Individualistic religion dodges the anti-establishment clause

Over at the Immanent Frame, Winnifred Fallers Sullivan outlines an intriguing shift in First Amendment jurisprudence. She cites the 2006 Supreme Court case Freedom from Religion Foundation v. Nicholson in a dispute about a VA hospital chaplain service. The military chaplaincy was once categorized under non-mandatory military services and activities, such as recreation.

Yet as religion becomes part of a revised therapeutic regimen, Sullivan sees a change:

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.

This shift is possible, Sullivan thinks, because once-corporate religious practice has been so individualized. It no longer appears that a religious body is being established when government agencies are merely addressing individual needs.

Sullivan's post touches on other issues, such as the judiciary's skepticism about its ability to define religion. This echoes her earlier book, The Impossibility of Religious Freedom