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The 7th Circuit Court of Appeals ruled Tuesday the Madison-based Freedom From Religion Foundation and three of its members have no legal standing to bring the case.
The group was trying to end the agency’s practice of asking patients about their religion in “spiritual assessments,” its use of chaplains to treat patients, and drug and alcohol treatment programs that incorporate religion. It claimed those practices violated the separation of church and state.
But the court ruled that federal taxpayers cannot challenge those expenditures. The court cited a U.S. Supreme Court decision from last year in which the same group was not allowed to sue over President Bush’s faith-based initiative.
In that case, the court ruled 5-4 the executive branch cannot be sued by taxpayers for expenses that allegedly promote religion. Cases can only be brought when the questionable expenditures are explicitly authorized in a Congressional spending bill, the court ruled.
Congress never authorized spending on the chaplain services, pastoral care and other programs challenged, the 7th Circuit ruled.
Annie Laurie Gaylor, the group’s co-president, criticized the ruling but said an appeal to the Supreme Court was unlikely. She said the group would look for VA patients who object to their treatment to be potential plaintiffs but said such a case would still be difficult to win.
“The courts are moving to the position where government can fund religious activities and endorse religion without restraint,” she said. “It’s really very disturbing.”
The appeals court decision is the latest in a string of similar rulings since the Supreme Court decision, George Washington University law professor Ira Lupu said. Federal courts have dismissed cases challenging legislative prayer in Indiana and the placement of children in religious foster homes in Kentucky and North Dakota, he said.
“There’s quite a powerful trend here in the courts to take the Supreme Court’s decision and really run with it,” he said. “I have not yet seen one case where people have brought up this standing issue where the government has lost and the taxpayers have won. Every single one has been thrown out. This is really quite significant.”
Veterans Affairs lawyers did not challenge the group’s ability to sue before the Supreme Court decision, and U.S. District Judge John Shabaz dismissed the case on its merits last year. He ruled the VA’s programs integrate religion and spirituality but are legal because they are voluntary and serve valid secular purposes such as helping patients.
The foundation appealed, and government lawyers challenged its ability to sue after the Supreme Court decision came down.
The veterans agency, which treated 5.3 million people at its facilities in 2005, says it believes spirituality should be integrated into care, but it allows patients to decide whether that involves religion.
Its spiritual assessments ask patients a series of questions about their faith, such as how often they attend church and how important religion is in their lives. Agency officials say the assessments help them determine patients’ needs.
