Navy Again Rejects Application To Become Secular Humanist Chaplain

Washington Examiner yesterday reported that for a second time the U.S. Navy has rejected the application of Jason Heap to become the Navy's first Secular Humanist chaplain. His application was first rejected in 2014 (see prior related posting), but more recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval.  Senator Richard Wicker, chairman of the Senate Armed Services Committee, applauded the Navy's rejection of Heap's application, saying:

The appointment of an atheist to an undeniably religious position is fundamentally incompatible with atheism’s secularism. This decision preserves the distinct religious role that our chaplains carry out.

Israel's High Court of Justice Enjoins Appointment of Military Chief Rabbi

Israel's High Court of Justice today issued an injunction temporarily preventing the Israel Defense Forces from appointing Col. Eyal Karim as the IDF's chief rabbi. As reported by Times of Israel, Karim has made very controversial statements in the past regarding rape of enemy women during wartime.  He also has written that women should not serve in the IDF, women should not sing at army events, and if they do religious soldiers should be permitted to leave. Apparently IDF Chief of Staff Lt. Gen. Gadi Eisenkot did not know of Karim's comments when he nominated him for the military's chief rabbi.  Today's temporary injunction is in response to a petition filed with the Court by the left-wing Meretz Party.  The Court has told Karim to file an affidavit on his past and present views on wartime rape and the role of women in the military. Right-wing Knesset members are encouraging Karim to stick with his views, attacking the right of a court to police the religious views of a rabbi.

Supreme Court Term Opens With Action On Cert. Petitions and More

The U.S. Supreme Court opened its October 2016 Term on Monday, with the first oral arguments this morning. Here is a round-up of a number of developments leading up to, and occurring on, opening day.

Last Thursday, in advance of opening day, the Court granted review in eight cases (Order List), one of which was McLane Co. v. EEOC, No. 15-1248 (cert. granted limited to one question, 9/29/2016). (SCOTUSblog case page).  While the case involves EEOC charges of gender and age discrimination, the procedural issue which the court will decide may affect EEOC religious discrimination cases as well.  At issue is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, or whether an appellate court should instead give more deference to the district court's decision. SHRM reports on the case.

As reported by the National Law Journal, on Sunday, the annual Red Mass was held (photos) at the Cathedral of St. Matthew the Apostle in Washington, D.C.  It was attended by Chief Justice Roberts, and Justices Kennedy, Thomas, Alito and Breyer.  The late Justice Scalia's son gave a reading from the Bible at the ceremony.

On Monday, the Court issued its usual lengthy opening-day list of certiorari denials. This year's list of cases covered 64 pages of the 71-page Oct. 3 Order List.  Among the cases in which review was denied was Klingenschmitt v. United States, (Docket No. 15-1445). In a decision by the Court of Federal Claims (see prior posting) which was summarily affirmed by the Court of Appeals for the Federal Circuit, the court rejected claims by a Navy Chaplain that he was that he was wrongfully discharged from the Navy. The refusal to recertify Klingenschmitt as a chaplain culminated a long-running battle between him and the military over military regulations requiring chaplains to deliver inclusive prayers at military event.

Chaplains' Group Says New Military Policy On Transgenders Poses Religious Freedom Concerns

On June 30, Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military is being lifted. (Links to DOD documents.) Those already in the military will be permitted to serve openly and will be provided appropriate medical care and treatment after receiving a diagnosis from a military medical provider indicating that gender transition is medically necessary. (Fact Sheet). The Chaplain Alliance for Religious Liberty issued a statement (full text) yesterday raising questions about the new policy. The statement reacts to a conference call with a Pentagon official, and reads in part:

The official said that such persons will be required to receive a medical statement from a military medical professional that they suffer from gender dysphoria.... 

An endorser on the call asked whether medical professionals who hold a biblical view on human sexuality will be required to violate their consciences and do as these persons demand, and the response was that it is the responsibility of medical professionals to serve military persons. It’s an understatement to say that this raises serious religious liberty concerns,” said Chaplain (COL) Ron Crews.... “The Department of Defense must ensure ... that doctors and nurses who hold to a biblical view of human sexuality can serve in today’s military...."

The official on the conference call went on to say that “mixed genitalia” will be present in military bathrooms, showers, and barracks because service members will be in various stages of change in their sexual identity.... Crews said. “Do we want our sons and daughters to be forced to share showers and sleeping spaces in a ‘mixed genitalia’ environment with no recourse for objections of conscience?”

Suit Against Navy By Humanist Chaplain Applicant Can Proceed on Two Grounds

Heap v. Carter, (ED VA, July 1, 2015), is a suit brought by Dr. Jason Heap, a certified Humanist Celebrant, and The Humanist Society, his endorsing agency, challenging the U.S. Navy's denial of Heap's application to become a Navy Chaplain. Plaintiffs alleged that the Navy and Department of Defense have an unconstitutional policy of discrimination against Humanism.  In a 75-page opinion, a Virginia federal district court ultimately allowed Dr. Heap to move ahead with his Establishment Clause and Equal Protection/ Substantive Due Process challenges to the Navy and Department of Defense's actions.  However the court dismissed challenges brought under other parts of the 1st Amendment, the No Religious Test clause, and RFRA, dismissed The Humanist Society as a plaintiff for lack of standing and on ripeness grounds, and dismissed claims against the individual defendants.

Controversial Former Navy Chaplain Now Running For Colorado State Senate

Former Navy chaplain Gordon James Klingenschmitt, who gained national attention for his long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events (see prior posting), is back in the news. Klingenschmitt, who hosts a national religious television show under the pseudonym "Dr. Chaps," was elected to the Colorado state House of Representatives last November. Last month, Klingenschmitt was removed by the House Republican leader from the Health, Insurance and Environment Committee after Klingenschmitt suggested on his TV show that the brutal attack on a pregnant Longmont, Colorado woman was "the curse of God upon America for our sin of not protecting innocent children in the womb." (Denver Post, March 31).

The Colorado Independent published an interview with Klingenschmitt yesterday discussing Klingenschmitt's decision to run in 2016 for State Senate. Asked how he made the decision to run, Klingenschmitt responded in part:

I went on a three-day, water-only fast, day and night for 72 hours, and I prayed....  At the end of that time, I was reading in the Bible in Joshua, chapter one, where God blessed Joshua and told him, ‘Everywhere you set your foot you will claim as your territory.’ He was talking about ancient Israel. I was inspired by that.

It reminded me of many of the volunteers who knocked on doors for me in my previous campaign and maybe in my future campaign. Everywhere they set their foot, every time they knocked on a door, whether for me or another candidate, those citizens are taking back their territory. They are making a political claim, and almost a spiritual claim, on how they’re going to be represented in the Capitol here.....

Role of Rabbis In Israel Army Ceremonies Is In Dispute

Times of Israel reported yesterday on a controversy within the Israeli army over the role of rabbis at the swearing-in ceremony for new recruits.  Currently the ceremony, held at the Western Wall, features the unit commanders, the military rabbi and the rabbi of the unit.  However, the IDF's chief education officer Avner Paz-Tzuk has written the Manpower Directorate saying that a number of soldiers-- presumably secular ones-- have expressed “resentment” over “the centrality of military rabbis” in the ceremony.  Paz-Tzuk recommended that a commander, rather than a rabbi, read portions of the Bible at the swearing-in ceremony.  Defense Minister Moshe Ya’alon disagrees with the recommendation that reflects long-standing tensions between the Education Corps and the IDF rabbinate over educational roles in the military.

Navy May Remove Christian Chaplain For Inapproriate Counseling On Sexuality

Military Times reported Wednesday on the Navy's threat to remove Pentecostal chaplain Lt. Cmdr. Wesley Modder from the service because of inappropriate counseling he offered to sailors on issues of sexuality. After a number of sailors filed equal opportunity complaints against Modder, on Feb. 17 he was issued a "detachment for cause" letter.  His commanders charge that Modder is intolerant and unable to function in a diverse and pluralistic environment. Assigned to the Nuclear Power Training Command in South Carolina, Modder had criticized female sailors for pre-marital sex and told students that homosexuality is wrong. When told of complaints against him, Modder responded that he will not follow Navy policy that conflicts with his religious beliefs. Modder has been temporarily reassigned, while it is determined whether a board of inquiry to officially separate him from the Navy will be convened.  He has less than a year to serve in order to qualify for 20-year retirement benefits.

Uncertainty Continues On Religious Expression In the Military

Stars and Stripes yesterday reports at length on the ambiguity in the military's current policy on expression of religious speech that is illustrated by a mandatory suicide prevention briefing last month for soldiers at Ft. Benning. At the session, a chaplain, Capt. Joe Lawhorn, told members of a Ranger battalion that faith in Jesus is what helped him through depression, though he also presented non-religious methods of combating suicide. Handouts to soldiers were a sheet which on one side gave secular suicide prevention tips, and on the other presented Christianity as the solution. According to Stars and Stripes:

After the incident was publicized by the Military Association of Atheists and Freethinkers advocacy group, Fort Benning’s command warned the chaplain to cool the religious content in mandatory briefings.

In response, Lawhorn’s attorney, Michael Berry — of the Liberty Institute, a competing advocacy group — cited the wording in the [military's] new policy in a letter demanding that the Army explicitly approve religious content in the chaplain’s briefings.

Controversial Former Navy Chaplain Loses Another Round

Former Navy chaplain Gordon James Klingenschmitt, who has been in a long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events other than religious services, lost another round this week.  In Klingenschmitt v. United States, (Ct. Fed. Cl., Nov. 24, 2014), the Court of Federal Claims rejected Klingenschmitt's claims under the Tucker Act and the Military Pay Act.  After recounting for some 19 pages the history leading up to the lawsuit, the court explains:

In this case, Dr. Klingenschmitt alleges that he was wrongfully discharged from the Navy and seeks an award of backpay and allowances and benefits retroactive to his separation date and reinstatement as a chaplain. Incident to that claim, he seeks removal of references to his 2005 and 2006 fitness reports and the CARE board’s recommendation from his record.... He also asks that the Court vacate his court-martial conviction and direct that references to the conviction, including the letter of reprimand issued pursuant to his conviction, be removed from his record.... Dr. Klingenschmitt’s complaint also includes a potpourri of other claims that appear to challenge Navy policies which he claims violate the First Amendment, RFRA, and 10 U.S.C. § 6031(a).... 

In dismissing, the court said in part:

the Court finds unpersuasive Dr. Klingenschmitt’s argument that his First Amendment right to practice his religious beliefs was infringed by Captain Pyle’s Order that he not wear his uniform to the media event held in Lafayette Park in March 2006. Captain Pyle’s Order was based on Navy regulations that prohibit the wearing of a uniform in connection with political activities.... The Order did not limit Dr. Klingenschmitt’s right to engage in any religious practices (including presenting an opening prayer at the event or invoking the name of Jesus in his prayer). It simply prohibited Dr. Klingenschmitt from engaging in this activity while wearing his uniform at what was clearly a political event and not, as Dr. Klingenschmitt seems to suggest, a bona fide religious service.

Therefore, taking this infraction into consideration in deciding whether to recertify Dr. Klingenschmitt as a chaplain did not violate either his First Amendment rights or RFRA.

Humanist Sues Navy Over Rejection of His Chaplaincy Application

Stars and Stripes reported yesterday that a lawsuit has been filed in federal district court for the Northern District of Virginia by a religion scholar and former youth minister whose application to become the Navy's first Humanist chaplain was turned down.  Plaintiff Jason Heap, who filed suit along with the Humanist Society, claims that political opposition to a Humanist as a chaplain derailed his application. (See prior related posting.) He contends that he holds his Humanist beliefs with the same strength and sincerity as believers in traditional religions hold theirs.  He says that his rejection violated his constitutional rights and asks the court to order his instatement as a Navy Chaplain. The suit names various Navy and Defense officials as defendants. Last week in an unrelated case, an Oregon federal district court held that Humanism is a religion for Establishment Clause purposes. (See prior posting.)

Many Navy Chaplains' Claims Dismissed on Limitations Grounds

The federal district court for the District of Columbia last week dismissed on statute of limitations grounds a number of discrimination claims in the long-running suit brought by a group of Non-Liturgical Protestant chaplains and their certifying agencies against the U.S. Navy. In In re Navy Chaplaincy, (D DC, Sept. 24, 2014), the court rejected various theories put forward by plaintiffs who argued that the suit was still timely.

House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

• Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
• Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
• Section 528 requires the Department of Defense to revise  Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces."  Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Cert. Petition Filed In Challenge To Navy Chaplain Corps Procedures

The Rutherford Institute announced yesterday that it has filed a petition for certiorari (full text) in In re Navy Chaplaincy. In the long-running case, the D.C. Circuit Court of Appeals denied a preliminary injunction in a challenge to the Navy's procedures for promoting members of the Navy Chaplains Corps.  Petitioners argue that the current procedures favor Catholics and liturgical Protestants over various non-liturgical denominations.

Chaplain's Complaint Over Actions During Government Shutdown Dismissed As Moot

In Leonard v. United States Department of Defense, (D DC, April 30, 2014), the D.C. federal district court dismissed as moot claims by Catholic Navy chaplain Father Ray Leonard that his free exercise and RFRA rights were infringed when military authorities prevented him from performing his ecclesiastical duties during last year's government shutdown. The government asserted that this was required by the Anti-Deficiency Act, 31 U.S.C. § 1342, even if performed voluntarily. However, one day after this suit was filed, the government informed Father Leonard that he and other chaplains would be permitted to continue working during the shutdown and would be paid when funds later became available. The court similarly dismissed Leonard' retaliation claim because he is suffering no ongoing injury. (See prior related posting.)

House Hearing Held On Religious Accommodation In the Military

Yesterday, the House Armed Services Committee, Subcommittee on Military Personnel yesterday held a hearing on Religious Accommodations in the Armed Services. The prepared statements of the six witnesses-- chaplains and representatives of chaplain endorsing agencies-- as well as statements for the record submitted by nine other groups and individuals are available on the committee's website. [Thanks to Michael Lieberman for the lead.]

DC Circuit Denies Preliminary Injunction To Non-Liturgical Navy Chaplains Challenging Promotion Procedures

In the long-running challenge to Navy procedures for promoting members of the Chaplain Corps, the D.C. Circuit Court of Appeals yesterday affirmed the district court's denial of a preliminary injunction.  In In re: Navy Chaplaincy, (DC Cir., Dec. 27, 2013), the court ruled against  a group of current and former Navy chaplains and two chaplain-endorsing agencies who claim that the makeup and voting procedures of the Navy's selection boards create a preference for Catholics and liturgical Protestants over various non-liturgical denominations. The court rejected plaintiffs' equal protection claims, agreeing with the district court that plaintiffs' had not shown direct evidence of discriminatory intent in the adoption of the challenged policies that are neutral on their face, nor had they shown sufficiently disparate impact to infer unconstitutional discriminatory intent. The court also rejected plaintiffs' Establishment Clause challenge, finding that a reasonable observer reviewing the data on promotions would not perceive a message of governmental endorsement of liturgical denominations.

Final Version of Defense Authorization Bill Contains Military Religious Freedom Provisions

The House of Representatives yesterday passed H Res. 441 concurring in the Senate Amendments to the 2014 Defense Authorization Bill, H.R. 3304, (with one minor amendment so that it must still go back to the Senate for final approval). (Full text of resolution and bill.) As is typical with military authorization and spending bills, this one contains several provisions on religious freedom in the military.

Section 532 tweaks the language in current law on conscience rights of those in the military, so that the new provision (new language in italics) reads:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The section also sets a 90-day deadline for issuance of regulations implementing this section, and requires the Pentagon to consult with faith-group representatives who endorse military chaplains in drafting the regulations.

Section 533 then requires a DOD Inspector General's report 18 months later on Armed Forces compliance with the ban on adverse personnel action based on conscience, moral principles or religious beliefs. The IG is to consult with the Armed Forces Chaplain Board as appropriate in preparing the report.

Section 534 requires that within one year:

The Secretary of Defense shall conduct a survey among a statistically valid sample of military chaplains of the regular and reserve components of the Armed Forces, to be selected at random, to assess whether—

(1) restrictions placed on prayers offered in a public or non-religious setting have prevented military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group; and 

(2) those restrictions have had an adverse impact on the ability of military chaplains to fulfill their duties to minister to members of the Armed Forces and their dependents.

The Joint Explanatory Statement (at pp. 63-65) explains the House-Senate compromises that led to these provisions. The Statement also contains the following language (pg. 82) that appears to be a response to criticism by some conservative Christian groups (background) that the military has given preferential access in policy making to the Military Religious Freedom Foundation:

The House bill contained a provision (sec. 530E) that would require the Department of Defense to provide to the Committees on Armed Services of the Senate and the House of Representatives advance written notice of any meeting held between Department employees and civilians for the purpose of writing, revising, implementing, enforcing, or seeking advice, input, or counsel regarding military policy related to religious liberty.

The Senate committee-reported bill contained no similar provision.

 The agreement does not include this provision.

We believe the Department and the military services should proactively reach out to and meet with religious groups of all faiths when formulating and revising policies that impact religious freedom and tolerance within the military. We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.

Endorsing Agency For Two Conservative Chaplains Sues VA Over Pastoral Education Program Clashes

Fox News and Breibart News report  on a federal lawsuit filed last week by the endorsing agency for two military chaplains who were forced out of a Clinical Pastoral Education program run by the Department of Veterans Affairs in San Diego. The program is required in order to work as a chaplain in a VA hospital. The two chaplains, who were endorsed by the Conservative Baptist Association of America, continually clashed in class with the religiously liberal instructor, Nancy Dietsch.  The complaint (full text) in Conservative Baptist Association of America, Inc. v. Shenseki, (D DC, filed 11/8/2013), sets out examples of in-class exchanges between Dietsch and chaplains Steven Firtko and Dan Klender, among which are:

... Dietsch informed the class she believes God could be a man or woman. Chaplain Firtko recited the Lord’s Prayer, stating “Our Father who Art in Heaven.” In response, Ms. Dietsch angrily pounded her fist on the table and shouted: “Do not quote Scripture in this class!”....

When Chaplain Klender responded to a question during a group discussion regarding the Sandy Hook school shooting in Newtown CT, by stating he would tell a parent whose child was a victim by stating that “there is evil in the world,” Ms. Dietsch impugned his core faith beliefs stating they would not work in a clinical setting. In the presence of the other students she said: “You don’t actually believe that do you?”

Dietsch also told the class that The VA and she "do not allow Chaplains to pray 'in Jesus' name' in public ceremonies."

The lawsuit contends that the program's intolerance of mainstream Judeo-Christian beliefs violates RFRA, the 1st Amendment's Free Exercise and Free Speech clauses. It also contends that discrimination against Conservative Baptist Association chaplains was arbitrary and capricious.

In a statement to news media, the VA said that the two chaplains were "bullying other classmates and refusing to honor other faith groups." [Corrected to make clear that plaintiff is the endorsing agency, not the chaplains. Thanks to God and Country blog.]