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Valid constitutional issues raised in chaplains’ lawsuit, judge rules

WASHINGTON (BP)–A federal court judge has ruled that a two-year-old class-action lawsuit alleging discrimination by the U.S. Navy against evangelical chaplains can proceed. The case includes five current or former Southern Baptist chaplains.

In a lengthy ruling announced Jan. 10, U.S. District Court Judge Ricardo Urbina said the plaintiffs in the class action suit, and a second filed by the Chaplaincy of Full Gospel Churches, have raised valid constitutional issues.

In a 62-page order, the judge denied the Navy’s motion to dismiss the cases, saying the plaintiffs had successfully stated a claim that the military’s policies violate the First Amendment.

He also applied a “strict scrutiny” standard to the cases, which refers to a prior Supreme Court ruling that the government cannot favor one religion over another.

“The court holds that the plaintiffs have stated a claim that the [Navy] defendants’ policies and practices relating to the hiring and retention of its chaplains are not justified by a compelling government objective and are not narrowly tailored to accomplish that objective,” Urbina wrote.

In summarizing claims related to alleged First Amendment violations, the judge noted a string of allegations. Among them are:

— Forcing non-liturgical churches to hold services off base in inadequate, substandard facilities while Catholics and liturgical Protestants enjoyed spacious facilities on post.

— Senior Catholic and liturgical chaplains intentionally giving non-liturgical chaplains lower ratings solely because of their religious identification.

— Using a two-tiered system of discipline, with liturgical chaplains receiving lighter punishment than non-liturgicals for similar offenses.

— Requiring non-liturgical chaplains to officiate at liturgical Protestant services, but not requiring liturgicals to officiate at non-liturgical services.

“In all these allegations, the plaintiffs charge that because the Navy treats non-liturgical Christian chaplains less favorably, the defendants’ policies … serve to impair or impede the plaintiffs’ free exercise of religion,” Urbina wrote. “Because the plaintiffs have stated a claim that these policies … do not pass the strict-scrutiny test, these allegations survive the defendants’ motion to dismiss.”

Vienna, Va., attorney Art Schulcz hailed the judge’s ruling, saying it shows that he carefully examined the law.

“A 62-page ruling on a motion to dismiss is unheard of,” said Schulcz, a 1966 West Point graduate and retired Army officer. “He agreed with 90 to 95 percent of our arguments. We’ve been blessed with a judge who understands the law.”

The U.S. Justice Department has a policy against commenting on court rulings.

In addition to the claim of First Amendment violations, Urbina’s order upheld the plaintiffs’ right to press their cases on claims regarding the chaplaincy promotion process and alleged “constructive discharge,” which refers to an employer making working conditions so miserable an employee quits voluntarily.

However, the judge denied a request by Schulz to allow one participant to proceed using a pseudonym because of the fear of retaliation by the Navy.

Urbina also called for additional briefs on several claims he said were not addressed sufficiently — the plaintiffs’ allegation of illegal retaliation by the Navy for filing the suit, the Chief of Chaplains’ role in the promotion process, and an alleged violation of the Religious Freedom Restoration Act.

Despite the ruling, no trial date or pre-trial hearings have been set. The court must still determine whether to consolidate the class-action lawsuit and the Full Gospel case for trial.

It already ruled the two would be considered simultaneously regarding the Navy’s motions to dismiss both.

Although the Chaplaincy of Full Gospel Churches is not a class-action case, it represents eight current or former chaplains in its lawsuit.

While there are 17 plaintiffs in the class action, Schulcz said 15 others have requested to join the lawsuit. He said a determination on their requests will be reached after a future conference with the judge.

The Southern Baptists among the 17 current plaintiffs include David Wilder, the only SBC participant who is still on active duty. Formerly based in Hubert, N.C., he went to Camp Lejune in Jacksonville, N.C., last July to run the chaplain training and operations program for the base chapel.

Wilder claims that he has twice been passed over for a commander’s position in recent years because of discrimination. The lawsuit said he has experienced blatant prejudice on numerous occasions, including a superior telling him to conduct a worship service foreign to his religious tradition.

The other Southern Baptists in the class action are:

— Robert Adair of Columbia, Tenn., who alleged he was forced to retire against his will after 17 years in the Navy. He is pastor of Highland Park Baptist Church in Columbia.

— Thomas Rush of Clovis, N.M., a former line officer who later re-enlisted in the Navy as a reserve chaplain in 1986 and went on active duty in 1990. He claims the Navy disregarded previous duty reports to deny him a promotion and he left in 1994. He is pastor of First Baptist Church of Clovis.

— Gregory DeMarco, now associate pastor at London Bridge Baptist Church in Virginia Beach, Va., also had previous Navy service before he became a chaplain. The lawsuit said he took early retirement to avoid humiliation and family disruption after a superior rated him in such a way that he wasn’t competitive for a promotion.

— James Weibling, now a doctoral student at Southwestern Baptist Theological Seminary in Fort Worth, Texas, served two tours of duty, first as a line officer and then as a chaplain. The lawsuit claims that during the latter, religious animosity against non-liturgical chaplains caused him to be passed over for promotion twice.

The suit also said that Weibling, who left the Navy in 1994, would have brought a claim earlier but the Navy fraudulently concealed information regarding his case.

The timing of this allegation is crucial to Weibling and one other plaintiff. Citing a six-year statute of limitations, the Navy has argued they should be dismissed from the class action suit. But the judge disagreed, saying the court needs to further establish the merits of the claim.

Schulcz has argued the claim should stand because the statute of limitations time period shouldn’t begin until the discovery of the alleged fraud.
(BP) file photo posted in the BP Photo Library at http://www.bpnews.net. Photo title: DESERT DEVOTIONS.

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  • Ken Walker