The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
MEMORANDUM OPINION DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE THE DEFENDANTS' MOTION FOR
These cases come before the court on the parties' cross-motions for partial summary judgment. The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy's policies and practices favor one religious denomination over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorseme nt of liturgical Christian sects over non-liturgical Christian sects. *fn1 For the reasons that follow, the court denies without prejudice both the plaintiffs' and the defendants' motions for partial summary judgment.
Although the above-captioned cases are not consolidated for all purposes, the court has consolidated them for purposes of all pretrial pending motions. *fn2 In the Chaplaincy case, the plaintiffs are an endorsing agency 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 chaplains. *fn3
On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants' motion to dismiss. Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002). The court held that: (1) strict scrutiny applies to the plaintiffs' First Amendment and equal protection claims; (2) the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court; (3) the plaintiffs had stated a claim that the Navy's hiring and retention policies violate the Establishment Clause; (4) the Navy's practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause; (5) the plaintiffs had stated a claim that the Navy's practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause; (6) the Navy's practice of having only "General Protestant" religious services could violate the Establishment Clause; and (7) the plaintiffs had stated a free speech claim. Id.
The court has become very well acquainted with these cases. At a status hearing on February 7, 2002, the court heard from the parties about how they wished to proceed in these cases and then set forth a schedule for the briefing of various issues. Order dated Feb. 7, 2002. Since that time, the court has issued several rulings. First, the court denied without prejudice the plaintiffs' motion for a preliminary injunction to prevent the government from either censoring or compelling their speech by requiring them to recruit new members to the Navy's Chaplain Corps. Adair v. England, 193 F. Supp. 2d 196 (D.D.C. 2002). The court concluded that it lacked jurisdiction over the claims that the plaintiffs set forth in their motion for a preliminary injunction since neither complaint included these allegations. Thus, the court gave the plaintiffs leave to supplement their complaints. *fn4 Id. Second, the court denied the plaintiffs' motion for a preliminary injunction to delay the Navy's chaplain promotion boards until after the court ruled on the plaintiffs' motion for partial summary judgment on the constitutionality of those boards. Adair v. England, __ F. Supp. 2d __, 2002 WL 1791301 (D.D.C. July 31, 2002). Third, the court denied the plaintiffs' motion for relief from judgment from two aspects of the court's January 10, 2002 Memorandum Opinion. Adair v. England, __ F.R.D. __, 2002 WL 1791312 (D.D.C. Aug. 5, 2002). Fourth, the court granted the plaintiffs' motion for class certification. Adair v. England, __ F. Supp. 2d __, 2002 WL 1894377 (D.D.C. Aug. 19, 2002).
Despite the fact that the parties have not begun discovery in these cases, they decided to file motions for partial summary judgment on certain issues. The cross-motions for partial summary judgment became ripe in June 2002.
The plaintiffs move for partial summary judgment on issues related to the hiring and promotion of chaplains, challenging the legality of: (1) the policies by which the Navy hires and allocates chaplain accessions *fn5 among faith groups; (2) the Chaplain Corps structure resulting from these policies, (3) the identification of a chaplain's faith group to chaplain promotion board members, and (4) the Chaplain Corps' promotion system. Pls.' Mot. at 1. In short, the plaintiffs present evidence that there are substantially more liturgical Christians in the Chaplain Corps than there are in the Navy as a whole, and argue that the Navy has unconstitutionally maintained a thirds policy, whereby liturgical Christians, non-liturgical Christians, and Catholics each receive one-third of the Chaplain Corps slots in hirings and promotions. Id. at 5-6, 8 (citing Pls.' Exs. 5, 6).
Before fiscal year 1988, the Navy used objective criteria based on national religious demographics to determine chaplain accessions and recruiting goals, according to the plaintiffs. Id. at 7. The goal was to have the Chaplain Corps reflect the United States' religious makeup. Id. In fiscal year 1988, however, the Navy allegedly adopted subjective quotas - the thirds policy - based on concerns about a shift to a non-liturgical majority. Id.
More specifically, the plaintiffs charge that the thirds policy still prevails in accessions but not in promotions because of the consistent shortage of Catholics. Pls.' Mot. at 33. The plaintiffs do assert, however, that a quota system still exists for promotions. Id. "The gross over-representation of Protestant liturgical chaplains takes place at every rank. For example, in 2001, Protestant liturgicals were 7.46% of DON but in the Chaplain Corps they were 34.57% of Captains, 36.36% of Commander [sic], 32.02% of [Lieutenant Commanders], and 37.50% of Lieutenants." Id. at 9 (citing Pls.' Ex. 6).
The parties share a rare point of factual agreement when the defendants admit that until April 2000, the Navy provided a promotion candidate's religious denomination to chaplain promotion board members in the form of a three-digit Additional Qualification Designator ("AQD") code. Pls.' Reply at 29; Defs.' Mot. at 13, Ex. 19 ¶¶ 4-5. The plaintiffs charge that the practice of revealing faith group identifiers effectively tainted the chaplain promotion boards that had access to the AQD codes and thus they ask the court to rescind some of the actions of these boards. Pls.' Reply at 30. The defendants counter that the plaintiffs have failed to provide any evidence that the Navy's previous display of AQD codes to promotion boards was a purposeful attempt to facilitate discrimination or any evidence that those codes were used to discriminate. Defs.' Reply at 14.
Firing back in their cross-motion, the defendants state that the Chaplain Corps "does not currently establish accession targets based on faith group categories, nor does it otherwise take into account faith group in making accession decisions. In addition, even when the Chaplain Corps did set such 'targets,' those targets served as goals and were never quotas." Defs.' Mot. at 1. The defendants contend that there is no basis to conclude that those targets "limited the accession of any chaplains. At least since 1990, the Navy has never denied accessions to a chaplain because of that chaplain's faith group." Id. In addition, the defendants note that since fiscal year 2001, "the Chaplain Corps has not broken ...