instructing their members to lobby differently from one another on particular political issues." Defendants' Opposition at 17.
A politically-disinterested military, good order and discipline, and the protection of service members' rights to participate in the political process are compelling governmental interests, but the defendants have not shown how these interests are in any way furthered by the restriction on the speech of military chaplains. Relying on nothing more than what they claim is "common sense," the defendants assert that if service people receive different religious counsel on lobbying, "political conflicts" will result. They further assert that "conflicts of this nature could severely undermine military discipline, cohesion, and readiness to the serious detriment of the National Security." Defendants' Summary Judgment Memorandum at 24.
It is difficult to understand why the defendants have singled out for proscription a seemingly innocuous request to congregants to write to Congress. There is no suggestion that Rabbi Kaye or Father Rigdon wish to have their congregants "proselytize" their fellow soldiers on the morality of a piece of abortion legislation or encourage their fellow troops to contact Congress. While this Court should be deferential to what the defendants "perceive to be a clear danger to the loyalty, discipline, or morale of troops,"
the defendants have failed to submit any evidence showing how Rabbi Kaye's or Father Rigdon's contemplated speech would in any way enhance a potential for "political conflicts" that the defendants already tolerate, let alone create a clear danger to the loyalty, discipline or morale of the troops.
Recently, this Circuit held under the RFRA that the federal government's interest in eradicating sex discrimination -- a compelling governmental interest
-- was outweighed by a religious university's right to autonomy in its employment of ministers. See Equal Employment Opportunity Commission v. Catholic Univ. of Am., 83. F.3d 455, 467-68 (D.C. Cir. 1996). Here, the compelling interests advanced by the military are outweighed by the military chaplains' right to autonomy in determining the religious content of their sermons, especially because the defendants have failed to show how the speech restriction as applied to chaplains advances these interests.
D. The Defendants' Interpretation of Directive 1344.10 Violates the Chaplains' Free Speech Rights under the First Amendment.
The Supreme Court "has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S. Ct. 3439, 3448, 87 L. Ed. 2d 567 (1985). The three types of forums that may exist on government property are (1) traditional public forums, (2) designated public forums, and (3) nonpublic forums. Cornelius, 473 U.S. at 802. Traditional public forums are places such as streets and parks that "by long traditional . . . have been devoted to assembly and debate." Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S. Ct. 948, 954, 74 L. Ed. 2d 794 (1983). Designated public forums are those "created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. 788 at 802, 105 S. Ct. at 3449.
"The touchstone for determining whether government property is a designated public forum is the government's intent in establishing and maintaining the property." Stewart v. District of Columbia Armory Bd., 274 U.S. App. D.C. 324, 863 F.2d 1013, 1016 (D.C. Cir. 1988) (citing Cornelius, 473 U.S. at 802, 105 S. Ct. at 3449). A court may examine "the nature of the property and its compatibility with expressive activity to discern the government's intent." Stewart, 863 F.2d 1013 at 1016 (quoting Cornelius, 473 U.S. 788 at 802-03, 105 S. Ct. 3439 at 3448-49).
There is no dispute that the government has, by statute and regulation, institutionalized the provision of religious services in the Armed Services by creating the office of the chaplaincy and by dedicating facilities and personnel sufficient "to satisfy the religious needs of military members and their families and thus further to provide for the free exercise of religion by members of the Armed Forces. . ." Defendants' Summary Judgment Memorandum at 6.
Thus, it has been the government's clear intent that certain facilities on military property (e.g., chapels) and personnel (e.g., chaplains) be dedicated exclusively to the free exercise rights of its service people. The religious nature of these military facilities, therefore, is wholly compatible with expressive activity; indeed, the very purpose underlying these facilities is expressive, religious activity.
The question remaining is whether the defendants' anti-lobbying restriction comports with the designated public forum doctrine. At oral argument, defendants' counsel contended that the restriction is content-neutral because it applies "regardless of the candidate or issue" and that granting an exception for chaplains would enmesh the military in having to make content-based distinctions. The defendants' concern rings hollow, because the military already has made not only a content-based, but a viewpoint-based, distinction by favoring the religious views of one chaplain (Captain Friel) over another's (Father Rigdon's).
During the Project Life Post Card Campaign last summer, Captain John F. Friel, a Catholic priest on active duty in the United States Navy, spoke masses at the U.S. Naval Academy Chapel. Captain Friel told his parishioners about Navy policy prohibiting service members from using their official position to lobby for a particular candidate or issue. He further told them "that in [his] opinion, they were sophisticated enough to know how to contact their senators and congressmen if the [sic] felt the need to do so, . . . and if their conscience called them to write to their congressmen and senators, they knew how to contact them." Declaration of Captain John F. Friel at P 5. Unlike Father Rigdon, Captain Friel did not believe that urging Congress to vote in favor of the Partial Birth Abortion Ban Act was mandated by the Catholic faith.
While Captain Friel's speech is permissible, Father Rigdon's speech is not. Therefore, although the defendants claim otherwise, they have sanctioned one view of Catholicism (it is not necessary to write to Congress) over another (it is necessary). Such favoritism not only impinges on Father Rigdon (and on Rabbi Kaye because of his view of Judaism), but on their congregants, because these chaplains are not free to advocate what they believe to be appropriate religious conduct. If, after an emotional sermon about the "abomination" of partial birth abortion, congregants were to rise from the pews and ask Father Rigdon or Rabbi Kaye what they can do to stop this practice, these chaplains would have to respond, "I cannot say." This muzzling of religious guidance is the direct result of the defendants' viewpoint discrimination.
Viewpoint discrimination in a designated public forum "is presumed impermissible when directed against speech otherwise within the forum's limitations." Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, , 115 S. Ct. 2510, 2517, 132 L. Ed. 2d 700 (1995). The speech at issue here is within the forum's limitations. Other than the defendants' erroneous interpretation of Directive 1344.10, the statutes and regulations cited above evidence a government intent to treat religious speech on a military base on par with religious speech off base, in order to respect the free exercise rights of service personnel.
The defendants counter that Father Rigdon's and Rabbi Kaye's contemplated speech is really "political," not religious. The defendants, however, provide no basis for the Court in this case to distinguish the political from the religious. For example, Father Rigdon's desire to urge his Catholic parishioners to contact Congress on legislation that would limit what he and many other Catholics believe to be an immoral practice -- partial birth abortion -- is no less religious in character than telling parishioners that it is their Catholic duty to protect every potential human life by not having abortions and by encouraging others to follow suit. Writing to Congress is but one way in which Catholics can fulfill this duty, and it coincidentally involves communicating with the political branches of government.
Even assuming arguendo that Father Rigdon's intended speech is in some sense political, it is not the role of this Court to draw fine distinctions between degrees of religious speech and to hold that religious speech is protected but religious speech with so-called political overtones is not. See Widmar v. Vincent, 454 U.S. 263, 270 n. 7, 102 S. Ct. 269, 274 n. 7, 70 L. Ed. 2d 440 (1981) (refusing to hold that "religious worship" is unprotected speech while speech about religion is protected; "even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer"). Accordingly, Father Rigdon's and Rabbi Kaye's intended speech lies within the limitations on the religious forum in which they speak.
To overcome the presumption of impermissibility, the defendants must show that their content- and viewpoint-based restriction is "necessary to serve a compelling . . . interest and that it is narrowly drawn to achieve that end." Widmar, 454 U.S. at 270, 102 S. Ct. at 274; Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1279-80 (10th Cir. 1996)(holding that viewpoint-based restriction of speech in designated public forum must be "'narrowly drawn to effectuate a compelling state interest'") (quoting Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983)). As discussed above in connection with the Religious Freedom Restoration Act, the defendants have not made this showing.
E. The Plaintiffs Are Entitled to a Preliminary Injunction and to Summary Judgment.
To obtain a preliminary injunction, the plaintiffs must show that (1) they have a substantial likelihood of succeeding on the merits; (2) they will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest will be furthered by the injunction. See Sea Containers Ltd. v. Stena AB, 281 U.S. App. D.C. 400, 890 F.2d 1205, 1208 (D.C. Cir. 1989).
The plaintiffs have met their burden. First, they are likely to succeed on the merits, because the Court already has found above that the defendants unlawfully have impinged upon their free exercise and free speech rights. Second, if the defendants' conduct is not enjoined, the plaintiffs will suffer irreparable harm to their constitutional and statutory rights to preach without being censored. Third, the defendants have not pointed to a single person or interest that would be substantially harmed if their conduct is enjoined; rank speculation about interference with good order and discipline or the political rights of soldiers does not suffice. Fourth, an injunction will serve the public interest by protecting the free speech and free exercise rights of chaplains and observant soldiers. Again, there is no evidence that military readiness or efficiency would be jeopardized by permitting chaplains to preach in accordance with their religious beliefs.
In addition to injunctive relief, summary judgment must be rendered for the plaintiffs if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). As discussed above, the undisputed material facts show the defendants' anti-lobbying proscription violates the plaintiffs' First Amendment rights and their rights under the Religious Freedom Restoration Act. Accordingly, the plaintiffs' also are entitled to judgment as a matter of law.
What we have here is the government's attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains' free exercise and free speech rights, as well as those of their congregants. On its face, this is a drastic act and can be sanctioned only by compelling circumstances. The government clearly has not met its burden. The "speech" that the plaintiffs intend to employ to inform their congregants of their religious obligations has nothing to do with their role in the military. They are neither being disrespectful to the Armed Forces nor in any way urging their congregants to defy military orders. The chaplains in this case seek to preach only what they would tell their non-military congregants. There is no need for heavy-handed censorship, and any attempt to impinge on the plaintiffs' constitutional and legal rights is not acceptable.
For all the foregoing reasons, the Court grants the plaintiffs' motion for preliminary injunction and motion for summary judgment, and denies the defendants' motion to dismiss or for summary judgment.
April 7, 1997
UNITED STATES DISTRICT JUDGE