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Viable First Amendment issues raised in chaplain’s suit, federal judge rules

SAN DIEGO, Calif. (BP)–Even though Navy chaplain Patrick Sturm was promoted five months after suing the U.S. Navy, his attorney said the lieutenant commander will continue pressing his case in court.

“This isn’t about promotion, it’s about preference,” said Dean Broyles, who filed the lawsuit alleging religious discrimination in October 1999. “If it’s a stacked system, he’s going to face problems again. So will other non-liturgical evangelicals.”

The action by Sturm, a Pentecostal, was the first of four suits against the Navy over a 14-month period in which 27 evangelical chaplains, including five Southern Baptists, claim they have faced unconstitutional discrimination.

Court records in his case include the following summation:

A 1989 enlistee, Sturm charged that he was passed over three consecutive years for promotion. After the last decision, he received a notice that his active duty would end as of September 2001.

Six months before filing suit, he petitioned the Board for Correction of Naval Records (BCNR) to remove the non-selections from his record. He asked for a special selection board for promotional review.

The BCNR granted his petition and his promotion soon after the lawsuit was filed, then canceled his discharge date.

The U.S. Attorney’s office in San Diego asked a federal court judge to dismiss the case, arguing that he had already received appropriate relief to remedy his alleged injuries. A case becomes moot when a plaintiff has received all the relief he could have received if he had won on the merits, the motion said.

The U.S. Attorney’s brief added that Sturm lacked the standing to raise broad claims that are merely generalized grievances against the Navy and do not stem from any particular injuries he had suffered.

“In addition, the sweeping relief the plaintiff seeks would inappropriately entangle this Court into the administration of the Navy in disregard of the traditional judicial doctrine of non-interference with internal military affairs,” the U.S. Attorney said.

However, in denying the government’s motion, federal Judge Thomas Whelan in the Southern District of California said that cleansing Sturm’s administrative record, canceling his discharge and correcting his reviews didn’t necessarily end the matter.

In addition, the plaintiff claimed a violation of his rights of equal protection, as well as violations of the Establishment Clause under the First Amendment and of the Fifth Amendment, Whelan’s ruling stated.

“The Court has read and considered plaintiff’s [complaint] and finds that it states a valid claim for a possible violation of [his] First Amendment rights,” Whelan wrote.

“The pleadings contain specific and detailed factual allegations which suggest the Navy may be irrationally favoring certain religious groups over others, causing an unconstitutional religious preference or an infringement upon plaintiff’s rights to religious freedom.”

For example, Sturm contended the Navy Chaplain Corps has maintained a “board stacking” policy on staff lieutenant commander selection boards, the judge noted, and that the plaintiff contended that such a policy favors certain “Protestant Liturgical” and Catholic chaplains over others who practice different faiths.

Sturm also alleged that these “stacked” boards unlawfully discriminate against chaplains seeking promotion who hold different beliefs from board members. If proven at trial, these allegations may establish a violation of the First Amendment, the judge said.

“In a society of constant flux, the Establishment Clause means at least this: neither a state nor the federal government can set up or support a church,” Judge Whelan said in his ruling. “No government can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

Sturm’s allegation — that unfair allocation of chaplain positions has precluded many highly qualified chaplains from securing pay raises, promotions and other career benefits — presents a controversy over which the court may exercise jurisdiction, the judge added.

“Although this Court is mindful of the Supreme Court’s admonishment that the judiciary should give substantial deference to matters related to management of the military … such protection does not extend to practices that may subvert one’s inalienable constitutional rights,” the judge said.

While the ruling was handed down last May, a trial date has not been set. Broyles said some additional matters have yet to be handled and he hopes the trial will be held within the coming year.

“It’s a classic First Amendment, constitutional case,” the attorney said. “The rationale for having chaplains is to meet the free exercise needs of the troops. If your numbers of chaplains are out of whack with the troops, then your rationale for your existence is out of whack.”

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  • Ken Walker