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Navy Chaplain Lawsuit Has a Prayer of Success

By Robyn Hagan Cain on November 05, 2012 | Last updated on March 21, 2019

Last week, the D.C. Circuit Court of Appeals gave a group of military chaplains another chance to pursue their 13-year-old discrimination case against the U.S. Navy, The Wall Street Journal reports.

The Navy maintains a Chaplain Corps of commissioned Naval officers who have the “responsibility … to provide for the free exercise of religion” for all members of the Navy and their families. Chaplains perform a “unique” role, serving both “as clergy or … professional representatives of a particular religious denomination and as … commissioned naval officers.” The Navy divides the Chaplain Corps into four “faith groups”: Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship.

In this case, “non-liturgical Protestant” military chaplains allege that the Navy systematically discriminates against members of their religious denominations when awarding promotions, thereby violating “the clearest command of the Establishment Clause … that one religious denomination cannot be officially preferred over another.”

Relying on statistical analysis by their expert and other evidence, the plaintiffs assert that non-liturgical Protestant chaplains are promoted to higher ranks at significantly lower rates than are liturgical Protestant and Catholic chaplains, and that candidates are more likely to be recommended for promotion when they share the denomination of the chaplains who sit on the selection board.

The district court denied plaintiffs' motion for a preliminary injunction, concluding that they lacked Article III standing and, alternatively, were unlikely to succeed on the merits of their claims. The D.C. Circuit Court of Appeals reversed the district court's dismissal.

As the appellate court explained it, the plaintiffs' claim rests on two distinct theories. First, the "denominational preference" theory, asserting that selection boards discriminate against non-liturgical Protestants in making promotion decisions in violation of the Establishment Clause and the Fifth Amendment's equal protection component.

Second, the Establishment Clause violation theory, claiming that the Navy impermissibly delegates governmental authority to religious entities by permitting chaplains to award government benefits in the form of promotions without effective guarantees that such authority will be exercised in a neutral, secular manner.

While the appellate court was unpersuaded by the delegation theory, it found that the district court erred in failing to make factual findings regarding the plaintiffs' and the Navy's competing claims on the denominational preference theory. In reviving the lawsuit, the court remanded the case for further factual findings regarding the chaplains' likelihood of success on the merits.

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