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Judge dismisses chaplain’s lawsuit, says discrimination nearly impossible

SAN DIEGO (BP)–One of the first lawsuits alleging discrimination against evangelical chaplains by the U.S. Navy has been dismissed by a federal court judge, although his attorney intends to appeal the decision.

Lt. Cmdr. Patrick Sturm filed suit against the Navy in October of 1999, alleging discrimination in promotion board selection policies. Currently stationed in the San Diego area, he was the second current or former chaplain to sue the Navy — a list that has since grown to 53 plaintiffs.

In a June 18 ruling granting the government’s motion to dismiss the suit, U.S. District Court Judge Thomas Whelan said the Navy has taken steps the past two years to change its promotion system. These steps have removed much of the discriminatory possibilities alleged in the lawsuit, he said.

For example, the Navy has changed promotion boards so that only two of the seven members are chaplains, Whelan said: “As such, plaintiff’s assertion that chaplains of certain faiths could dominate the board and discriminate against chaplains of other faiths is now statistically impossible.”

The Navy has also removed designation codes — which identify endorsing agency or denomination — from all chaplain materials, the judge noted. Without those codes, selection boards cannot know a candidate’s faith background, Whelan said.

Other evidence the judge cited that he said failed to support discrimination claims:

— Only minor statistical variation among various religious faiths on promotion boards for the past eight years.

— Non-liturgical Protestants are promoted at a rate higher than Catholics overall, and in certain ranks higher than either Catholics or liturgicals.

— Chaplain candidates considered for promotion are determined by seniority, and this process cannot be modified to exclude any faith group.

“These facts conclusively demonstrate that any form of institutionalized discrimination is not only improbable, but for all practical purposes, impossible,” Whelan wrote.

In addition, Sturm failed to establish that there is a “thirds” policy, with chaplancies divided in thirds among Catholics, liturgical Protestants, and all other non-liturgicals, the judge said.

Whelan also ruled against Sturm’s claim that the Navy’s chaplaincy make-up should reflect the proportion of respective faith groups among sailors and Marines.

Noting that 30 percent of enlistees profess no faith preference, the judge said it would be virtually impossible to construct guidelines that reasonably meet all personnel’s expectations.

Not only does the nature of Navy service make proportional quotas impractical, a rigid quota system would destabilize chaplain recruiting, retention and job security, Whelan said.

Sturm’s attorney, Dean Broyles, called the decision stunning, since the case appeared headed for court after more than two years of pre-trial hearings. But he expressed confidence that the decision will be overturned.

“It’s not a setback to all the cases,” said Broyles. “It’s a temporary speed bump on the road to justice.” He said the ruling seemed to embrace the Navy’s recent reforms, but failed to analyze whether its procedures were legal under the First Amendment.

The San Diego attorney expressed concern about the possible long-term effects of the ruling. If the Navy takes no notice of the make-up of faith groups in the Chaplain Corps, it will expose itself to charges it fails to meet sailors’ religious needs, Broyles said.

Chaplains should be hired in proportion to the needs of its members, he added, noting it would be irrational to hire mostly Muslim chaplains if most sailors were Baptists.

While agreeing the Navy may promote as many non-liturgicals as other groups, Broyles said the problem exists at the hiring level.

“Why do we have 34 to 35 percent of chaplains serving 8 to 9 percent of the sailors?” Broyles asked, referring to the respective percentages of liturgical chaplains and enlistees. “And why do we have non-liturgicals underrepresented at a greater rate? That’s something the court did not address.”

Broyles said another problem is the Navy has not indicated whether its recent reforms are permanent.

“They could go back to their old ways and go on with their life,” he commented. “We didn’t file the lawsuit to ruin the Chaplain Corps but to reform it. Their system does not withstand constitutional scrutiny and we’re concerned about that.”

Vienna, Va., attorney Art Schulcz, who represents the remaining plaintiffs in a class-action lawsuit and three others, doesn’t expect the Sturm dismissal to adversely affect his cases. However, he said the U.S. Justice Department filed papers a few days after the ruling, calling it to the attention of the judge hearing the class action.

But Schulcz said that ruling doesn’t apply to his cases, though, because none of the chaplains he represents have had their complaints resolved.

In addition, he said Whelan ignored the issue of the Navy addressing Sturm’s grievances as a method of settling the suit. Case law is clear that a defendant can’t say a case is moot because that party has righted a wrong, Schulcz explained.

“The Navy hasn’t guaranteed the changes are permanent,” Schulcz said. “Where you have evidence of a pattern over a long period of time, courts are supposed to be wary of claims that the wrong has been righted.”

The U.S. Justice Department has a policy against commenting on court rulings. A spokesman for the Navy’s public affairs office said it also would not comment on the Sturm case.

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  • Ken Walker