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Judge acknowledges factual basis of Navy chaplains’ discrimination claims

WASHINGTON (BP)–In a lengthy ruling handed down Jan. 10, the federal court judge hearing two religious-discrimination lawsuits against the United States Navy said the evangelical plaintiffs cited well-grounded, factual allegations of unfair treatment.

In ruling on the U.S. Justice Department’s motion to dismiss the cases, U.S. District Court Judge Ricardo Urbina noted studies showing that, in the year 2000, Catholics and liturgical Protestants held nearly two-thirds of the Navy’s chaplaincy posts.

However, those two groups combined represented less than one-third (31.6 percent) of the Navy’s religious population, a figure that decreased slightly over a two-year period.

That compares to 50 percent of the religion population coming from non-liturgical faith groups in 2000, according to statistics included in the ruling.

The plaintiffs in the two lawsuits allege that despite these percentages, Catholics and liturgical Protestants each receive about one-third of chaplaincy appointments, known as the “thirds” policy.

“Rather than being concocted by the plaintiffs, the statistics about the Navy’s religious demographics — taken at two separate points in time — come from an independent third party,” Urbina wrote in his ruling.

“And taken in conjunction with their allegations about the thirds policy, the plaintiffs have properly asserted that the Navy intentionally hires liturgical Protestant chaplains dramatically out of proportion from their overall representation among [Navy] personnel.”

In the same section of his ruling, Urbina labeled the government’s arguments about this disproportionate representation as far-fetched.

The judge said the government responded “somewhat feebly” that the statistics cited were unreliable because they were based on voluntary declarations of enlistees’ affiliations when they entered the Navy.

The military’s lawyers also cited possible changes in beliefs and turnover among personnel as making it difficult to determine all members’ affiliations.

In addition, the Navy contended collecting more data would entail interference into its personnel’s rights of privacy and free exercise of religion, the judge said.

“Without engaging in an extended colloquy on this point, suffice it to say that this court views the defendants’ argument as rather far-fetched,” Urbina wrote. “For example, to obtain more information about its personnel, the Navy could circulate a voluntary biographical form once per year, and the form could be submitted anonymously to avoid any infringement on a service member’s privacy rights.”

The judge also agreed with the plaintiffs’ attorney, Art Schulcz, that a standard known as “strict scrutiny” applies to these cases, referring to a prior Supreme Court ruling that the government cannot favor one religion over another.

Known as the Larson case, it stems from a challenge to a Minnesota law saying that religions that raised more than 50 percent of their funds from non-members were subject to the state’s charitable solicitations act. After the Unification Church sued to overturn it, the Supreme Court agreed the law discriminated against a particular group.

The other major case involving First Amendment religious rights is known as Lemon v. Kurtzman, in which the Supreme Court struck down two states’ attempts to give aid to boost parochial school teachers’ salaries. That ruling set a test for avoiding excessive government entanglement with religion.

Because the plaintiffs in the two lawsuits allege that the Navy favors chaplains of liturgical backgrounds, Larson is the test that clearly applies, Urbina wrote.

However, he said the Navy’s attorneys had cited a previous D.C. Circuit ruling that they argued meant Lemon should prevail as the test.

Calling that a “significant overstatement,” the judge said, “The court rejects the defendants’ theory that the D.C. Circuit has somehow abrogated the Supreme Court’s decision in Larson. On the contrary, Larson remains alive and well, and its strict-scrutiny standard applies to this case.”

Urbina’s ruling criticized the government on two other points:

1) For failing to address relevant issues.

“At times, reading the attorneys’ briefs in this case is like attending a debate in which the participants have shown up in two different rooms,” Urbina wrote. “While the lawyers have clearly put significant time, energy and thoughtfulness into their briefs, they sometimes fail to directly address the other party’s key point.”

For example, the plaintiffs asked the court for an order requiring the Navy to bring the Chaplain Corps in line with its religious demographics. But, the judge said, the Justice Department used this to misconstrue the plaintiffs’ argument.

The defendants interpret the request to mean that in order to pass constitutional muster, the Chaplain Corps would have to be organized by a proportional representation of faith groups in the overall Navy population, Urbina said.

“While the plaintiffs would approve of a proportional-representation scheme and indeed, essentially ask for such an approach, nowhere do they insist that this is the only constitutional option,” Urbina wrote. “Rather, the plaintiffs’ main point is that the defendants’ current system for hiring and retaining chaplains is unconstitutional.”

Instead of articulating how its policies and practices regarding the Chaplain Corps are justified by a compelling government interest, the defendants spend much of their time telling the court what is wrong with a proportional-representation system, the judge said.

Urbina said government lawyers also misconstrued another of the plaintiffs’ arguments concerning a point about the practice of their religion. The Navy contends it must ensure the Chaplain Corps includes a broad spectrum of religious faiths to guarantee diversity, the judge said.

However, he called that a misreading of two of the plaintiffs’ arguments.

“While the plaintiffs do challenge the Navy’s policy of identifying the religious denomination of a chaplain being considered for promotion, [they] never argue with the notion that the Navy must consider religious affiliation in making its hiring decisions,” Urbina wrote.

“Indeed, the plaintiffs’ request for a proportional-representation system in the Chaplain Corps that would mirror the religious demographics of all [Navy] personnel necessarily contemplates taking faith into account in hiring decisions,” Urbina added.

2) The government’s contention that individual chaplains should first have exhausted administrative remedies by raising personnel claims with the Navy’s Board for Correction of Naval Records.

“This argument falls flat,” the judge wrote. “In this case, the gravaman of the plaintiffs’ claims revolves around constitutional challenges based on the First Amendment’s Establishment and Free Exercise Clauses and the Fifth Amendment’s Due Process Clause.

“As the Ninth Circuit held in an earlier case, ‘resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board.'”

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  • Ken Walker