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January 10, 2002


The opinion of the court was delivered by: Urbina, District Judge.

These cases incite a probing scrutiny of the First Amendment's Establishment and Free Exercise Clauses. While the vast majority of First Amendment religion cases involve laws or governmental policies that allegedly promote or inhibit religion in relation to the secular realm (e.g., school-voucher cases, prayer-in-school cases), the instant cases implicate the more unusual claim that governmental policies favor one religion over another.
The principal motion before the court is the defendants' motion to dismiss the complaint in the Adair case. For the reasons that follow, the court will deny in part and grant in part the defendants' motion to dismiss. In addition, because the court declines to convert the defendants' motion to dismiss into a motion for summary judgment, the court will deny without prejudice the plaintiffs' motion for partial summary judgment and will order a briefing schedule on the plaintiffs' motion.
Moreover, because the court will now resolve the defendants' motion to dismiss, the court will deny as moot the defendants' motion to hold in abeyance the proceedings on the plaintiffs' motion for partial summary judgment until the court resolves the defendants' motion to dismiss. Lastly, the plaintiffs filed a motion to allow one chaplain plaintiff, who feared harassment and retaliation, to use a pseudonym to pursue this litigation. Because the plaintiffs filed a motion for class certification, which would render the motion for a pseudonym moot, the court will deny without prejudice the plaintiffs' motion to allow one plaintiff to use a pseudonym and will revisit the issue, if necessary, after the court has ruled on the plaintiffs' motion for class certification.
A. Factual History*fn2
1. The Navy Chaplain Corps
Congress provided for the organization of the Navy Chaplain Corps, whose members are commissioned Naval officers who possess specialized education, training, and experience "to meet the spiritual needs of those who serve in the Navy and their families." See Adair First Am. Compl. ("Compl.") at 21; see also Mot. to Dismiss at 4 (citing 10 U.S.C. § 5142); Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (rejecting Establishment Clause challenge to Army chaplaincy program since such program was necessary to protect Army personnel's free-exercise rights).
To comply with this congressional directive, the Department of Defense ("DoD") established a system to recruit professionally qualified chaplains for service in the Armed Forces "to provide for the free exercise of religion for all members of the Military Services, their dependents, and other authorized persons." See Mot. to Dismiss at 4 (quoting 32 C.F.R. § 65.2). The defendants explain that chaplains serve as Naval officers and, when seeking promotions, pursue the standard course for advancement through promotion to higher grades. See id. (citing 10 U.S.C. § 5142). Like other military officers, chaplains receive periodic reviews by promotion boards to determine which chaplains should be recommended for promotion. See id. (citing 10 U.S.C. § 611 and 5142). The promotion boards are composed of five or more members, at least one of whom must be from the category under review. See id. at 4-5 (citing 10 U.S.C. § 612). Until recently, the Navy's chaplain promotion boards have generally included one line officer and four Chaplain Corps officers.*fn3 See id. at 5.
2. Definitions
The Navy divides most of its Christian personnel into three general categories: Catholic, liturgical Protestant, and non-liturgical Christian. See Compl. at 21. The plaintiffs are all non-liturgical Christians. The Navy uses the term "special worship" to denote a small number of Christian and non-Christian faith groups that have unique or special needs for their worship and religious practices, including Jewish, Seventh-Day Adventist, Christian Science, Latter-Day Saints (Mormons), Muslim, Hindu, and other religions. See id. at 21 n. 3.
The term "liturgical Protestant" refers to those Christian Protestant denominations whose services include a set liturgy or order of worship. See Compl. at 21. According to the plaintiffs, "[t]his primarily includes those Protestant traditions or denominations that began during the Protestant Reformation and who retained an established liturgy in their worship services such as Lutheran, Reformed and Episcopal denominations, and the denominations which later evolved from them, e.g., Presbyterian and Methodist." Id. at 21-22. The plaintiffs explain that while every church "has some `order' to its worship," these Protestant denominations do not have a worship service without the prescribed liturgy. See id. at 22 n. 4. Another common feature of these liturgical denominations is that they all practice infant baptism. See id. at 22. Also known as "high church" or "main line churches," "liturgical Protestant" is used by the plaintiffs to refer to chaplains of the Lutheran, Episcopal, Methodist, Methodist Episcopal, United Church of Christ, Congregational, Reformed and Presbyterian denominations, and the Orthodox tradition.*fn4 See id.
In contrast, "non-liturgical" denotes Christian denominations or faith groups that do not have a formal liturgy or order in their worship service. See Compl. at 22. According to the plaintiffs, these groups baptize only adults or children who have reached "the age of reason" and their clergy do not usually wear vestments or special religious dress during services. See id. Referred to by some Navy chaplains as "low church," the non-liturgical Christian categories include Baptist, Evangelical, Pentecostal, and Charismatic faith groups. See id. The Navy often refers to these faith groups as "non-liturgical Protestant." See id. The plaintiffs belong to this category and represent Southern Baptist, Christian Church, Pentecostal, and other non-liturgical Christian faith groups. See id.
3. Parties

In the Adair case, 17 current and former non-liturgical Christian chaplains filed suit.*fn5 The plaintiffs sue on their own behalf and, as a proposed class, on behalf of similarly situated chaplains.*fn6 The lawsuit challenges religious discrimination in the Navy Chaplain Corps ("the Chaplain Corps" or "the Corps"), "including the establishment of illegal religious quotas for Navy chaplain promotions and career opportunities; the establishment of a preferred religious tradition and a religious patronage system in the Corps; and creation of a pervasive climate of bias, animosity and deceit toward non-liturgical Christian Navy chaplains. . . ." Compl. at 4. In addition, the plaintiffs plead violations of the First and Fifth Amendments in the Corps' promotion, retention, and separation decisions. See id.

A sampling of the individual plaintiffs' allegations is as follows.

Plaintiff Robert Adair enlisted in the Navy in January 1967. See id. at 5. After completing his enlistment in 1970, he attended college and then earned a Master of Divinity degree in 1977. See id. The Southern Baptist convention, a non-liturgical Christian denomination, endorsed him and he became an active-duty Navy chaplain in 1979. "Despite his outstanding service, he was selected for early retirement in [Fiscal Year 1995] by a Selective Early Retirement Board (SERB) that selected only non-liturgical Christian chaplains while allowing liturgical chaplains with inferior records to continue on active duty." Id. Plaintiff Adair charges that he involuntarily retired in 1996. He alleges that, "[b]ut for the SERB decision, believed to rest on illegal religious discrimination and animosity toward his faith group, [plaintiff] Adair would have continued on active duty and retired at a higher pay rate." Id.
Lieutenant Michael Belt, an active-duty chaplain since 1991, alleges that a liturgical Protestant chaplain berated him for preaching that "men who call themselves Christians should live as Christians." See Compl. at 5. This liturgical Protestant chaplain allegedly gave Lieutenant Belt a low mark on his fitness report because he made this statement. See id. After Lieutenant Belt and another non-liturgical chaplain reformatted a Protestant worship service with low attendance, the congregation supposedly grew from 40 to about 130. See id. The liturgical Protestant chaplain who rated him, however, allegedly told him that his style of worship was "hogwash" and took over the service, returning it to a liturgical service. See id.
Dr. Gregory De Marco served as an enlisted Navy "hard hat" deep-sea diver from 1972 to 1981, at which point he left the Navy to attend a seminary. See Compl. at 6. In 1983, he was commissioned as a non-liturgical Christian chaplain and remained in the U.S. Naval Reserves until he was recalled to active duty in 1987. See id. The Navy promoted him to lieutenant commander in 1993 and he remained on active duty until 1998. See id. In December 1997, the liturgical command chaplain allegedly criticized plaintiff De Marco for ending his prayers "in Jesus [sic] name." See id. When plaintiff De Marco "insisted on praying in accordance with his beliefs and religious tradition," the liturgical command chaplain allegedly rated him in a manner that made him non-competitive for promotion. See id. The plaintiff claims that this rating was based on "faith group prejudice and bias." See id. Because he allegedly suffered such significant hostility and prejudice, he decided to retire early to "save further humiliation, minimize his personal and professional injury, and minimize the disruption and damage to his family." Id. at 7. In effect, Dr. De Marco claims that the Navy's actions constituted a constructive discharge from his job based on religious prejudice. See id.
Another plaintiff, Furniss Harkness, asserts that the Navy denied him a promotion in retaliation for his successful challenge of a Navy policy to the Navy's Inspector General several years earlier. See Compl. at 7-8. Other named plaintiffs claim that the Navy discriminated against non-liturgical Christian chaplains by selecting them in very large proportion for early retirement. In addition, instead of being selected for early retirement by the SERB, they were allegedly personally pre-selected by the Chief of Chaplains. See id. at 9.
The plaintiffs also claim that the Navy exhibited a systematic pattern of prejudice against non-liturgical Christian chaplains with prior military service. See id. at 11. "[T]he motivation behind this prejudice is the liturgical hierarchy's fear that a non-liturgical chaplain's prior military service gives him a competitive edge against other liturgical chaplains." Id. According to the plaintiffs, prior service can give a chaplain a greater understanding of how the Navy works and can provide an instant rapport with the sailors and Marines, resulting in more effective ministry and thus better fitness reports. See id. "In an equitable promotion system, some of these prior service chaplains would rise to the top of the Chaplain Corps, posing a threat to liturgical domination and control." Id. at 11-12.
Plaintiff James Wiebling states that he would have brought his claim against the Navy sooner, but the defendants deliberately and fraudulently concealed information from him. See Compl. at 12-13. He became aware of this supposed pattern of prejudice "only in late 1999 when . . . he learned of the Stafford Report and its implications."*fn7 Id. at 12. He and several other named plaintiffs therefore ask for an equitable tolling of the statute of limitations. See id. at 13 and n. 2.
The defendants in the Adair case, all sued in their official capacities, are Gordon R. England, Secretary of the Navy, Vice Admiral Norbert R. Ryan, Chief of Naval Personnel, Rear Admiral Byron Holderby, Jr., Chief of Chaplains, Rear Admiral Barry Black, Deputy Chief of Chaplains, and the United States Navy. See Compl. at 3.
B. Procedural History
In the companion case, Chaplaincy of Full Gospel Churches v. England, Dkt. No. 99cv2945, the plaintiffs filed their complaint on November 5, 1999. On January 10, 2000, the plaintiffs filed an amended complaint. Chaplaincy of Full Gospel Churches ("CFGC") is an ecclesiastical endorsing agency that certifies non-liturgical Christian clergy for service in the military.*fn8 See Chaplaincy First Am. Compl. at 1, 3. The DoD has approved CFGC as an endorsing agency since 1984. See Dkt. No. 99cv2945, Mem. Op. dated August 17, 2000 at 4 (Green, J.).*fn9 CFGC brought suit on behalf of itself and several of its chaplains, seeking both remedial and prospective relief. On February 2, 2000, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction, which the court denied. See Mem. Op. dated February 15, 2000 (Green, J.).
Meanwhile, on February 1, 2000, the defendants filed a motion to dismiss the amended complaint. On February 22, 2000, the plaintiffs filed a motion for leave to file a second amended complaint. The parties fully briefed these two motions. Then, on June 23, 2000, the plaintiffs filed a motion for partial summary judgment. The defendant responded to this motion with a motion to hold in abeyance the proceedings on the plaintiffs' joint motion for partial summary judgment until the court resolved the defendants' motion to dismiss.
On August 17, 2000, the court issued a Memorandum Opinion, granting in part and denying in part the defendants' motion to dismiss for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). See Mem. Op. dated August 17, 2000 (Green, J.). The court held that while CFGC had standing to sue on behalf of its chaplains, it lacked standing to sue on its own behalf. See id. Moreover, the court concluded that the plaintiffs could seek only prospective, and not remedial, relief. See id. The court also granted the plaintiffs' motion to file a second amended complaint. See id.
In the Adair case, the plaintiffs filed their class-action complaint on March 17, 2000. On June 16, 2000, the defendants filed a motion to dismiss. As they did in the companion case, the plaintiffs filed a motion for partial summary judgment on June 23, 2000, and the defendants again responded by filing a motion to hold in abeyance the proceedings on the plaintiffs' motion for partial summary judgment until the court had resolved the defendants' motion to dismiss.*fn10
On September 5, 2000, the Adair plaintiffs filed a motion to amend their complaint, seeking to add six more plaintiffs, one additional Navy defendant, and three additional counts. See Compl. at 3. On September 22, 2000, the defendants filed a motion to dismiss the amended complaint. In addition, the parties jointly proposed that their briefing on the defendants' motion to dismiss the original complaint be incorporated as the briefing for the defendants' motion to dismiss the amended complaint. Judge Green agreed, and consolidated the Adair and Chaplaincy cases for purposes of resolving the preliminary motions and ordered that the briefing on the defendants' motion to dismiss in the Adair case would control.*fn11 See Order dated September 26, 2000 (Green, J.). Lastly, on October 21, 2000, the Adair plaintiffs filed a motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation.
On January 10, 2001, the Calendar Committee of the United States District Court for the District of Columbia randomly reassigned these two cases to this member of the court. Accordingly, the motions now pending before the court are as follows: (1) the defendants' motion to dismiss; (2) the defendants' motion to hold in abeyance the proceedings on the plaintiffs' motion for partial summary judgment until the court resolves the defendants' motion to dismiss; (3) the plaintiffs' motion for partial summary judgment; and (4) the plaintiffs' motion to allow a chaplain plaintiff to use a pseudonym.
C. The Plaintiffs' Allegations
The plaintiffs claim that in the late 1960s and 1970s, America's religious demographics began a substantial shift away from liturgical Protestant denominations toward the non-liturgical Christian churches, which the plaintiffs represent. See Compl. at 29. "This trend continues today." Id.

Until the mid to late 1980s, the Navy — like the Army and the Air Force — used a rough proportional-representation plan to determine how many chaplains it would hire from various religious denominations, according to the plaintiffs.*fn12 See id. at 29. Under this system, the Navy allegedly allocated chaplains among the various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population, as reported in sources such as the annual Yearbook of American and Canadian Churches. See id. For example, if 100 Navy chaplains slots were authorized and Catholics comprised 25 percent of the American religious population and Baptists made up 20 percent, the Navy would try to hire 25 Catholic and 20 Baptist chaplains. See id.

Starting in the late 1980s and continuing to the present, however, the Navy — unlike the Army and the Air Force — allegedly switched to a subjective "needs of the service" policy, which, the plaintiffs plead, became the "thirds policy." See Compl. at 29. Under the thirds policy, the Navy allegedly reserves one-third of its slots in the Chaplain Corps for liturgical Christians, one-third for Catholics, and one-third for members of every other religion. See id. at 29-30. Non-liturgical Christians are included in this last, catchall category, along with all the "Special Worship" groups, such as Jewish, Muslim, Hindu, Buddhist, etc. See id. In addition, "one third of Navy chaplain promotions, retentions on active duty and accessions were allegedly reserved for liturgical Protestant chaplains, whereas this group represented less than one eleventh of the religious membership of the Navy." Id. at 30.
According to the plaintiffs, top officials in the Chaplain Corps instituted the thirds policy to continue a heavy representation of liturgical Christians in the Corps itself and in the Corps' highest command posts, despite the fact that the percentage of liturgical Christians was declining both in the country and in the Navy. See id.
1. The Navy's Religious Demographics
The Armed Forces records religious-preference data for its service members. See Compl. at 27 Ex. 1 (a July 1998 report by the Defense Manpower Data Center ("DMDC")), Ex. 2 (a February 2000 DMDC report). The plaintiffs charge that the DMDC data demonstrates that liturgical Protestants made up about 8.76 percent of all DON active-duty personnel, i.e., both sailors and Marines, in 1998 and about 8.03 percent in 2000.*fn13 See Compl. at 28 (citing Exs. 1, 2). Specifically, in the 1998 report, service members of the various Methodist named or affiliated denominations comprised about 3.78 percent of all DON personnel, Presbyterian-related denominations comprised about 1.05 percent, the various Lutheran denominations comprised about 2.90 percent, Episcopal and Reformed Episcopal comprised about .73 percent, Methodist Episcopal comprised .20 percent, Reformed comprised about .10 percent, Orthodox .10 percent, for a total of about 8.76 percent. See id. (citing Ex. 1). This total had dropped to 8.03 percent in the February 2000 report. See id. (citing Ex. 2).
In 1998, Catholics represented 24.09 percent, or 132,429 out of 549,800 DON personnel, and 23.56 percent in 2000. See id. (citing Exs. 1, 2). Thus, the plaintiffs point out that Catholics and liturgical Christians combined comprised less than one-third of the Navy's total personnel, with 32.85 percent in 1998 and 31.59 percent in February 2000. See id. According to the Navy's alleged thirds policy, however, these groups are receiving two-thirds, or 66.67 percent, of all chaplain slots. See id. at 29-30. On the other hand, identified non-liturgical Christian faith groups represent about 50 percent of the Navy's religious population, but the defendants allegedly place the non-liturgical Christians in the catchall group, whereby all other religions combined receive about one-third of the chaplain slots. See id. at 28.
2. The Specific Counts in the Plaintiffs' Complaint

The allegations set forth in the plaintiffs' 13-count complaint can be grouped into several categories.*fn14 As an overview, the three principal categories are the plaintiffs' First Amendment Establishment Clause claims, Free Exercise Clause claims, and their Equal Protection Clause claims. Additional claims include allegations that the defendants fraudulently concealed evidence of the plaintiffs' causes of action, that the Navy constructively discharged certain plaintiffs from their work by making the work conditions very difficult, that the Navy abridged the plaintiffs' religious speech in violation of the First Amendment, and that the Navy violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb et seq.

The court now turns to the allegations in more detail.

First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system. Specifically, they claim that the Navy's objective in instituting the thirds policy was to create a denominational barrier that allows liturgical Protestant chaplains to maintain control of the Chaplain Corps. See Compl. at 29-32. In essence, the non-liturgical Christian chaplains allege that the Navy has devised a system through which it hires, promotes and retains chaplains from liturgical denominations, such as Catholics and liturgical Protestants, at a rate much greater than the liturgical Christians' representation among all DON personnel. See Compl. at 32.
For example, the plaintiffs charge that chaplain promotion boards consistently promote at least the same number of liturgical and non-liturgical Christian chaplains, elevating liturgical Christian chaplains in numbers far greater than the proportionate rate of liturgical Christians in the Navy. See id. at 30. They also plead that the promotion boards promote at least one-third liturgical Protestant chaplains in the Corps. See id.
As part of this system to maintain significant representation of liturgical Protestants in the Corps, the Navy also allegedly institutes a discriminatory retention policy, whereby it retains liturgical Protestants beyond their initial three-year tour of service at a disproportionately high rate as compared to their total membership percentage in the Navy. See id. at 31. According to the plaintiffs, the Navy has also routinely refused to retain non-liturgical Christian chaplains, resulting "in the over-representation of liturgical Protestant chaplains and the under-representation of non-liturgical Christians in the Navy chaplain program." Id. In short, the Navy's decisions regarding whether to retain chaplains are allegedly not based on "meeting the religious free exercise needs of Navy personnel, but solely on the basis of the chaplain's religious faith group." Id.

The defendants also allegedly promote a disproportionate number of high-church Protestant and Catholic chaplains to the senior officer ranks, i.e., Captain and Admiral, and key billets*fn15 in the Chaplain Corps. See Compl. at 32. Through July 2000, only one non-liturgical person had held the office of Chief of Chaplains since 1917. See id. (citing Ex. 3).

The plaintiffs' exhibit 4 is a January 25, 1995 memorandum from the Marine Corps Chaplain, Larry Ellis, to the Navy Chief of Chaplains ("the Ellis Report"). See id. at 32-33, Ex. 4. The plaintiffs point to the Ellis Report as documentation for "years of apparent institutional bias against `low-church' Protestant Navy chaplains in regard to assignments to the most prestigious and influential positions" within the Corps. Compl. at 32-33. As of the time of the report, only 14 clearly identifiable non-liturgical Christian chaplains had filled the 119 top Chaplain Corps positions in the previous 15 years, a fill rate of 11.8 percent. See Compl., Ex. 4. On the other hand, the fill rate for liturgical Protestants was 53.8 percent, see id., "far out of proportion to the percentage of the liturgical denominations in the general population of the Navy." See id. at 33, Ex. 4. Even after learning of the Ellis Report's findings, the Navy allegedly took no action to address this disparity. See id.
According to the plaintiffs, these policies serve no legitimate purpose, are not based on remedying pass discrimination, and are not narrowly tailored. See Compl. at 34. "The effect of the Navy's denominational quota system and granting religious preferences to the liturgical Protestant religious tradition, is to impermissibly endorse liturgical Protestant[ism] as an `official' preferred religious tradition in violation of the First Amendment's Establishment Clause." Id.
Fourth, the plaintiffs claim that liturgical Protestant and Catholic chaplains have dominated the chaplain promotion boards even though these traditions represent less than a third of the religious preferences of Navy personnel. See id. at 38. A rear admiral, the Navy Chief of Chaplains ("the Chief") approves all the members of the Navy's chaplain promotion boards. See id. at 37. The plaintiffs charge that the Chief informed one board of his personal list of which chaplains constituted "the future of the Navy." See id. at 38. The board allegedly promoted the chaplains the Chief identified, which violates 10 U.S.C. § 615 and 616(f)(2), the provisions that define the type of information that may be provided to the board and state that no official may exercise improper influence on the board. See id.
To support their allegations, the plaintiffs include a report on chaplain-promotion policies, issued on December 23, 1997 by Captain J.N. Stafford, special assistant for Navy Minority Affairs ("the Stafford Report"). See Compl., Ex. 5. The Stafford Report concluded "that the board may have systematically applied a denominational quota system." Compl. at 40. It called for an Inspector General ("IG") investigation into the Chaplain Corps' selection-board processes. See id. The Stafford Report also said, "[i]f it is established that improper selection practices have systematically occurred, [then we should] shift responsibility for selection of chaplains for promotion to the line community." Compl., Ex. 5, at 3. In March 1999, a DoD IG investigation into the same boards found that a candidate's faith group "may have been a factor in" the decisionmaking process for the 1998 commander boards in selecting chaplains for promotion. See id. at 40 (citing Ex. 6). The investigation also said, however, that there is "little indication of deficiencies in the Navy selection board process." Id., Ex. 6.
The last promotion-related claim focuses on the Navy's use of regional chaplains, by which senior chaplains (primarily liturgical Christians) rate other chaplains rather than having a base commander rate each chaplain on his or her base. See id. at 44. Alleging that the system does not ensure religious neutrality, the plaintiffs claim that this arrangement violates the First Amendment. See id.
Next, the plaintiffs allege that the Navy's policy of having only a "general Protestant" service and restricting other forms of non-liturgical religious services violates both the First Amendment's Establishment and Free Exercise Clauses. See Compl. at 35. The plaintiffs claim that the defendants have tried to establish a de facto liturgical Christian religion for its personnel, thereby limiting the opportunity for non-liturgical Christian personnel to meet their religious needs. See id. By mandating a liturgical "general Protestant" service, the Navy has tried to shape all Protestant service members "into a single liturgical worship mold while ignoring or actively hindering the religious needs of non-liturgical personnel." Id. The Navy has allegedly done this by denying or restricting non-liturgical Christian chaplains' ability to conduct services by removing non-liturgical Christian chaplains from preaching or conducting religious services and by opposing non-liturgical Christian worship alternatives. See id. For example, at the Navy's Naples, Italy base in 1999, there were nine English-speaking non-liturgical churches off-base, some of which met in "substandard facilities which were inadequate to hold the number of those wanting to attend, while Catholic and liturgical Protestants ...

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