spiritual
assessments also had a valid secular purpose, namely
complying with the accreditation standards of JCAHO.
Finally, the court held that the VA had offered a
valid secular purpose for the provision of pastoral and
spiritual care insofar as the VA believed that such care
would help veterans and reduce operating costs.
Under the second prong of Lemon, the court held
that, although the challenged aspects of the chaplaincy
program integrate religion/spirituality, there was no
government indoctrination. The court was satisfied that
all aspects of the program that did incorporate religion
were voluntary and that there was no coercion. Although
the provision of outpatient care could not be justified as
an accommodation of Free Exercise rights (given that
outpatients are not confined and may practice their
religion or obtain spiritual care on their own), it fell
within what the Supreme Court has called the “room for
play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without
sponsorship and without interference.” Walz v. Tax
Comm’n, 397 U.S. 664, 673 (1970).
Finally, under Lemon’s third prong, the district court
held that the four challenged aspects of the chaplaincy
program did not result in excessive government entangle-
ment with religion. The court noted that VA policy pro-
No. 07-1292 13
hibits proselytizing and that Freedom From Religion
did not proffer any evidence that publicly paid VA chap-
lains must be monitored constantly to ensure that they
do not inculcate religion.10 Accordingly, the court granted
the VA’s motion for summary judgment.
Freedom From Religion appealed in a timely manner
to this court.
II
DISCUSSION
Prior to addressing the merits of Freedom From Reli-
gion’s appeal, we first must determine whether it has
standing to maintain this action. Our judicial power may
be exercised only within the context of “Cases” and
“Controversies.” See U.S. Const. art. III, § 2; Hein v. Freedom
From Religion, ___ U.S. ___, 127 S. Ct. 2553, 2562 (2007).
Article III standing jurisprudence serves to ensure that
federal courts obey this constitutional command. Hein,
127 S. Ct. at 2562. The party that is invoking federal
jurisdiction, here, Freedom From Religion, bears the
burden of establishing Article III standing. DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 341-42 (2006). Although the
VA is asserting lack of standing for the first time on
10
In contrast, the district court explained that the order that
Freedom From Religion sought as relief would create the
potential for excessive entanglement. The court noted that
Freedom From Religion requested an order requiring that
the defendants establish rules, regulations, prohibitions,
standards and oversight to ensure that future disbursements are
not made or used to fund activities that include religion as
substantive, integral components of VA medical treatment.
14 No. 07-1292
appeal, it is well settled that standing is not subject to
waiver or forfeiture. See FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 230-31 (1990) (“The federal courts are under an
independent obligation to examine their own jurisdic-
tion, and standing ‘is perhaps the most important of
[the jurisdictional] doctrines.’ ” (quoting Allen v. Wright,
468 U.S. 737, 750 (1984) (alteration in original)).
All plaintiffs, including organizations, seeking to invoke
federal jurisdiction must have standing. See Sierra Club v.
Morton, 405 U.S. 727, 735, 739 (1972). An organization
may assert “representational standing” if (1) “the organiza-
tion’s members . . . have standing to sue on their own”;
(2) “the interests the organization seeks to protect are
germane to its purpose”; and (3) “neither the claim as-
serted nor the relief requested requires individual partici-
pation by its members.” Hunt v. Washington State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977). In the present
case, the plaintiffs are Freedom From Religion Foundation,
Inc., a Wisconsin non-stock corporation that “opposes
the use of congressional taxpayer appropriations to
advance and promote religion,” and three of its members,
who are federal taxpayers. R.2 at ¶¶ 4-6, 7-10. All plain-
tiffs assert that they have standing to challenge certain
aspects of the VA’s Chaplain Service because they are
federal taxpayers. Because the other elements of represen-
tational standing are not disputed and indeed are ful-
filled, we need not distinguish between the individual
plaintiffs and Freedom From Religion. After laying out
the general principles that govern the standing inquiry,
we shall address Freedom From Religion’s standing
arguments.
No. 07-1292 15
A. Overview of Standing Jurisprudence
Federal taxpayers qua taxpayers, as a general matter,
do not have standing in federal court. Frothingham v.
Mellon, 262 U.S. 447, 487 (1923). In Flast v. Cohen, 392 U.S.
83 (1968), the Supreme Court of the United States created
a narrow exception to this general rule. See Hein, 127 S. Ct.
at 2564; Valley Forge Christian Coll. v. Am. United for Separa-
tion of Church & State, Inc., 454 U.S. 464, 481 (1982) (noting
that the limited nature of the “Flast exception to the
Frothingham principle ought to be applied” with “rigor”).
In Flast, the Court set forth the standard under which a
federal taxpayer may establish standing to bring an
Establishment Clause challenge:
First, the taxpayer must establish a logical link between
that status and the type of legislative enactment at-
tacked. Thus, a taxpayer will be a proper party
to allege the unconstitutionality only of exercises of
congressional power under the taxing and spending
clause of Art. I, § 8, of the Constitution. It will not be
sufficient to allege an incidental expenditure of
tax funds in the administration of an essentially reg-
ulatory statute. . . . Secondly, the taxpayer must estab-
lish a nexus between that status and the precise
nature of the constitutional infringement alleged.
Under this requirement, the taxpayer must show that
the challenged enactment exceeds specific constitu-
tional limitations imposed upon the exercise of the
congressional taxing and spending power and not
simply that the enactment is generally beyond the
powers delegated to Congress by Art. I, § 8.
Flast, 392 U.S. at 102-03. “When both nexuses are estab-
lished,” the Court explained, “the litigant will have
shown a taxpayer’s stake in the outcome of the contro-
16 No. 07-1292
versy and will be a proper and appropriate party to
invoke a federal court’s jurisdiction.” Id. Under these
narrow circumstances, the Court understood the Estab-
lishment Clause to “operate[] as a constitutional limita-
tion upon the exercise by Congress of the taxing and
spending power conferred by Art. I, § 8” of the Constitu-
tion. Id. at 103-04.
The Supreme Court recently has provided significant
guidance as to the breadth of the Flast exception to
Frothingham’s general rule against taxpayer standing.
See Hein, 127 S. Ct. 2553. The taxpayer-plaintiffs in Hein
sought to challenge part of the President’s Faith Based and
Community Initiatives program. The program was
funded by “general Executive Branch appropriations” from
the federal treasury, and this was the taxpayer-plaintiffs’
asserted basis for standing. The Court rejected the plain-
tiffs’ taxpayer standing argument, with a plurality of
the Court explaining that the “link between congressional
action and constitutional violation that supported tax-
payer standing in Flast [was] missing.” Hein, 127 S. Ct.
at 2566.11 The plurality explained that the
Respondents do not challenge any specific congressio-
nal action or appropriation; nor do they ask the Court
to invalidate any congressional enactment or legisla-
tively created program as unconstitutional. That is
because the expenditures at issue here were not made
pursuant to any Act of Congress. Rather, Congress
provided general appropriations to the Executive
11
Justice Alito’s opinion, joined by Chief Justice Roberts and
Justice Kennedy, is controlling because it expresses the nar-
rowest position taken by the Justices who concurred in the
judgment. See Marks v. United States, 430 U.S. 188, 193 (1977).
No. 07-1292 17
Branch to fund its day-to-day activities. These appro-
priations did not expressly authorize, direct, or even
mention the expenditures of which respondents
complain. Those expenditures resulted from execu-
tive discretion, not congressional action.
Id. (footnote omitted). The plurality concluded that the
plaintiffs could not establish the “logical nexus between
taxpayer status and the type of legislative enactment
attacked” because the expenditures that they chal-
lenged “were not expressly authorized or mandated by
any specific congressional enactment.” Id. at 2568
(internal quotation marks and citations omitted).
The plurality also rejected the plaintiffs’ “attempt to
paint their lawsuit as a Kendrick-style as-applied chal-
lenge.” Id. at 2567. In Bowen v. Kendrick, 487 U.S. 589 (1988),
the Supreme Court held that federal taxpayers had stand-
ing to bring an as-applied challenge to the Adolescent
Family Life Act (“AFLA”). The plurality in Hein ex-
plained that
the key to that conclusion was the Court’s recognition
that AFLA was “at heart a program of disbursement of
funds pursuant to Congress’ taxing and spending
powers,” and that the plaintiffs’ claims “call[ed] into
question how the funds authorized by Congress [were]
being disbursed pursuant to the AFLA’s statutory
mandate.” [Kendrick, 487 U.S.] at 619-620 (emphasis
added). AFLA not only expressly authorized and
appropriated specific funds for grant-making, it also
expressly contemplated that some of those moneys
might go to projects involving religious groups. See id.,
at 595-596; see also id., at 623 (O’Connor, J., concurring)
(noting the “partnership between governmental and
religious institutions contemplated by the AFLA”).
18 No. 07-1292
Unlike this case, Kendrick involved a “program of
disbursement of funds pursuant to Congress’ taxing
and spending powers” that “Congress had created,”
“authorized,” and “mandate[d].” Id., at 619-620.
Hein, 127 S. Ct. at 2567. The plaintiffs in Hein could only
“point to unspecified, lump-sum ‘Congressional budget
appropriations’ for the general use of the Executive
Branch,” and the plurality held that such a nexus was
insufficient. Id. The Justices warned that
[c]haracterizing this case as an “as-applied challenge”
to these general appropriations statutes would
stretch the meaning of that term past its breaking
point. It cannot be that every legal challenge to a
discretionary Executive Branch action implicates the
constitutionality of the underlying congressional
appropriation. When a criminal defendant charges
that a federal agent carried out an unreasonable
search or seizure, we do not view that claim as an
as-applied challenge to the constitutionality of the
statute appropriating funds for the Federal Bureau of
Investigation. Respondents have not established
why the discretionary Executive Branch expenditures
here, which are similarly funded by no-strings,
lump-sum appropriations, should be viewed any
differently.
Id. at 2567-68.12 Given that “Flast focused on congressional
action,” the plurality “decline[d] [the] invitation to ex-
12
In a footnote, the plurality also noted that it was irrelevant
that Congress had “ ‘earmarked’ portions of the general Execu-
tive Branch appropriations to fund the officers and centers
whose expenditures” were at issue in the case. Id. at 2568 n.7.
No. 07-1292 19
tend its holding to encompass discretionary Executive
Branch expenditures.” Id. at 2568.
Justice Scalia, in an opinion joined by Justice Thomas,
concurred in the judgment, but he would have overruled
Flast altogether. Justice Scalia explained that “a taxpayer’s
purely psychological displeasure that his funds are being
spent in an allegedly unlawful manner [is never] suffi-
ciently concrete and particularized to support Article III
standing.” Id. at 2582. Flast’s “two-pronged ‘nexus’ test,”
Justice Scalia wrote, does not resolve the “Article III
deficiency,” which is that “the taxpayer seeks ‘relief that
no more directly and tangibly benefits him than it does
the public at large.’ ” Id. at 2582-83 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)). Conse-
quently, Justice Scalia concluded that “Flast should be
overruled.” Id. at 2584.
In Hinrichs v. Speaker of the House of Representatives of the
Indiana General Assembly, we had occasion to apply Hein. In
Hinrichs, the panel majority explained that “there are
several guiding principles to take away” from Frothingham,
Flast and their progeny. 506 F.3d 584, 598 (7th Cir. 2007).
One such principle is that, outside of the narrow con-
fines of Flast, “federal taxpayers may not lodge constitu-
tional challenges against congressional appropriations.”
Id. Flast’s narrow exception “only applies when the tax-
payer has established a ‘logical link between [his taxpayer]
status and the type of legislative enactment attacked’ as
well as a ‘nexus between that status and the precise nature
of the constitutional infringement alleged.’ ” Id. (quoting
Flast, 392 U.S. at 102-03) (emphasis supplied). Another
guiding principle that the panel majority articulated is
that “the nexus between the plaintiff’s taxpayer status
and the legislative enactment must be a direct one.” Id.20 No. 07-1292
(explaining that “[t]he plurality of the Court made clear
in Hein that only ‘expenditures made pursuant to an
express congressional mandate and a specific con-
gressional appropriation’ met the first nexus require-
ment; the plurality rejected the plaintiffs’ claim that any
‘expenditure of government funds in violation of the
Establishment Clause’ would meet this requirement”
(quoting Hein, 127 S. Ct. at 2565)) (emphasis supplied).
Applying these principles, the panel majority in Hinrichs
concluded that the plaintiffs did not have taxpayer stand-
ing to challenge the constitutionality of legislative prayer
as implemented by the Indiana House of Representatives’
“Minister of the Day” program. “The program, as it is
presently administered, is not mandated by statute,” the
panel majority explained. Rather,
[t]he origin of the practice is House Rule 10.2, and that
rule merely provides that a prayer or invocation be
given each meeting day before the House conducts any
business. The manner in which the program is cur-
rently administered is a matter of House tradition,
implemented at the discretion of the Speaker. Although
there is some minimal amount of funds expended
in the administration of the program, the plaintiffs
have not pointed to any specific appropriation of
funds by the legislature to implement the program.
Id. at 598. Under these circumstances, the plaintiffs had not
established a direct nexus between their taxpayer status
and the legislative enactment that they sought to contest.
Specifically, the panel majority explained that
[t]he plaintiffs have not tied their status as taxpayers
to the House’s allegedly unconstitutional practice of
regularly offering a sectarian prayer. They have not
No. 07-1292 21
shown that the legislature has extracted from them
tax dollars for the establishment and implementation
of a program that violates the Establishment Clause.
The appropriations, which cover the incidental costs
of the program, “did not expressly authorize, direct, or
even mention the expenditures,” Hein, 127 S. Ct. at
2566, attendant to the “Minister of the Day” program.
Instead, the plaintiffs allege only an “ ‘expenditure of
government funds in violation of the Establishment
Clause,’ ” which the Court explicitly rejected as inade-
quate in Hein. Id. at 2565 (internal citations omitted).
Id. at 599. Because the plaintiffs failed to show that the
legislature “appropriat[ed] . . . funds for the allegedly
unconstitutional purpose,” the panel majority con-
cluded that they could not establish the “link between
taxpayer and expenditure necessary to support standing.”
Id. at 600.
B. Freedom From Religion’s Challenge to the “Clinical
Chaplaincy”
Freedom From Religion asserts that it has federal tax-
payer standing to challenge certain aspects of the VA’s
Chaplain Service. It contends that Hein only requires
that taxpayers challenge the use of congressional appro-
priations that are authorized to fund a congressionally-
established program. If such funds are administered in a
manner that allegedly violates the Establishment Clause,
then, in Freedom From Religion’s view, taxpayers have
standing to sue. In the present case, Congress statutorily
has directed the VA and, more specifically, the VHA, to
provide medical care to eligible veterans as part of a
congressionally-mandated spending program. VHA’s
22 No. 07-1292
funding comes from annual congressional appropria-
tions, and Freedom From Religion emphasizes that these
appropriations are different from the lump sum, “petty
cash” or general account appropriations at issue in Hein.
Appellant’s Br. at 21. As a result, Freedom From Religion
claims that it has established a link between its taxpayer
status and the legislative enactment that it seeks to chal-
lenge.
The VA, in response, claims that Freedom From Religion
can point to no specific congressional authorization of,
or funding for, the challenged aspects of the Chaplain
Service. Because the VA’s authorization statute does not
specifically mention chaplains or their services and because
it was the VA’s decision—not Congress’—to integrate
chaplain care into the VA’s holistic approach to patient
care, Freedom From Religion cannot link the challenged
aspects of the Chaplain Service to a specific congressional
mandate or particular congressional appropriations, as
Hein requires.
We must observe, as a preliminary matter, that Free-
dom From Religion is not challenging the overall existence
of the Chaplain Service, nor does it contend that the VA’s
employment of chaplains generally is violative of the
Establishment Clause. Indeed, it concedes that
chaplains “obviously perform religious activities, which
they can do to a limited extent to accommodate the consti-
tutional Free Exercise rights of hospitalized patients.”
Appellant’s Br. at 15. Its suit is limited to, what Freedom
From Religion terms, the “clinical chaplaincy” and the
VHA’s provision of pastoral care. Id. at 16. In particular,
Freedom From Religion challenges (1) the clinical focus
of the chaplaincy; (2) the spiritual assessments that the
VA gives to its patients; (3) the provision of pastoral care
No. 07-1292 23
to VA outpatients; and (4) the integration of spirituality/
religion into VA treatment programs.
Viewed in this light, we nevertheless believe that Free-
dom From Religion’s suit does not fit within Flast’s nar-
row exception to the Frothingham principle. Although
Congress has mandated that the VHA provide medical care
to veterans and, at least in a broad sense, it has contem-
plated that the VA generally will provide chaplain
services, see 38 U.S.C. § 7306(e)(1) (authorizing that a
“member of the Chaplain Service” be designated “as
Director, Chaplain Service”), no specific congressional
action mandates, requires or even intimates that
chaplains be used in any particular way to accomplish
this goal. In its most recent appropriation for the VHA,
Congress provided approximately $29 billion for “neces-
sary expenses for furnishing, as authorized by law, inpa-
tient and outpatient care and treatment to beneficiaries
of the Department of Veterans affairs.” Consolidated
Appropriations Act, 2008, Div. I, Title II, Pub. L. No. 110-
161, 121 Stat. 1844, 2264 (2007).13
Freedom From Religion has not shown that these ap-
propriations to the VHA “expressly authorize” or “direct”
the specific expenditures about which it complains. See
Hein, 127 S. Ct. at 2566; Hinrichs, 506 F.3d at 599 (noting
that there was a “lack of specific direction by the state
13
See also Military Quality of Life and Veterans Affairs Appro-
priations Act, 2006, Title II, Pub. L. No. 109-114, 119 Stat. 2372,
2382-86 (2005) amended by Pub. L. No. 110-92, 21 Stat. 989 (2007);
Consolidated Appropriations Act, 2005, Div. I, Title I, Pub. L.
No. 108-447, 118 Stat. 2809, 3287-90 (2004); Consolidated Appro-
priations Act, 2004, Div. G, Title I, Pub. L. No. 108-199, 118 Stat.
3, 365-67 (2004).
24 No. 07-1292
legislature to establish the Minister of the Day program”
and a “lack of specific appropriations dedicated to the
program”); cf. Am. United for Separation of Church & State
v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 420 (8th
Cir. 2007) (“In this case, the Iowa legislature made specific
appropriations from public funds ‘for a values-based
treatment program at the Newton correctional facility . . . .’
Therefore, Americans United and the individual tax-
payer satisfy the narrow exception for taxpayer stand-
ing.” (internal citation omitted)). Those expenditures
that Freedom From Religion seeks to challenge—funds
used to develop a chaplaincy with a clinical focus, to
create spiritual assessments, to provide pastoral care to
outpatients, and generally to integrate spirituality/religion
into VHA treatment programs—were not made pursuant
to any express congressional action but rather resulted
from “executive discretion.” Hein, 127 S. Ct. at 2566, 2568(declining to extend Flast to “encompass discretionary
Executive Branch expenditures”); Dist. of Columbia Common
Cause v. Dist. of Columbia, 858 F.2d 1, 3-4 (D.C. Cir. 1988)
[hereinafter Common Cause] (“The [Supreme] Court has . . .
refused to extend Flast to exercises of executive
power . . . .”). Indeed, just as the challenged congressional
appropriations in Hein and Hinrichs made no mention of
the expenditures at issue in those cases, the appropria-
tions here also do not mention chaplains generally or
the role that chaplains should play in the medical care
that the VHA furnishes to veterans. See id.; Hinrichs, 506
F.3d at 598-99 & n.8; compare Am. United, 509 F.3d at 420(noting that the legislature appropriated funds expressly
“for a values-based treatment program”). Freedom From
Religion’s lawsuit thus is not predicated, as Hein requires,
on the notion that Congress appropriated money from
No. 07-1292 25
federal taxpayers expressly for the creation of a clinical
chaplaincy.14
Instead, Freedom From Religion simply is challenging
the executive branch’s approach to veterans’ healthcare
and the manner in which the executive, in its discretion,
uses the services of its chaplain personnel.15 Allowing
taxpayer standing under these circumstances would
subvert the delicate equilibrium and separation of powers
that the Founders envisioned and that the Supreme
Court has found to inform the standing inquiry. See Hein,
127 S. Ct. at 2570 (cautioning that courts must not be
“deputize[d]” into serving as “continuing monitors of
the wisdom and soundness of Executive action” because
such is “most emphatically . . . not the role of the judiciary”
(internal quotation marks and citation omitted); id. at
14
Freedom From Religion’s suit also would fail under the
approach taken by Justices Scalia and Thomas. These Justices
would have overruled Flast and, accordingly, Frothingham’s
rule of no taxpayer standing would pretermit the standing
inquiry.
15
See, e.g., R.2 ¶ 35 (“The VA deems pastoral services for all
patients, including veterans receiving out-patient medical
services, to be a necessary substantive part of medical treat-
ment . . . .”) (emphasis added); id. ¶ 37 (“The VA expects
chaplains to be involved as part of the medical treatment team
for all patients . . . .”); id. ¶ 38 (challenging the VA’s decision to
“integrate[] chaplains services into patient medical care”); id.
¶ 41 (challenging chaplains’ development of programs of
“spiritual and pastoral care intended to ensure holistic health
care”); id. ¶ 72 (contending that chaplains at a particular VA
medical center “write monthly devotionals” published in a
veterans association newsletter).
26 No. 07-1292
2573 (Kennedy, J., concurring) (“The courts must be
reluctant to expand their authority by requiring intrusive
and unremitting judicial management of the way the
Executive Branch performs its duties.”). For instance, the
remedy that Freedom From Religion has requested for
the VA’s alleged violation of the Establishment Clause is
“an order requiring the defendants [five high-level em-
ployees of the VA and members of the executive branch]
to establishes rules, regulations, prohibitions, standards
and oversight to ensure that future disbursements are not
made and/or used” to provide pastoral care. R.2 ¶ b. We
cannot “authorize the constant intrusion upon the execu-
tive realm that would result from granting taxpayer
standing in the instant case.” See Hein, 127 S. Ct. at 2573(Kennedy, J., concurring).
We also cannot accept Freedom From Religion’s argu-
ment that Hein allows taxpayer standing any time that
funds appropriated for a congressionally established
program are administered in a way that allegedly vio-
lates the Establishment Clause, even when the alleged
maladministration bears no relationship to congressional
action. This reading of Hein creates a chasm between
the taxpayer’s status and the “type of legislative enact-
ment attacked,” Hein, 127 S. Ct. at 2568; the Court declined
to permit such a chasm in Hein, and we rejected the
same sort of chasm, in reliance on Hein, when we decided
Hinrichs. The plaintiffs there could not establish the
requisite nexus between their taxpayer status and the
challenged expenditures—those used for the administra-
tion of the Minister of the Day program—simply by
pointing to the legislature’s enactment of House Rule 10.2,
which provided that each session would open with a
prayer, and to its passing of a budget for the general
operations of the legislature. We explained that
No. 07-1292 27
the plaintiffs do not challenge Rule 10.2; indeed, they
acknowledge the constitutionality of some form of
legislative prayer. Instead, it is the present practice
of employing a minister of the day, and the resulting
sectarian prayers, that the plaintiffs seek to enjoin.
However . . . there is no specific appropriation either
for Rule 10.2 or for the Minister of the Day program.
Absent such an appropriation, the necessary link
between the taxpayer and the expenditure for the
allegedly unconstitutional practice has not been estab-
lished.
Hinrichs, 506 F.3d at 599 n.8.
Freedom From Religion, like the plaintiffs in Hinrichs,
concedes the constitutionality of the VA’s employment
of chaplains as a general matter. It only contests the
VA’s decision to use its chaplains to provide pastoral care.
But, as we already have explained, Congress does not
require, and has made no express appropriations for,
the provision of pastoral care or the integration of chap-
lains in medical care generally. As a result, Freedom
From Religion has not established the logical nexus re-
quired by Flast—it has not shown that Congress has ex-
tracted from it tax dollars for the establishment and
implementation of a clinical chaplaincy.
In a similar vein, Freedom From Religion attempts to
characterize its action as a challenge under Bowen v.
Kendrick. The plurality in Hein explained that the “key” to
Kendrick’s conclusion that Flast’s requirements had been
met was that the plaintiffs in Kendrick were challenging
both “a program of disbursement of funds pursuant to
Congress’ taxing and spending powers” and “how the
funds authorized by Congress [were] being disbursed
28 No. 07-1292
pursuant to the AFLA’s statutory mandate.” Hein, 127 S. Ct. at
2567 (quoting Kendrick, 487 U.S. at 619-20) (emphasis in
original). “AFLA not only expressly authorized and
appropriated specific funds for grant-making,” the
Justices explained, “it also expressly contemplated that
some of those moneys might go to projects involving
religious groups.” Id. (citing Kendrick, 487 U.S. at 595-96,
and id. at 623 (O’Connor, J., concurring) (noting the
“partnership between governmental and religious institu-
tions contemplated by the AFLA”)); see also In re U.S.
Catholic Conference, 885 F.2d 1020, 1027 (2d Cir. 1989)
[hereinafter Catholic Conference] (“In Kendrick, it was
Congress that decided how the AFLA funds were to be
spent, and the executive branch, in administering the
statute, was merely carrying out Congress’ scheme.”). The
plurality further explained that the statute in Kendrick had
noted that the problems of adolescent premarital
sex and pregnancy “are best approached through a
variety of integrated and essential services provided to
adolescents and their families” by “religious and
charitable organizations,” among other groups. 42
U.S.C. § 300z(a)(8)(B) (1982 ed.). It went on to mandate
that federally provided services in that area should
“emphasize the provision of support by other family
members, religious and charitable organizations,
voluntary associations, and other groups.”
§ 300z(a)(10)(c). And it directed that demonstration
projects funded by the government “shall . . . make use of
support systems” such as religious organizations,
§ 300z-2(a), and required grant applicants to describe
how they would “involve religious and charitable
organizations” in their projects, § 300z-5(a)(21)(B).
No. 07-1292 29
Hein, 127 S. Ct. at 2568 n.6 (emphasis supplied).16
Turning to the case before us, the congressional action
that Freedom From Religion challenges is missing these
characteristics of the challenged action in Kendrick, charac-
teristics that the plurality in Hein described as critical.
Whereas in Kendrick, the challenged congressional action
expressly contemplated that funds would be disbursed
to religious organizations, the congressional action here—
16
Although he concurred in the judgment, Justice Scalia, in an
opinion joined by Justice Thomas, disagreed with the manner
in which the plurality distinguished Bowen v. Kendrick, 487
U.S. 589 (1988). Justice Scalia wrote that the plurality’s opin-
ion “flatly contradicts Kendrick” because the “whole point of
the as-applied challenge” in that case was “that the Secretary,
not Congress, had chosen inappropriate grant recipients.” Hein,
127 S. Ct. at 2580 (Scalia, J., concurring) (emphasis omitted).
Justice Scalia nevertheless went on to conclude that “Flast
should be overruled.” Id. at 2584. Thus, given that Justices
Scalia and Thomas would have overruled Flast’s narrow
exception to the Frothingham principle, our decision in the
present case is consistent with that view.
The four dissenting Justices also believed that the manner
in which the plurality distinguished Kendrick was unpersuasive.
See id. at 2586-87 (Souter, J., dissenting). Justice Souter noted
that “the plurality points out that the statute in Bowen ‘ex-
pressly authorized and appropriated specific funds for
grantmaking’ and ‘expressly contemplated that some of those
moneys might go to projects involving religious groups.’ That
is all true, but there is no reason to think it should matter,
and every indication in Bowen that it did not.” Id. (quoting
Hein, 127 S. Ct. at 2567). The dissenting Justices would have
extended Flast to allow the challenge of discretionary execu-
tive actions that allegedly violate the Establishment Clause.
30 No. 07-1292
the statutory mandate that the VHA provide medical
care to veterans—does not contemplate that any funds
would be disbursed to support the particular aspects of
the Chaplain Service that Freedom From Religion con-
tests. See Hein, 127 S. Ct. at 2565. Further, the challenged
congressional action in Kendrick directed or guided the
manner in which the executive could exercise the discre-
tionary task of awarding federal grants under the AFLA.
Id. at 2568 n.6 (noting that the statute in Kendrick directed
that, in awarding grants under AFLA, the executive
“shall . . . make use of support systems such as religious
organizations” (internal quotation marks omitted) (em-
phasis supplied)); see also Catholic Conference, 885 F.2d at
1028 (rejecting an assertion of taxpayer standing under
Kendrick where the plaintiffs were not challenging Con-
gress’ exercise of taxing and spending power in enacting
the Internal Revenue Code but the manner in which the
executive was implementing the Code); Catholic Conference,
885 F.2d at 1027 (noting that, in Kendrick, the executive
“was merely carrying out Congress’ scheme”). In the
present case, however, there is an absence of any direc-
tion, guidance or indication on the part of Congress as
to how the VHA should expend the funds appropriated
for medical care or, more generally, as to how the VHA
should employ its chaplains. Essentially, Freedom From
Religion is challenging parts of the Chaplain Service that
have been established wholly at the discretion of the
executive. These differences, which the Hein plurality
found critical, see Hein, 127 S. Ct. at 2567-68, lead us to
hold that Freedom From Religion may not characterize
its lawsuit as an as-applied challenge under Kendrick.
This conclusion is consistent with the Hein plurality’s
discussion of Kendrick as well as with the Court’s dis-
No. 07-1292 31
tinct and consistent focus, dating back to Flast itself, on
congressional action. See Hein, 127 S. Ct. at 2565-69; Valley
Forge Christian Coll. v. Am. United for Separation of Church &
State, Inc., 454 U.S. 464, 479 (1982); Schlesinger v. Reservist
Comm. to Stop the War, 418 U.S. 208, 228 (1974); United States
v. Richardson, 418 U.S. 166, 175 (1974); Flast, 392 U.S. at 90.
In Valley Forge, for example, the plaintiffs sought to chal-
lenge “a decision by the [then-Department of Health,
Education and Welfare] to transfer a parcel of federal
property” to a Christian college. 454 U.S. at 479. The Court
explained that the transfer was “arguably authorized” by
the Federal Property and Administrative Services Act
of 1949, a law that allowed federal agencies to transfer
surplus property to private entities. Id. at 479 n.15. Despite
this link between the wholly discretionary executive
decision that allegedly violated the Establishment Clause
and an act of Congress that authorized that decision, the
Supreme Court held that the plaintiffs did not have
standing because Flast “limited taxpayer standing to
challenges directed ‘only [at] exercises of congressional
power.’ ” Id. at 479 (quoting Flast, 392 U.S. at 102).
Freedom From Religion’s lawsuit is not predicated on
the notion that Congress appropriated money from fed-
eral taxpayers expressly for the creation of a clinical
chaplaincy. Moreover, given the Hein plurality’s discussion
of Kendrick, the aspects of the Chaplain Service being
challenged here are too far removed from any congressio-
nal action to support taxpayer standing under Kendrick.
Consequently, we hold that Freedom From Religion has
not “establish[ed] a nexus between that status and the
precise nature of the constitutional infringement alleged.”
Flast, 392 U.S. at 102-03.
32 No. 07-1292
Conclusion
For the reasons set forth in this opinion, the judgment
of the district court is vacated, and the case is remanded
to the district court with instructions to dismiss for want
of jurisdiction.
VACATED and REMANDED WITH INSTRUCTIONS
USCA-02-C-0072—8-5-08