MEMORANDUM OPINION AND ORDER
DONALD E. O'BRIEN, Chief Judge.
This case presents a challenge to the employment of a full-time chaplain at a tax-supported county hospital, Broadlawns Medical Center (BMC). This Court had previously denied the plaintiffs' request for preliminary injunction preventing the employment
FINDINGS OF FACT
Defendant BMC is a public county hospital located in Des Moines, Iowa. Established pursuant to Iowa Code Chapter 347, BMC is funded in the following ways: by property taxes levied on real estate located in Polk County, Iowa; by moneys received from the State of Iowa and the federal government; and by payments from patients. BMC provides care free of charge or at a reduced rate to indigent citizens of Polk County. Most of the patients do not have access to a telephone. Approximately 50% of BMC's patients do not have insurance, do not receive other governmental benefits, and are considered indigent.
BMC is controlled by a Board of Trustees elected by Polk County voters pursuant to Iowa Code § 347.9. The Trustees have all of the powers delegated to them by the State of Iowa under Iowa Code Chapter 347, including the power to hire an administrator and other employees for BMC. (Iowa Code § 347.13.4.) The BMC Board of Trustees consists of seven members: Douglas Hart, John Ahern, William Dyar, Carole Romine, Margaret Stout, Jeanne Miller, and Milton Brown. Plaintiffs have included each Board member as a defendant in this suit.
In December 1983, Trustee Milton Brown received a letter from the Des Moines Area Religious Council urging the Board to create a pastoral care department and to employ a full-time chaplain. BMC had never previously employed a chaplain, and instead had relied on volunteer chaplains, a system that had proved to be inadequate. The Trustees discussed this proposal at numerous meetings in early 1984. Plaintiff Larry Carter appeared at these meetings along with other Polk County citizens. Plaintiff Carter represented himself, spoke as a member of the BMC Primary Care Advisory Board, and acted on behalf of American Atheists in opposing the chaplain proposal. Later, during a session of this trial, Carter informed the Court that he had a breakup with the American Atheists and was thereafter speaking only for himself.
At a Board meeting on January 10, 1984, Defendants Lloyd Kaufman, Reverend Peter Pintus, and Reverend Raymond Runkel urged the Board to hire a chaplain. These individuals were persuaded that it was difficult for BMC to get volunteer chaplains to visit patients on a regular basis.
On June 12, 1984, the Board of Trustees approved the funding of a "chaplain" position at BMC. However, instead of hiring a "chaplain" in the generally accepted meaning of that term, the Board hired Maggie
Initially, Rogers was hired under the following job description:
(Exhibit E). Chaplain Rogers assisted in drafting a new job description after she began her employment (Tr. 13). It states in pertinent part:
(Exhibit 53, p. 1). Chaplain Rogers believes, and the Court finds, that her activities at BMC comply with the detailed job description of Exhibit 53 and with the job description pursuant to which she was hired, Exhibit E.
Chaplain Rogers and the few volunteer chaplains who now assist her have had Clinical Pastoral Education (CPE). (Tr. 93). They all volunteer chaplains adhere to the principles of CPE. CPE is specialized training that prepares a minister to be effective in a hospital or other institutional setting.
Regarding education in CPE principles, Chaplain Rogers testified as follows:
Chaplain Rogers set out the philosophy of CPE as follows:
Chaplain Rogers further commented on CPE as follows:
Chaplain Rogers stated that she and the volunteer chaplains were expected to and did adhere to CPE's concept of not proselytizing patients (Tr. 93-94). She also testified as to her extensive training in grief therapy for patients and their family members.
The services that Chaplain Rogers provides are available to all BMC patients, regardless of their income (Tr. 18) or reason for hospitalization. Her services are not billed directly to the patient. (Tr. 64). Chaplain Rogers and the few volunteer Chaplains she supervises have had accress to patients' medical records and admission data. (Tr. 19). This has been done without securing advance approval of patients. "Most of the time when I read a chart, it's at the Sands [psychiatric] Unit where I've been asked to do a consultation and that person [patient] wants to continue to see me, and I want to understand their history a bit better so I can better help them" (Tr. 43), but she says, "I spend very little time reading medical charts." (Tr. 43). She explains that "when I am asked to consult with a patient or his family, I look at the records to get background on them so I can be of better service. If I learn something [about a patient], it is confidential." (Tr. 19). Patients are asked their religious preference when they are admitted to BMC, and their preference is noted on BMC's admission forms. (Tr. 19). Very often the religious preference given is "none", and it is not clear whether that means no denomination, that the patient does not attend church, or that the patient may be an atheist.
Chaplain Rogers encourages the Broadlawns staff and the volunteer chaplains to inform patients of her availability and encourages them to make referrals to her. (Tr. 34). The staff and volunteer chaplains refer her to a patient if they believe that seeing a chaplain would be helpful to the patient, even though no request for a chaplain has been made. Chaplain Rogers attempts to make rounds in the medical section of the hospital every day, but she does not make daily rounds in the psychiatric departments. "Some weeks I don't get over there much at all because I'm busy in the medical section. Other weeks I'll spend maybe 30% to 50% of my time over there." (Tr. 24). "There is also a big need at Sands [psychiatric] so it's a balancing act." (Tr. 47). "I also have a lot of contact with patients who have alcohol and drug abuse problems." (Tr. 67).
Chaplain Rogers makes calls on patients prior to surgery, unless their surgeries begin before 8:00 a.m., the beginning of her work day. These pre-operative calls occur both before and after sedation, even though the patient has made no request to see her. (Tr. 14, 16). When Chaplain Rogers visits a patient, she normally asks if there is anything she can do for the patient. Approximately 40% of the time, the patient's response is to ask her to say a prayer. (Tr. 16). If Chaplain Rogers already knows from a previous visit that prayer is meaningful to a person, she will ask them if she can say a prayer for them.
She summed up some of her activities as follows:
In the intensive care and surgery waiting rooms, she often drops in, introduces herself, and gets to know the family to see if there is anything she can do for them. (Tr. 26). These people cannot, under the circumstances — for example, a death-bed watch — leave the hospital to go and seek solace elsewhere. A similar situation arises in intensive care, where family can only go into the patient's room for a fifteen-minute period once every two hours.
Although religious discussions are usually not part of her conversations with families, family members sometimes ask her to pray or join them in prayer, which she will do. (Tr. 21).
The Court finds from the testimony of various witnesses and the exhibits that BMC's intent in hiring Maggie Rogers was to enhance the hospital's "wholistic" treatment approach. The record is clear that Chaplain Rogers does perform her duties consistent with the concept of Clinical Pastoral Education (CPE). The explanation of this concept demonstrates that in this setting, the chaplain's function is not the traditional parish- or institutional-style ministry. Rather, its purpose is to address the needs of the individual patient, as defined by the patient, not the chaplain. Proselytization or any effort to impact religion or religious beliefs upon individuals who do not already have such beliefs is totally inconsistent with the CPE concept and is scrupulously avoided by Chaplain Rogers.
Chaplain Rogers also takes her turn with the volunteer chaplains in conducting Sunday services in the Nauraine conference room at BMC. (Tr. 44). This room contains a wooden cross and various hymnals marked with a BMC stamp. The Sunday services are Christian services which include a brief worship service, singing, prayer, reading of Scripture, the chaplain's reflection on the Scripture, and a benediction. The time of the Sunday service is announced over the intercom at the hospital, and only those people wishing to attend do so, usually averaging fifteen to twenty people who are not able to leave BMC to attend outside Sunday services (Tr. 45-46). A parking space is provided near the hospital building for use by volunteer ministers. This space is also available to provide ready access for clergymen, not affiliated with BMC, but who are called in urgent situations. The Court finds no constitutional problems with these two situations. The Court finds that there is a basic need for the services of a chaplain at BMC and that the services provided by the chaplain are permissible under the Free Exercise Clause.
Defendants called as witnesses a strong cross-section of Des Moines area health care professionals. These included Dr. Wooters, Chief Medical Officer of Polk County; Dr. Timothy Olson, Director of Psychiatry at BMC; and Dr. Barry Ingebritson, BMC Medical Director. Donald W.
Dr. Timothy Olson is BMC's Director of Psychiatry. He is also the head of the Sidney Sands Unit at BMC. He testified that at any given time, approximately one-third of the Sidney Sands patients are involuntarily committed, without freedom of movement. He further stated that less than 25% of patients residing in the unit at any given point are able to leave the building on a pass. Dr. Olson testified that a full-time chaplain could provide secular and spiritual benefits to Sands (psychiatric) patients. He explained that psychiatric patients often need support benefit from the simple presence of and communication with a chaplain. He did stress the importance of the chaplain's adherence to CPE, noting that psychiatric patients can be very vulnerable to suggestions. He testified that BMC's psychiatric patients are "special," but "they can be very hard to handle; we need an experienced chaplain. Coordination with the doctors is important. We had some trouble with volunteer chaplains. Our problems are similar to Clarinda's, but our patients are sicker, mostly indigent with no family support. The spiritual need is great, so I don't believe psychiatric social workers could do the job."
The consensus of these witnesses was that the chaplaincy was a fine program and that it was badly needed at BMC, not solely for religious services, but more importantly, to assist the doctors in their "wholistic" approach to medical care, and to provide grief therapy for family members.
Donald W. Dunn, President of the Iowa Hospital Association, testified that he was well acquainted with BMC and its mission and service. He said BMC was unique in Iowa, since it has a special charge to provide medical and psychiatric care of the indigent. He testified further that BMC as operated by Polk County was the only county hospital that kept its psychiatric patients for treatment and did not send them to one of the state mental health institutes and that BMC's psychiatric unit operated much the same as the state hospitals in that its needs and mission were the same. Exhibits H, I, J, K, L, N and O each clearly conclude that the Iowa Veterans Home at Marshalltown and the state hospitals at Cherokee, Oakdale, Independence, Clarinda, Mt. Pleasant and Woodward all have tax paid chaplains.
BMC provides long-term, chronic psychiatric service, inpatient (shorter term) and out-patient psychiatric services and serves many chronic alcoholics (Tr. 67) at the detoxification center (Tr. 18). These services make its mission almost identical to Cherokee and the other mental health institutions. BMC, of course, has in addition a busy medical hospital and a pediatric ward. Harold Templeman, the Deputy Director of the Iowa Department of Human Services, testified that he was responsible for the four state mental health facilities and that six chaplains were employed by these facilities. "They are part of our overall team." They provide important service. He further testified that BMC's psychiatric unit is comparable to our four facilities. "Counseling is our main job; the chaplains are a big plus."
The Court was impressed with the four BMC Trustees who testified. They each held responsible positions in the community, had been on the Trustee Board, by election, for a number of years, and were articulate in describing the dire need for the services the chaplain is performing. Board Chairman Douglas Hart, a Service
Trustee Margaret Stout, an official of the Mental Health Association of Iowa, testified that there must be an ecumenical person available, to follow up, to coordinate. "It's a locked facility; we need a chaplain."
Trustee William Dyar, Director of the Multiple Sclerosis Association of Iowa, stated, "I received many complaints that no ministers were available, that the volunteers who were at times available were too preachy. In my opinion, I am representing the people of Polk County and not just my own views."
Trustee John Ahern, a local real estate man, testified as follows: "We hired the best person available regardless of their faith, but I think it does take an extraordinary person to be able to handle a job such as she does and not carry their own personal feelings (regarding religion) where they shouldn't go, so it takes a real strong person to administer a function like that. We've got a dynamite gal doing it."
Dr. R.C. Wooters, Polk County Chief Medical Examiner (formerly coroner), testified that he had many calls to BMC, that he handles all homicides, suicides and unattended deaths, that he has worked closely with the chaplain. "She is performing an outstanding service; she gives great support to me, the families and everyone involved. I am pleased with the arrangement. I'm not worried about any constitutional problems; this is a necessity."
Each Trustee testified that the hiring of a chaplain was not done to harass or confront Larry Carter; they said it was not in any manner directed to Mr. Carter, and each had complimentary things to say about Carter.
Plaintiff John Doe, now identified as Dr. Maurice LaBelle, is a professor of literature at Drake University in Des Moines, Iowa. He has been a Polk County resident for the past sixteen years. He pays income tax to the State of Iowa and to the United States government. He is an atheist. His definition of an atheist is simply that of a person who does not believe there is a god, deity or supreme being. The presence of a tax-paid chaplain at BMC deters LaBelle from using BMC for medical care and caused him to go to another Des Moines hospital for treatment instead of BMC. LaBelle does not believe that religion should be mixed with medicine and does not want a chaplain to view his medical records. He believes he is entitled to have BMC, a tax-supported hospital, free of religious activity.
Plaintiff Larry Carter is an atheist. He is also the father of Courtney Carter, an 11-year-old minor female. Both Carters have received medical care at BMC in the recent past, and it was their hospital of choice in Des Moines. Larry Carter works only part-time and receives government benefits in the form of Aid to Dependent Children and food stamps. He is normally indigent and unable to pay the entire cost of his medical care. When eligible, Title XIX pays for the Carter's medical care at BMC. When ineligible for Title XIX benefits, he receives free or reduced fee care at BMC. The presence of a government-paid chaplain at BMC is offensive to Carter and makes him unwilling to use BMC for the medical care of himself or his daughter. He is fearful that religion will affect his medical care. Carter is a taxpayer to the State of Iowa and to the United States government. He is a long-time resident of Polk County, and at least a portion of his rent goes to pay property taxes used to support BMC.
As a member of the Citizens Advisory Board for Primary Care at BMC, Carter has taken a public position against the hiring of a chaplain, the use of the conference room for religious services, and the designation of parking spaces for chaplains. The effectiveness of Carter as an Advisory Board member has been affected, he says, by the hiring of the chaplain in that his
As a result of Carter's actions in publicly opposing the hiring of a chaplain, his former friends have shunned him. However, he made it clear that the defendants here had not harassed him. He has testified he suffered great anxiety and emotional distress because of his fear that he or his daughter will have to go to BMC for treatment where a tax-funded chaplain is employed. He contends that his part-time employment with a local newspaper was terminated as a result of his activism in seeking to block the employment of a chaplain. The Court makes no finding concerning this contention. The newspaper is not a party to these proceedings.
Carter fears that he will be subjected to religious services at BMC when he is both conscious and unconscious. The Court finds that his fears are unfounded, based on the CPE methods employed by Chaplain Rogers and the volunteer chaplains. The Court specifically finds that there was no competent evidence submitted to persuade the Court that there was and is a conspiracy against atheists and the plaintiffs in relation to this hiring. Atheism and the plaintiffs were clearly not a factor in the hiring. Carter believes that it is "medical malpractice" for BMC to employ a paid chaplain and to allow the chaplain to be a part of the medical team. The Court cannot agree that it is "medical malpractice" to employ the chaplain as she is now employed, and the Court is persuaded that the plaintiffs and all atheists will be safe from any unwanted contact with the chaplain or any of the volunteers.
The Court also heard evidence concerning the finances of BMC. The Court heard the testimony of Gary Uhl, Financial Director of BMC, and received certain financial statements into evidence. The Court finds that there are not sufficient funds donated privately year in and year out to fund the chaplaincy position. Absent private donations that have not been forthcoming, the only methods for funding the chaplaincy program are receipts from patient billings, the cafeteria and tax appropriations, which constitute about one-third of the total. All moneys received are commingled. This Court does not believe it would be appropriate, or solve any constitutional problems, if only money from the cafeteria or patients' billings were used to fund the chaplain position.
CONCLUSIONS OF LAW
A. Jurisdiction.
This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983 and 1985. The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1343, and venue is proper under 28 U.S.C. § 1391. BMC is clearly a proper defendant under § 1983. Since limited injunctive relief in favor of the plaintiffs is entered against BMC only, it is not necessary for the Court to determine whether plaintiffs' claims under § 1985 are cognizable.
B. Motion to Dismiss — Standing.
The defendants moved to dismiss, arguing that the plaintiffs did not have standing to maintain this lawsuit. With regard to the standing of plaintiffs to maintain this lawsuit on behalf of others, a stipulation of dismissal was filed on December 27, 1985 by which the American Atheists and Jane Roe dismissed their claims against the defendants. Plaintiff LaBelle has participated as a plaintiff throughout the proceedings, and at the commencement of the trial of this matter, the caption of the case was changed to designate plaintiffs as Larry Henry Carter, Courtney Demaris Carter and Maurice LaBelle. The Carters and Professor LaBelle have standing as taxpayers to challenge the alleged unconstitutional spending of tax moneys in violation of the Establishment Clause of the First Amendment. Flast v. Cohen, 392 U.S. 83, 102-05, 88 S.Ct. 1942, 1953-55, 20 L.Ed.2d 947 (1968); Grand Rapids v. Ball, 473 U.S. 373, 380 n. 5, 105 S.Ct. 3216, 3221 n. 5, 87 L.Ed.2d 267 (1985). The defendants' motion to dismiss
C. Establishment Clause.
The Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution state:
The Establishment Clause applies to the states and their municipalities through the Due Process Clause of the Fourteenth Amendment. Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947). The constraints of the Establishment Clause apply to both legislative enactments and other governmental activities. Voswinkel v. City of Charlotte, 495 F.Supp. 588, 594 (W.D.N.C.1980); see also Lynch v. Donnelly, 465 U.S. 668, 675, 104 S.Ct. 1355, 1360, 79 L.Ed.2d 604 (1984).
The Supreme Court has set forth a three-part analysis utilized in determining whether a government act passes muster under the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-73, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973). In Nyquist, the Supreme Court stated the three-part analysis as follows:
Id. at 773, 93 S.Ct. at 2965 (citations omitted). In construing the Establishment Clause, the Court must strike a balance between the basic mandate of the separation of church and state and the free exercise of religion. In this regard, the Supreme Court has stated:
Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984).
This Court applied the Lemon/Nyquist test in its order entered September 9, 1985 denying a preliminary injunction. In that order, this Court expressed doubt concerning whether a tax-supported chaplain at a county hospital withstood two of the three Lemon/Nyquist elements. (Order of September 9, 1985, pp. 8-9), No. 32 in the Clerk's Memorandum of Papers). As the Court has now fully heard the evidence presented by both sides, further elaboration on the Lemon/Nyquist test is in order.
Initially, the Court notes that the Lemon/Nyquist test is not a mandatory analysis in Establishment Clause cases. As the Supreme Court noted in Lynch v. Donnelly, supra, at 679, 104 S.Ct. at 1362, "We have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." For example, in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the
The first element in this analysis in relation to the Establishment Clause only requires that the practice must reflect a clearly secular purpose. This does not mean that the challenged activities' purpose be exclusively secular. "Were the test that the government must have `exclusively secular' objectives, much of the conduct and legislation that this court has approved in the past would have been invalidated." Lynch, supra, 465 U.S. at 681, 104 S.Ct. at 1363. Thus, the issue is whether BMC's chaplain has a clearly secular purpose.
The Court recognizes that Chaplain Rogers fulfills some secular duties at the hospital, including grief counseling and other secular patient counseling. The Court believes that it is a close question whether her purpose is clearly secular. The principles of CPE appear to indicate that a person's "spiritual needs" do not necessarily mean "religious needs". Also, Chaplain Rogers and the few volunteer chaplains strictly adhere to the CPE concept of non-proselytization. However, after careful consideration of all the evidence and testimony in relation to the Establishment Clause, the Court concludes that the chaplain's position is not clearly secular. One of its main purposes is to meet the religious needs of patients.
The Second Circuit reached a similar conclusion in Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985), where it considered an Establishment Clause challenge to army chaplains:
Id. at 232 (emphasis added). Thus, while the BMC chaplain is available on a voluntary basis and does not proselytize or "push" religion on patients, the immediate purpose is to provide religion to patients who clearly want it.
The Court turns next to the second element of the Lemon/Nyquist test, which states that the activity "must have a primary effect that neither advances nor inhibits religion." Nyquist, supra, 413 U.S. at 773, 93 S.Ct. at 2965. In Lynch v. Donnelly, 465 U.S. 668, 683, 104 S.Ct. 1355, 1364, 79 L.Ed.2d 604 (1984), the Supreme Court noted that its prior decisions clearly recognize that some advancement of religion will necessarily result from governmental action. The issue in the case at bar is whether the chaplaincy provides merely an "incidental advancement" of religion. The Court concludes that it does not. The Court has already found that the BMC chaplain lacks a clearly secular purpose. Paying a chaplain to provide religious care (while not the chaplain's only duty), is an advancement of religion. The fact that Chaplain Rogers abides by CPE concepts makes the advancement more tolerable, but does not eradicate it.
The third element of the Lemon/Nyquist test is that the activity must avoid excessive government entanglement with religion. Chaplain Rogers, while she may at times coordinate her hospital rounds with BMC administrators, does not take direction from them as to how she is to counsel patients. Also, her CPE training and her adherance to CPE concepts indicate that the hospital administration would not be required to monitor her every move to ensure that she was not proselytizing
However, given the fact that BMC's hiring of a chaplain fails two of the three Lemon/Nyquist elements, it is clear that the Establishment Clause will only permit the hiring of a paid hospital chaplain if it fits within an exception to its general prohibitions. The Court now considers the issue of whether the hiring is permissible under the Free Exercise Clause.
D. Free Exercise Clause.
As the Second Circuit noted in Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985):
Id. at 233 (citations omitted). Thus, even though this Court has found that a tax-paid chaplain fails to pass the Lemon/Nyquist test, the prohibition embodied in that test is not absolute, and the Court must consider whether the practice is justifiable as an implementation of the Free Exercise Clause.
Although plaintiffs have maintained that this action does not involve the Free Exercise Clause, the Court finds that, factually, the prohibition of a chaplain would directly impact upon the opportunity which BMC patients have to freely exercise their chosen religious beliefs. Initially, it is interest to note that the BMC Board of Trustees requested an opinion from the Polk County Attorney as to the constitutionality of hiring a chaplain. Defendants' Exhibit A is an opinion from the Polk County Attorney informing BMC that it is not unconstitutional to employ a chaplain. The opinion states in part:
(Defendants' Exhibit A). The opinion then mentions the Free Exercise Clause and Article I, § 3, of the Iowa Constitution, which also contains the Free Exercise Clause. The opinion then favorably cites Rudd v. Ray, 248 N.W.2d 125 (Iowa 1976), where the Iowa Supreme Court upheld Iowa's practice of paying chaplains to serve the Iowa State Penitentiary. Id. at 129.
The situation at BMC is comparable to facts in Katcoff, supra at 233, at Baz v. Walters, 782 F.2d 701 (7th Cir.1986), and Rudd v. Ray, supra. In Katcoff, the court upheld the practice of army chaplains, reasoning that as soldiers were often required to live in areas where their own religious denomination was not available to them, to prohibit a chaplain would violate a soldier's right under the Establishment Clause not to have religion inhibited and his right under the Free Exercise Clause to practice his freely chosen religion. Id. at 234. In Baz, the Seventh Circuit stated that a chaplain may well be necessary at a VA hospital so to accommodate the Free Exercise Clause. 782 F.2d at 709. As previously stated, the Iowa Supreme Court in Rudd upheld Iowa's practice of paying chaplains to serve the Iowa State Penitentiary. 248 N.W.2d at 129. The court reasoned that because of the restraints placed on prisoners, a prison chaplain was permissible to guarantee prisoners' free exercise rights. Id.
Polk County does not generally "confine" patients at BMC in the same manner as prisoners in penal institutions or as the army assigns its members to particular posts.
Few people confined to a hospital may leave at any time. Most patients' mobility is severely restricted due to their health, a condition patients have little control over. Also, BMC psychiatric patients are confined for the most part, and those who are "free" to leave may do so only if they obtain a pass. Further, BMC treats many indigents who have no other hospitalization alternatives. An indigent's freedom to leave the hospital is limited by both his health and his ability to secure medical care elsewhere. Plaintiffs contend that the county could pay for medical services at a private religiously sponsored hospital for those indigent patients who desire religious services. However, this would also result in an indirect contribution to religion and would be fraught with many of the same problems that the plaintiffs now perceive in the hiring of a tax-paid chaplain at BMC. Therefore, the Court finds that the fact that the county government does not place or confine all the patients at BMC
This Court is not only persuaded that the Iowa Supreme Court correctly decided Rudd, but that the citation in Rudd to Justice Brennan's concurring opinion in School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), expresses the ultimate legal conclusion pertaining to the free exercise interest of patients at BMC:
Id. at 296-99, 83 S.Ct. at 1610-12 (footnotes omitted).
Therefore, the Court finds that the hiring of a tax-paid chaplain at BMC, like the hiring of a military chaplain or a prison chaplain, is constitutional under the Free Exercise Clause. For similar reasons, the Court concludes that it is also constitutional for BMC to permit religious services and artifacts in the Nauraine conference room and to provide a reserved parking space close to the hospital for visiting ministers as a necessary incident to the provision for a chaplain. Further, the Court finds that there is no constitutional infirmity with either the paid chaplain or volunteer chaplains making patient rounds so long as the principles of CPE are followed. While Maggie Rogers wears a name tag indicating she is the "BMC Chaplain" (Tr. 11) and is referred to by all as a "chaplain," the Court finds that the title in and of itself is not objectionable. She is not the stereotype of one's usual image of a "chaplain." She is an unordained female who does not view her primary focus as religious. The Court finds that what her title is does not automatically foreclose her from acting by constitutional edict. The Court also finds that the use of name tags which identify the chaplains are not a constitutional violation. Restrictions on the voluntary wearing of identification tags by hospital chaplains could implicate First Amendment free speech protection. See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 735-36, 21 L.Ed.2d 731 (1969). The Court also finds that the religious preference question on BMC's admission forms is permissible, as long as religious preference is not a prerequisite to admission.
While the Court finds that the BMC chaplain is constitutional under the Free Exercise Clause, the chaplain's activities should not be unrestricted. The Seventh Circuit in Baz v. Walters, supra, addressed the constitutional tightrope such as the one on which BMC has embarked:
782 F.2d at 709. Chaplain Rogers abides by the principles of CPE as outlined in this Court's Findings of Fact. She has not assumed the role of proselytizing, and BMC should not allow it. The Court concludes that a government-paid chaplain at BMC who used coercive methods to forcefully expose patients to religious doctrine would contravene the Establishment Clause, Baz, supra, 782 F.2d at 709, and would contravene the Free Exercise Clause. Campbell v. Cauthron, 623 F.2d 503, 509 (8th Cir. 1980). Since the employment of a paid hospital chaplain abiding by the CPE principles explained at trial is consistent with ensuring a patient's free exercise interests, the Court concludes that it is not unconstitutional for BMC to employ a chaplain who performs as Maggie Alzeno Rogers does at BMC.
This decision, however, is limited to providing religious and grief counseling service to inpatients only. She may provide grief counseling services to families that are at the hospital and for all practical purposes not free to leave because a loved one is in a life-death situation. Chaplain Rogers testified that some of her religious counsel was extended to employees (Tr. 29), families of patients, and outpatients.
The Court also concludes that the policy of chaplains having open access to patient medical records is constitutionally infirm under the Fourteenth Amendment. Patients at BMC have a right of privacy founded on the Fourteenth Amendment's concept of personal liberty. Whalen v. Roe, 429 U.S. 589, 599 n. 23, 97 S.Ct. 869, 876 n. 23, 51 L.Ed.2d 64 (1977), citing Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973). One facet of the right of privacy "is the right of an individual not to have his private affairs made public by the government." Whalen, supra, 429 U.S. at 599 n. 24, 97 S.Ct. at 876 n. 24, quoting Kurland, The Private I, The University of Chicago Magazine 7, 8 (Autumn 1976). In Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court refused to strike down record-keeping and reporting requirements regarding abortions that were (1) reasonably directed to the preservation of maternal health and which (2) properly respect a patient's confidentiality and privacy. Id. at 80, 96 S.Ct. at 2846. In allowing chaplains free access to medical records, BMC is not properly respecting a patient's confidentiality and privacy. The Court concludes that patient medical records can only be accessed by a chaplain upon prior express approval of the individual patient or his guardian. This will not be so broad as to bar doctors, medical and psychiatric professionals and nurses to provide to the chaplain basic information, not privileged, which would enable
CONCLUSION
This order should not be read as setting a general precedent for the hiring of paid chaplains in state or county institutions. Each such situation must be determined on its particular facts.
IT IS THEREFORE ORDERED that plaintiffs' prayers for declaratory and injunctive relief regarding the hiring and continued employment of a paid chaplain at Broadlawns Medical Center are hereby denied.
IT IS FURTHER ORDERED that Chaplain Maggie Rogers and any successor to her as paid chaplain at Broadlawns Medical Center are enjoined from counseling of employees, families of patients where the patient is not in a life-death situation, and outpatients.
IT IS FURTHER ORDERED that Broadlawns Medical Center is hereby enjoined from permitting chaplains' access to patient medical records absent express consent from the patient, his or her guardian or next of kin.
IT IS FURTHER ORDERED that plaintiffs' prayer for an award of compensatory damages is hereby denied.
IT IS FURTHER ORDERED that counsel for the plaintiffs shall submit a short brief within fifteen days concerning whether plaintiffs are entitled to an award of attorney fees as a partially prevailing party on some of the issues set out herein pursuant to Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The brief shall be accompanied by an affidavit itemizing the time spent on this case and an hourly rate reasonable for the community. Counsel for defendants shall file a reply brief within fourteen days from the date of the filing of plaintiffs' brief.
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