UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

FREEDOM FROM RELIGION
FOUNDATION, INC.; ANNE NICOL
GAYLOR; ANNIE LAURIE GAYLOR;
and DAN BARKER,

Plaintiffs,

v.         Case No.

R. JAMES NICHOLSON, SECRETARY OF
THE DEPARTMENT OF VETERANS AFFAIRS;
JONATHAN PERLIN, M.D., UNDERSECRETARY
FOR HEALTH, DEPARTMENT OF VETERANS
AFFAIRS; HUGH MADDRY, DIRECTOR OF
NATIONAL CHAPLAIN CENTER, DEPARTMENT
OF VETERANS AFFAIRS; A. KEITH ETHRIDGE,
DEPUTY DIRECTOR OF NATIONAL CHAPLAIN
CENTER, DEPARTMENT OF VETERANS
AFFAIRS; and JENI COOK, PROGRAM
MANAGER, SPIRITUAL HEALTH INITIATIVES,
NATIONAL CHAPLAIN CENTER, DEPARTMENT
OF VETERANS AFFAIRS,

Defendants.

COMPLAINT

The plaintiffs for their complaint allege as follows:

1. This is an action by the plaintiffs brought against the defendants alleging violations of the Establishment Clause of the First Amendment to the United States Constitution.

2. This court has federal question jurisdiction pursuant to 28 U.S.C. 1331.

3. Venue is appropriate in the District Court for the Western District of Wisconsin pursuant to 28 U.S.C. 1391(e).

4. The plaintiff, Freedom From Religion Foundation, Inc. ("FFRF"), is a Wisconsin non-stock corporation whose principal office is in Madison, Wisconsin.

5. FFRF has more than 6,600 members, including federal taxpayers, who are opposed to government endorsement of religion in violation of the Establishment Clause of the First Amendment to the United States Constitution.

6. FFRF's purpose is to protect the fundamental constitutional principle of separation of church and state by representing and advocating on behalf of its members.

7. The plaintiff, Anne Nicol Gaylor, is a federal taxpayer residing in Madison, Wisconsin, and she is a member of and former president of FFRF, and she is a non-believer who is opposed to governmental endorsement of religion.

8. The plaintiff, Annie Laurie Gaylor, is a federal taxpayer residing in Madison, Wisconsin, and she is a member of and co-president of FFRF, and she is the Editor of FFRF's periodical "Freethought Today," and she is also a non-believer who is opposed to governmental endorsement of religion.

9. The plaintiff, Dan Barker, is a federal taxpayer residing in Madison, Wisconsin, and he is a member of and co-president of FFRF, and he is Public Relations Director of FFRF, and he is also a non-believer who is opposed to governmental endorsement of religion.

10. The plaintiffs are opposed to the use of congressional taxpayer appropriations to advance and promote religion.

11. The defendant, R. James Nicholson, is the Secretary of the Department of Veterans Affairs, a duly created office of the Government of the United States.

12. The defendant Nicholson is sued in his official capacity as the Secretary of the Department of Veterans Affairs.

13. The defendant Nicholson oversees and is responsible for the disbursement of congressional tax appropriations made to the Department of Veterans Affairs, including funds disbursed to the National Chaplain Center of the Department of Veterans Affairs.

14. The defendant, Jonathan Perlin, is the Undersecretary for Health, Department of Veterans Affairs.

15. The defendant Perlin is sued in his official capacity as Undersecretary for Health in the Department of Veterans Affairs.

16. The defendant Perlin is the Chief Executive Officer of the Veterans Health Administration.

17. The Veterans Health Administration is the nation's largest integrated health system and it has an annual medical care budget of more than $30 billion.

18. The defendant Perlin oversees and is responsible for the disbursement of congressional tax appropriations made to the Veterans Health Administration, including funds used for the integration of chaplain services into the provision of health care services.

19. The defendant, Hugh Maddry, is the Director of the National Chaplain Center, within the Department of Veterans Affairs.

20. The defendant Maddry is sued in his official capacity as the Director of the National Chaplain Center within the Department of Veterans Affairs.

21. The defendant Maddry oversees and is responsible for the disbursement and use of congressional tax appropriations made to the National Chaplain Center.

22. The defendant, A. Keith Ethridge, is the Deputy Director of the National Chaplain Center, within the Department of Veterans Affairs.

23. The defendant Ethridge is sued in his official capacity as the Deputy Director of the National Chaplain Center, within the Department of Veterans Affairs.

24. The defendant Ethridge is responsible for supervising the National Chaplain Center staff and managing its operational budget.

25. The defendant, Jeni Cook, serves on the faculty of the National Chaplain Center Spiritual Health Education Program and she is responsible for program development of spiritual initiatives in health promotion and disease prevention, spiritual initiatives in veterans' homes and communities, and spiritual care for women veterans.

26. The defendant Cook is sued in her official capacity as the Program Manager of Spiritual Health Initiatives, National Chaplain Center, Department of Veterans Affairs.

27. The VA provides medical services to veterans, which services are provided by physicians, nurses, counselors, and others, through a nationwide network of more than 157 hospitals, nearly 870 out-patient clinics, approximately 134 nursing homes, approximately 42 domiciliaries, and more than 200 counseling centers.

28. The services provided by the VA are funded through annual congressional appropriations, including funding for fiscal year 2005 under Public Law 108-447, known as the Consolidated Appropriations Resolution Act for 2005.

29. Annual congressional appropriations to the VA are used to fund the provision of medical services to veterans, through the Veterans Health Administration.

30. More than $30 billion of taxpayer appropriations are used annually to support the medical care system of the VA.

31. The VA funds chaplain services as part of its health care system provided to hospitalized patients and their families, who otherwise could not get to religious services, if desired, due to hospitalization.

32. The VA ostensibly funds chaplain services to accommodate the free exercise rights of patients, under the Establishment Clause to the First Amendment of the United States Constitution, who otherwise could not get to religious services because of hospitalization.

33. The VA, however, now goes beyond providing chaplain services for free exercise purposes, and the VA instead has integrated pastoral care services as part of its protocol for providing substantive medical services to patients.

34. VA chaplains presume to act as members of the VA health care treatment staff in a purported interdisciplinary approach to medical treatment.

35. The VA deems pastoral services for all patients, including veterans receiving out-patient medical services, to be a necessary substantive part of medical treatment, and the VA provides pastoral services not as an accommodation to veterans' free exercise rights.

36. The VA intends pastoral services to be provided to all patients as part of standard medical treatment, allegedly in order to encourage patients to tap into their alleged spiritual resources of faith to discover comfort, strength for healing, and a renewed sense of hope.

37. The VA expects chaplains to be involved as part of the medical treatment team for all patients, and a spiritual/faith assessment is to be made of each patient admitted into the VA medical system.

38. The VA integrates chaplain services into patient medical care because the VA intends that the alleged spiritual dimension of health be substantively integrated into all aspects of patient care.

39. The VA requires that spiritual and pastoral care be integrated into the total program of health care provided to all veterans.

40. VA chaplains implement the VA's program of spiritual and pastoral care throughout the VA medical system.

41. VA chaplains plan, develop and direct programs of spiritual and pastoral care intended to ensure holistic health care for veterans at each VA health care facility.

42. The VA considers that each patient's need for spiritual and pastoral care must be assessed as part of the total evaluation of the patient's health care needs.

43. As part of the evaluation of each patient's health care needs, the VA requires that a spiritual and pastoral care screening assessment be provided to each patient as part of the interdisciplinary admissions process; VA chaplains then are to determine the "need" for any pastoral care interventions deemed necessary if "spiritual injury or sickness" is assessed by the chaplain.

44. The VA provides spiritual and pastoral care to all patients, including those receiving out-patient care, who obviously do not require accommodation to engage free exercise rights.

45. The VA requires each medical care facility to ensure that a program of spiritual and pastoral care is integrated into the VA's total care and treatment program as part of a holistic treatment plan.

46. The VA's holistic health care protocol is premised on the belief that good health care is incomplete without substantively addressing the spiritual dimension of each patient.

47. Spiritual assessment by VA chaplains as part of an interdisciplinary medical treatment team is intended to promote spiritual growth, which the VA believes to ultimately influence healing.

48. VA chaplains are expected to perform spirituality assessments of each patient, including by assessing a person's belief about the nature of God or acknowledged higher power and the authority or guidance provided by this higher power.

49. The VA's emphasis on spirituality has become so pervasive that the VA has even expanded its chaplain services to include spiritual care and counseling for veterans who receive out-patient medical treatment.

50. The VA intends to provide pastoral care from the moment of a veteran's first visit to any VA medical facility through the time that the veteran last receives any services from the VA system.

51. As an example of the integration of faith and spirituality into treatment by the VA system, the Dayton VA Medical Center integrates the use of "lament" and Fowler's stages of faith development into treatment of patients for posttraumatic stress disorder.

52. Dayton VA chaplains seek to develop the faith and understanding of God by each patient as part of a PTS treatment modality, including by the use of lament as a form of prayer.

53. The VA Health Care Network Upstate New York provides another example of a VA health facility that seeks to provide comprehensive religious, spiritual and pastoral care for all veterans, their family members, and staff by facilitating their reconciliation with God.

54. The VA Health Care Network Upstate New York requires pastoral visitation of each patient within 24 hours of hospital admission, which includes a spiritual needs assessment that must be documented in each patient's medical progress notes.

55. The VA Health Care Network Upstate New York has taken its chaplaincy duties to further dimensions, moreover, including the publication of prayers for various situations that do not involve patient treatment at all, including Prayers for Our Nation in Conflict, such as Vigil of Hope, Prayer for Our Servicemen and Women, and Prayer in Time of War.

56. The VA Health Care Network Upstate New York also has developed a variety of Meditations as sample prayers, and invocations, such as Invocation for a Volunteer Luncheon, Invocation for a Viet Nam Scholarship Luncheon, Invocation for an Evening Volunteer Banquet, and Invocation for a Volunteer Recognition Program, as if these prayers further the free exercise rights of hospitalized veterans.

57. The VA Health Care Network Upstate New York also has developed sample prayers for Memorial Day, a Prayer in Response to Terror, a Litany for the National Day of Prayer, and a Litany for September 11.

58. One reason that VA chaplains presume to participate as part of each patient's treatment team is to create the appearance of increased value for chaplain services, as a basis for increased chaplain funding.

59. In order to "quantify" chaplain services for funding purposes, documentation in patient medical charts has become emphasized; if the chaplain's services become part of the medical chart, the chaplain may be deemed more deserving of funding.

60. The changed role of VA chaplains, emphasizing integration into treatment, is intended to show that chaplains provide "added value" that should be generously funded by the VA.

61. The New England VA Health Care System has strikingly emphasized the role of documentation, including documentation of every pastoral assessment, sacramental ministry and chaplain contact.

62. The New England VA Health Care System operates from the premise that "if its not written down, its not done," thereby placing a performance premium on documentation, which is measured on a monthly basis by the number of patient chart entries made by VA chaplains.

63. To further emphasize the presumed value of chaplains, some veterans receiving treatment from the VA are given a Multilevel Spiritual Assessment Test ("MLSA") in an effort to "diagnose spiritual injuries" that the VA chaplains should then treat.

64. A patient's MLSA test score is sent to the medical treatment team and becomes part of the veteran's health care records.

65. When a chaplain identifies a purported significant spiritual injury, the chaplain intervenes to recommend that the veteran attend a Spiritual Recovery Support Group ("SRSG").

66. The purpose of the SRSG allegedly is to bring the spiritual components of faith and God's grace to bear on treatment and to enhance health care recovery.

67. The SRSG is not only considered a quest to find and/or renew a patient's spiritual vitality, it is deemed to be a vehicle for change and growth; the operating premise of SRSG is that if God's gift of spiritual faith and grace is applied, then good medicine is received.

68. The VA expects each VA health care facility to perform a spiritual assessment of all patients that includes data gathering, assessment of data, and treatment planning, whereby a plan of care that includes provisions for the spiritual care of each patient is integrated into a purported multi-disciplinary treatment care plan.

69. VA health care facilities perform spiritual assessments utilizing a variety of assessment forms. (Exhibit A attached to this Complaint includes samples of Spiritual Assessment Forms used by VA health care facilities.)

70. The VA Chicago Health Care System has created a Chaplain Assessment Flow Chart that shows the assessment steps from new admission to determination that spiritual care is needed. (A true and correct copy of the VA Chicago Health Care System Flow Chart is attached to this complaint as Exhibit B.)

71. Some VA chaplains have even extended their pastoral care beyond the medical facility walls, and beyond the period of in-patient care, by writing monthly devotionals that are then published.

72. The chaplain service at the Augusta VA Medical Center in Augusta, Georgia, writes monthly devotionals for the Southeastern Paralyzed Veterans Association newsletter, which devotionals focus on faith as an alleged source of strength.

73. The devotionals written by the chaplains at the Augusta VA Medical Center are intended to signify the alleged integral role of spirituality in health and healing.

74. The VA is committed to integrating spirituality and religion into its medical services to such an extent that the National Chaplain Center provides a comprehensive program of spiritual health education, including programs of clinical pastoral education and counseling.

75. The educational programs of the National Chaplain Center of the Veterans Administration are designed to promote spiritual health awareness throughout the veteran community; the VA intends that educational participants will become more aware of the alleged role of spirituality and faith in matters affecting health.

76. The National Chaplain Center includes a course in Leadership Chaplaincy with the objectives that course participants will know how to conduct a spiritual needs assessment for patient care coverage; know how to define the role of spirituality and religion in the promotion of health and the prevention of disease; and know how to demonstrate the use of a spiritual assessment and the steps needed to do effective spiritual care interventions.

77. Clinical Pastoral Education, provided by the National Chaplain Center of the Department of Veterans Affairs, is interfaith professional education for ministry.

78. Clinical Pastoral Education is intended to prepare participants for parish ministry and chaplaincy, and it is focused upon the integration of theological, psychological and pastoral insights into parish ministry.

79. The VA, in short, has deeply committed to substantively integrate faith, spirituality and religion into its medical treatments, including an educational system to facilitate the delivery of the VA's holistic medical model.

80. The defendants, for their parts and in their official capacities, oversee and are responsible for the disbursement of congressional tax appropriations made to the Department of Veterans Affairs, including funds appropriated for the substantive integration of spirituality into medical treatment.

81. The defendants, in their official capacities, have engaged in activities that violate the Establishment Clause of the First Amendment to the United States Constitution, including by funding, with congressional taxpayer appropriations made pursuant to Article 1, Section 8, of the Constitution, programs that integrate religion as a substantive and integral component of medical treatment services provided by the VA.

82. The defendants have been and are responsible for the use of federal taxpayer appropriations to integrate religion as a substantive and integral component of medical services provided by the VA, in contrast to funding chaplaincy services limited to accommodating religious free exercise rights of hospitalized veterans and their families.

83. The integration of religion and spirituality into the medical services provided by the VA is intended to promote religion and belief, rather than to accommodate free exercise rights of veterans who are otherwise limited by their hospitalization from freely exercising religious choices.

84. The defendants' actions in using taxpayer money to integrate religion as part of the medical treatment protocol of the VA violate the fundamental principle of the separation of church and state by using congressional taxpayer appropriations, made pursuant to the taxing and spending provision of the Constitution, to support activities that endorse religion.

85. The defendants' actions in disbursing and utilizing taxpayer money to support the integration of religion into the VA's medical treatment protocols, including out-patient treatment, give the appearance of the government's official support for and advocacy of religion.

86. The defendants' actions in utilizing taxpayer money to support the integration of faith and spirituality into the modality of health care treatment by the VA gives support to and the appearance of the endorsement of religion -- that is the very premise of their actions, i.e., that religion is necessary.

87. The disbursement of congressional appropriations, made pursuant to Article 1, Section 8, of the United States Constitution, for the purpose of supporting the integration of faith and spirituality into the VA's health care treatment programs, gives actual and apparent government endorsement and advancement of religion.

88. The actions of the defendants in utilizing congressional taxpayer appropriations to endorse and advance religion violate the Establishment Clause of the First Amendment to the United States Constitution.

89. The actions of the defendants in violating the Establishment Clause of the First Amendment to the United States Constitution are injurious to the interests of the plaintiffs individually, and to FFRF in its representative capacity, because the defendants' actions compel the plaintiffs to support the establishment, endorsement and advancement of religion, to which the plaintiffs object.

WHEREFORE, the plaintiffs demand judgment as follows:

a. For judgment declaring that congressional taxpayer disbursements made by the defendants have been used in violation of the Establishment Clause of the First Amendment to the United States Constitution;

b. For an order enjoining the defendants from continuing to disburse and use appropriations in violation of the Establishment Clause of the First Amendment to the United States Constitution;

c. For an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversight to ensure that future disbursements are not made and/or used to fund activities that include religion as a substantive integral component of the VA's medical treatment protocols;

d. For judgment awarding such further relief as the Court deems just and equitable; and

e. For judgment awarding the plaintiffs their reasonable costs, disbursements and attorneys' fees as allowed by law.

Dated this _____ day of April, 2006.

_____________________________________
Richard L. Bolton, Esq.
Boardman, Suhr, Curry & Field LLP
1 South Pinckney Street, 4th Floor
P. O. Box 927
Madison, WI 53701-0927
Telephone: (608) 257-9521
Facsimile: (608) 283-1709
Attorneys for Plaintiffs