Adair v. England

• Decision Date: 10 January 2002
• Docket Number: Civil Action Nos. 00-0566 (RMU), 99-2945 (RMU).
• Citation: 183 F.Supp.2d 31
• Parties: Robert H. ADAIR et al., Plaintiffs, v. Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v. Gordon R. England, Secretary of the Navy, et al., Defendants.
• Court: U.S. District Court — District of Columbia

183 F.Supp.2d 31

Robert H. ADAIR et al., Plaintiffs, v. Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants.

Chaplaincy of Full Gospel Churches et al., Plaintiffs, v. Gordon R. England, Secretary of the Navy, et al., Defendants.

Civil Action Nos. 00-0566 (RMU), 99-2945 (RMU).

United States District Court, District of Columbia.

January 10, 2002.

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Arthur A. Schulcz, Sr., Vienna, VA, for all plaintiffs and Chaplaincy of Full Gospel Churches.

Thomas E. Caballero, U.S. Department of Justice, Civil Division, Washington, DC, for defendants.

MEMORANDUM OPINION

DENYING IN PART AND GRANTING IN PART THE DEFENDANTS' MOTION TO DISMISS; DENYING AS MOOT THE DEFENDANTS' MOTION TO HOLD THE PROCEEDINGS IN ABEYANCE; DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION TO ALLOW A CHAPLAIN PLAINTIFF TO USE A PSEUDONYM

URBINA, District Judge.

I. INTRODUCTION

These cases incite a probing scrutiny of the First Amendment's Establishment and Free Exercise Clauses. While the vast majority of First Amendment religion cases involve laws or governmental policies that allegedly promote or inhibit religion in relation to the secular realm (e.g., school-voucher cases, prayer-in-school cases), the instant cases implicate the more unusual claim that governmental policies favor one religion over another.

Although the above-captioned cases are not consolidated for all purposes, they have been consolidated for purposes of the pending motions.¹ In the Chaplaincy case, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy ("the defendants", "Navy", or "DON"). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy's policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains.

The principal motion before the court is the defendants' motion to dismiss the complaint in the Adair case. For the reasons that follow, the court will deny in part and grant in part the defendants' motion to dismiss. In addition, because the court declines to convert the defendants' motion to dismiss into a motion for summary judgment, the court will deny without prejudice the plaintiffs' motion for partial summary judgment and will order a briefing schedule on the plaintiffs' motion.

Moreover, because the court will now resolve the defendants' motion to dismiss, the court will deny as moot the defendants' motion to hold in abeyance the proceedings on the plaintiffs' motion for partial summary judgment until the court resolves the defendants' motion to dismiss. Lastly, the plaintiffs filed a motion to allow one chaplain plaintiff, who feared harassment and retaliation, to use a pseudonym to pursue this litigation. Because the plaintiffs filed a motion for class certification, which would render the motion for a pseudonym moot, the court will deny without prejudice the plaintiffs' motion to allow one plaintiff to use a pseudonym and will revisit the issue, if necessary, after the court has ruled on the plaintiffs' motion for class certification.

II. BACKGROUND

A. Factual History²

1. The Navy Chaplain Corps

Congress provided for the organization of the Navy Chaplain Corps, whose members are commissioned Naval officers who possess specialized education, training, and experience "to meet the spiritual needs of those who serve in the Navy and their families." See Adair First Am. Compl. ("Compl.") at 21; see also Mot. to Dismiss at 4 (citing 10 U.S.C. § 5142); Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985) (rejecting Establishment Clause challenge to Army chaplaincy program since such program was necessary to protect Army personnel's free-exercise rights).

To comply with this congressional directive, the Department of Defense ("DoD") established a system to recruit professionally qualified chaplains for service in the Armed Forces "to provide for the free exercise of religion for all members of the Military Services, their dependents, and other authorized persons." See Mot. to Dismiss at 4 (quoting 32 C.F.R. § 65.2). The defendants explain that chaplains serve as Naval officers and, when seeking promotions, pursue the standard course for advancement through promotion to higher grades. See id. (citing 10 U.S.C. § 5142). Like other military officers, chaplains receive periodic reviews by promotion boards to determine which chaplains should be recommended for promotion. See id. (citing 10 U.S.C. §§ 611 and 5142). The promotion boards are composed of five or more members, at least one of whom must be from the category under review. See id. at 4-5 (citing 10 U.S.C. § 612). Until recently, the Navy's chaplain promotion boards have generally included one line officer and four Chaplain Corps officers.³ See id. at 5.

2. Definitions

The Navy divides most of its Christian personnel into three general categories: Catholic, liturgical Protestant, and non-liturgical Christian. See Compl. at 21. The plaintiffs are all non-liturgical Christians. The Navy uses the term "special worship" to denote a small number of Christian and non-Christian faith groups that have unique or special needs for their worship and religious practices, including Jewish, Seventh-Day Adventist, Christian Science, Latter-Day Saints (Mormons), Muslim, Hindu, and other religions. See id. at 21 n. 3.

The term "liturgical Protestant" refers to those Christian Protestant denominations whose services include a set liturgy or order of worship. See Compl. at 21. According to the plaintiffs, "[t]his primarily includes those Protestant traditions or denominations that began during the Protestant Reformation and who retained an established liturgy in their worship services such as Lutheran, Reformed and Episcopal denominations, and the denominations which later evolved from them, e.g., Presbyterian and Methodist." Id. at 21-22. The plaintiffs explain that while every church "has some `order' to its worship," these Protestant denominations do not have a worship service without the prescribed liturgy. See id. at 22 n. 4. Another common feature of these liturgical denominations is that they all practice infant baptism. See id. at 22. Also known as "high church" or "main line churches," "liturgical Protestant" is used by the plaintiffs to refer to chaplains of the Lutheran, Episcopal, Methodist, Methodist Episcopal, United Church of Christ, Congregational, Reformed and Presbyterian denominations, and the Orthodox tradition.⁴ See id.

In contrast, "non-liturgical" denotes Christian denominations or faith groups that do not have a formal liturgy or order in their worship service. See Compl. at 22. According to the plaintiffs, these groups baptize only adults or children who have reached "the age of reason" and their clergy do not usually wear vestments or special religious dress during services. See id. Referred to by some Navy chaplains as "low church," the non-liturgical Christian categories include Baptist, Evangelical, Pentecostal, and Charismatic faith groups. See id. The Navy often refers to these faith groups as "non-liturgical Protestant." See id. The plaintiffs belong to this category and represent Southern Baptist, Christian Church, Pentecostal, and other non-liturgical Christian faith groups. See id.

3. Parties

In the Adair case, 17 current and former non-liturgical Christian chaplains filed suit.⁵ The plaintiffs sue on their own behalf and, as a proposed class, on behalf of similarly situated chaplains.⁶ The lawsuit challenges religious discrimination in the Navy Chaplain Corps ("the Chaplain Corps" or "the Corps"), "including the establishment of illegal religious quotas for Navy chaplain promotions and career opportunities; the establishment of a preferred religious tradition and a religious patronage system in the Corps; and creation of a pervasive climate of bias, animosity and deceit toward non-liturgical Christian Navy chaplains ...." Compl. at 4. In addition, the plaintiffs plead violations of the First and Fifth Amendments in the Corps' promotion, retention, and separation decisions. See id.

A sampling of the individual plaintiffs' allegations is as follows.

Plaintiff Robert Adair enlisted in the Navy in January 1967. See id. at 5. After completing his enlistment in 1970, he attended college and then earned a Master of Divinity degree in 1977. See id. The Southern Baptist convention, a non-liturgical Christian denomination, endorsed him and he became an active-duty Navy chaplain in 1979. "Despite his outstanding service, he was selected for early retirement in [Fiscal Year 1995] by a Selective Early Retirement Board (SERB) that selected only non-liturgical Christian chaplains while allowing liturgical chaplains with inferior records to continue on active duty." Id. Plaintiff Adair charges that he involuntarily retired in 1996. He alleges that, "[b]ut for the SERB decision, believed to rest on illegal religious discrimination and animosity toward his faith group, [plaintiff] Adair would have continued on active duty and retired at a higher pay rate." Id.

Lieutenant Michael Belt, an active-duty chaplain since 1991, alleges that a liturgical Protestant chaplain berated him for preaching that "men who call themselves Christians should live as Christians." See Compl. at 5. This liturgical Protestant chaplain allegedly gave Lieutenant Belt a low mark on his fitness report because he made this statement. See id. After Lieutenant Belt and another...