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April 7, 1997

FATHER VINCENT RIGDON, et al., Plaintiffs,
DR. WILLIAM J. PERRY, et al., Defendants.

The opinion of the court was delivered by: SPORKIN




 The plaintiffs filed a complaint in the above-captioned case on September 10, 1996. The case originally was assigned to the Late Honorable Charles R. Richey of this Court, but was transferred to the undersigned when he became incapacitated. Judge Richey held a status conference pursuant to Rule 16 of the Federal Rules of Civil Procedure on September 20, 1996 at which time he set dates for the completion of discovery and the filing of dispositive motions. Before the Court are the parties' cross-motions for summary judgment. Also before the Court are the plaintiffs' motion for a preliminary injunction filed on March 25, 1997 and the defendants' opposition thereto.

 The plaintiffs have brought a challenge under the Religious Freedom Restoration Act and the free exercise and free speech clauses of the First Amendment to the defendants' interpretation of military regulations and a federal anti-lobbying statute that purportedly prohibit military chaplains from encouraging their congregants to contact Congress on pending legislation, in particular on legislation that would outlaw an abortion procedure commonly known as "partial birth" abortion. For the reasons discussed below, the Court shall GRANT the plaintiffs' motion for preliminary injunction and motion for summary judgment.



 A. Background

 This lawsuit was precipitated by events surrounding the so-called "Project Life Postcard Campaign," in which the Catholic Church in the United States sought to speak with a unified voice urging Congress to override the President's veto of HR 1833, also known as the Partial Birth Abortion Ban Act. The campaign began on June 29, 1996 and was set to last "at least until the Congress votes on whether to override the President's veto." Id. at P 12. The Campaign consisted of Catholic priests throughout the country preaching to their parishioners against an abortion procedure known medically as intact dilation and evacuation, and colloquially as "partial birth abortion". Priests were encouraged to "ask their parishioners to sign postcards urging their U.S. Senators and Representatives to vote to override the President's veto." Id. at P 13.

 On or about May 29, 1996, the Archdiocese for the Military Services sent a letter informing Catholic chaplains in the U.S. military of the Post Card Campaign. Among other things, the letter stated, "You might well consider asking your parishioners to be a part of this joint effort. I am sending you information and addresses of the appropriate legislators as well as a copy of the project postcard that you could copy and give to your parishioners to enlist their cooperation in these efforts on behalf of human life."

 Apparently in response to a request by the Office of the Chief Chaplain, on June 5, 1996, an Air Force Judge Advocate General ("JAG") issued an opinion letter regarding participation in the Post Card Campaign by Air Force chaplains. The JAG stated, "We believe that the applicable directives prohibit you from participating in this campaign or encouraging other Air Force chaplains or members to participate in it." The JAG's stated reasons were three-fold. First, he cited a Department of Defense Directive and an Air Force regulation (DoD 1344.10, P D.1.B(1); AFI 51-902, P 3.1) prohibiting a member on active duty from using "his official authority or influence for soliciting votes for a particular issue." Second, the memorandum cited an Air Force regulation (AFI 51-902, P 3.3) that prohibits a member on active duty from participating in partisan political activity, defined to include "supporting issues identified with national political parties or ancillary organizations." Third, the memorandum cited a DoD Instruction (5500.7-A § 6-100) which provides that an "Air Force member may not participate in political activities while on duty; while wearing a uniform, badge insignia or other similar item that identifies his position; or while in any building occupied in the discharge of official duties by an individual employed by the United States Government." *fn1"

 On June 21, 1996, a memorandum from Navy Deputy Chief of Chaplains A.B. Holderby, Jr. to staff chaplains stated that members on active duty may not use "their official position to solicit votes for a particular candidate or issue." It further stated that "anti-lobbying laws prohibit government employees from using appropriated funds to directly or indirectly influence congressional action on pending legislation." Therefore, the memorandum instructed, Navy personnel may not "officially participate or urge others to participate in" the Post Card Campaign. The memorandum specifically instructed that "no one acting in an official capacity may distribute post-cards or use government resources such as congregation newsletters to publicize the campaign." However, these restrictions would not preclude chaplains from "discussing the morality of current issues in their sermons or religious teachings pursuant to their religion." Additionally, members were not restricted from communicating with members of Congress in their "personal or private capacities."

 On June 24, 1996, the United States Army Headquarters sent a message to commanders of the Major Army Commands that was almost identical to the Holderby memorandum. On the same day, the Army's Office of the Chief of Public Affairs issued a similar memorandum; this memorandum explicitly invoked the Anti-Lobbying Act, 18 U.S.C. § 1913. The Anti-Lobbying Act provides that, absent express congressional authorization, no part of any money appropriated by any enactment of Congress, may be "used directly or indirectly to pay for any personal service, advertisement, . . ., letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress . . ." 18 U.S.C.A. § 1913 (West 1984). Anyone who violates or attempts to violate the Act "shall be fined. . . or imprisoned not more than one year or both; and after notice and hearing by the superior officer vested with the power of removing him, shall be removed from office or employment." Id.

 B. The Plaintiffs

 Plaintiff Father Rigdon holds the rank of Lieutenant Colonel in the Air Force. He is a Roman Catholic chaplain in the Ready Reserve who provides Catholic Coverage at Andrews Air Force Base, which means that he is available to fill in for the regular chaplain on short notice to say mass, hear confession, or provide counseling. He provides such coverage at least twenty days per year. *fn2" Upon receiving the May 29 letter regarding the "Project Life Postcard Campaign" from the Military Archdiocese, Father Rigdon "considered [it] to be a directive from [his] bishop concerning the content of [his] preaching," a directive that his conscience as well as Canon 768 of the Catholic Code of Canon Law required him to follow. According to Father Rigdon's declaration submitted on November 8, 1996, the "Air Force memorandum issued in June *fn3" created a conflict of conscience between the demands of [his] faith and [his] desire to conform to military directives."

 The military directives prevailed in Father Rigdon's mind. While on active duty during the last three days of the Post Card campaign in September, *fn4" Father Rigdon did not feel "free . . . to preach[] in favor of overriding the President's veto and distribute[] postcards." Further, he interpreted and continues to interpret the "encourage other[s] to participate" language contained in the Judge Advocate General opinion as prohibiting him from encouraging others to write to Congress "in all contexts, including private counseling of Air Force members as well as urging them to write their members of Congress in a homily." He further interprets the opinion as barring him from urging Air Force personnel from contacting Congress about any legislative issue, not just the Partial Birth Abortion Ban Act. Consequently, Father Rigdon was and continues to be "wary of addressing moral issues that intersect with legislation in homilies or counseling for fear of disciplinary action" against him. Father Rigdon notes that the Project Life Postcard Campaign was not the first such campaign sponsored by the Roman Catholic Church and "surely will not be the last."

 In his declaration submitted on March 25, 1997 in support of his motion for preliminary injunction, Father Rigdon states that the Partial Birth Abortion Ban Act, which failed to become law in the 104th Congress, has been reintroduced in the 105th Congress and has already passed the House of Representatives. He further notes,

"If called upon to say Mass at Andrews Air Force Base, I would like to encourage my congregation to call or write their Senators in support of this bill. Because of the Memoranda issued by the Air Force last June, and the position articulated by the Defendants since then, I am afraid to speak to my congregation about the Partial Birth Abortion Ban Act for fear of prosecution or other action against me."

 Second Declaration of Father Rigdon at P 3. The defendants argue that since Father Rigdon is a Reservist, "it is only speculative whether [he] . . . will be called upon to say Mass at Andrews Air Force Base during the pendency of the proposed legislation." Defendants' Memorandum in Opposition to Motion for Preliminary Injunction at 5.

 Plaintiff Rabbi Kaye is an active duty Air Force chaplain stationed at Offutt Air Force Base in Nebraska and currently holds the rank of Captain. According to Rabbi Kaye, "it is impossible, indeed incoherent, to separate moral teachings from Judaism. And when a law is immoral [he] believe[s] that as a Rabbi [he] must not remain silent." Thus, Rabbi Kaye believes that he must be able to speak out against or in favor of legislation concerning what he considers to be immoral practices, including "partial birth" abortion, euthanasia, and "various forms of sexual immorality."

 In his declaration submitted on November 8, 1996, Rabbi Kaye states that he feels potentially threatened with punishment if he speaks out against immoral laws. However, he does not say that he ever desired in the past or in the future to encourage his congregants to write to Congress.

 On March 26, 1997, Rabbi Kaye submitted a second declaration in light of the newly-introduced bill on partial birth abortion. This time, Rabbi Kaye states that "partial birth" abortion is "infanticide," "an abomination before God and violate's God's law." He further complains that

"as a Rabbi I must tell my Congregation that this abomination must not be allowed to continue in a society that calls itself just. I believe that I must tell my Congregation that as Jews they have a duty to oppose injustice. I wish to tell my congregation that the Partial Birth Abortion Ban Act presents them with an opportunity to oppose one of the greatest injustices that exists in the United States. Under current Air Force policy, I cannot say this to my Congregation."

 Second Kaye Declaration at P 4. *fn5"

 There is no dispute that the military continues to prohibit military chaplains from encouraging their military congregants to contact Congress in favor of the Partial Birth Abortion Ban Act. There also is no dispute that the existence of the military chaplaincy is critical to fulfilling the free exercise rights of service men and women and their families, and that service members are forced to rely exclusively on chaplains when stationed in parts of the country in regions where clergy of their faith are not available, in countries overseas where religious freedom is not recognized or their religion not prevalent, and when deployed in conflicts. The defendants merely contend that the anti-lobbying restrictions on preaching and counseling by military chaplains (which also apply to all other service members) advance the compelling interests of a politically disinterested military establishment, the good order and discipline of service members essential to military readiness and national defense, and the protection of the political rights of individual service members.



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