Court's chaplaincy ruling confirms constitutional issues

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WASHINGTON — The U.S. Court of Appeals for the District of Columbia has upheld a key point in a lawsuit brought by a group of evangelical chaplains alleging the Navy discriminates against them.

The case involves a motion filed in 2003 by attorney Arthur Schulcz. The motion stated that 15 Catholic chaplains were allowed to remain on duty past retirement age in a thinly veiled attempt by the Navy to let them qualify for retirement benefits.

The Vienna, Va., attorney asked for a preliminary injunction ordering the Navy to halt the practice, saying it took away slots in the Chaplain Corps and represented unconstitutional favoritism toward a particular denomination. The motion was denied last year by U.S. District Judge Ricardo Urbina, who ruled that the plaintiffs had "failed to demonstrate the irreparable injury necessary" to warrant an injunction.

However, in a 3-0 ruling July 7, the appellate court said the evangelicals had established that the Navy's alleged violation of the First Amendment's Establishment Clause constitutes "irreparable harm."

"The Establishment Clause is implicated as soon as the government engages in impermissible action," according to the appeals court, which said the case should be returned to district court for further action.

"Where the charge is one of official preference of one religion over another, such governmental endorsement 'sends a message to nonadherents (of the favored denomination) that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Although the ruling concerns a case filed by eight former chaplains endorsed by the Dallas-based Chaplaincy of Full Gospel Churches, Schulcz said it will have an impact on two other cases involving multiple plaintiffs.

"This is an important question," said Schulcz, a retired Army officer. "It shows the validity of our claims. I think the Court of Appeals has said, 'Yes, this is irreparable harm.' I think it's a signal to the district court that they need to pay attention."

The Navy and U.S. Department of Justice, which is representing the military, have long maintained a policy of not commenting on any court rulings.

Schulcz said he learned about the favored treatment shown Catholics from one of the plaintiffs in the lawsuits he first filed in 1999 and 2000. After reviewing Navy documents, the attorney said he discovered his client's complaint was justified.

Schulcz's motion stated that 15 Catholic reserve chaplains over the age of 62 were on duty in 2003 — 14 at the rank of lieutenant or lieutenant commander — despite having twice failed to be selected for promotion. Seven of those chaplains were over age 67, which is supposed to be absolute retirement age, the motion said. According to the law cited in the ruling, reserve officers are not allowed to remain on duty if they have twice been passed over for promotion.

Although it was not mentioned in the legal filings, Schulcz said additional investigation during court proceedings showed there were eight other Catholic chaplains over the age of 60 who were in the reserves.

Sixty is supposed to be the mandatory age for separation from the Navy except in special circumstances, Schulcz said, and even with a waiver all personnel are supposed to retire by age 67.

In the most flagrant case he cited, the attorney said a Catholic reserve chaplain who had been on duty at a Coast Guard station retired in September 2004 at the age of 77.

In addition, Schulcz said the Navy had classified these chaplains as "retired and recalled to active duty" when in fact none of them had retired.

"We maintain this was a sham to cover up the fact these guys were allowed to remain on active duty," Schulcz said. "It's just one example of discrimination [against evangelicals].

"Another example of Catholic preference was always having a Catholic as a senior or junior detailer, up until 2003. A detailer is a person who makes assignments and determines where people go next. Their job is to fill spaces."

Despite the appeals court's finding that there may be a constitutional violation, the panel noted it is only one of four elements needed for a preliminary injunction. The other three are:

• The chaplains have a substantial likelihood of prevailing on the merits of their case.

• The injunction would not substantially injure other interested parties.

• The public interest would be furthered by the injunction.

When the case returns to district court, Schulcz is optimistic that he will be able to prove the Navy's preferential treatment harmed other chaplains' opportunities.

"According to the Supreme Court, once you show preference, strict scrutiny is supposed to be applied," Schulcz said. "The burden shifts to the government and they must show there is a compelling purpose [for their action] and is narrowly tailored for that purpose."

Schulcz said the Navy has maintained that Catholic chaplains have been allowed to remain on duty because of a shortage of priests.

However, if it is necessary to have a priest available for a Mass, these individuals could have been retained as contract chaplains immediately after their retirement, Schulcz said.

For example, the attorney said one installation in San Diego is using a contract priest to fulfill the needs for Catholic services.

While some may question what harm is done by allowing elderly priests to remain on duty, Schulcz said the key issues are whether the Navy will obey its own regulations and if this preferential treatment will be allowed to continue.

"The Constitution says you can't prefer one denomination over another," Schulcz said. "This issue has only been addressed in a handful of circuits. In some respects this is a landmark case."