Space Force General Sworn In On Bible Blessed In Controversial Ceremony

As reported by NPR, yesterday, Air Force Gen. John "Jay" Raymond was sworn in as head of the recently created United States Space Force. The swearing-in was unusually controversial because Raymond was sworn in by Vice President Mike Pence using a Bible that was blessed for that purpose at a ceremony last Sunday at the Washington National Cathedral. (Washington Post). Maj. Gen. Steven A. Schaick, chief of chaplains for the U.S. Air Force, held the Bible as it was being blessed.

Yesterday, the Military Religious Freedom Foundation filed a strongly worded letter of complaint (full text) with Secretary of Defense Mark Esper, calling the National Cathedral ceremony "a horrid example of DoD-endorsed, fundamentalist Christian supremacy, ...exclusivity ... and triumphalism...." God and Country blog also has coverage of the controversy.

Controversy Over Army Licensed Items With Religious Theme

First Liberty Institute yesterday sent a letter (full text) to the U.S. Army complaining about the Army's order to a private faith-based company that is licensed to produce Army-themed products. (Press release). The Army instructed the company to remove Biblical verses from its popular Shields of Strength (SoS) dog tags. Since 9-11, SoS has produced over 4 million dog tags, the most popular carrying the words of Joshua 1:9: "Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go."

The Army's action follows a complaint from the Military Religious Freedom Foundation about the religious content of the Army-licensed products.  First Liberty argues, however:

once the Army creates a limited public forum via a trademark licensing regime and allows private entities such as SoS to obtain licenses, the Army cannot “discriminate against speech on the basis of its viewpoint” in the administration of the trademark licensing regime. The Army is therefore prohibited from discriminating against SoS because of its inclusion of biblical references on its products, in its advertisements, or on its website.....

More recently, in Iancu v. Brunetti the Supreme Court ...  invalidated the Lanham Act’s “immoral or scandalous” clause as viewpoint discrimination.....

Clearly, if a prohibition against trademarking offensive, immoral, or scandalous speech constitutes viewpoint discrimination, then certainly the Army’s prohibition against using religious speech in conjunction with its trademark does, too. This is especially true because the Army routinely grants licenses to similar, non-religious speech.

Pence To American Legion:VA Hospitals Will Not Be "Religion-Free Zones"

On Wednesday, Vice President Mike Pence addressed the American Legion's National Convention in Indianapolis (full text of remarks). Among the accomplishments of the Trump Administration which Pence reviewed in his 35-minute speech, was the following:

You might’ve heard even today that there’s a lawsuit to remove a Bible that was carried in World War II from a Missing Man Table at a VA hospital in New Hampshire.  There’s a lawsuit underway.  It’s really no surprise because, under the last administration, VA hospitals were removing Bibles and even banning Christmas carols in an effort to be politically correct.  But let me be clear: Under this administration, VA hospitals will not be religion-free zones.  (Applause.)

We will always respect the freedom of religion of every veteran of every faith.  And my message to the New Hampshire VA hospital is: The Bible stays.  (Applause.)

Pence ended his speech thanking veterans, alluding to language from Psalm 18 and Psalm 144 in doing so:

As the Psalmist wrote, you “trained your hands for war,” and we thank Him who gave you the grace “to advance against a troop” and come home safe to serve all of those who also serve.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”... 

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held. 

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch.... 

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

VA Issues New Policies On Religious Literature and Symbols At VA Facilities

In a News Release issued Wednesday, the U.S. Department of Veterans Affairs announced a new directive on Religious Symbols in VA Facilities and amendments to its directive on Spiritual and Pastoral Care in the Veterans Health Administration. According to the VA:

The new policies will:

• Allow the inclusion in appropriate circumstances of religious content in publicly accessible displays at VA facilities.
• Allow patients and their guests to request and be provided religious literature, symbols and sacred texts during visits to VA chapels and during their treatment at VA.
• Allow VA to accept donations of religious literature, cards and symbols at its facilities and distribute them to VA patrons under appropriate circumstances or to a patron who requests them.

The Hill reports on the policy changes. Earlier this year, suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible. (See prior posting.)

Suit Challenges Bible Display At VA Hospital

Suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible.  As described by an AP report on the lawsuit:

The Bible was carried by a prisoner of war in World War II and became part of the Missing Man Table honoring missing veterans and POWs at the entranceway of the Manchester VA Medical Center. The Department of Veterans Affairs said Tuesday the table was sponsored by a veterans group called the Northeast POW/MIA Network.

The complaint (full text) in Chamberlain v. Montoya, (D NH, filed 5/7/2019), contends that the display violates the Establishment Clause, saying in part:

Here, the placement of the Christian Bible in a locked case on the POW/MIA table puts forth the Christian beliefs of some, at the expense of the beliefs of non-Christians.

Plaintiffs in the lawsuit are represented by the Military Religious Freedom Foundation. while the Northeast POW/MIA Network is represented by First Liberty Institute.

DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Supreme Court Allows Trump Administration's Ban On Transgenders In Military To Take Effect

In Trump v. Karnoski (Docket No. 18A625) and Trump v. Stockman (Docket No. 18627), (Order List), the U.S. Supreme Court today granted stays of preliminary injunctions issued by district courts, thus allowing the Trump Administration's policy barring most transgender individuals from enlisting in the the military to go into effect while constitutionality of the policy is litigated in appeals to the 9th Circuit and eventually in petitions for certiorari to the Supreme Court. Justices Ginsburg, Breyer, Sotomayor and Kagan would have allowed the district courts'injunction against implementing the policy to stand.   The Court also, without dissent, refused to grant certiorari before the Circuit Courts rule, in the same two cases, as well as in Trump v. Doe. (Docket Nos. 18-676 to 678). New York Times reports on the Supreme Court's action.

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Families of WW II Vets May Move Ahead With Suit To Recover Remains

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, Oct. 23, 2018), a Texas federal district court refused to dismiss substantive and procedural due process, and free exercise and RFRA claims by the families of seven American Army service members who died in the Philippines in World War II. The families sought recovery of the remains of their veterans so they can be properly buried.  The remains are interred as "Unknowns" in the Manila American Cemetery, but the families believe that they can now identify in which of the Unknowns' graves the seven service members are buried. The court said in part:

Plaintiffs allege that the government’s refusal to return allegedly identified remains to the appropriate families for burial “shocks the conscience.” ... Plaintiffs argue that their allegations that the remains are in fact identified, taken as true, render Defendants’ withholding of the remains a substantive due process violation.... At this stage, the Court finds that Plaintiffs sufficiently allege a substantive due process violation....

[G]iven Plaintiffs’ private interests regarding their family members’ remains and the alleged erroneous deprivation of an opportunity to be heard, the Court finds that, at this stage, Plaintiffs sufficiently allege a procedural due process violation that will benefit from further fact development.....

Plaintiffs allege that their free exercise of their sincerely held religious tradition of burial has been burdened because the government refuses to return the remains of their relatives.... These allegations are plausible on their face and meet the pleading requirements at this stage of litigation for both a Free Exercise claim and a RFRA claim

Court Continues Preliminary Injunction Against Trump's Policy On Transgender Military Service

In  Stockman v. Trump, (CD CA, Sept. 18, 2018), a California federal district court refused to dissolve a previously issued preliminary injunction barring enforcement of President Trump's August 2017 Memorandum that excludes transgender individuals from the military. The government argued that a subsequent March 2018 Presidential memorandum revoking the 2017 one and instead implementing a policy recommended by the Department of Defense mooted the earlier challenge. The court concluded however:

For the purpose of mootness, the controversy presented by the new policy is substantively the same as the controversy presented by the old policy. Transgender individuals will be disadvantaged “in the same fundamental way.”

The court went on to find that the transgender ban cannot survive intermediate scrutiny, rejecting the government's military readiness and unit cohesion arguments. MetroWeekly reports on the decision.

New White House Memorandum On Military Service By Transgender Persons

Yesterday the White House released a Memorandum from the President on Military Service By Transgender Individuals (full text). Implementing February 2018 recommendations and a related report (full text) from the Secretary of Defense, the memo replaces an earlier Presidential Memorandum and authorizes the military services to implement the Defense Department's recommendations.  Those recommendations preclude most new enlistments by transgender individuals. They allow enlistment by transgender persons only if they have not been diagnosed with gender dysphoria, or if previously diagnosed with gender dysphoria they have been stable for 36 months in their biological sex.  Those who require or have undergone gender transition are disqualified.  The Hill reports on the new Memorandum.

All of this may l\have little immediate effect.  Vanity Fair reports:

It is possible that the ban will never actually be put in place: while the Trump administration is framing the order as “a new policy developed through extensive study by senior uniformed and civilian leaders,” it is substantively the same as the previous Trump policy, which is currently facing multiple lawsuits on constitutional grounds. Four federal courts have issued injunctions in cases filed by civil rights groups, and may ultimately end up before the Supreme Court. The Pentagon said Friday that it will continue to abide by Obama-era policies welcoming transgender troops while those legal battles continue.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:

By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.

Friendly Atheist Blog reports on the letter.

Military Will Move Ahead With Transgender Enlistments

Yesterday, a Washington federal district court granted a preliminary injunction against President Trump's Memorandum that excludes transgender individuals from the military. The court in Karnoski v. Trump, (WD WA, Dec. 11, 2017), concluded that the Memorandum violates plaintiffs' equal protection, substantive due process and First Amendment rights, saying in part:

While Defendants identify important governmental interests including military effectiveness, unit cohesion, and preservation of military resources, they fail to show that the policy prohibiting transgender individuals from serving openly is related to the achievement of those interests.

The Washington state Attorney General issued a press release on the decision.

At least two other courts have previously issued similar injunctions. (See prior posting.)  Yesterday in one of those other cases, a D.C. federal district court judge refused to delay her January 1 deadline for the military to comply. (Washington Post).  The Department of Defense announced yesterday that the military will allow transgender enlistments beginning January 1. It will also reinstitute a 2016 policy that allows transgender enlistment only after 18 months of stability after treatment.

Another Court Enjoins Trump's Transgender Military Ban

Agreeing with a decision last month by a D.C. federal district court (see prior posting), yesterday in Stone v. Trump, (D MD, Nov. 21, 2017), a Maryland federal district court issued a preliminary injunction against President Trump's ban on transgender individuals serving in the military.  The court said in part:

President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Going beyond the D.C. decision, the court found that plaintiffs have standing to challenge the ban on military spending for sex reassignment surgery and enjoined the Sex Reassignment Surgical Directive as well as the Retention and Accession Directives, pending final resolution of the lawsuit. Washington Post reports on the decision.

Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

Defense Department Drops Training Material References To Southern Poverty Law Center

As previously reported, In August a Florida Christian Ministry filed suit against the Southern Poverty Law Center for damages allegedly suffered when the organization was placed on the SPLC's Anti-LGBT Hate Group list. Some other Christian groups have also sharply criticized the Southern Poverty Law Center for listing them as hate groups because of their stance on same-sex relationships.  Earlier this week, The Daily Caller reported that the Defense Department has officially severed all ties with the Southern Poverty Law Center.  DOD's Defense Equal Opportunity Management Institute has now removed all references to the SPLC in its training material.

Israel's High Court Strikes Down 2015 Law On Draft Exemptions For Ultra-Orthodox

Israel's High Court of Justice yesterday struck down a 2015 law that was intended to reverse attempts enacted a year earlier to increase the number of ultra-Orthodox young people who are drafted into the Israel Defense Forces.  As reported by Times of Israel:

Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.

One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.

The Court gave the Knesset one year to come up with a different arrangement.  Ultra-Orthodox members of the Knesset strongly criticized the decision.  For example, Deputy Education Minister Meir Porush of the United Torah Judaism party said:

The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse.

Mattis Will Take Time Implementing Trump's Policy On Transgenders In Military

Yesterday Secretary of Defense Jim Mattis issued a Statement (full text) on the manner in which he intends to implement President Trump's recent Memorandum barring enlistment of transgender individuals in the military and calling for a study of how to deal with transgender individuals currently serving. Mattis said in part:

Our focus must always be on what is best for the military’s combat effectiveness leading to victory on the battlefield.  To that end, I will establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president’s direction.  Panel members will bring mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.  The panel will assemble and thoroughly analyze all pertinent data, quantifiable and non-quantifiable.... 

Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction.  In the interim, current policy with respect to currently serving members will remain in place. 

Suit Challenges Trump Ban On Transgender Individuals In Military

Yesterday three individuals and two advocacy groups filed a federal lawsuit challenging the constitutionality of the Trump Administration's recently implemented policy on transgender individuals serving in the military.  The complaint (full text) in Karnoski v. Trump, (WD WA, filed 8/28/2017) summarizes the lawsuit:

5. In the evening of Friday, August 25, 2017, President Trump followed up on his tweets and implemented an official federal policy of discrimination against transgender individuals in military service .... Among other things, President Trump has mandated that the U.S. military return to its earlier policy and practice of discrimination against transgender people, including by discharging them. He has also maintained and extended the current bar on accession into the military of individuals known to be transgender.... Last, he has singled out for adverse treatment the health care needs of transgender service members.

6. Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important, or even rational justification.

Lambda Legal announced the filing of the lawsuit.