Navy Chaplain Bias Suit Rebooted in D.C. Circuit

(CN) - A group of Navy chaplains can advance claims over the rate at which that branch of the military promotes nonliturgical Protestant chaplains, the D.C. Circuit ruled.

The Navy maintains a Chaplain Corps of commissioned officers who serve as clergy for their particular religious denomination. This Corps is divided into four groups: Catholic, liturgical Protestant, nonliturgical Protestant and Special Worship.

Chaplains are recommended for promotion based on the recommendation of a selection board, which includes two chaplains and five other officers. Board members vote in secret on the degree of confidence they have in the candidate on a scale of zero to 100.

In 1999, nonliturgical Protestant chaplains, including Baptist, Evangelical, Pentecostal and Charismatic denominations, sued the U.S. Navy, claiming that selection boards discriminate against them based on their religion.

Statistics allegedly show that liturgical Protestant and Catholic chaplains are promoted at significantly higher rates than nonliturgical Protestant chaplains, and that chaplains are more likely to be recommended for promotion if a chaplain of their same denomination sits on the selection board.

The chaplains claimed that the Navy's secret voting system allows a board member to select candidates based on their own religious convictions and essentially veto a candidate by voting a zero level of confidence. Other armed services allegedly avoid this problem by using public voting.

A federal judge dismissed the chaplains' case, finding their allegations too speculative, but the D.C. Circuit revived their claims on Friday.

"To be sure, plaintiffs here never allege that the challenged policies directly authorize discrimination against or require disparate treatment of non-liturgical Protestants," Judge David Tatel wrote for a three-member panel.

"That said, we conclude that plaintiffs' allegation that the challenged policies will likely result in discrimination is sufficiently non-speculative to support standing," Tatel added. "For one thing, chaplains inclined to vote on the basis of their religious preferences may be more likely to do so under the cover of secret ballots. Moreover, it goes without saying that the small size of selection boards gives potentially biased chaplains more influence over the outcome of the proceedings."

The court also revived the chaplains' bid for a preliminary injunction, noting that the trial court made no factual findings as to past discrimination on selection boards.

"All it had to say about the issue was this: 'the plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination,'" Tatel wrote. "But this is the wrong legal standard. Whether 'future' promotion boards are likely to discriminate on the basis of religious denomination is, as we have explained, the question we ask to determine whether plaintiffs have Article III standing. The issue before us now - whether plaintiffs are likely to succeed on the merits - turns on whether they have made a strong showing of a pattern of past discrimination on the basis of religious denomination and whether that pattern is linked to the policies they challenge." (Italics in original.)

"The District Court's entirely conclusory statement gives us no insight at all into whether the court perceived the defect in the establishment clause claim to be legal or factual, or, if factual, whether it thought the weakness lay in the evidence of past or future discrimination," he added.

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