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Judge refuses to dismiss naval chaplain’s lawsuit

SAN DIEGO, Calif. (BP)–Despite the promotion and back pay awarded to a chaplain who sued the Navy for religious discrimination, a U.S. District Court judge has refused to dismiss his lawsuit.

While Judge Thomas Whelan threw out parts of Patrick Sturm’s claims, he allowed his challenge to stand on the basis of his First Amendment rights being violated. The ruling was entered June 20 in the Southern District of California.

Although Whelan had already denied the federal government’s motion to dismiss the case, the U.S. Justice Department renewed it earlier this year.

The action followed the Navy’s granting of Sturm’s appeal for retroactive application of back pay, according to his attorney, Dean Broyles. The move was based on his promotion to lieutenant commander after he originally was passed over.

“What is significant about this case is the Navy did absolutely everything it could to correct his administrative record and the judge still didn’t dismiss the case,” Broyles said. “The religious (discrimination) claims is what we were most concerned about.”

A Pentecostal endorsed by the Chaplaincy of Full Gospel Churches, Sturm’s lawsuit was the first of five filed against the Navy by 28 evangelical chaplains. All charge the Navy with a systematic pattern of religious discrimination.

The military has rejected requests for comment from Baptist Press on several occasions, referring to Justice Department filings in the cases.

The department originally had argued Sturm’s October 1999 lawsuit was moot because he was promoted to lieutenant commander a year later.

In its latest motion, the government argued that since filing the suit, Sturm had been promoted, had failures of selection for promotion removed from his record, and was granted a back-dating of his promotion.

“Plaintiff has received all the relief to which he is legally entitled as a Naval officer, and his claims are moot,” said Thomas Reeve, Jr., assistant U.S. attorney. “Outside his failures of selection, plaintiff’s Amended Complaint is merely a litany of general grievances against alleged policies in the Navy Chaplain Corps, lacking any specific allegations of particularized and concrete harm.”

“[The] injuries are not resolved by the sporadic ‘band aids’ placed on [Sturm’s] career by the BCNR [a Naval board], which was never meant to resolve the important constitutional questions before this court,” Broyles replied in his brief.

“The Navy’s illegal policies and practices have caused and will continue to cause distinct and palpable constitutional injuries,” he added.

Based at the Naval Air Station on North Island near San Diego, Sturm contended in his suit that the Navy maintains a promotion board “stacking” policy. He alleged the system favored liturgical Protestant and Catholic chaplains over those from different backgrounds.

Such favoritism unlawfully discriminated against chaplains seeking promotion who hold beliefs different from those board members, the suit said.

Whelan’s ruling noted that in a society of constant flux, the First Amendment’s Establishment Clause means neither a state or federal government can establish or support a church.

Nor can a government entity pass laws that aid one religion, aid all religions, or prefer one over another, he wrote.

He said the U.S. Supreme Court has defined the parameters of the Establishment Clause to require that:

— Government may not promote or affiliate itself with any religious doctrine or organization;

— May not discriminate among persons on the basis of their religious beliefs and practices;

— May not delegate a governmental power to a religious institution; and

— May not involve itself too deeply in such an institution’s affairs.

If proven at trial, the allegations may establish a violation of the plaintiff’s First Amendment rights, the judge said.

Sturm had asked for a viable remedy — removing the “stacked” selection boards — and to date the Navy has apparently not taken any action to remedy the alleged situation, Whelan noted.

He concluded that the allegations sufficiently demonstrated that Sturm had met a “case or controversy” requirement for the federal court to retain jurisdiction over the claim.

“At minimum, Plaintiff’s allegations suggest a situation that is capable of repetition but evading review,” the judge wrote.

He also denied the government’s effort to dismiss Sturm’s suit based on an allegation of a “thirds” policy, saying it too could run afoul of the Establishment Clause.

The reference is to an allegation that the Navy generally reserves one-third of its chaplaincy openings for Catholics, one-third for liturgical Protestants, and one-third for those of other backgrounds.

Sturm’s suit said the unlawful quota system has precluded highly-qualified chaplains from securing promotions, pay raises and other career benefits.

However, Judge Whelan dismissed two claims made in the lawsuit, including the argument that the two policies violated his Fifth Amendment rights.

The Navy argued that Sturm had received a wide range of administrative remedies that canceled any alleged injuries. Saying he concluded that nothing further could be done to further the plaintiff’s personal situation, the judge agreed.

The court also dismissed a portion of the suit that alleged the “board stacking” and “thirds” policies violated his rights to equal protection under the Constitution.

Whelan said the plaintiff had failed to allege that the Navy had discriminatory intent and effect in drafting the policies.

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  • Ken Walker