Court Upholds Navy Chaplain Selection Policy

In a doctrinally important decision yesterday, the U.S. District Court for the District of Columbia rejected claims by three non-liturgical Protestant ministers that the composition of the Navy's chaplain corps violates the First Amendment. Plaintiffs, who had been rejected for the corps, argued that liturgical Protestant chaplains were unconstitutionally over-represented in relation to the religious preference of Navy personnel served. In Larsen v. United States Navy, (DDC, April 30, 2007), the court upheld the Navy's current policy of taking the best-qualified candidates regardless of denomination, and found that plaintiff's challenge to the Navy's former policy of proportional representation of denominations is moot since the policy is no longer in effect.

In evaluating the Navy's current policy, the court held that under the Supreme Court's decision in Goldman v. Weinberger, the court should not apply the normal strict scrutiny standard used in free exercise cases. Instead, where military policy is involved, the court must use a more deferential analysis. The court said:

If the Navy were constitutionally required to organize and constitute a chaplaincy, so as to ensure the free exercise rights of its service members, then the chaplaincy program would have to not only be narrowly tailored to the free exercise needs of the Navy's service members, it would have to be in relative synergy with it.... If, as is the case here, the Navy is permitted, but not constitutionally required, to accommodate religious needs of its members via a chaplaincy program, the Navy's program need not satisfy every single service members' free exercise need, but need only promote free exercise through its chaplaincy program. The program is constitutionally sound if it simply works toward accommodating those religious needs.

The court found that the Navy's current program seeks legitimate military ends and is designed to accommodate the rights of Navy personnel to an appropriate degree. It found that plaintiffs' proposal that the chaplain corps reflect the actual religious demographics of the Navy confuses number of adherents with the religious needs of personnel, which may not be proportional to their numbers. A more tailored program would require the Navy to become excessively entangled in studying the religious habits and interests of its members.

Kavanaugh's Judicial Record On Religion Issues

To assist in evaluation of Supreme Court nominee Brett Kavanaugh's church-state and religious liberty views, here are all the D.C. Circuit cases involving these issues in which Kavanaugh was one of the judges deciding the case. Cases designated by an asterisk are ones in which Kavanaugh authored an opinion:

Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d 1341 (2008)

* Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 534 F.3d 756 (2008) [majority opinion]

St. John's United Church of Christ v. FAA, 550 F.3d 1168 (2008)

Kaemmerling v. Lappin, 553 F.3d 669 (2008)

* Newdow v. Roberts, 603 F.3d 1002 (2010)[concurring opinion]

Daniel Chapter One v. FTC, 405 Fed. Appx. 505 (2010)

* Mahoney v. Doe, 642 F.3d 1112 (2011) [concurring opinion]

United States v. Moore, 651 F.3d 30 (2011)

Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 738 F.3d 425 (2013)

In re Charges of Judicial Misconduct, 769 F.3d 762 (2014)

* Priests for Life v. United States HHS, 808 F.3d 1 (2015) [dissenting opinion]

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.

Non-Liturgical Navy Chaplains Can Move Ahead On Some Claims, But No Reconsideration of Establishment Clause Ruling

In In re Navy Chaplaincy, (D DC, March 21, 2012), is another chapter in the long-running litigation by chaplains, endorsing agencies and churches claiming that the Navy discriminates against members of “non-liturgical” religions in its promotion, retention and separation  of chaplains. In this decision, the DC federal district court refused to amend its 2002 decision that plaintiffs had not shown that there was a violation of the Establishment Clause when the Navy allowed chaplains to rate other chaplains and permitted more than one chaplain to sit on a chaplain selection board. It also dismissed several other claims. However the court permitted plaintiffs to move ahead with various challenges to the Navy's chaplaincy accession, retention, promotion and selective early retirement process, as well as challenges to alleged prejudice in the disciplinary system. (See prior related posting.)

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.

Protestant Navy Chaplains Denied Class Action Certification

Yesterday the D.C. federal district court issued yet another opinion in In re Navy Chaplaincy, (D DC, Sept. 4, 2014)-- a long running case that has already generated over twenty district court and Court of Appeals opinions. As summarized by the court:

Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches... , bring this consolidated action against the Department of the Navy and several of its officials.... Plaintiffs allege that Defendants discriminated against non-liturgical Protestant chaplains on the basis of religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.

In this most recent decision the court first held that it lacks jurisdiction over plaintiffs' challenge to an alleged denominational quota system for chaplains because the Navy many years ago eliminated the policy rendering the challenge to it moot. It then went on to deny class certification as to the remainder of the claims, concluding that plaintiffs "have not presented 'significant proof' of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury."

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...

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.

D.C. Circuit Holds Navy Chaplains Lack Standing In Establishment Clause Case

In In re Navy Chaplaincy, (DC Cir., Aug. 1, 2008), the D.C. Circuit Court of Appeals, in a 2-1 decision, dismissed on standing grounds an Establishment Clause challenge by a group of non-liturgical Protestant Navy chaplains to the operation of the Navy's retirement system. Plaintiffs claimed that the system operated to favor Catholic chaplains. Plaintiffs, however, did not allege that they suffered any discrimination, but rather that other chaplains did. They claimed taxpayer standing, and standing as persons who have been subjected to the Navy’s "message" of religious preference. The majority said:

Plaintiffs' argument would extend the religious display and prayer cases in a significant and unprecedented manner and eviscerate well-settled standing limitations. Under plaintiffs’ theory, every government action that allegedly violates the Establishment Clause could be re-characterized as a governmental message promoting religion. And therefore everyone who becomes aware of the "message" would have standing to sue.

Judge Rogers dissented, arguing that plaintiffs' membership in the Chaplains Corps gives them sufficient particularized injury to meet the Article III standing requirements. (See prior related posting.)

Protestant Chaplains Lack Standing To Challenge Navy's Retirement Policy

The D.C. federal district court has dismissed on standing grounds an Establishment Clause challenge to a practice by the U.S. Navy that permitted 23 reserve corps Catholic chaplains to remain on active duty past age 60 so that they could obtain the 20 years' service needed for their pensions to vest. A group of non-liturgical Protestant chaplains and their endorsing organization claimed this amounted to a denominational preference. In re: Navy Chaplaincy, (D DC, Oct. 15, 2007), because plaintiffs did not claim that non-liturgicals were denied the same opportunity; rather they argued that the Navy's practice communicates a message of preference that constitutes a per se injury. The court rejected this argument. It also rejected plaintiffs' attempt to invoke taxpayer standing, since plaintiffs were not challenging Congressional action under the taxing and spending clause. The case was on remand from the Court of Appeals which, last year, held plaintiffs had shown irreparable injury (see prior posting).

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.

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.

Court Denies Preliminary Injunction On Promotions Of Non-Liturgical Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Jan. 30, 2012), the D.C. federal district court denied a preliminary injunction in an Establishment Clause challenge to the Navy Chaplain Corps’ selection board process for voting on the promotion of chaplains. Plaintiffs claimed that the process favors Catholic and liturgical Protestant chaplains, while leaving non-liturgical chaplains underrepresented in the Navy.  The court held that plaintiffs lack standing because they have failed to show that they will suffer an injury. Also they have not shown a substantial likelihood of success on the merits: "plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination." (See prior related posting.)

Court Denies Preliminary Injunction To Non-Liturgical Protestant Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Feb. 28, 2013), the D.C. federal district court refused to issue a preliminary injunction in a suit claiming that the U.S. Navy's chaplain selection process results in denominational favoritism that prefers Catholic and liturgical Protestant chaplains, to the disadvantage of non-liturgical Protestant chaplains. The suit brought by former chaplains, chaplain endorsing agencies and a group of churches claimed, primarily on the basis of statistical evidence, that the Navy discriminates against non-liturgical chaplains in violation of the Establishment Clause and the equal protection component of the 5th Amendment. Plaintiffs point to the unique voting procedures used by chaplains on selection boards. The court held that plaintiffs must prove discriminatory intent to show a constitutional violation, and have failed to do so. The mere disparate impact shown here was not enough to require an inference of purposeful intent. The court's decision came after the case was remanded to it from the D.D. Circuit Court of Appeals. (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.

DC Circuit Affirms Dismissal of Navy Chaplain's RFRA Claim

In Klingenschmitt v. Winter, (DC Cir., April 14, 2008), the D.C. Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by Navy chaplain Gordon Klingenschmitt. After the Navy refused to accept a change of endorsing organizations for Klingenschmitt's chaplaincy, Klingenschmitt resigned. The court said that because the Navy's initiation of separation proceedings against Klingenschmitt was mandatory when he lost his original endorsement, the proceedings could not have been motivated by retaliatory animus. And since Klingenschmitt is no longer a chaplain, he lacks standing to seek injunctive or declaratory relief as to his complaint that Navy regulation of his religious expression was contrary to the Religious Freedom Restoration Act. (See prior related posting.)

Cert. Denied In Establishment Clause Challenge To Navy Retirement System

Yesterday, the U.S. Supreme Court denied certiorari in Chaplaincy of Full Gospel Church v. Department of Navy, (Docket No. 08-1057) (Order List). In the case, the D.C. Circuit Court of Appeals had dismissed on standing grounds an Establishment Clause challenge by a group of non-liturgical Protestant Navy chaplains to the operation of the Navy's retirement system. Plaintiffs claimed that the system operated to favor Catholic chaplains. (See prior posting.)

Controversial Chaplain Finally Discharged

On Tuesday, the D.C. Circuit Court of Appeals lifted its previously issued injunction, clearing the way for the Navy to discharge Chaplain Gordon Klingenschmitt. The Chaplain has been in a long-running dispute with the Navy over use of sectarian prayers outside of religious services. A September court martial found that he had disobeyed orders in wearing his uniform at a press conference challenging the Navy policy. More recently, the Navy refused to accept a change of endorsing organizations for Klingenschmitt's chaplaincy, and decided he should be discharged. The Associated Press reports that Klingenschmitt signed his final separation papers yesterday, but said that he will pursue his lawsuit seeking reinstatement

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.)

DC Circuit: Non-Liturgical Protestant Chaplains Have Standing To Pursue Discrimination Claim

In In re Navy Chaplaincy, (DC Cir., Nov. 2, 2012), the U.S. Court of Appeals for the D.C. Circuit reversed a district court's dismissal of a lawsuit by several former and current military chaplains who claimed that non-liturgical Protestant chaplains are discriminated against in the promotion recommendations of Chaplain Corps selection boards. Plaintiffs argued that the small size of selection boards, their secret voting on recommendations, and the appointment of the Chief of Chaplains as president of selection boards allow decisions to be made on the basis of religious bias. Reversing the district court, the Court of Appeals held that at least some of the plaintiffs-- those whose promotions will likely be considered in the future under the challenged policies-- have standing to pursue their claim for injunctive relief. The Court went on to reverse and remand the district court's denial of a preliminary injunction, saying that the trial court had not made factual findings to resolve the disputed claims of the parties as to whether past discrimination has been shown.