United States District Court, District of Columbia
January 10, 2002
ROBERT H. ADAIR ET AL., PLAINTIFFS,
GORDON R. ENGLAND, SECRETARY OF THE NAVY, ET AL., DEFENDANTS. CHAPLAINCY OF FULL GOSPEL CHURCHES ET AL., PLAINTIFFS, V. GORDON R. ENGLAND, SECRETARY OF THE NAVY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Urbina, District Judge.
MEMORANDUM OPINION DENYING IN PART AND GRANTING IN PART THE DEFENDANTS'
MOTION TO DISMISS; DENYING AS MOOT THE DEFENDANTS' MOTION TO HOLD THE
PROCEEDINGS IN ABEYANCE; DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION
FOR PARTIAL SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE THE PLAINTIFFS'
MOTION TO ALLOW A CHAPLAIN PLAINTIFF TO USE A PSEUDONYM
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.
Although the above-captioned cases are not consolidated for all
purposes, they have been consolidated for purposes of the pending
motions.*fn1 In the Chaplaincy case, the plaintiffs are an endorsing
for military chaplains and seven of its individual members. In
the Adair case, the plaintiffs are 17 current and former non-liturgical
chaplains in the Department of the Navy ("the defendants", "Navy", or
"DON"). In both cases, the plaintiffs allege that the Navy has
established and maintained an unconstitutional religious quota system for
promotion, assignments, and retention of Navy chaplains, in violation of
both the Establishment Clause and the Free Exercise Clause of the First
Amendment, and the Equal Protection Clause of the Fifth Amendment.
Specifically, the plaintiffs allege that the Navy's policies and practices
favor liturgical Christian chaplains over non-liturgical Christian
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'
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
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
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.
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.
In the Adair case, 17 current and former non-liturgical Christian
The plaintiffs sue on their own behalf and, as
a proposed class, on behalf of similarly situated chaplains.*fn6
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."
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
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.
The next major set of allegations revolves around the defendants'
chaplain-promotion system. First, the plaintiffs allege that, unlike the
Army and Air Force, which use selection boards comprised of officers from
other branches of the armed
forces to select chaplains for promotion,
chaplains dominate the Navy's chaplain selection boards. See Compl. at
37. Second, although the boards may consider only merit and not
denominational affiliation, each promotion candidate's three-digit "faith
group identifier" code is prominently displayed during the promotion
process. See id. "This procedure has no other purpose than to identify a
candidate's faith group to the board and thereby create a suspect
religious category unrelated to any legitimate Navy objective." Id.
Third, the plaintiffs assert that placing more than one chaplain on a
chaplain promotion board perpetuates the cycle of illegal religious
quotas, unconstitutionally delegates a governmental function to a
religious body, and places a candidate's religious affiliation over a
candidate's merits. See id. at 38-40.
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 enjoyed
spacious on post facilities designed for their styles of worship." Id. at
36. Moreover, the plaintiffs assert that senior officials in the Corps
have criticized and berated non-liturgical Christian chaplains "for
preaching and teaching on truths of the Christian faith and their specific
religious tradition." See id. at 35.
Concluding this category of allegations, the plaintiffs lay out a broad
claim that the Navy's policies and practices exhibit "manifest hostility"
to non-liturgical Christian chaplains. See Compl. at 45. Specifically,
although there are four times as many DON members of non-liturgical
Christian faith groups than those of liturgical Protestant
denominations, the Navy allegedly allocates chaplain positions in an
irrational and arbitrary basis designed to hinder non-liturgical
Christian faith groups. See id. at 46. The plaintiffs also charge that
senior chaplains have intentionally given some non-liturgical Christian
chaplains lower performance ratings than similarly situated liturgical
Protestant and Catholic chaplains "solely on the basis of their religious
identification and beliefs despite evidence of the non liturgical
chaplain's superior performance." Id. Moreover, the Navy allegedly has
a two-tiered system of discipline, whereby liturgical Christian chaplains
receive lighter punishments for similar offenses than their
non-liturgical Christian counterparts. See id. at 47. In addition,
while the Navy provides career-planning information, such as postgraduate
education opportunities to liturgical Christian chaplains, it does not
give the same type of information to non-liturgical Christian chaplains.
In sum, the plaintiffs protest their "second-class" treatment, which
allegedly violates the Establishment, Free Exercise, and Free Speech
Clauses of the Constitution's First Amendment, and the equal-protection
component of the Fifth Amendment's Due Process Clause. See id.
Turning to the claims that focus on the Free Exercise Clause, the
non-liturgical chaplains charge that some non-liturgical Christian
chaplains and similar faith Navy personnel have been denied and
selectively excluded from access to Navy facilities on the basis of
discrimination against religious speech with a specific viewpoint, i.e.,
non-liturgical, evangelical, and low-church. See Compl. at 42.
Essentially, the plaintiffs allege that the Navy's discriminatory
policies and hostility deny both non-liturgical Christian chaplains and
their would-be congregants their First Amendment constitutional right to
the free exercise of their religion by denying or severely limiting their
access to chaplains and worship services of their faith groups. See id.
at 42 (citing 32 C.F.R. § 65.3). The plaintiffs claim that the
under-representation of non-liturgical Protestant chaplains limits the
ability of these chaplains to meet their community's religious needs.
Thus, "non-liturgical chaplains must expend more effort to meet the needs
of their faith group members than is required by liturgical Protestant
chaplains." Id. The plaintiffs
charge that these policies "are
deliberately motivated by faith group bias." Id. at 43.
In a related claim, the plaintiffs plead that the defendants
discriminate against non-liturgical Christian chaplains in violation of
the First and Fifth Amendments by unlawfully disapproving the religious
speech contained in their non-liturgical Christian tradition. See id. at
43-44. In a separate claim, the plaintiffs allege that since the
Establishment Clause limits the taxing and spending power conferred by
Article I, Section 8 of the Constitution, Congress may not appropriate
tax funds to support the Navy's use of such funds to favor one religion,
in violation of the Establishment Clause. See id. at 45.
Next, the non-liturgical Christian chaplains anticipate a
statute-of-limitations defense and claim that the Navy has fraudulently
concealed evidence that would support the plaintiffs' causes of action.
See Compl. at 47-51. That is, the Chaplain Corps "has lied to,
misrepresented to, or otherwise mislead [sic] plaintiffs and others who
have raised questions about the appearance of quotas, faith group
prejudice, and/or the fairness or objectivity of the chaplain promotion
and [retention] processes." Id. at 48-49. This alleged fraudulent
concealment has prevented the plaintiffs and their class from seeking
timely redress. See id. at 50. Accordingly, the plaintiffs argue that
this "deception and concealment" warrants an equitable tolling of any
statute of limitations for claims covered by this concealment and
equitably estops the Navy from asserting a statute-of-limitations
defense. See id.
Finally, the Navy has allegedly sought to retaliate and punish the
plaintiffs who have brought this lawsuit, and has constructively
discharged certain plaintiffs by making their work conditions intolerable
to the point that the defendants gave these plaintiffs no choice but to
leave the Navy or retire. See Compl. at 51. In addition, the
non-liturgical Christian chaplains claim that the Navy has violated the
Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb et seq., by
illegally burdening the religious rights of the plaintiffs without a
substantial governmental purpose. See id. at 51-52.
The plaintiffs seek declaratory relief and a permanent injunction.
Among other things, they ask the court to strike down: the Navy's
alleged thirds policy; the Navy's practice of placing more than one
chaplain on chaplain promotion boards; the Navy's practice of allowing
the Chief of Chaplains to determine the makeup of a promotion board or a
SERB; the Navy's policy of identifying the faith group of each chaplain
to be considered by promotion boards or SERBs; and the Navy's alleged
endorsement of "an official liturgical General Protestant service." See
Compl. at 52-54. In addition, the plaintiffs call for an end to the
alleged "dominance of the Navy's senior ranks and key billets by
liturgical Protestant chaplains, out of all proportion to their actual
percentages in the Navy," as well as the over-representation of liturgical
Christian chaplains in the entire Chaplain Corps. See id. at 55. In
essence, the plaintiffs ask the court for an order directing the Navy to
bring both the entire Chaplain Corps and its senior officials "into line
with the Navy's religious demographics." See id. at 59.
The court now turns to the defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
A. Legal Standard for a Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears
the burden of
establishing that the court has jurisdiction. See District
of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431
(D.D.C. 1987). In evaluating whether subject-matter jurisdiction
exists, the court must accept all the complaint's well-pled factual
allegations as true and draw all reasonable inferences in the plaintiff's
favor. See Scheuer v. Rhodes, 416 U.S. 232
, 236 (1974), overturned on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800
(1982). The court is
not required, however, to accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual allegations. See,
e.g., Lawrence v. Dunbar, 919 F.2d 1525
, 1529 (11th Cir. 1990).
Moreover, the court need not limit itself to the allegations of the
complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.
1986), vacated on other grounds by 482 U.S. 64 (1987). Rather, the court
may consider such materials outside the pleadings as it deems appropriate
to determine whether it has jurisdiction in the case. See Herbert v.
National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need
only provide a short and plain statement of the claim and the grounds on
which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson,
355 U.S. 41, 47 (1957). A motion to dismiss under Rule 12(b)(6) tests
not whether the plaintiff will prevail on the merits, but instead whether
the plaintiff has properly stated a claim. See FED. R. CIV. P.
12(b)(6); Scheuer, 416 U.S. at 236. The plaintiff need not plead the
elements of a prima-facie case in the complaint. See Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000).
Thus, the court may dismiss a complaint for failure to state a claim
only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations. See Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984); Atchinson v. District of
Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). In deciding such a motion,
the court must accept all the complaint's well-pled factual allegations
as true and draw all reasonable inferences in the nonmovant's favor. See
Scheuer, 416 U.S. at 236.
B. The Appropriate Standard of Review
Before the court assesses the constitutionality of the defendants'
various policies and practices at issue, the court must first determine
what the appropriate standard of review should be in this case. While
the parties disagree about some of the applicable standards and find
common ground on others, the court determines that the constitutional
issues implicated by this dispute are sufficiently intricate to warrant
an exacting discussion of the applicable standards of review.
Accordingly, the court will separate the plaintiffs' allegations into the
three major constitutional rubrics the complaint discusses: alleged
violations of the Establishment Clause, the Free Exercise Clause and the
Equal Protection Clause. The court will consider in turn, then, the
appropriate standard of review for each category.
1. Establishment Clause Claims
As noted previously, most First Amendment religion cases deal with a
challenge to a governmental law or policy that allegedly benefits or
hinders religion as compared to non-religion. The case at bar, however,
raises the much rarer type of First Amendment religion case in which the
plaintiffs allege that a law or policy benefits one religious group over
another. In these cases, the Supreme Court stands on even more
heightened alert than in
cases involving religion as opposed to the
secular. Because the Supreme Court has established two distinct tests
depending on which type of Establishment Clause case is at issue, and
because the parties disagree about which test should apply, the court
will begin its inquiry with an analysis of the relevant Supreme Court
a. Lemon or Larson?
The seminal Establishment Clause case involving religion as it relates
to non-religion was Lemon v. Kurtzman, in which the Supreme Court struck
down Rhode Island and Pennsylvania laws designed to provide state aid to
boost the salaries of parochial-school teachers. See 403 U.S. 602
(1971). The Court held that the laws were unconstitutional because they
promoted "excessive entanglement between government and religion." See
id. at 614. In addition, the Court enunciated a three-pronged test for
examining cases in which governmental action allegedly sponsored or
hindered religion: to pass constitutional muster, (1) the statute must
have a secular legislative purpose; (2) its principal or primary effect
must be one that neither advances nor inhibits religion; and (3) the
statute must not foster "an excessive government entanglement with
religion." See id. at 612-13 (internal citations omitted).*fn16
In subsequent cases, the Supreme Court has used the Lemon test to both
uphold and strike down statutes. Declaring that a church's seeking to
advance religion is permissible while a similar attempt on the
government's part is impermissible, the Court upheld a law exempting
religious organizations from federal civil rights statutes that
prohibited employment discrimination on the basis of religion. See
Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 337-40 (1987); Marsh v.
Chambers, 463 U.S. 783 (1983) (upholding the constitutionality of the
Nebraska legislature's practice of opening each session with a prayer by
a chaplain paid with public funds). On the other hand, the Court deemed
unconstitutional a New York statute creating a special school district
for a small village inhabited by members of one religious sect, the
Satmar Hasidim, because it violated the religion clauses' neutrality
principal since its primary effect was to advance religion. See Board of
Ed. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994).
The second line of cases began with Larson v. Valente, in which the
Supreme Court first applied a strict-scrutiny analysis, rather than the
less rigorous Lemon test. See 456 U.S. 228 (1982). The Court stated
that while Lemon's three-pronged test was appropriate in cases where the
government arguably benefited or impeded religion as a whole in relation
to the secular, in cases in which government allegedly prefers one
religion over another, the more demanding strict-scrutiny analysis
applies.*fn17 See id.
at 246. In Larson, the Court considered a section
of Minnesota's Charitable Solicitations Act that provided that only those
religious organizations receiving more than 50 percent of their funds
from nonmembers were subject to the Act's registration and reporting
requirements. See id. at 230. The Unification Church, which relied
heavily on fundraising from nonmembers, brought suit, charging that the
50-percent rule discriminated against its organization in violation of
the Establishment Clause. See id. Demanding strict adherence to the
"principal of denominational neutrality," the Court held that:
"[t]he fullest realization of true religious liberty
requires that government . . . effect no favoritism
among sects . . . and that it work deterrence of no
religious belief." In short, when we are presented
with a state law granting a denominational
preference, our precedents demand that we treat the
law as suspect and that we apply strict scrutiny in
adjudging its constitutionality. . . . Consequently,
that [law] must be invalidated unless it is justified
by a compelling governmental interest . . . and unless
it is closely fitted to further that interest.
Id. at 246-47 (internal quotation omitted).
Faced with evidence that Minnesota had conducted religious
gerrymandering to help the Roman Catholic archdiocese avoid reporting
requirements and to force the Unification Church to report, the Court
raised concerns about the "risk of politicizing religion." See id. at
254. Leaving nothing to doubt, the Court declared that "[t]he clearest
command of the Establishment Clause is that one religious denomination
cannot be officially preferred over another." Id. at 244.
In the case at bar, the plaintiffs clearly allege that the Navy,
through its policies and practices, is favoring chaplains of liturgical
Christian faiths over those of non-liturgical Christian faiths. See,
e.g., Compl. at 4, 23, 30. The plaintiffs' Establishment Clause claims,
therefore, implicate the Supreme Court's Larson line of cases rather than
Lemon and its progeny. See Larson, 456 U.S. at 246. Despite what should
be readily apparent, the defendants would have the court believe that the
D.C. Circuit has somehow overruled the Supreme Court on this issue. See
Mot. to Dismiss at 10 n. 7. Specifically, the defendants seem to contend
that despite Larson's clear holding that courts should apply strict
scrutiny when assessing laws or policies creating denominational
preferences, "this Circuit has expressly reviewed the language in Larson
and has chosen to continue applying the Lemon test even to laws that
provide benefits to a specific religious sect that are not provided to
other sects." Id.
In support of this proposition, the defendants point to one footnote in
a D.C. Circuit case. See id. (citing United Christian Scientists v.
Christian Science Bd. of Directors, 829 F.2d 1152, 1162 n. 49 (D.C. Cir.
1987). In United Christian Scientists, the Court of Appeals affirmed a
district court ruling that a law granting a church the extended copyright
on all editions of a religious text violated the Establishment Clause,
and chose to apply the Lemon test rather than the Larson test. See
United Christian Scientists, 829 F.2d at 1162 n. 49. Despite the
defendants' contention, the Court of Appeals made it clear that one of
the main reasons it chose to apply Lemon was because "Larson's
application to the case at bar was neither considered by the district
court, nor argued before us." See id. While the Court of Appeals did
state that, "[t]he [Supreme] Court has never returned to elaborate upon
the doctrinal development it announced in Larson," id., the defendants'
implication that this single statement signaled the D.C. Circuit's intent
not to follow binding precedent from a Supreme Court case (decided only
five years earlier) strikes the court as a significant overstatement.
The course of chronological events further undermines the defendants'
position. The D.C. Circuit decided United Christian Scientists on
September 22, 1987. But on June 24, 1987 — three months earlier
— the Supreme Court decided Corporation of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day Saints v. Amos, and left no
doubt about the continuing vitality of Larson: "Larson indicates that
laws discriminating among religions are subject to strict scrutiny, and
that laws `affording a uniform benefit to all religions' should be
analyzed under Lemon." See Amos, 483 U.S. at 339 (internal citation
omitted).*fn18 Moreover, two years later, in County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter, the Court
reiterated Larson's enduring importance: "we have expressly required
`strict scrutiny' of practices suggesting `a denominational preference.'"
492 U.S. 573, 608-09 (1989) (quoting Larson v. Valente, 456 U.S. at 246)
(holding that while a county's display of a crèche violated the
Establishment Clause, its display of a menorah next to a Christmas tree
did not have the unconstitutional effect of endorsing Christianity and
Judaism).*fn19 In sum,
the court rejects the defendants' theory that the
D.C. Circuit has somehow abrogated the Supreme Court's decision in
Larson. On the contrary, Larson remains alive and well, and its
strict-scrutiny standard applies to this case.
b. Should Relaxed Strict Scrutiny Apply?
Moving on, the defendants argue that the Supreme Court has adapted its
application of the strict-scrutiny test to the unique circumstances that
exist within the military, and that the court should thus apply "a more
deferential application of the strict scrutiny test." See Mot. to
Dismiss at 11. To buttress their contention, the defendants rely heavily
on the Supreme Court decision in Goldman v. Weinberger, which upheld an
Air Force regulation prohibiting an Orthodox Jew from wearing a yarmulke
because the Air Force had a strong interest in discipline that justified
the strict enforcement of its uniform-dress requirement. See 475 U.S. 503
(1986). In Goldman, the petitioner claimed that the First Amendment's
Free Exercise Clause allowed him to wear a yarmulke while in uniform even
though this would violate Air Force regulation 35-10, which said that no
military personnel shall wear headgear while indoors except for armed
security police in the performance of their duties. See id. at 505. In
rejecting the petitioner's challenge, the Court stated that, "[o]ur
review of military regulations challenged on First Amendment grounds is
far more deferential than constitutional review of similar laws or
regulations designed for civilian society." Id. at 507.
But the Goldman case differs from the case at bar in several crucial
respects. First, Goldman dealt with a regulation that involved inherently
operational, strategic, or tactical matters. See id. at 507-09. The
challenged regulation related directly to the military's role in
conducting national defense. Indeed, the Supreme Court emphasized this
point in its decision and explained that the uniform-dress requirement
played a significant part in an operational function of the military:
The considered professional judgment of the Air Force
is that the traditional outfitting of personnel in
standardized uniforms encourages the subordination of
personal preferences and identities in favor of the
overall group mission. Uniforms encourage a sense of
hierarchical unity by tending to eliminate outward
individual distinctions except for those of rank. The
Air Force considers them as vital during peacetime as
during war because its personnel must be ready to
provide an effective defense on a moment's notice; the
necessary habits of discipline and unity must be
developed in advance of trouble. We have acknowledged
that "[t]he inescapable demands of military discipline
and obedience to orders cannot be taught on
battlefields; the habit of immediate compliance with
military procedures and orders must be virtually
reflex with no time for debate or reflection."
Id. at 508 (internal quotation omitted).
Conversely, in the instant case, the issues revolve around
considerations that are not related to strictly military affairs or to
the defense of the country. That is, the policies at issue here are
designed to hire, retain, and promote chaplains to satisfy the religious
needs of Navy service members. These policies relate to quality-of-life
issues for military personnel and have no specific operational,
strategic, or tactical objective. As the defendants themselves
acknowledge, Congress provided for the creation of the Navy's Chaplain
Corps "to provide for the religious needs
of Navy personnel." See Mot.
to Dismiss at 4 (citing 10 U.S.C. § 5142) (emphasis added).
Moreover, the defendants never try to articulate how the challenged
policies and practices — e.g., alleged religious preferences for
liturgical Christian chaplains — would further any operational,
strategic, or tactical objectives. Indeed, this court is at a loss to
see how the defendants could even argue that the alleged policies
designed to favor liturgical Christian chaplains could possibly advance
an important military objective.
The defendants suggest unconvincingly that because this case places the
First Amendment in the military context, the Navy's chosen policies
deserve "substantial deference." See Mot. to Dismiss at 18. But since
operational or strategic considerations are not at issue, the court need
not give the military the same level of deference in this case that it
otherwise might. Furthermore, the cases the defendants rely on actually
weaken their argument. For example, the defendants point to Katcoff v.
Marsh for the proposition that:
when a matter provided for by Congress in the exercise
of its war power and implemented by the Army appears
reasonably relevant and necessary to furtherance of
our national defense it should be treated as
presumptively valid and any doubt as to its
constitutionality should be resolved as a matter of
judicial comity in favor of deference to the
military's exercise of its discretion.
Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985) (internal citations
omitted) (emphasis added); see also Defs.' Reply ("Reply") at 4. While
the Katcoff court — which upheld the constitutionality of the
Army's Chaplain Corps as a whole — said that making religion
available to soldiers qualified as a crucial imperative, the Navy has not
articulated any reason why their policies and practices that allegedly
favor liturgical Christianity and inhibit non-liturgical Christianity are
"reasonably relevant and necessary to furtherance of our national
defense. . . ." See Katcoff, 755 F.2d at 234. Accordingly, the relaxed
strict-scrutiny standard for some cases involving the military does not
apply in this case, and the court will apply the usual strict-scrutiny
The second major distinction between Goldman and the instant case is
that the former was a Free Exercise Clause case. See Goldman, 475 U.S.
at 504. While the instant case involves both Free Exercise Clause and
Establishment Clause claims, the defendants offer Goldman as ostensible
support for the sweeping proposition that in all matters relating to the
First Amendment and the military, courts should show the armed forces
substantial deference. This court rejects such a broad reading of
In Goldman, the case presented the Supreme Court only with Free
Exercise Clause issues, not Establishment Clause issues. See id.
(stating that "Petitioner S. Simcha Goldman contends that the Free
Exercise Clause of the First Amendment to the United States Constitution
permits him to wear a yarmulke while in uniform. . . ."). The Court drove
home this distinction in discussing the balance between an individual
service member's conduct and the larger goals of the military:
the First Amendment does not require the military to
accommodate [the wearing of religious apparel such as
a yarmulke] in the face of its view that they would
detract from the uniformity sought by the dress
regulations. . . . The First Amendment therefore does
prohibit [the regulations] from being applied to
[Mr. Goldman] even though their effect is to restrict
the wearing of the headgear required by his religious
Id. at 509-10. This excerpt clearly demonstrates that the Court was
referring to an issue involving an individual's free exercise of
religion, rather than a prohibition on governmental action that an
Establishment Clause claim would raise. In sum, while Goldman supports
the proposition that an individual service member's First Amendment right
to the free exercise of his religion may be limited in certain
circumstances involving the military, the Court has never expanded this
rationale to Establishment Clause cases. Barring an explicit directive
from the Supreme Court or the D.C. Circuit to do so, this court refuses
to take the first step down that slippery slope.
One final point merits discussion. As one district judge has stated in
a similar case brought by an active-duty chaplain in California,
"[a]lthough this Court is mindful of the Supreme Court's admonishment
that the judiciary should give substantial deference to matters related
to management of the military, such protection does not extend to
practices that may subvert one's inalienable constitutional rights."
Sturm v. United States Navy, Dkt. No. 99cv2272 at 7 (S.D.Cal. 2000).
This court wholeheartedly agrees. In this case, the defendants seem to
be telling the court that even if a case implicates crucial
constitutional protections, the defendants should still prevail simply
because the case involves the military.
To some extent, the defendants' confusion is understandable. While the
Supreme Court's legal standard is relatively clear for Establishment
Clause cases, Goldman's instruction for courts to accord "great
deference" to the professional judgment of military authorities involving
policies or practices that affect First Amendment free exercise claims
provides the lower federal courts with little clear guidance. See
Goldman, 475 U.S. at 507. Not surprisingly, the plaintiffs interpret the
term "great deference" to mean that courts should still apply strict
scrutiny to these cases. But interestingly, the defendants themselves
interpret the term "great deference" to mean "a more deferential
application of the strict scrutiny test." See Mot. to Dismiss at 11.
In her dissent in the Goldman case, Justice O'Connor highlighted the
lack of a standard in criticizing the majority on the ground that "[n]o
test for free exercise claims in the military context is even
articulated, much less applied. It is entirely sufficient for the Court
if the military perceives a need for uniformity." Goldman, 475 U.S. at
528 (O'Connor, J., dissenting).*fn21 Perhaps a future case will provide
the Court with an opportunity to take Justice O'Connor's suggestion and
give the lower courts additional guidance in evaluating these claims.
2. Free Exercise Clause Claims
Unfortunately, neither party differentiates between the standard of
review this court should apply in Free Exercise Clause cases as opposed
to Establishment Clause cases. The defendants assert that the court
should employ the relaxed strict-scrutiny standard for all three of the
plaintiffs' principal claims: namely, those alleging violations of the
Establishment Clause, the Free Exercise Clause, and the Equal Protection
Clause. But as this court just
discussed in the previous section, the
Supreme Court's ruling in Goldman, a free exercise case, is inapplicable
to the free exercise claims at issue here because the defendants have
totally failed to articulate any reasons why the challenged policies and
practices involving the hiring, promotion, and retention of chaplains
relate to any important operational, strategic, or tactical objective.
Accordingly, the court relies on well-settled Supreme Court precedent
in free exercise cases in the non-military context to provide the
appropriate legal standard. The Supreme Court has set forth a two-track
a law that is neutral and of general applicability
need not be justified by a compelling governmental
interest even if the law has the incidental effect of
burdening a particular religious practice. . . . A law
failing to satisfy these requirements must be
justified by a compelling governmental interest and
must be narrowly tailored to advance that interest.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531-32 (1993). In other words, in cases such as the one at bar in which
the plaintiffs allege the defendants' policies and practices are not
neutral and are not of general applicability, the court should apply the
strict-scrutiny test. See id. Moreover, "[a] law that targets religious
conduct for distinctive treatment or advances legitimate governmental
interests only against conduct with a religious motivation will survive
strict scrutiny only in rare cases." Id. at 546.
3. Equal Protection Clause Claims
The plaintiffs argue correctly that the Fifth Amendment requires the
Navy to treat non-liturgical Christian chaplains in the same manner that
it treats liturgical Protestant chaplains.*fn22
See Pls.' Opp'n at 8
(citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 231-32
(1995)). Notably, the equal-protection analysis in this case is very
similar to the Establishment Clause and Free Exercise Clause standards of
review in that, as noted above, the Supreme Court has held courts must
apply strict scrutiny to any policy or practice that involves a
denominational preference. See, e.g., County of Allegheny, 492 U.S. at
608-09; Larson, 456 U.S. at 246. Because the plaintiffs in this case
have alleged that the Navy's policies and practices do involve
denominational preferences, the court will apply strict scrutiny to the
plaintiffs' equal-protection claims.
C. Statute-of-Limitations Issues
Title 28 U.S.C. § 2401(a) establishes a six-year
statute-of-limitations period for a plaintiff to commence a civil action
against the United States after the right of action first accrues. See
Mot. to Dismiss at 28 (citing 28 U.S.C. § 2401(a)). While the
parties do not dispute that section 2401(a) sets forth the applicable
limitations period, they disagree about when the time period began to
In essence, the defendants assert that the proper accrual date for
claims for discrimination or illegal actions taken against military
personnel is when the action or
discharge becomes final. See Mot. to
Dismiss at 29 (citing Kendall v. Army Bd. for Correction of Military
Records, 996 F.2d 362, 365-66 (D.C. Cir. 1993)). Accordingly, since the
plaintiffs filed their complaint on March 17, 2000, the defendants insist
that the statute of limitations bars any claims that accrued before March
17, 1994 and that the court should dismiss these claims for lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). See Mot. to Dismiss at 29. The defendants thus maintain that
the court should dismiss the claims of plaintiffs Timothy Nall and James
Wiebling, who left active duty before March 17, 1994. See id. at 29-30.
Moreover, the defendants contend that because the statute of limitations
at issue is jurisdictional, see Kendall, 966 F.2d at 366, the court
should also dismiss the claims of several other plaintiffs who do not
allege when they left active-duty service or when, during service, they
suffered their alleged injuries. See Mot. to Dismiss at 30.
The plaintiffs counter by contending that the defendants have engaged
in a continuous violation and self-concealing fraud. See Pls.' Opp'n at
37. The plaintiffs further argue that because the Navy fraudulently
concealed crucial information that prevented them from alleging a crucial
element of their claim, the "accrual" date was tolled during the period
of concealment and did not begin to run until the plaintiffs first
learned of the defendants' alleged fraudulent concealment. See Pls.'
Opp'n at 36 (citing Hohri v. United States, 782 F.2d 227, 249 (D.C. Cir.
1986), vacated and remanded on other grounds, 482 U.S. 64 (1987)).
The D.C. Circuit has made it clear that "when a defendant fraudulently
conceals the basis of a plaintiff's cause of action, the statute of
limitations is tolled until the time that a reasonably diligent plaintiff
could have discovered the elements of his claim." Hohri, 782 F.2d at
246. The question in this case then becomes whether the defendants
fraudulently concealed the basis of the plaintiffs' claims. But this
court need not decide the issue at this juncture. This is because the
D.C. Circuit has held that "courts should hesitate to dismiss a complaint
on statute of limitations grounds based solely on the face of the
complaint." Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)
(citing Richards v. Mileski, 662 F.2d 65, 73 (D.C. Cir. 1981)). The
D.C. Circuit has also instructed that "because statute of limitations
issues often depend on contested questions of fact, dismissal is
appropriate only if the complaint on its face is conclusively
time-barred." Firestone, 76 F.3d at 1209 (citing Richards, 662 F.2d at
Finally, the plaintiffs correctly submit that they need not plead
fraudulent concealment in the complaint, but rather that their obligation
to do so "arises only when defendant raises the statute of limitations as
a defense." See Pls.' Opp'n at 36 (quoting Firestone, 76 F.3d at 1210).
For all these reasons, the court applies the D.C. Circuit's well-settled
precedent and concludes that a ruling on the defendants'
statute-of-limitations argument would be premature. Accordingly, the
court denies without prejudice the defendants' motion to dismiss certain
claims on limitations grounds and will reconsider the defendants'
argument if it is raised in a possible motion for summary judgment after
the parties have conducted discovery.
D. The Defendants' Administrative-Exhaustion Argument
The defendants' contention that the individual chaplain plaintiffs
should have first exhausted their administrative remedies by raising
their personnel claims with the Board for Correction of Naval Records
("BCNR") before coming to federal court warrants little attention. See
Mot. to Dismiss at 32. The defendants argue that by requiring the
plaintiffs to seek their remedies first before the BCNR, an administrative
body, the court could enable the Navy itself to correct any mistakes or
injustices that may have occurred. See id. But the plaintiffs respond
persuasively by pointing to a similar case involving the Air Force Board
for the Correction of Military Records ("AFBCMR"). See Pls.' Opp'n at 43
(citing Glines v. Wade, 586 F.2d 675, 678 (9th Cir. 1978)), rev'd on
other grounds sub nom. Brown v. Glines, 444 U.S. 348 (1980)). In
Glines, the Ninth Circuit stated that "[t]he AFBCMR was never intended by
Congress to resolve the essentially legal issues involved in this case.
Like other BCMRs, it is a clemency-oriented body, with authority to
`correct an error or remove an injustice,' 10 U.S.C. § 1552(a), not
to declare the law." Glines, 586 F.2d at 678. Noting that the BCMRs "are
not necessarily legally trained," the court stated that the board lacked
the authority to declare the challenged regulations invalid. See id.
The defendants attempt to distinguish Glines by suggesting that in that
case, the plaintiff challenged the constitutionality of specific military
regulations, whereas the plaintiffs at bar challenge putative "policies,"
which the Navy's BCNR is equipped to handle. See Reply at 21. This
argument falls flat. In this case, the gravamen of the plaintiffs'
claims revolves around constitutional challenges based on the First
Amendment's Establishment and Free Exercise Clauses and the Fifth
Amendment's Due Process Clause. As the Ninth Circuit held in an earlier
case, "[r]esolving a claim founded solely upon a constitutional right is
singularly suited to a judicial forum and clearly inappropriate to an
administrative board." Downen v. Warner, 481 F.2d 642, 643 (9th Cir.
1973). The court rejects the defendants' argument on this point.
E. The Plaintiffs' Establishment, Free Exercise, and Equal
Protection Clause Claims
As discussed supra in Section III.B., the court must apply strict
scrutiny in assessing which, if any, of the plaintiffs' various causes of
action under the three major constitutional rubrics may survive the
defendants' motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). Accordingly, because the legal
standards are the same, the court addresses these claims together.
1. The Hiring and Retention of Navy Chaplains
The plaintiffs allege that the Navy has established and maintained an
unconstitutional religious quota system, which "allow[s] liturgical
Protestant chaplains to maintain liturgical control of the Navy Chaplain
Corps while excluding non-liturgical chaplains from influence and
representation." Compl. at 30. Charging that the thirds policy amounts
to an unconstitutional establishment of liturgical Christianity, the
plaintiffs decry a structure that leads to a much greater percentage of
liturgical Christians in the Chaplain Corps
than their proportionate rate among all DON personnel.
In support of their claim, the plaintiffs provide hard statistics.
Specifically, the DMDC reports indicate that liturgical Protestants
comprised about 8.76 percent and 8.03 percent of all DON personnel in
1998 and 2000 respectively. See Compl. at 28 (citing Exs. 1, 2). In
addition, Catholics represented 24.09 percent of all DON personnel in
1998, and 23.56 percent in 2000. See id. In contrast, members of
non-liturgical faith groups represent about 50 percent of the Navy's
religious population. See id. at 28. Under the alleged thirds policy,
however, Catholics and liturgical Christians combined, who constituted
32.85 percent of all DON personnel in 1998 and 31.59 percent in 2000,
received two-thirds (66.67 percent) of all the Navy's chaplain slots.
See id. at 29-30.
The defendants respond somewhat feebly that the statistics cited by the
plaintiffs are unreliable because they are based on voluntary declarations
of religious affiliation made by service members when they entered the
Navy. See Mot. to Dismiss at 16. Without offering a better system to
identify its personnel's religious demographics, the defendants explain
that some Navy personnel may choose not to declare their religion, some
may change their affiliation after filling out the form, and some may
declare their affiliation but not attend worship services or use the
ministry resources of the chaplains. See id. The Navy also notes that
there is far greater turnover among Navy personnel than there is in the
Chaplain Corps, making it more difficult to determine religious
affiliation among all service members. See id. n. 9. Moreover, the
defendants contend that if they tried to collect more precise data on the
religious affiliation of their personnel, this would entail significant
interference by the Navy into its personnel's free exercise and privacy
rights that "would constitute inappropriate entanglement by the
government into the worship and beliefs of Navy personnel." See id.
Without engaging in an extended colloquy on this point, suffice it to say
that this court views the defendants' argument as rather far-fetched.
For example, to obtain more information about its personnel, the Navy
could circulate a voluntary biographical form once per year, and the form
could be submitted anonymously to avoid any infringement on a service
member's privacy rights.
But the more important point is that the defendants, in proffering
their various protestations to the plaintiffs' statistics, seem to have
forgotten a fundamental procedural mantra that this court must follow.
That is, in ruling on a motion to dismiss, the court must accept the
plaintiffs' well-pled factual allegations as true and draw all reasonable
inferences in the plaintiffs' favor. See Scheuer, 416 U.S. at 236. In
this case, the court determines that the statistics the plaintiffs cite
are indeed well-pled factual allegations. Rather than being concocted by
the plaintiffs, the statistics about the Navy's religious demographics
— taken at two separate points in time — come from an
independent third party. And taken in conjunction with their allegations
about the thirds policy, the plaintiffs have properly asserted that the
hires liturgical Protestant chaplains
dramatically out of proportion from their overall representation among
Similarly, in terms of the defendants' retention policies, the
plaintiffs clearly offer well-pled factual allegations that the Navy
institutes "a deliberate, systematic, discriminatory" retention policy
"whose purpose was to keep non-liturgical chaplains from continuing on
active duty, thus ensuring they would not be considered for promotion and
minimizing their future influence." Compl. at 31. To pursue this
alleged objective, the defendants would retain liturgical Protestant
chaplains beyond their initial three-year tour of service and at a
significantly higher rate than their representation among all DON
personnel. See id. at 31-32.
Applying the legal standard to the facts of this case, the court holds
that the plaintiffs have stated a claim that the defendants' policies and
practices relating to the hiring and retention of chaplains violate the
Establishment Clause of the First Amendment. Underscoring its unwavering
adherence to the "principle of denominational neutrality," see Larson,
456 U.S. at 246, the Supreme Court declared that "[t]he clearest command
of the Establishment Clause is that one religious denomination cannot be
officially preferred over another." Id. at 244. This is precisely what
the plaintiffs in this case allege that the Navy has done.
At times, reading the attorneys' briefs in this case is like attending
a debate in which the participants have shown up in two different rooms.
While the lawyers have clearly put significant time, energy, and
thoughtfulness into their briefs, they sometimes fail to directly address
the other party's key point. For example, the plaintiffs ask the court
for an order requiring the Navy to bring its Chaplain Corps, including
its current rank structure, in line with the Navy's religious
demographics. See Compl. at 59. But the defendants use this fact to
launch a misconstruction of the plaintiffs' argument, interpreting it to
mean that in order to pass constitutional muster, the Navy Chaplain Corps
"must be organized along the denominational breakdown that matches
the proportional presence of faith groups in the overall Navy
population. . . ." See Mot. to Dismiss at 8. While the plaintiffs would
approve of a proportional-representation scheme and, indeed, essentially
ask for such an approach, nowhere do they insist that this is the only
constitutional option. Rather, the plaintiffs' main point is that the
defendants' current system for hiring and retaining chaplains is
As discussed at length in Section III.B. supra, this case requires the
court to apply a strict-scrutiny test to practices suggesting a
denominational preference. See County of Allegheny, 492 U.S. at 608-09.
Consequently, the governmental policy or practice "must be invalidated
unless it is justified by a compelling governmental interest, and unless
it is closely fitted to further that interest. . . ." Larson, 456 U.S.
at 247 (internal citations omitted).
Instead of articulating how its policies and practices regarding the
Chaplain Corps are justified by a compelling governmental interest and
how its policies and practices are closely fitted to further that
interest, the defendants spend much of their time telling the court what
is wrong with a proportional-representation system. The parties agree
that "the Chaplain Corps exists to serve a compelling governmental
interest providing for the free exercise needs of the [DON personnel]."
Pls.' Opp'n at 13; Mot. to Dismiss at 12. But the plaintiffs question how
the Navy accomplishes its compelling government interest by:
a) its over-representation of chaplains of the
Protestant Liturgical faith groups whose members
represent about 8% of the Navy and b) its consequent
under representation [sic] of non-liturgical chaplains
whose members represent the majority of the Navy's
religious needs. The Navy has not explained how it
determines its chaplain allocations among faith groups
and why 8% of the Navy's religious population receives
[more than four times that percentage] of the Chaplain
Pls.' Opp'n at 13. In short, the plaintiffs challenge both prongs of the
strict-scrutiny test, disputing how the Navy's policies and practices
justify its compelling governmental objective of meeting the
free-exercise needs of DON personnel and how these policies and practices
are narrowly tailored to accomplish that objective. See id. at 15. The
defendants respond that their decision not to adopt a
proportional-representation policy passes the strict-scrutiny test as
applied to the unique context of the military. See Mot. to Dismiss at
19. But as discussed in section III.B.1.b supra, a relaxed
strict-scrutiny test does not apply to these facts.
Another misreading of the plaintiffs' argument appears in the
defendants' effort to make a point about the compelling interest of
meeting their personnel's ability to practice their religion. The
defendants urge that they must ensure that the Chaplain Corps includes a
broad spectrum of religious faiths:
To guarantee such diversity of religious denominations
in the Chaplains [sic] Corps — and thereby
maintain a capacity to serve a broad segment of faiths
— it is permissible for the Navy to take into
account the denomination of chaplains in order to
regulate the faith group composition with the Corps.
Only by considering an individual chaplain's faith
group can the Chaplain Corps effectively structure
itself to meet the free exercise needs of the Navy and
serve its vital support role in the Navy's mission.
Indeed, there is no other practicable way to insure
that the Chaplain Corps will have a diverse and
sufficient supply of chaplains from various faiths
without taking denomination into account in filling
its staffing needs.
Mot. to Dismiss at 13. Unfortunately, the defendants confuse two of the
plaintiffs' arguments. While the plaintiffs do challenge the Navy's
policy of identifying the religious denomination of a chaplain being
considered for promotion, see infra Section III.E.2, the plaintiffs never
argue with the notion that the Navy must consider religious affiliation
in making its hiring decisions. Indeed, the plaintiffs' request for a
proportional-representation system in the Chaplain Corps that would mirror
the religious demographics of all DON personnel
taking faith into account in hiring decisions. See Compl. at 59.
Moreover, the defendants seem to forget that at this early stage in
litigation, the crucial inquiry is not whether a proportional
representation scheme is practicable or mandated by the Constitution, but
whether the plaintiffs have stated a claim that the defendants' hiring
and retention policies violate the Establishment Clause.*fn25
R. CIV. P. 12(b)(6); Scheuer, 416 U.S. at 236 ("When a federal court
reviews the sufficiency of a complaint . . . [t]he issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims."). In their attempt to do so, the
plaintiffs stress that the policies and practices challenged here are
unique to the Navy, and that the other branches of the Armed Forces, the
Army and the Air Force, "meet their obligations to provide for the
religious free exercise needs of their service members under the same
general service constraints which the Navy argues require it to ignore
the Constitution." Pls.' Opp'n at 2. In brief, the plaintiffs assert
that although the First Amendment does not contain the words
"proportional representation," it does mandate neutrality among faith
groups. See id. at 13. Arguing that the thirds policy amounts to a
"religious gerrymander," the plaintiffs charge that the Navy does not
explain how its subjective allocation of chaplains between faith groups
is neutral. See id. at 12-13. "When compared to its religious
demographics, the Navy's allocation of chaplains conveys a message of
preference." Id. at 14.
The court holds that the plaintiffs have stated a claim that the
defendants' policies and practices relating to the hiring and retention
of its chaplains are not justified by a compelling governmental objective
and are not narrowly tailored to accomplish that objective.
Accordingly, the plaintiffs have successfully stated a claim that these
policies and practices violate the strict-scrutiny test and that they
violate the Establishment Clause. The court thus denies the defendants'
motion to dismiss these claims.
2. The Navy's Promotion of Chaplains*fn26
The plaintiffs challenge several of the defendants' policies and
practices relating to chaplain promotion boards. For the
follow, the court grants in part and denies in part the defendants'
motion to dismiss these causes of action for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, the
court grants the defendants' motion to dismiss the plaintiffs' claims
that chaplains should not rate other chaplains and that more than one
chaplain should not sit on a chaplain promotion board. On the other
hand, the court denies the defendants' motion to dismiss the plaintiffs'
claim that a chaplain's religious affiliation should not be identified to
a chaplain promotion board.
a. The Composition of Chaplain Promotion Boards
Responding to the plaintiffs, the defendants argue that as duly
appointed Naval officers, chaplains, as with any of the other staff-corps
officers, "legitimately participate in the normal course of duties for
officers, including sitting on appropriate promotion boards and rating
the performance of junior officers. These actions do not run afoul of
the Establishment Clause." Mot. to Dismiss at 20. The defendants also
take issue with the plaintiffs' claim that placing more than one chaplain
on a promotion board discriminates on the basis of religious faith. See
id. The court agrees that the plaintiffs have failed to state a claim on
i. Allowing Chaplains to Rate Other Chaplains
First, the court holds that the practice of allowing chaplains to rate
other chaplains for promotions does not state a violation of the
Establishment Clause. Pressing their argument on this point, the
plaintiffs claim that unlike the Army and Air Force, which use selection
boards comprised of officers from other branches to select chaplains for
promotion, chaplains dominate the Navy's chaplain promotion boards. See
Compl. at 37. The plaintiffs argue that this practice constitutes a First
Amendment violation because "[t]he opportunity for mischief is to [sic]
great." See Pls.' Opp'n at 32. Essentially, the plaintiffs ask the
court to believe that the usual rule for a chaplain sitting on a
promotion board will be to discriminate against promotion candidates on
the basis of religious denomination. The court refuses to accept that
Well-settled case law instructs courts to presume that government
officials will conduct themselves properly. As this court has said,
"government officials are presumed to act in good faith. . . .
[p]laintiff must present `well-nigh irrefragable proof' of bad faith or
bias on the part of governmental officials in order to overcome this
presumption." China Trade Center, L.L.C. v. Washington Metro. Area Transit
Auth., 34 F. Supp.2d 67, 70-71 (D.D.C. 1999), aff'd, No. 99-7029, 1999 WL
615078 (D.C. Cir. 1999) (per curiam) (stating that decisions of
governmental officials "are entitled to a presumption of validity"); see
also Chaplaincy of Full Gospel Churches v. Danzig, Dkt. No. 99-2945,
Mem. Op. and Order dated February 14, 2000 at 4 (D.D.C. 2000) (Green,
In addition, the plaintiffs' argument on this point is highly
speculative. The defendants underscore this weakness by noting that
merely because an official could possibly use his or her authority to
impermissibly infringe on religious liberty cannot state a violation of
the First Amendment. See Reply at 8. "Only if an official in fact acts
to infringe religious liberty in an unconstitutional manner is there a
First Amendment violation that the courts can take cognizance of and,
generally, remedy." Id. As it stands now, the plaintiffs would have
great difficulty in demonstrating that they have suffered the
injury-in-fact necessary to have standing to bring such a claim. See
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). In sum, the
defendants correctly maintain that the plaintiffs' assertion that
chaplains will necessarily discriminate against other chaplains on the
basis of religion is an unsupported allegation that is not sufficient to
state a claim for a First Amendment violation.
Another persuasive reason to allow chaplains to rate other chaplains is
that the Chaplain Corps fulfills a unique mission within the Navy that
requires it to perform duties significantly different from those of Naval
line officers and Naval officers in other staff corps. "Consequently,
officers in the Chaplain Corps are much better qualified by reason of
their knowledge and experience to review and analyze the performance of
other chaplains in fulfilling their duties within the Corps." Mot. to
Dismiss at 21. As this court has observed:
Staff corps promotion boards have been traditionally
composed of officers who are members of the same staff
corps. In this manner, doctors consider doctors,
judge advocates consider judge advocates and so on.
The logic is apparent. Those in the same profession
are more qualified to evaluate others in their
profession. It is neither likely that a doctor would
know how to evaluate a chaplain, nor vice versa.
Emory v. Secretary of the Navy, 708 F. Supp. 1335, 1339 (D.D.C. 1989)
(Green, J.) (internal citations omitted). The court agrees with this
line of reasoning and grants the defendants' motion to dismiss the
plaintiffs' claim that chaplains should not rate other chaplains.
ii. Having More than One Chaplain on a Chaplain Promotion Board
The plaintiffs' second attack on chaplain promotion boards centers on
their claim that having more than one chaplain on a board would provide
an opportunity for religious bias because selection boards will
inherently discriminate among religious denominations based on their own
preferences. See Mot. to Dismiss at 21 n. 14. For substantially the same
reasons as those articulated in the previous section, the court
determines that the plaintiffs have failed to state a claim that this
practice violates the First Amendment. Title 10 U.S.C. § 612 states
that a Navy chaplain selection board shall consist of five or more
officers who are on the Navy's active-duty list. See
10 U.S.C. § 612(a)(1). In this case, the plaintiffs never explain why
having one chaplain on a promotion board is constitutional, but having
more than one chaplain is unconstitutional. Can a chaplain somehow
restrain herself from discriminating on the basis of religious
affiliation if she is the only chaplain on a board but not hold back from
making biased decisions if other chaplains sit on the board? This
argument defies common sense.
Finally, the plaintiffs' contention that having chaplains rate other
chaplains delegates a religious function to the governmental body is
unfounded. All chaplains, including the Chief of Chaplains, are
officers. See 10 U.S.C. § 5142. "The Chief of Chaplains shall be
appointed by the President, by and with the advice and consent of the
Senate, from officers of the Chaplain Corps in the grade of commander or
above who are serving on active duty and who have served on active duty
in the Chaplain Corps for at least eight years." Id. Furthermore, the
defendants properly distinguish the authority the plaintiffs rely on,
Larkin v. Grendel's Den, in which a zoning law effectively gave private
churches veto power on the granting of liquor licenses within 500 feet of
their church building, by noting that chaplains are Naval officers, not
private clergy. See
459 U.S. 116 (1982). "As officers, it is appropriate
for [chaplains] to undertake the duties routinely performed by Naval
officers, including serving on promotion boards." Mot. to Dismiss at
23. The fact remains, Navy chaplains are first and foremost Naval
officers. And when chaplains sit on promotion boards, they act as
officers who are evaluating a fellow officer's fitness for promotion.
Nothing in the Establishment Clause can be read to mean that the
Constitution prevents all chaplains from making any governmental
decision, such as whether to promote another officer. Accordingly, the
court concludes that the plaintiffs have failed to state a claim on
either of their challenges to the composition of chaplain promotion
b. Identifying the Religious Denomination of a Chaplain-Promotion
The plaintiffs fare much better, however, when advancing their argument
that an individual chaplain's religious affiliation should not be
identified to members of a chaplain promotion board by having each
promotion candidate's three-digit "faith-group identifier" code
prominently displayed throughout the promotion-board process. See Compl.
at 37. "This procedure has no other purpose than to identify the
candidate's faith group to the board and thereby create a suspect
religious category unrelated to any legitimate Navy objective." Id.
Despite the defendants' argument that the plaintiffs have failed to state
a constitutional claim on this issue, the court deems this argument
persuasive. Although they perform religious functions, chaplains should
be selected for promotions based on their fitness as officers and as
chaplains, rather than the religious message of their sermons.
The plaintiffs also insist that the Fifth Amendment requires that all
chaplains be given an equal and fair opportunity for promotion. See
Pls.' Opp'n at 10. The court agrees that the Navy may not use religious
prejudice to set quotas that are unrelated to a compelling governmental
interest. See Adarand, 515 U.S. at 231-32; Larson, 456 U.S. at 242,
246. In support of their claim that the Navy disproportionately promotes
liturgical Protestant chaplains to the upper ranks of the Chaplain
Corps, the plaintiffs point to the Ellis Report, an internal 1995
memorandum from the Marine Corps Chaplain to the Navy's Chief of
Chaplains. In the 15 years preceding the report, 119 incumbents held key
billets in the Chaplain Corps, only 14 of which, or 11.8 percent, "have
been clearly non-liturgical." See Compl., Ex. 4. In contrast, Roman
Catholics filled 33.6 percent of the billets, while liturgical Christians
filled 53.8 percent. See id. These statistics led Chaplain Ellis to
make the following statements:
the conclusions to be drawn are so clear as to make
any such discrepancies inconsequential. There is no
suggestion that this pattern was deliberate. However
the institutional bias is very clear.
. . . the relative frequency of assignment of
liturgicals to key decision making billets is
disconcerting. . . . Why is this important? First, it
is an issue of justice. Secondly, the ability of the
chief of chaplains to proclaim a vision that will be
followed requires a sense of trust in the fairness of
his administration of the affairs of the Corps.
Thirdly, the Ecclesiastical Endorsers from the
non-liturgical Churches, while not organized, are
increasingly disenchanted with what they believe to be
the unfair treatment of their chaplains. Fourthly,
and perhaps most importantly, when only one
perspective is reinforced to decision
makers, and even
those few non-liturgicals who are given key billets
are there because they have been able to be
non-confrontive [sic], the strength of diversity,
which we tout to be so important, is unable to be
realized. The thrust of the Chaplain Corps policies
is thus skewed by incomplete perspective; perspective
that perhaps could be supplied by the silent, in terms
of position and influence, non-liturgicals.
Compl., Ex. 4.
The defendants articulate no compelling governmental objective for
listing a promotion candidate's religious affiliation. The court
therefore concludes that the plaintiffs have stated a Fifth Amendment
equal-protection claim that identifying a candidate's religious
affiliation to the chaplain promotion board violates strict scrutiny and
thus denies the defendants' motion to dismiss this claim.*fn27
3. Implementing a Liturgical Protestant "General Service"
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
Clause and the Free Exercise Clause. See Compl. at 35. They claim that
the defendants have tried to establish a de facto liturgical religion for
its personnel, thereby limiting the opportunity for non-liturgical Navy
personnel to meet their religious needs. See id. In addition, the
non-liturgical Christian chaplains assert that by mandating a liturgical
"general Protestant" service, the Navy has tried to shape all Protestant
servicemen and women "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' access to Navy facilities
to conduct services, by removing non-liturgical chaplains from preaching
or conducting religious services and by opposing non-liturgical Christian
worship alternatives. See id.
Turning first to the plaintiffs' Free Exercise Clause claims, the court
rules that the plaintiffs have standing only to challenge the Navy's
policies and practices on behalf of the current and former non-liturgical
Christian chaplain plaintiffs themselves (and possibly, a class of
similarly situated current and former non-liturgical chaplains, if the
court approves the anticipated motion for class certification). The
defendants correctly point out that the plaintiffs do not have standing
to bring a claim that the Navy has violated the rights of DON personnel
to the free exercise of religion. See Mot. to Dismiss at 27 n. 16. As
the Supreme Court has held, "[i]n the ordinary course, a litigant
must assert his or her own legal rights and interests, and cannot rest a
claim to relief on the legal rights or interests of third parties." Powers
v. Ohio, 499 U.S. 400, 410 (1991). The court has allowed litigants to
bring actions on behalf of third parties only when the litigant has met
three important criteria: (1) the litigant must have suffered an "injury
in fact"; (2) the litigant must have a close relation to the third party;
and (3) "there must exist some hindrance to the third party's ability to
protect his or her own interests." See id. at 410-11. Even assuming
arguendo that the plaintiffs in this case could meet the first two
criteria, they cannot meet the third since there is no reason why DON
service members who feel that a general Protestant service violates their
right to the free exercise of religion cannot bring their own lawsuit.
Accordingly, to the extent that any of the plaintiffs' claims can be
construed as a challenge brought by DON personnel, the court concludes
that the plaintiffs lack standing to bring these claims on behalf of
these third parties and grants the defendants' motion to dismiss these
Conversely, the plaintiffs' claim that a general Protestant service
violates the Establishment Clause survives the defendants' motion to
dismiss. The defendants justify the alleged policy of having a general
Protestant service by noting that because of the broad range of faiths of
Navy personnel and the limited number of chaplains, the Chaplain Corps
must structure its provision of worship services to fulfill the religious
needs of as many DON personnel as possible. See Mot. to Dismiss at 25.
Accordingly, the defendants note that "these resource constraints will
often if not always make it impossible to hold a worship service at Naval
facilities for each serviceperson's particular faith. . . ." Id.
The court is well aware that the Navy has limited resources and a
limited number of chaplains to assign to its various installations across
the globe. And the court understands the defendants' stated objective in
adopting a utilitarian approach, whereby the Navy uses its limited
chaplain resources to try to accommodate a religious fit for as many of
its personnel as possible. The plaintiffs' concern, however, is that
these allegedly general Protestant services might too often reflect a
liturgical Christian service, rather than offering a variety of services
(and even if the Navy cannot offer a variety of services at one
particular base, it might at least be able to do so at a worldwide
level). This point carries significant weight in the court's view.
The plaintiffs charge that by offering a general Protestant service
with a heavy dose of liturgical Christianity, the Navy has
unconstitutionally communicated a message of endorsement for a specific
religious tradition, in violation of the Establishment Clause. See Pls.'
Opp'n at 33. The plaintiffs agree with the defendants' stated goal that
the Navy must utilize its limited resources to provide opportunities
"that are acceptable to a broader segment of adherents than merely one
denomination," but they properly point out that the defendants nowhere
"explain how mandating a worship service that appeals to a tradition
representing only 8% of the Navy somehow appeals to the broader segment
made up of non-liturgicals." Pls.' Opp'n at 34.
The defendants respond by once again arguing that courts should defer
to the military's "professional judgment" in these matters. See Mot. to
Dismiss at 27. But as the court made clear in Section III.B., the
strict-scrutiny standard applies to this
case and the question thus
becomes whether the Navy's alleged policy of having a default general
Protestant service with a liturgical Christian slant "is justified by a
compelling governmental interest" and "is closely fitted to further that
interest." See Larson, 456 U.S. at 246-47. The court rules that the
plaintiffs have stated a claim that this alleged policy is not justified
by a compelling governmental interest and, even if it were, is not
closely fitted to further that interest. The court therefore denies the
defendants' motion to dismiss this count.*fn28
4. Free Exercise Claims and Religious Speech
There is considerable overlap between the plaintiffs' Establishment
Clause claims, Equal Protection Clause claims, and Free Exercise Clause
claims. The overriding theme that runs through all the claims relating
to the plaintiffs' free exercise of their religion is that the Navy has
adopted and implemented policies and practices that effectively silence
non-liturgical Christian chaplains.
These claims include: identifying a chaplain-promotion candidate's
religion to the chaplain promotion board; forcing non-liturgical churches
off base into "substandard facilities which were inadequate to hold the
number of those wanting to attend, while Catholic and liturgical
Protestants enjoyed spacious on post facilities", Compl. at 36; senior
Catholic and liturgical Protestant chaplains intentionally giving some
non-liturgical Christian chaplains lower performance ratings than
similarly situated Catholic and liturgical Protestant chaplains "solely
on the basis of their religious identification and beliefs despite
evidence of the non liturgical chaplains' superior performance", see id.
at 46; requiring non-liturgical Christian chaplains to officiate at
liturgical Protestant services, but not requiring liturgical Protestant
chaplains to officiate at non-liturgical services, see id.; implementing
a two-tiered system of discipline, whereby liturgical members receive
lighter punishments for similar offenses than non-liturgical chaplains,
see id. at 47; providing career-planning information to liturgical
Christian chaplains but not to non-liturgical Christian chaplains, see
id.; and limiting the ability of non-liturgical Christian chaplains to
meet their community's religious needs since "non-liturgical chaplains
must expend more effort to meet the needs of their faith group members
than is required by liturgical Protestant chaplains." Id.
In all these allegations, the plaintiffs charge that because the Navy
treats non-liturgical Christian chaplains less favorably, the defendants'
policies and practices serve to impair or impede the plaintiffs' free
exercise of religion. Because the plaintiffs have stated a claim that
these policies and practices do not pass the strict-scrutiny test, these
allegations survive the defendants' motion to dismiss.
Finally, the plaintiffs plead that the Navy's policies and practices
amount to an unconstitutional abridgement of religious speech with a
specific viewpoint, i.e.,
non-liturgical, evangelical, and low-church.
See Compl. at 42. Specifically, the plaintiffs assert that senior
officials in the Chaplain Corps have criticized and berated
non-liturgical chaplains "for preaching and teaching on truths of the
Christian faith and their specific religious tradition." See id. at 35.
In another instance, a senior liturgical Christian chaplain allegedly
disciplined a non-liturgical chaplain for ending his prayers by saying
"in Jesus [sic] name." See id. at 6.
The defendants counter that any actions they have taken were done
solely to try to maximize limited resources to provide for the ministry
needs of the Navy. See Mot. to Dismiss at 3. In addition, the
defendants rely heavily on a Seventh Circuit opinion, holding that a
government-hospital chaplain "has no absolute constitutional right to
conduct religious services and offer religious counsel in a government
institution. . . ." Baz v. Walters, 782 F.2d 701, 708 (7th Cir. 1986).
Without addressing what specific restrictions the Navy may impose on the
speech of its chaplains, the court notes that the Baz case is largely
inapplicable to the case at bar. In that case, the Seventh Circuit
affirmed the district court's finding that Reverend Franklin Baz,
formerly a chaplain of the United States Veterans Administration ("VA")
who worked at a hospital containing many psychiatric patients, had
serious "difficulty in the discharge of his duties." See id. at 703.
Among other things, Reverend Baz accepted honoraria for conducting
funerals and borrowed money from patients to buy gasoline, both in
violation of VA regulations, and, most significantly, continuously tried
to proselytize his patients, also in violation of VA regulations. See
Citing the Supreme Court's declaration that when a government employee
asserts that the government has infringed his constitutional rights, the
court must strike a balance between the employee's interests as a citizen
and "the interest of the [government] as an employer, in promoting the
efficiency of the public services it performs through its employees," see
Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the Seventh
Circuit affirmed the district court's judgment for the defendants. See
Baz, 782 F.2d at 709. The most notable difference between Baz and the
case at bar is that in the latter, the defendants do not argue that the
plaintiffs have, for example, violated any Navy regulations, committed any
type of misconduct, or tried to proselytize or do anything else improper
in conducting their worship services. While both Baz and Pickering can
be read for the proposition that the government may place some time,
place, and manner restrictions on the speech of government-employed
chaplains, this court need not decide what the boundaries of those
limitations should be in this case at this juncture.
The issue of what restrictions the Navy may place on the content of its
chaplains' speech is a fascinating one, standing at the intersection of
four major jurisprudential roads — free speech, free exercise,
establishment, and equal protection. One readily apparent point is that
the Constitution prevents the Navy from regulating the religious speech
of non-liturgical Christian chaplains but not that of liturgical
Christian or Catholic chaplains. Such conduct would communicate a
message that some religious speech is favored over others, a message that
some chaplains are not allowed to conduct their worship services as
freely as others, a message that the Navy does not treat its chaplains of
different faiths in an equitable matter and a message that the Navy
endorses a specific religion. Since this is precisely what the
plaintiffs allege that the Navy has done in this case, the plaintiffs have
stated a claim
that the Navy's alleged policies and practices in this
regard do not survive strict scrutiny and would violate the plaintiffs'
freedom of speech, right to the free exercise of their religion, right to
equal protection, and the Establishment Clause.*fn29
F. Individual Plaintiffs' Claim for Constructive Discharge
In their motion to dismiss, the defendants maintain that certain named
plaintiffs fail to establish a prima-facie case of constructive discharge
in the complaint. See Mot. to Dismiss at 33. To establish a claim for
constructive discharge, the plaintiffs must not only show discrimination
but also that the employer deliberately made work conditions
intolerable, leading the employee to quit involuntarily. See id. at 33
(citing Katradis v. Dav-el of Washington, D.C., 846 F.2d 1482, 1485
(D.C. Cir. 1988). The defendants note that the plaintiffs must allege
both "discrimination and the existence of certain `aggravating factors.'"
See id. at 34 (quoting Mungin v. Katten Muchin & Zavis, 116 F.3d 1549,
1558 (D.C. Cir. 1997)).
While the defendants are correct on the substantive law, they are wrong
on the civil procedure. As the D.C. Circuit held in the very significant
case, Sparrow v. United Air Lines, Inc., "a plaintiff need not set forth
the elements of a prima facie case at the initial pleading stage."
216 F.3d 1111, 1113 (D.C. Cir. 2000). Accordingly, the plaintiffs at bar
have no obligation to lay out a prima-facie case of constructive
discharge in their complaint. The court therefore denies the defendants'
motion on this point.
G. The Court Orders Additional Briefing on Several Claims
The court will order further briefing on several of the plaintiffs'
claims that the parties' briefs do not sufficiently address. The
defendants shall file a supplemental motion to dismiss, if they so
choose, laying out their position on the following issues: the
plaintiffs' claim of illegal retaliation, as set forth in Count 11; the
plaintiffs' claim of a violation of the Religious Freedom Restoration Act
("RFRA"), 42 U.S.C. § 2000-bb et seq.; and the plaintiffs' claim
concerning the Chief of Chaplains' role in the chaplain-promotion
process, as discussed on pages 37-38 (¶¶ 46-49) of the amended
complaint. The defendants do not address this last claim or the
retaliation claim in their motion to dismiss or in their reply and only
address the RFRA claim in a footnote. See Mot. to Dismiss at 20
H. Additional Motions
In addition to the defendants' motion to dismiss, the parties have
filed other motions. Because the court has now resolved the defendants'
motion to dismiss, the court denies as moot the defendants' motion to
hold the proceedings in abeyance until the court resolves the motion to
dismiss. As noted in the court's order dated September 28, 2001, the
court denies without prejudice the plaintiffs' motion for
judgment that was filed as part of the plaintiffs' opposition to the
defendants' motion to dismiss. See Order dated September 28, 2001. The
court agrees with the defendants that they should be entitled to have a
full briefing period on the plaintiffs' motion. Accordingly, the schedule
laid out in the court's September 28, 2001 order now controls briefing on
both of the plaintiffs' motions for partial summary judgment. See id.
Lastly, the court denies without prejudice the plaintiffs' motion to
allow a chaplain plaintiff to proceed with the litigation using a
pseudonym. The plaintiffs have indicated that if any part of the
complaint survives the motion to dismiss, they will file a motion for
class certification, which would moot the need for the plaintiffs to
pursue their motion to allow a plaintiff to use a pseudonym.
Accordingly, if the court denies the anticipated motion for class
certification, the court will grant the plaintiffs leave to refile their
motion to allow a plaintiff to use a pseudonym.
For all these reasons, the court denies in part and grants in part the
defendants' motion to dismiss. In addition, the court denies as moot the
defendants' motion to hold the proceedings in abeyance, denies without
prejudice the plaintiffs' motion for partial summary judgment, and denies
without prejudice the plaintiffs' motion to allow a chaplain plaintiff to
use a pseudonym. An order directing the parties in a fashion consistent
with this Memorandum Opinion is separately and contemporaneously issued
this ____ day of January, 2002.