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ADAIR v. ENGLAND
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
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
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
suit.*fn5 The plaintiffs sue on their own behalf and, as
a proposed class, on behalf of similarly situated chaplains.*fn6 The
lawsuit challenges religious discrimination in the Navy Chaplain Corps
("the Chaplain Corps" or "the Corps"), "including the establishment of
illegal religious quotas for Navy chaplain promotions and career
opportunities; the establishment of a preferred religious tradition and a
religious patronage system in the Corps; and creation of a pervasive
climate of bias, animosity and deceit toward non-liturgical Christian
Navy chaplains. . . ." Compl. at 4. In addition, the plaintiffs plead
violations of the First and Fifth Amendments in the Corps' promotion,
retention, and separation decisions. See id.
A sampling of the individual plaintiffs' allegations is as follows.
Plaintiff Robert Adair enlisted in the Navy in January 1967. See id.
at 5. After completing his enlistment in 1970, he attended college and
then earned a Master of Divinity degree in 1977. See id. The Southern
Baptist convention, a non-liturgical Christian denomination, endorsed him
and he became an active-duty Navy chaplain in 1979. "Despite his
outstanding service, he was selected for early retirement in [Fiscal Year
1995] by a Selective Early Retirement Board (SERB) that selected only
non-liturgical Christian chaplains while allowing liturgical chaplains
with inferior records to continue on active duty." Id. Plaintiff Adair
charges that he involuntarily retired in 1996. He alleges that, "[b]ut
for the SERB decision, believed to rest on illegal religious
discrimination and animosity toward his faith group, [plaintiff] Adair
would have continued on active duty and retired at a higher pay rate."
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.
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.
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.
For example, the plaintiffs charge that chaplain promotion boards
consistently promote at least the same number of liturgical and
non-liturgical Christian chaplains, elevating liturgical Christian
chaplains in numbers far greater than the proportionate rate of
liturgical Christians in the Navy. See id. at 30. They also plead that
the promotion boards promote at least one-third liturgical Protestant
chaplains in the Corps. See id.
As part of this system to maintain significant representation of
liturgical Protestants in the Corps, the Navy also allegedly institutes a
discriminatory retention policy, whereby it retains liturgical
Protestants beyond their initial three-year tour of service at a
disproportionately high rate as compared to their total membership
percentage in the Navy. See id. at 31. According to the plaintiffs, the
Navy has also routinely refused to retain non-liturgical Christian
chaplains, resulting "in the over-representation of liturgical Protestant
chaplains and the under-representation of non-liturgical Christians in
the Navy chaplain program." Id. In short, the Navy's decisions
regarding whether to retain chaplains are allegedly not based on "meeting
the religious free exercise needs of Navy personnel, but solely on the
basis of the chaplain's religious faith group." Id.
The defendants also allegedly promote a disproportionate number of
high-church Protestant and Catholic chaplains to the senior officer
ranks, i.e., Captain and Admiral, and key billets*fn15 in the Chaplain
Corps. See Compl. at 32. Through July 2000, only one non-liturgical
person had held the office of Chief of Chaplains since 1917. See id.
(citing Ex. 3).
The plaintiffs' exhibit 4 is a January 25, 1995 memorandum from the
Marine Corps Chaplain, Larry Ellis, to the Navy Chief of Chaplains ("the
Ellis Report"). See id. at 32-33, Ex. 4. The plaintiffs point to the
Ellis Report as documentation for "years of apparent institutional bias
against `low-church' Protestant Navy chaplains in regard to assignments
to the most prestigious and influential positions" within the Corps.
Compl. at 32-33. As of the time of the report, only 14 clearly
identifiable non-liturgical Christian chaplains had filled the 119 top
Chaplain Corps positions in the previous 15 years, a fill rate of 11.8
percent. See Compl., Ex. 4. On the other hand, the fill rate for
liturgical Protestants was 53.8 percent, see id., "far out of proportion
to the percentage of the liturgical denominations in the general
population of the Navy." See id. at 33, Ex. 4. Even after learning of the
Ellis Report's findings, the Navy allegedly took no action to address
this disparity. See id.
According to the plaintiffs, these policies serve no legitimate
purpose, are not based on remedying pass discrimination, and are not
narrowly tailored. See Compl. at 34. "The effect of the Navy's
denominational quota system and granting religious preferences to the
liturgical Protestant religious tradition, is to impermissibly endorse
liturgical Protestant[ism] as an `official' preferred religious tradition
in violation of the First Amendment's Establishment Clause." Id.
Fourth, the plaintiffs claim that liturgical Protestant and Catholic
chaplains have dominated the chaplain promotion boards even though these
traditions represent less than a third of the religious preferences of
Navy personnel. See id. at 38. A rear admiral, the Navy Chief of
Chaplains ("the Chief") approves all the members of the Navy's chaplain
promotion boards. See id. at 37. The plaintiffs charge that the Chief
informed one board of his personal list of which chaplains constituted
"the future of the Navy." See id. at 38. The board allegedly promoted
the chaplains the Chief identified, which violates 10 U.S.C. § 615
and 616(f)(2), the provisions that define the type of information that
may be provided to the board and state that no official may exercise
improper influence on the board. See id.
To support their allegations, the plaintiffs include a report on
chaplain-promotion policies, issued on December 23, 1997 by Captain J.N.
Stafford, special assistant for Navy Minority Affairs ("the Stafford
Report"). See Compl., Ex. 5. The Stafford Report concluded "that the
board may have systematically applied a denominational quota system."
Compl. at 40. It called for an Inspector General ("IG") investigation
into the Chaplain Corps' selection-board processes. See id. The
Stafford Report also said, "[i]f it is established that improper
selection practices have systematically occurred, [then we should] shift
responsibility for selection of chaplains for promotion to the line
community." Compl., Ex. 5, at 3. In March 1999, a DoD IG investigation
into the same boards found that a candidate's faith group "may have been
a factor in" the decisionmaking process for the 1998 commander boards in
selecting chaplains for promotion. See id. at 40 (citing Ex. 6). The
investigation also said, however, that there is "little indication of
deficiencies in the Navy selection board process." Id., Ex. 6.
The last promotion-related claim focuses on the Navy's use of regional
chaplains, by which senior chaplains (primarily liturgical Christians)
rate other chaplains rather than having a base commander rate each
chaplain on his or her base. See id. at 44. Alleging that the system
does not ensure religious neutrality, the plaintiffs claim that this
arrangement violates the First Amendment. See id.