The VA and Limits on Veterans' Religious Freedom

Veterans and their families are offended and angered by the Veterans Administration’s religious symbols policy. Since its original implementation in 2002 during the George W. Bush administration, the VA policy on holiday activities and the display of religious symbols within their hospitals has become a burden on VA patients, and has caused anger and frustration among veterans and their families who believe that the policy, which was renewed by the VA in 2009 under the Obama Administration, infringes on their First Amendment religious liberties. This “anti-religious display” policy is based on a line of Supreme Court decisions ending with the extremely fragmented opinions in the case of County of Allegheny v. ACLU, 492 U.S. 573 (1989), where the nine justices wrote several differing opinions in deciding two different winter holiday cases regarding the constitutionality of displaying religious symbols on public property. Justice Blackmun, writing the majority opinion, cites the earlier Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602, which holds that a practice which touches upon religion must not advance or inhibit religion in its principal or primary effect, and that it must have a secular purpose. The courts are considering, as Justice Blackmun states, “...whether the government’s display of objects having religious significance improperly advances religion.” [Emphasis added]

The directive at issue here is VA DIRECTIVE 0022.The policy portion states: “VA recognizes the cultural and spiritual significance of religious symbols in holiday celebrations. Religious symbols may be included in a holiday display in a public area of a VA facility if the display does not favor one religion over another and conveys a primarily secular message.” 

The implementation instructions state that “Religious symbols may be included in a holiday display in a public area of a VA facility if the display does not favor one religion over another, and conveys a primarily secular message. By placing diverse holiday symbols together in the public places of its facilities, VA gives no preference to one holiday above another...” [Emphasis added]

This impasse can be resolved, but only if the VA puts its patients first. If we point the VA to a legal pathway to fix this problem, it can do it -- if it wants to say “Yes” to its patients’ needs.

For veterans who are patients at VA hospitals, the hospital is their home for the holidays. If a patient expresses a need to see a religious display in his or her “home,” whether in a private room or in a common area; if the purpose of erecting such a display is to improve the vet’s psychological state and/or speed the healing process, this satisfies the “secular purpose” required under Lemon. (The VA directive’s requirement that the display “convey a primarily secular message,” rather than the Supreme Court’s holding that it “must have a secular purpose” is a misreading, intentional or not, by the VA of the Court’s holding in Lemon.) Further, the practice of permitting a religious display which touches upon religion does not, in the case of a VA hospital, advance religion in its principal or primary effect. Rather, its principal or primary effect is to advance the injured or ill veteran’s wellbeing. The plan meets this Lemon test as well.

In Allegheny the Supreme Court tortuously analyzes factual situations to determine whether in a given instance a religious display erected in a public place by a government agency is favoring one religion over another. Is a Christmas crèche okay all by itself? Must the display also have a Jewish Chanukah menorah candelabra to meet the mark? Or is three the proper number, and a Muslim symbol must also be displayed? If there are several displays featuring various religions in various areas of a hospital, the VA could maintain that it deems all displays a one building display, a religiously inclusive display, at that.

If a Christian patient wants his parents to put up a crèche display, let them do it. If a Jewish patient asks her husband to bring a menorah, why say no? If a Muslim vet wants his cousin to put up a prayer rug display for him to view, even if he is unable to get out of his wheelchair to use it, why shouldn’t he have it? And it is beyond logic for the VA to demand that to be “legal” a Christian display must be balanced by a menorah display if there are no Jewish patients in the hospital. Moreover, if the vets request that their families and friends and volunteers create and put up the displays, those displays are not being erected by the VA, or by any government agency. This is a clear distinction from the Allegheny stricture that, “Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus.” 

The vets are not asking the government to observe Christmas as a holy day. But if an individual veteran patient wants to observe Christmas as a Christian holy day by putting up a display suggesting that people praise God for the birth of Jesus, what is the authority for the government to refuse to permit the patient to do so, or to have it done, not by the government, in the veteran’s “temporary” home?  The courts are considering, as Justice Blackmun states in Allegheny, “. . . whether the government’s display of objects having religious significance improperly advances religion.” [Emphasis added] Here, the government would be displaying nothing. Only the veteran patients, friends, families, and volunteers would be doing that. The VA would be off the hook.

Justice Blackmun sets forth his baseline concern that when viewing a religious symbol in a government setting a “reasonable observer would view the combined display as an [government] endorsement or disapproval of his individual religious choices.” With sufficient will, the VA can make sure that no reasonable observer would conclude that any religious display in a VA hospital is a government endorsement or disapproval of anyone’s religious choice. A VA hospital is not an outdoor park where the public walks past the religious displays. Neither is it analogous to a city hall where the public passes in, out, and through to conduct government business. It is a building to which the general public does not have unfettered access, especially in its patient areas. This “closed building” concept suggests a solution. 

The VA wants to make sure that no reasonable observer can conclude by viewing religious displays inside its buildings that the agency is endorsing the religious message in the display.  Not a problem: use a disclaimer. A sign can be posted at every entrance to the building(s) using language such as: “Visitors and employees may see religious displays in this building; these displays are here at the request of our veteran patients; they were erected by their families and by volunteers at their own expense, and not by the U.S. government, the Department of Veterans Affairs, or the hospital staff. They were erected without any cost to the government or taxpayers. Any religious messages symbolized by the displays do not reflect the opinions of, or endorsement of the messages by, the U.S. government, the Department of Veterans Affairs, or the hospital staff.” Similar disclaimer postings can be placed in elevators, lounge areas, break rooms for employees, etc. 

Let us urge the relevant congressional oversight committees and the VA to amend Directive 0022 to reflect this proposal. The VA will be serving the needs of its patients, our deserving veterans, while staying within the law. 

The VA should find a way to say “Yes” this time.