Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

Louisiana Governor Signs "Given Name Act", School Chaplaincy and 10 Commandments Bills

On Wednesday, Louisiana Governor Jeff Landry signed a package of 18 separate bills which the Governor's office described as " bills that will transform our education system and bring back common sense in our classrooms."  Among the bills were:

HB 121, the "Given Name Act" (full text). The new law prohibits any public or charter school policy "that provides for an inquiry of" the pronouns of a student or employee that are inconsistent with their biological sex, or "that provides for an inquiry of" their name that is not their legal name or a derivative of it. Teachers and other employees as well as other students may not be required to address a student by a name other than the student's legal name or a derivative of it, or to address a student using pronouns that are inconsistent with the person's biological sex. A parent may seek corrective action if a school employee refers to a student by other pronouns or by another name and may bring suit if corrective action is intentionally not taken. ADF issued a press release announcing the governor's signing of the bill.

HB 334 (full text) which permits public school boards to "employ or accept as a volunteer a certified chaplain to provide support, services, and programs for students, staff, and parents as assigned by a school board...." The new law also provides the chaplain with immunity from suit for actions or statements made under the program unless they were "maliciously, willfully, and deliberately intended to cause harm to harass or intimidate those seeking support, services and programs."

HB 71 that requires the posting of the Ten Commandments in every public school and college classroom. See this post for additional details.

Florida Authorizes Volunteer Chaplains in Schools

On April 18, Florida Governor Ron DeSantis signed HB 931. The bill (full text) allows school districts to authorize volunteer school chaplains to provide support, services, and programs to students. Schools must require parental consent for students to avail themselves of chaplain's support, services or programs. Liberty Counsel issued a press release announcing the signing of the bill.

Statute of Limitations Not Tolled on Navy Chaplains' Claims

In In re: Naval Chaplaincy, (D DC, Aug. 23, 2023), the D.C. federal district court held that plaintiffs have not shown that the running of the statute of limitations on their free exercise claims should be tolled because of fraudulent concealment. In the case, which has been in litigation for nearly 25 years, non-liturgical Protestant chaplains alleged discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Texas Legislature Approves Chaplains in Public Schools

 The Texas legislature today gave final passage to SB763 (full text) which allows public schools to employ or accept as volunteers chaplains to provide support for students.  Chaplains need not be certified as teachers.  The only requirements are that they be subject to a criminal history review and that they have not been convicted or placed on deferred adjudication community supervision for an offense for which sex-offender registration is required. Texas Tribune reports on the passage of the bill, saying in part:

The bill was delayed last week after Texas House members sought an amendment that would have required chaplains to have similar accreditation as chaplains who work in prisons or the U.S. military. That amendment was defeated during negotiations between both chambers Friday.

Earlier this month, House Democrats also offered amendments to bar proselytizing or attempts to convert students from one religion to another; to require chaplains to receive consent from the parents of school children; and to make schools provide chaplains from any faith or denomination requested by students. All of those amendments failed.

[Thanks to Thomas Rutledge for the lead.]

Congress Passes National Defense Authorization Bill with Various Provisions Impacting Religion

A press release from the U.S. Senate Armed Services Committee reports that on Thursday the U.S. Senate passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 by a vote of 83-11. The 4408-page bill (full text) now goes to President Biden for his signature. Among the provisions that impact religious concerns are the following:

 SEC. 509D. STUDY OF CHAPLAINS. 

(a) STUDY REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretaries of the military departments, shall submit to the Committees on Armed Services of the Senate and House of Representatives a study of the roles and responsibilities of chaplains. 

(b) ELEMENTS.—The study under subsection (a) shall include the following: (1) The resources (including funding, administrative support, and personnel) available to support religious programs. (2) Inclusion of chaplains in resiliency, suicide prevention, wellness, and other related programs. (3) The role of chaplains in embedded units, headquarters activities. and military treatment facilities. (4) Recruitment and retention of chaplains. (5) An analysis of the number of hours chaplains spend in roles including pastoral care, religious services, counseling, and administration. (6) The results of any surveys that have assessed the roles, responsibilities and satisfaction of chaplains. (7) A review of the personnel requirements for chaplains during fiscal years 2013 through 2022. (8) Challenges to the abilities of chaplains to offer ministry services.

SEC. 525. RESCISSION OF COVID-19 VACCINATION MANDATE

Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members’’.

SEC. 529. RECURRING REPORT REGARDING COVID-19 MANDATE. 

(a) REPORT REQUIRED.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a recurring report regarding the requirement that a member of the Armed Forces shall receive a vaccination against COVID-19. 

Each such report may not contain any personally identifiable information, and shall contain the following:  (1) With regard to religious exemptions to such requirement— (A) the number of such exemptions for which members applied; (B) the number of such religious exemptions denied; (C) the reasons for such denials; (D) the number of members denied such a religious exemption who complied with the requirement; and (E) the number of members denied such a religious exemption who did not comply with the requirement who were separated, and with what characterization....

Section 533 requires the Armed Forces to submit to Congress a report on recruiting efforts. Among other things, the Report is to include:  "A comparison of the race, religion, sex, education levels, military occupational specialties, and waivers for enlistment granted to enlistees by geographic region and recruiting battalion, recruiting district, or recruiting region of responsibility."

Title XXIX contains various provisions relating to access, preservation and protection of Native American cultural and religious sites within land used for bombing ranges and training areas.

Section 5576 limits foreign aid funds allocated for Burma, providing that funds may not be made available to "to any individual or organization that has committed a gross violation of human rights or advocates violence against ethnic or religious groups or individuals in Burma."

Section 6416 provides for creation of an Office of Wellness and Workforce Support for CIA personnel. Among other things, the Office is to make available: "A list of chaplains and religious counselors who have experience with the needs of the Agency workforce...."

Fire Department Chaplain Dismissed Because Of His Blog Posts Files Suit

An ordained Christian minister who has been a volunteer fire department chaplain in Austin, Texas filed suit in a Texas federal district court yesterday alleging that his free speech and free exercise rights were violated when the fire department terminated him as a chaplain because of his social media posts.  The complaint (full text) in Fox v. City of Austin, (WD TX, filed 8/18/2022), alleges in part:

Dr. Andrew K. Fox ... helped start Austin’s fire chaplaincy program and served as its lead chaplain—a volunteer position—for eight years. That abruptly changed when Dr. Fox posted something on his personal blog that Austin officials considered unacceptable: his religious belief that men and women are created biologically distinct and his view that men should not compete on women’s sports teams. After Austin officials demanded that Dr. Fox recant and apologize for expressing these beliefs and Dr. Fox refused, they terminated him....

Under the City’s standard, no one who openly holds historic Christian beliefs about the immutable differences between men and women can serve as a chaplain or in any other fire department position.... When the government can needlessly punish people for professing views outside of work on matters of ongoing public debate, that chills everyone’s speech and discourages democratic participation.

ADF issued a press release announcing the lawsuit.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Navy Chaplain's Claim Dismissed On Res Judicata Grounds

In Lancaster v. Secretary of the Navy, (ED VA, Aug. 30, 2021), a Virginia federal district court dismissed on res judicata grounds a suit by a former Navy chaplain (now deceased) who claims that his failure to receive a promotion in rank resulted from retaliation, hostility and prejudice toward non-liturgical Protestant chaplains. The court concluded that plaintiff's claims were previously adjudicated in a 2018 decision in In re Navy Chaplaincy.

Another Chapter In Challenge To Navy Chaplain Selection Procedures

In In re Navy Chaplaincy, (DC Cir., Nov. 6, 2020), the D.C. Circuit Court of Appeals issued the latest decision in a controversy that has been in litigation for over twenty years.  In the case, non-liturgical Protestant chaplains allege discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. The court said:

the district court made no mistake in granting summary judgment for the Navy on the Plaintiffs’ various First Amendment challenges to its selection board policies. See Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to endorse religion in the eyes of a reasonable observer.”... To prove an endorsement with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period ..., but the statistics they offered came nowhere close to doing so.

However the court remanded for further proceedings a claim by a chaplain endorsing agency, Associated Gospel Churches, of injury because of the Navy's policy. The trial court had dismissed the claim for lack of standing. The Court of Appeals said in part:

On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-neutral accession goals. We agree. AGC alleged the Navy’s accession goals resulted in AGC’s chaplain candidates entering the Navy at a significantly lower rate than they otherwise would have. AGC further alleged, because it relies upon its chaplains for financial support, it loses money when its ability to find placements for its candidates is hindered. AGC also alleged its low rate of success placing candidates in the Navy tarnished its reputation. These allegations satisfy all three elements of standing. We express no opinion on the sufficiency of the allegations in any other respect.

The court also reversed and remanded claims that had been dismissed as untimely, ordering the trial court to consider whether equitable tolling applies. Finally, the court held:

Allowing chaplains to sit on chaplain selection boards does not create a de jure denominational preference and does not create excessive entanglement.

Navy Chaplains Given One More Chance To Refile Discrimination Claims

Arnold v. Secretary of the Navy, (D DC, April 21, 2020) is the latest installment in long-running litigation against the U.S. Navy by a group of non-liturgical Protestant chaplains who claim that the Navy discriminated against them.  In a 2018 opinion (which is currently on appeal to the D.C. Circuit), the chaplains' broad challenges to Navy chaplain selection board policies and procedures were rejected, but the court allowed plaintiffs to file a new complaints-- which are at issue here-- claiming discrete instances of individual discrimination, retaliation and constructive discharge. Many of these claims were dismissed under the doctrine of res judicata. The court reluctantly concluded that plaintiffs, with limitations, can file new complaints raising those individual claims. The court said in part:

As demonstrated by this very case, plaintiffs and their counsel persist in filing repetitive and duplicative complaints despite having received lengthy decisions outlining precisely why their systemic challenges fail....

Based on plaintiffs’ actions thus far and their insistence that repetitious filings and forum shopping are mandatory to vindicate their interests, the Court deems it surpassingly likely that absent a pre-filing injunction, the refiling of any surviving claims will almost certainly be broadened to include challenges to the Navy’s selection board policies and procedures that have already been resolved by this Court—in the 2018 opinion and again today.... Consequently, the Court concludes that a narrowly tailored prospective filing restriction is necessary.

The Court will sever the surviving retaliation, constructive discharge, and interference with religious free speech claims. And it will permit plaintiffs to refile those ad hoc claims in this Court or any other appropriate district Court, in individual complaints (not joined with any other plaintiff). However, any plaintiff who wishes to refile his or her claims in any federal court must first seek leave from this Court within thirty days, that is, by not later than May 21, 2020.

Challenge To Chaplaincy Program Dropped After Changes Are Made

A Stipulation for Dismissal signed by both parties was filed earlier this week in  Freedom From Religion Foundation, Inc. v. Kaul, (WD WI, 11/20/2019). The suit, which was initially filed in state court and was apparently removed to federal court, challenged the constitutionality of a Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. Six chaplains from across the state were appointed initially-- all white males from Christian faiths. The program excluded secular mental health professionals.  According to a press release from FFRF, after a new state attorney general was elected, the chaplaincy program was dropped in favor of an "Employee Support Team". The goal is to create teams with training in counseling, police chaplaincy, and/or empathetic listening.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

Non-Liturgical Protestant Navy Chaplains Refile In Long-Running Discrimination Litigation

Last year, a D.C. federal district court dismissed a long-running lawsuit brought by  non-liturgical Protestant Navy chaplains alleging discrimination against them by the Navy. (See prior posting.)  However the court severed certain claims with leave to file them in other jurisdictions.  Earlier this month those severed claims were included in a complaint filed in a Virginia federal district court.  The complaint (full text) in Lancaster v. Secretary of the Navy, (ED VA, filed 3/1/2019), summarized the allegations as follows:

This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports...; constructive discharge because of unlawful FOS [failures of selection]; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.

This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.

WAVY News reports on the lawsuit.

Chaplaincy Program of Wisconsin Justice Department Challenged

Suit was filed yesterday in a Wisconsin state trial court challenging the constitutionality of a new Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Schimel, (WI Cir. Ct., filed 11/13/2018),  alleges that six chaplains from across the state have been appointed initially-- all white males from Christian faiths. The program excludes secular mental health professionals. Chaplains operate under the direction of a paid Chaplaincy Program Coordinator. The suit contends that the program violates the U.S. Constitution's Establishment Clause.  FFRF issued a press release announcing the filing of the lawsuit.

Protestant Navy Chaplains Lose Discrimination Lawsuit

In In re Navy Chaplaincy, (D DC, Aug. 30, 2018), a D.C. federal district court granted summary judgment for the U.S..Navy in a long-running suit by non-liturgical Protestant Navy chaplains alleging discrimination against them. The court summarized the facts and its holding:

Plaintiffs’ primary claim is that, until 2002, the Navy maintained an unconstitutional policy of placing at least one Roman Catholic chaplain on every selection board, which resulted in Catholic chaplains being promoted at a disproportionately high rate compared to other religious groups. Plaintiffs also challenge a host of other allegedly unconstitutional selection-board policies and procedures—some of which, plaintiffs claim, continue to this day. Finally, plaintiffs challenge a statute that privileges selection-board deliberations from disclosure in litigation, arguing that it is unconstitutional as applied to their case because it denies them access to information that they need to prove their constitutional claims. To redress these wrongs, plaintiffs—each of whom was either passed over for promotion or selected for early retirement by a board that was allegedly tainted by one or more of the challenged procedures—seek an order directing the Navy to reinstate them to active duty, if necessary, and to convene new, properly constituted selection boards to reconsider the personnel actions taken against them....

To a considerable extent, the result in this case is dictated by prior rulings.... Consequently, there is little left to do here but to apply those standards ... which, as explained below, does not even come close to showing the degree of discrimination required for plaintiffs’ challenges to succeed. Likewise, this Court has already twice considered and twice rejected plaintiffs’ constitutional challenge to the statutory privilege for selection-board proceedings...

House Chaplain Rescinds His Resignation

CNN reports that yesterday Jesuit priest Pat Conroy rescinded his resignation as Chaplain of the U.S. House of Representatives. The resignation came initially at the request of House Speaker Paul Ryan. (See prior posting.)  A number of House members raised objections to Ryan's action, particularly when it appeared that the request was motivated in part by the desire to have a non-Catholic House Chaplain.  Ryan has accepted Conroy's decision to stay on.

House Chaplain Ousted By Speaker Ryan-- Reasons Unclear

The Hill reports that House of Representatives Chaplain Patrick Conroy has resigned under pressure to do so from House Speaker Paul Ryan.  Conroy, a Jesuit priest, had served as House Chaplain since 2011.  The reason for Conroy's ouster is unclear, and a bipartisan group of Representatives are circulating a letter asking Ryan to explain his action. Some have suggested that the firing stems from a prayer delivered by Conroy in November that could have been seen as critical of the Republican tax-cut bill then under consideration.

Fired Hospice Chaplain Loses Title VII Claim In 9th Circuit

In Blair v. Shulkin, (9th Cir., March 28, 2017), the U.S. 9th Circuit Court of Appeals agreed with the district court that a Title VII religious discrimination claim against the Department of Veterans Affairs should be dismissed. Plaintiff, Carmen Blair, claimed that she was fired from her position as a chaplain because of her Christian religious beliefs, alleging that her dismissal stemmed from discriminatory and biased attitudes on the part of her hospice team towards her as a conservative Charismatic Christian.  The court accepted the VA's explanation that the firing was because Blair was unable to integrate into the hospice unit team.  It pointed out that "the very basis upon which Blair claims she was
discriminated against—her Christian faith—was a prerequisite for her initial employment."  Courthouse News Service reports on the decision.

Many Claims of Non-Liturgical Navy Chaplains Are Dismissed; Several Claims Survive

In In re Navy Chaplaincy, (D DC, March 16, 2016), a challenge to Navy procedures for selection and promotion of chaplains that has wound its way through the courts for over 16 years, the D.C. federal district court dismissed a substantial number of plaintiffs' claims.  The case has already generated over 20 decisions in the courts.  In the case (actually 3 consolidated cases), plaintiffs (Non-Liturgical Protestants) challenged both Navy policies and the practices of chaplain selection boards.  As explained by the court in its 59-page opinion:

[T]hey contend that the faith group categories recognized by the Navy are discriminatory and arbitrary..... In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.  Second, they allege that in the past ... the [Chaplain Corps] used religious quotas to apportion chaplain opportunities among various faith groups..... Third, Plaintiffs challenge a number of facially neutral personnel practices - both current and historical - that they believe have allowed religious bias to infect selection board outcomes.

The court dismissed most of plaintiffs' claims for lack of standing or on mootness or statute of limitations grounds. However the court allowed two former chaplains to proceed with their complaint that the Navy violated their free speech rights by interfering with their form of prayer. More specifically they allege that they were reprimanded for ending their prayer "in Jesus name." The court also allowed plaintiffs to move ahead with their non-selection for promotion claims.  In addition, the Navy did not seek dismissal of challenges to policies on the promotion and early retirement selection board process.