There is a sense among those who are watching that the ground is shifting in U.S. constitutional jurisprudence with respect to religion, particularly with respect to what is known as the “establishment clause.” Disestablishment is coming to mean less privatized pluralism through the separation of religion from public life and more a religiously pluralistic and inclusive public accommodation of religion, religion-in-general. Government funding and endorsement of religion, heretofore regarded as taboo, are becoming constitutionally plausible.
Separationist ideology simply no longer has the purchase it once did in the U.S. In part, this is so because it was founded in an anti-Catholic bias that has largely lost its relevance. It is also so because of the troubling acceptability of a majoritatian ideology and the political strength of conservative evangelical Christianity in the U.S. Yet, something more fundamental is at work, in my view, a shift in what religion is understood to be—a shift in religious anthropology.
There has been a remarkably broad embrace in the U.S. of the value of what are termed “faith-based” initiatives, at their most inclusively understood, notwithstanding the taint of being associated with the Bush White House and its friends. One finds a new openness to the re-incorporation of the religious, or what is often termed, the “spiritual,” dimension of every human being. In some senses, this phenomenon is a continuation of older forms of American religious practice, gathered together historically under ever-expanding forms of non-denominational Christianity as well as persistent interest in natural religion and its various exotic relations. But universal religion is taking new forms.
This new openness is enabled, I believe, by a convergence between humanistic critiques of overly scientistic understandings of the person, social scientific and biological, and a contemporaneous shift in religious authority and anthropology from the church to the individual. The exclusivity of medicalized understandings of the entire range of human capabilities and experience, as well as ecclesiastical capacity to insist on orthodoxy and particularity are both fast eroding in the face of this change. And thus also the grounds of secular opposition.
A recent decision in the Western District of Wisconsin is suggestive about the contours of this shift. (Freedom From Religion Foundation v. Nicholson, No. 06-C-212-S). The suit challenges the constitutionality of a program of the chaplaincy of the U.S. Veterans Administration. The VA operates 154 medical centers, 1,300 other “sites of care,” 136 nursing homes, 43 residential rehabilitation treatment programs, and 88 comprehensive home care programs in the United States. According to the record in the case, over 5 million people received health care in VA facilities in 2005.
The VA chaplaincy traces its beginnings to the Homes for Disabled Soldiers established by Abraham Lincoln during the Civil War, although its formal existence as a national service begins after World War II. According to the findings in FFRF v. Nicholson, the VA chaplaincy has evolved since its founding from a focus that was “sacramental” to a focus that is “clinical.” According to its official history, “The national Chaplaincy was [originally] organizationally assigned to the Office of Special Services, which also included the departments of Recreation, Canteen, Athletics and Patient Welfare.” What the court refers to as “sacramental,” what we might call a pluralist model, apparently refers to the supplying of opportunities to access religious services on a piecemeal demand basis, as an auxiliary to medical care, by analogy with sports and snacks.
The new “clinical” chaplaincy, on the other hand, has a different role and a different purpose. The Wisconsin court states that in order “to effectively implement its clinical chaplaincy program, the VA Chaplain Service was recently reorganized under the Medicine and Surgery Strategic Healthcare Group. The purpose of this reorganization was to recognize VA’s chaplaincy as a clinical, direct patient care discipline.” No longer akin to recreation and athletics.
While VA chaplains continue to recognize an explicit duty to protect the patient’s constitutional religious free exercise rights and protect the patient “from having religion imposed on them,” they are now fully integrated into the medical team in a new way. As a patient you must opt out of religion, rather than opting in. We might call this the post-pluralist model, if you like. Religion, in the words of the complaining plaintiff, has become a “health benefit.” Every patient must be given an initial spiritual assessment upon admission and recommendations must be made concerning his spiritual care.
VA facilities are somewhat decentralized so that the details of the practice of spiritual assessment vary from place to place, but one common tool used for the assessments is CAP, a computer assessment program “structured to measure information about Organized Religious Activity, Non-organized religious activity, and Intrinsic Religious Values, which together provide . . . a Total Religious Index.” A low score results in referral to a chaplain. Spiritual healing is then integrated into treatment in a variety of ways. “The Dayton VA Medical Center,” for example, “has incorporated the use of ‘lament as prayer’ and Fowler’s Stages of Faith Development as part of the medical protocol for treating post-traumatic stress disorder patients.” As the court explained, this integration includes outpatients:
The [VA’s] goal is to provide [spiritual] care from a veteran’s initial visit that continues as he or she receives any VA services necessary to sustain his or her spiritual health. The VA believes that it is imperative for veterans living outside the local daily distances to major VA health care facilities to have access to professional spiritual and pastoral care because research studies have shown that “when outpatients have access to quality spiritual and pastoral care, significant improvement in quality of life, reduced inpatient admissions, and cost savings result.” Additionally, the VA believes that holistic health care and spiritual and religious needs go “hand-in-hand.” (A – 11.)
While the VA argues that such government funded “faith-based” medical treatment is constitutionally permissible as long as it is non-coercive (and no one argues that the program is formally coercive), the plaintiff in Nicholson, the avowedly atheist Freedom From Religion Foundation, argues that routinely to assess every patient’s spirituality is to establish religion. To do so—to assume that health has a spiritual aspect—is to promote religion over non-religion, something which the Supreme Court has repeatedly spoken of as prohibited over the last seventy years. It is to discriminate against atheists and to suggest that religion is a positive good—or necessary—thing, rather than being simply an optional “recreational” thing. The VA, FFRF complains, has “undertaken to diagnose spiritual injury and to offer religious cures.” “VA chaplains,” they say, “have crossed the constitutional line by incorporating religion into the delivery of all VA health care services.”
The district court granted a motion for summary judgment in favor of the VA, with no hearing on the facts, concluding that no constitutional violation had occurred because all religious activity was entirely voluntary on the part of the patient. I found this decision surprising—even shocking—at first. The shift from what is termed a “sacramental” to a clinical chaplaincy and the VA’s apparently comprehensive approach to every patient as a religious person flies in the face of much Supreme Court language insisting that the Constitution be interpreted to prohibit such a comprehensive government acknowledgment of people as religious. One would think that at least a hearing on the facts was required.
There are potentially real, traditional, “establishment” type problems with the VA program, problems of discrimination among religions, for example. That is evident in the fact that the training and licensing of VA chaplains is controlled by mainstream religious organizations—all applicants must hold an M. Div. degree, have two years of Clinical Pastoral Education credits, and be recommended by their “ecclesiastical endorser.” There is also the possibility of abuse in a one-on-one patient situation such that it could be administered in a way that is not voluntary. There is much anecdotal evidence of efforts to evangelize at hospital bedsides. Moreover, all such tools arguably imply a theology. Yet the district court’s opinion is replete with generalized approval of a broad effort merely to accommodate what is viewed as universal, that is, the spiritual.
It is not just the Veterans Administration. National accrediting agencies for all medical facilities in the U.S., responding to decades of criticism of patient care standards, and of indifference to culturally inflected understandings of illness and health, now require all of them, as a condition of accreditation, to incorporate spiritual care into treatment plans. But these moves are being seen by some in the rights’ community as an establishment of positive religion, coincident in a sinister way with what is understood by them to be a political campaign for greater public participation by conservative religious groups in the design and provision of social welfare services.
To speak of religion at all is understood by this group to speak of an aggressively proselytizing, authoritarian, and superstitious, fundamentalism. And, not entirely without reason. The new political clout of religion has given rise to zealotry in some places. Yet the Nicholson case, when seen in the context of recent Supreme Court First Amendment jurisprudence, represents a larger shift, in my view, one not related to partisan politics. Obscured by the culture wars rhetoric around the faith-based initiative is a wider cultural shift to greater public acknowledgment of religion, an acknowledgment that is moving away from determination by “established” protestant models of religious life. Indeed, from the perspective of many religious communities, aspects of these pastoral care regimes may seem a troubling de-mystifying and naturalization of religion.
Taken together with recent decisions approving school vouchers as well as public approval of faith-based social services generally, the U.S. may be moving toward an acknowledgment of religious universality that has more in common with those countries in which the state, in spite of secularization and the de-privileging of state churches, continues to assume responsibility for the religious well-being of citizens. Religious freedom and non-discrimination are there often understood to be possible, even if not always realized, without separation in the austere American sense. As Grace Davie says about Europe, in contrast to the U.S., religion is there more often regarded as a “public utility” than as an active personal commitment by an individual. It is not necessarily about personal faith in a protestant evangelical sense. It is about getting the work of the public done, in orphanages, schools, hospitals and other charitable institutions, as well as about providing ritual and comfort for significant times in people’s lives. It depends on a different religious anthropology. And it is no less committed to religious freedom. Such an approach is feared by the left and the right in the U.S., but I think it may be happening nonetheless.
[This is the first of two posts, adapted from a keynote address given last month at “After Pluralism,” a conference and workshop at Columbia University. For more on the conference, see this recent post by Courtney Bender.—ed.]