No Class Standing for Chaplains Suing Navy

(CN) - A federal judge refused to certify a class of nonliturgical Protestant chaplains who allege the U.S. Navy discriminated against them by employing a secret voting system that creates a bias in favor of promoting Catholics and liturgical Protestants.

A group of 65 current and former nonliturgical Protestant chaplains sued the Navy claiming liturgical chaplains are 10 percent more likely to be recommended for promotion if a chaplain of their same denomination sits on the Navy's selection board, whose members cast secret votes of confidence.

The D.C. Circuit revived in November 2012 the Baptist, Evangelical, Pentecostal and Charismatic Navy chaplains' claims, which allegedly date back to 1976.

While other branches of the Armed Services use public voting, the Navy's secret voting system allows chaplains to essentially veto a candidate of a different religion by voting a zero level of confidence, according to the complaint.

The plaintiffs renewed on Dec. 4, 2012, their motion to certify a class of up to 2,500 chaplains whose careers the voting system allegedly injured or may injure in the future.

But U.S. District Judge Gladys Kessler refused to preliminarily enjoin the voting process Feb. 28, 2013, finding that the chaplains provided no evidence of intentional discrimination.

Last week she declined to certify the class, finding that the plaintiffs' individual anecdotes "vary widely" and thus eschew commonality requirements.

Some plaintiffs say "they were discriminated against because they believe themselves to be more qualified than chaplains of different faiths who fared better in the Chaplain Corps' personnel system," Kessler wrote. "Others complain of poor fitness reports and unfavorable work assignments issued by their superiors, which they blame on interpersonal disputes combined with religious animosity, retaliation, and/or racial or gender discrimination. Yet others tell extended narratives of local command officers or senior chaplains interfering with their ministry efforts, prayer, or worship styles for a variety of reasons they attribute to religious hostility."

The chaplains' "decentralized system" across 500 locations neither demonstrates a common "culture of prejudice," the ruling states.

"Insofar as plaintiffs challenge facially neutral policies, such as secret voting, the small size of selection boards, and the practice of appointing two chaplains to each board, they cannot prevail unless they establish that the policies are motivated by discriminatory intent, lack a rational basis, or 'appear to endorse religion in the eyes of a "reasonable observer"' (emphasis in original)," Kessler wrote. "As our Court of Appeals recently concluded, plaintiffs either do not allege or have not shown a likelihood of success on the merits as to any of these theories."

Here, the plaintiffs have not shown that they are adequate class representatives, the judge held.

"Plaintiffs' readiness to draw divisions among members of the proposed class strongly indicates that they cannot be fair and impartial representatives of the class as a whole," Kessler wrote. "Baptist class members (or those of other 'liberal' faiths) might have legitimate concerns that plaintiffs will not zealously represent their interests." (Parentheses in original).

The court also tossed the plaintiffs' claim that, until 2001, the Navy used a "Thirds Policy" under which it reserved 35 percent of chaplain accessions to liturgical Protestants, 35 percent to "nonliturgical faith groups," and 30 percent to "others," including Catholics.

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