In re Navy Chaplaincy
| Decision Date | 26 September 2014 |
| Docket Number | Case No. 1:07–mc–269 GK |
| Citation | 69 F.Supp.3d 249 |
| Parties | In re: Navy Chaplaincy |
| Court | U.S. District Court — District of Columbia |
Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., Leesburg, VA, for Plaintiffs.
Christopher R. Hall, Eric B. Beckenhauer, Matthew J.B. Lawrence, U.S. Department of Justice, Washington, DC, for Defendants.
Matthew J.B. Lawrence, U.S. Department of Justice, Washington, DC, for Navy Chaplaincy.
Plaintiffs, 65 current and former Non-liturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches, bring this consolidated action against the Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against Non-liturgical Protestant chaplains on the basis of their religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.
This matter is before the Court on the parties' Cross–Motions for Partial Summary Judgment. Upon consideration of Defendants' Motion [Dkt. No. 159], Plaintiffs' Opposition and Cross–Motion [Dkt. No. 172], Defendants' Reply and Opposition to the Cross–Motion [Dkt. No. 182], and Plaintiffs' Reply to the Cross–Motion [Dkt. No. 189], and the entire record herein, and for the reasons set forth below, Defendants' Motion shall be granted and Plaintiffs' Cross–Motion shall be denied.
The Navy employs a corps of chaplains (“Chaplain Corps” or “CHC”) whose mission is to provide for the free exercise of religion by members of the Navy, their dependents, and other authorized persons. In re England, 375 F.3d 1169, 1171 (D.C.Cir.2004) (citation omitted). In accordance with this mission, Navy chaplains provide religious education, counseling, and support to sailors and Marines and advise commanders on religious, moral, and ethical issues. Id.
“A Navy chaplain's role within the service is ‘unique,’ involving simultaneous service as clergy or a ‘professional representative[ ]’ of a particular religious denomination and as a commissioned naval officer.” Id. (citing OPNAVINST 1730.1, Chaplains Manual 1–2–1–3 (Dep't of the Navy Oct. 3, 1973)). Chaplains must have a graduate level theology degree or equivalent while also meeting the physical and educational requirements applicable to all commissioned officers. Id. In addition, chaplains must be endorsed by a faith-group endorsing agency as qualified to represent that particular faith group within the Chaplain Corps. Id. at 1172.
There are over 100 faith groups recognized by the Department of Defense, which the Navy has grouped into four “faith group categories” consisting of: Roman Catholic, Liturgical Protestant, Non-liturgical Protestant, and Special Worship. In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C.Cir.2012) (“In re Navy Chaplaincy II ”).
The Liturgical Protestant category includes Protestant denominations that trace their origins to the Protestant Reformation, practice infant baptism, and conduct services according to a prescribed liturgy or order of worship. In re England, 375 F.3d at 1172. This group includes Lutheran, Episcopal, Methodist, and Presbyterian faiths. Id. ; Consol. Compl. ¶ 6(b). The Non-liturgical Protestant category includes Protestant denominations that do not follow a formal liturgy and baptize at the “age of reason,” including Baptist, Evangelical, Pentecostal, Bible Church, and Charismatic faiths. In re England, 375 F.3d at 1172 ; Consol. Compl. ¶ 6(c). The Special Worship group includes denominations not covered by the Protestant and Roman Catholic categories, including Jewish, Hindu, Buddhist, Muslim, Jehovah's Witness, Christian Science, Mormon, and Unitarian faiths. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 295 n. 3 (D.C.Cir.2006) ; Consol. Compl. ¶ 6 n.5.
Chaplains enter the Navy through a civilian clergy program or a theological student program. Consol. Compl. ¶ 44(c). Thereafter, they are subject to the same personnel system as other naval officers and must be selected for promotion in rank when the needs of the service require. In re England, 375 F.3d at 1172 (citing 10 U.S.C. § 611(a) ). If an officer is considered but not selected for a promotion, he or she is said to have “failed of selection.” Chaplaincy of Full Gospel Churches, 454 F.3d at 293. After failing of selection on two or more occasions, an officer is subject to involuntary separation, known as “selective early retirement.” See 10 U.S.C. § 632(a) -(b). However, the Navy may elect to continue an officer on active duty despite two or more failures of selection as its needs require. See 10 U.S.C. § 632(c)(2).
Each of these decisions regarding a naval officer's career—promotion, selective early retirement, and continuation on active duty—is made by a “selection board” composed of superior officers who act pursuant to statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 612.2 Under the current procedures, selection boards are composed of seven members: two chaplains and five other officers. In re Navy Chaplaincy II, 697 F.3d at 1173. Each board member takes an oath to perform his or her duties “without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].” 10 U.S.C. § 613.
Selection board proceedings are secret and “may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board.” 10 U.S.C. § 614(a). In furtherance of this mandate, board discussions, deliberations, notes, and records are statutorily immune from legal process and “may not be used for any purpose” in any judicial or administrative proceeding without the consent of the Secretary of the Navy. 10 U.S.C. § 613a.
Plaintiffs challenge several current and historical aspects of the CHC's personnel system. The following is an illustrative sampling of their claims.3
First, they contend that the faith group categories recognized by the Navy are discriminatory and arbitrary. Consol. Compl. ¶¶ 33–38. In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.
Second, they allege that in the past (but not since at least 2002), the CHC used religious quotas to apportion chaplain opportunities among various faith groups. Consol. Compl. ¶¶ 33–35. In particular, they allege that, from 1976 until 1986, Defendants implemented a policy of appointing at least two Roman Catholic chaplains to every career-grade chaplain selection board (the “2 RC Policy”) and, from 1986 until 2002, maintained a similar policy of appointing at least one Roman Catholic chaplain to every such board (the “1 RC Policy”). Consol. Compl. ¶¶ 8, 57(e). According to Plaintiffs, the “1 RC” and “2 RC” Policies were designed to “stack” selection board proceedings against Non-liturgical candidates and in favor of Roman Catholic and Liturgical Protestant chaplains despite their allegedly declining numbers in the broader population. Consol. Compl. ¶¶ 57(e)-(g).4 Defendants deny that such policies ever existed.
Third, Plaintiffs challenge a number of facially neutral personnel practices—both current and historical—that they believe have allowed religious bias to infect selection board outcomes. These include: (1) the small size of selection boards; (2) the placement of two chaplains on each board, one of whom is either the Chief of Chaplains or one of his or her deputies; and (3) the use of “secret confidence voting,” in which board members anonymously indicate their degree of confidence in a candidate in 25–degree increments ranging from zero to one hundred. Plaintiffs claim that these practices, taken together, “enable [ ] each board's chaplains to ensure that a particular candidate will not be promoted, thus increasing the odds for their preferred (and discriminatory) results.” In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C.Cir.2013) (“In re Navy Chaplaincy IV ”).
Plaintiffs also challenge a practice, which they concede has not existed since 2002, in which “each selection candidate's three-digit ‘faith group identifier’ code was prominently displayed throughout the selection board process.” Consol. Compl. ¶ 86. Plaintiffs contend this practice had no purpose other than “to identify a candidate's faith group to the board” for purposes of permitting the board members “to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly against Non-liturgical chaplains.” Id. ¶ 87.
Fourth and finally, Plaintiffs seek relief relating to a variety of specific instances, many of which date back as far as the 1970s and 1980s, in which they allegedly suffered discrimination and free exercise harm while serving in the Chaplain Corps. See Addendum 1 to Consol. Compl. ¶¶ 12, 21, 37, 41. These include occasions on which Plaintiffs claim to have been: (1) retaliated against, criticized, and removed from their posts based on the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary issues and employment benefits; (3) required to officiate at Liturgical services; and/or (4) subjected to general policies that, while not facially discriminatory, disfavored certain aspects of their worship traditions. See generally id. ¶¶ 1–65.5
This consolidated case is composed of three cases filed by the same counsel: Chaplaincy of Full Gospel Churches v. England, Civ. No. 99–2945 (“CFGC ”); Adair v. England, Civ. No. 00–566 (“Adair”); and Gibson v. Dep't of Navy, Civ. No. 06–1696 (“Gibson ”).
CFGC and Adair were filed in this Court on November 5, 1999, and March 17, 2000,...
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