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Ruling may combine 700-plus chaplains in class action over Navy discrimination

WASHINGTON (BP)–A federal judge presiding over two lawsuits that charge the U.S. Navy with discrimination against evangelical chaplains has granted a motion that could enlarge a class-action suit to more than 700 people.

If the Navy loses the case, the ruling could ultimately cost it millions of dollars, said attorney Art Schulz of Vienna, Va., who is representing the plaintiffs.

The ruling “expands the class so if anybody got [forced out of the Navy] illegally, they could be entitled to relief,” Schulcz said. “All those who got forced out after two pass-overs for promotion would be back on active duty and entitled to back pay.”

U.S. District Judge Ricardo Urbina handed down the Aug. 19 ruling that granted the plaintiffs’ motion for class certification.

Current and former chaplains who filed the suits claim the Navy’s policies and practices favor one religion over another. They say that violates both the First and Fifth amendments to the U.S. Constitution.

The ruling affects a case filed by eight men endorsed by the Chaplaincy of Full Gospel Churches, and a class-action suit with 42 members.

Technically, the cases have not been joined for trial yet. Additional legal briefs related to another matter must be filed by Sept. 20.

According to Urbina’s ruling, the number of chaplains affected by the alleged discrimination is between 700 and 1,000. That includes people serving as far back as 1988, the year the evangelicals allege that the Navy put its “thirds” policy into effect, which the plaintiffs claim set quotas, reserving a third of chaplaincies for Catholics and another third for liturgical Protestants.

Schulcz called it unusual for a group of military enlistees to gain class-action status in suing the military, saying that has only occurred a few times in the past.

Schulcz said the successful claims included a group of midshipmen and cadets who opposed mandatory chapel attendance at service academies.

Another involved a group of female sailors who overturned a Naval policy against assigning women to any ships. A group of Naval enlistees also successfully challenged a change in the way their re-enlistment bonuses were calculated, the attorney said.

In the chaplains’ case, Urbina said to obtain class certification a party must demonstrate that it can meet four requirements, including:

— The class is so large it is impractical to bring everyone into the case.

— There are questions of law or fact common to the class.

— The claims or defenses of the representative parties are typical of the class.

— The representative parties will fairly and adequately protect the interests of the class.

Rejecting arguments by the U.S. Department of Justice, Urbina said the plaintiffs had sustained their motion on several grounds.

Among them were providing a reasonable basis for the estimated number of chaplains affected by the Navy’s policies. Because of the large numbers and the fact that chaplains work around the world, the class action is more appropriate, the ruling said.

In addition, Urbina said the plaintiffs had demonstrated common ground for their claims.

While the government argued that many of those claims vary, the judge noted that the overriding theme of claims relating to free exercise of religion is the alleged silencing of non-liturgical chaplains.

He noted that among the claims were forcing non-liturgical churches off base into substandard facilities, identifying a promotion candidate’s religion to chaplain promotion boards (for the purpose of discriminatory selections); and superiors giving some non-liturgical chaplains lower ratings despite evidence of superior performance.

“In the final analysis, the court agrees with the plaintiffs that the defendants ‘mischaracterize plaintiffs (sic) claims as merely a series of individualized incidents rather than the results of a common policy,'” Urbina wrote. “What the plaintiffs actually allege is a pervasive pattern of religious preferences favoring liturgical Christian chaplains over non-liturgical Christian chaplains.

“All the comparatively minor individual differences among the plaintiffs’ claims shoot out like spokes on a wheel from the tire’s center — the Navy’s alleged policies and practices supposedly foster unconstitutional religious preferences.”

Schulcz, who has previously expressed confidence about winning the class-action test, intends to follow the three-year-old cases to conclusion.

“Here you have a group of evangelical chaplains who have attempted to bring to the Navy’s attention a long-standing problem with prejudice,” Schulcz said. “Now that they’ve failed to recognize the problem, they’re going to have to deal with this large class.”

The Navy and the Justice Department have policies against commenting on pending litigation.
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  • Ken Walker