An indication of how ruthless the U.S. government could be in quashing future state/church challenges is demonstrated by the government's position in a case on appeal by the Freedom From Religion Foundation.
In an analysis, Claire Hughes of the Roundtable of Religion and Social Welfare Policy, wrote:
Legal experts said the situation is an example of just how far-reaching the forthcoming Supreme Court decision on an issue known as 'taxpayer standing' could be in cases involving the First Amendment's Establishment Clause, which bars government from activity promoting religion."
The government is seeking to insulate itself by saying that major state/church violations--that it argues are mere discretionary executive action--are beyond legal review.
The development involves the Foundation's challenge of the pervasive integration of chaplaincy services and spirituality into healthcare by the Department of Veteran Affairs, the nation's largest medical system. The Foundation filed suit last year against the VA for requiring "spiritual inventories" of all patients, and for treating outpatients as though they were in need of the same religious "accommodation" as inpatients. The government did not contest the right of taxpayers to sue over the violation.
The Foundation lost the case on its merits in district court in Wisconsin in January, with the judge ruling that the decision to accept chaplaincy services is "voluntary" (although patients are not informed of that fact and must actively protest to avoid it). On April 2, the Foundation appealed the decision to the 7th U.S. Circuit Court of Appeals in Chicago.
In response, defendant R. James Nicholson, the VA director, filed a motion before the appeals court seeking a stay until the U.S. Supreme Court issues its opinion in another case taken by the Foundation.
That case involves the Foundation's right to sue over the faith-based offices set up by Pres. Bush at the White House and Cabinets, awaiting an opinion by the high court. (That decision, which had not been issued as of presstime, will be handed down no later than the end of June.)
On April 23, the 7th Circuit granted the request to await the Supreme Court decision on the taxpayer standing issue. Ironically, it was the 7th U.S. Circuit itself which reinstated the Foundation's faith-based challenge, Hein v. FFRF, now before the Supreme Court.
In Hein v. FFRF, the government has argued that the expenditures for the faith-based federal offices are "trivial," even though they extend into the multimillions, if not billions. It also argues that since Bush created the offices of faith-based initiative by fiat, rather than by Congressional authorization, taxpayers do not have an interest in challenging the violation. In legal parlance, the government argues that the case does not involve a congressional taxing and spending statute, therefore taxpayers have no standing. It also proposed an entirely new argument, saying that since the faith-based offices do not involve grant disbursements to third parties outside the government, taxpayers have no right to complain.
The Foundation argues that what Congress may not do, the executive branch may not do. The executive branch is funded by Congress, which has the power of the purse, and could have defunded the offices. Foundation briefs and friend-of-the-court briefs document that Congress has knowingly allocated multimillions to fund the internal, faith-based bureaucracy at the White House and at federal agencies, which exist to promote preferential funding of faith-based groups.
In the VA case, the government is now arguing that taxpayers have no standing to sue over this massive program "because the case does not involve a congressional taxing and spending statute or any disbursement of federal funds to third parties who are outside the federal government."
"The government's position in the appeal of the VA chaplaincy program suggests the potential magnitude of a decision in favor of the government in the case before the Supreme Court," says Robert W. Tuttle, law professor at George Washington University, as quoted by the Roundtable.
If the VA case is thrown out on taxpayer standing, the Foundation will consider refiling the case with patient plaintiffs. Any FFRF members who have experienced spiritual inventories and other religious interventions as VA patients are urged to contact FFRF.
The case is brought on behalf of FFRF by Rich Bolton, of Boardman law firm in Madison, Wis.