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.)

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.)

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).

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.

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

DC Circuit Says In Chaplain Case That Establishment Clause Violation Creates Per Se Irreparable Injury

Yesterday, in Chaplaincy of Full Gospel Churches v. England, (DC Cir., July 7, 2006), the District of Columbia Court of Appeals reversed the trial court and remanded for further findings a suit alleging that the Navy has unconstitutionally maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths (i.e. Baptist, Evangelical, Pentecostal, and Charismatic chaplains.) Plaintiffs had moved for a preliminary injunction, arguing that their evidence demonstrated that Catholic Naval Reserve chaplains were favored and permitted to remain on active duty beyond mandatory separation age limits. This they argued violated the Establishment Clause.

The district court had denied the motion for an injunction, in part because plaintiffs had not demonstrated irreparable injury. The Court of Appeals, however, held that the Navy's violation of the Establishment Clause constituted per se irreparable injury. It remanded the case to the trial court for it to determine whether plaintiffs had also shown the other 3 elements necessary for a preliminary injunction: likelihood of success on the merits, the injunction will not substantially injure other parties and that it will further the public interest.