[1]SAN FRANCISCO (BP)–The first evangelical chaplain to sue the Navy for alleged discrimination has had his lawsuit reinstated by the U.S. Ninth Circuit Court of Appeals.
The appellate court dismissed some of Ronald Wilkins claims. But, a three-judge panel ruled on Jan. 31 that his constitutional challenge to the system should stand.
“This case cannot be characterized simply as a military discharge case with a few constitutional claims thrown in for good measure,” said M. Margaret McKeown, who wrote the opinion. “Although Wilkins sought money damages and reinstatement, his chief complaint is with the Navy Chaplain Corps’s organization and its system of evaluation, assignment, promotion, and selection for early retirement.”
The reinstatement increases the number of Southern Baptists challenging the Navy to six. They are among 28 current or former chaplains who have filed five lawsuits, charging the Navy favors Catholics and liturgical Protestant chaplains at the expense of evangelicals.
Wilkins began pursuing legal action, claiming he was forced into retirement in 1995. But after his attorney withdrew from the case, Wilkins filed suit on his own behalf in June of 1999. A district court judge threw out Wilkins’s suit because of its request for punitive damages, which previous rulings have held cannot be sought from the government.
After his case was dismissed in the U.S. District Court for Southern California in San Diego, attorney Art Schulcz agreed to appeal that ruling. Based in Vienna, Va., Schulcz represents all but one of 28 plaintiffs who have filed five separate lawsuits against the Navy.
[2]Wilkins hailed the lawsuit’s revival on constitutional grounds.
“They didn’t limit the scope of my complaint,” said Wilkins, 60, who now pastors West Tenth Street Baptist Church in Oklahoma City, Okla. “I can pursue system-wide reform now.
“For me to be victorious against the United States’ Department of Justice and the Department of the Navy is simply the hand of God,” he added. “God did this for me. He provided me a lawyer and gave me victory. There’s absolutely no way I could have done this on my own.”
A veteran of three separate Navy tours stretching back to 1959, Wilkins comes from an SBC background. However, he was endorsed as a chaplain by the Bible Churches Chaplaincy in 1977 because of a five-year waiting list at the time for Home (now North American) Mission Board appointments.
Among the allegations in Wilkins’s lawsuit are what he called structural violations of the Constitution. He claims the Navy prefers liturgical chaplains over non-liturgicals, and that its practices inhibit the free exercise of religion, thus violating the First and Fifth Amendments.
In its ruling, the Ninth Circuit Court noted the heart of this case rests on constitutional grounds.
“Although the United States paints Wilkins’s claim as a military discharge case that has been dolled up with constitutional claims, this view overlooks the crux of Wilkins’s case — a First Amendment challenge to the very structure of the Chaplain Corps,” the court said. “His significant constitutional claims go well beyond a mere personnel action.”
The ruling also mentioned the Feres doctrine, named for a past case against the government that resulted in limits on monetary awards.
While the U.S. Supreme Court has not spoken directly on the issue of whether its Feres doctrine bars claims for non-monetary relief, its previous action indicates the ruling only applies to money damages, McKeown wrote.
To conclude otherwise would leave military personnel without judicial recourse to challenge unconstitutional policies, she said, noting that historically both the Supreme Court and lower courts have entertained such challenges.
As examples, the ruling listed a series of court tests ranging from a military regulation prohibiting the wearing of a Jewish skullcap to a prohibition of religious practices in on-base child care.
“The most specific guidance comes from Chappel vs. Wallace … where the Supreme Court explained that not all constitutional claims are foreclosed to military members: ‘Our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes,'” it said.
“The Court stated unequivocally that it ‘has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.'”
However, in sending the case back to District Court for further action, the panel noted that it will leave procedural questions to that judge’s discretion: “We take no position on the merits of Wilkins’s claims nor whether any claims will survive subsequent dismissal.”
Schulcz, who said no further proceedings are scheduled yet, called the appellate court’s ruling the correct decision.
“It’s one more chaplain’s case that’s back in the hopper,” Schulcz said. “It will be a useful tool to expose the corruption in the Chaplain Corps.”
While the Justice Department has a policy against commenting on court rulings, the government agency continues to vigorously contest the evangelicals’ claims.
In a brief that successfully stopped an attempt to delay the latest round of chaplain promotion board hearings, the department argued that allegations of discrimination in such promotions is not proof it exists.
“Perceptions that discriminatory policies may exist are mere speculation that can provide no basis for finding a First Amendment violation,” it said.
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