Tuesday, October 15, 2013
That is the headline from a BLT post today reporting that "[a] Catholic priest claiming he was barred from ministering at a U.S. Navy base because of the government shutdown is suing the Department of Defense, claiming violations of his First Amendment rights" (and RFRA, one should also note). According to the complaint, "[p]laintiffs seek a preliminary and permanent injunction preventing government interference with religious services by military chaplains to their congregants. Plaintiffs further seek a declaratory judgment that the Anti-Deficiency Act as applied to the sermons and counseling of the United States Military Chaplains violates the Free Speech, Free Association, and Free Exercise Clauses of the First Amendment of the United States Constitution and the Religious Freedom Restoration Act of 1993." Plaintiffs are represented by Thomas More Law Center, which has issued a press release about the case (including a photo of what looks to be a sign on the chapel door).
As some of the astute commenters at the Volokh Conspiracy have noted in commenting on Jonathan Adler's post (where I learned about this lawsuit), it would be helpful to have some clarification of the underlying facts and background. Consider, for example, paragraphs 41-43 of the complaint:
41. The doors to the Kings Bay Chapel were locked on October 4, 2013, with the Holy Eucharist, Holy water, Catholic hymn books, and vessels all locked inside. Father Leonard and his parishioners, including Fred Naylor, were prohibited from entering.
42. The Department of Defense placed a sign outside of the Kings Bay Chapel stating that due to the government shutdown, there will be no Catholic Services until further notice.
43. The Kings Bay Chapel remains open to other faiths and is being used for their religious services. The Department of Defense has allowed the Protestant community to continue their services in the chapel during the government shutdown, without threat of penalty.
The chapel was locked but only for Catholics? Or is the chapel being used, but only for Protestant services because those are supplied by on-payroll chaplains instead of contractors?
The complaint also alleges that the cancellation of on-base Mass and confessions, among other things, effectively means that some base personnel cannot attend Mass or confession because of timing and other difficulties associated with attending the parish in town eight miles away. That sounds like a substantial burden on the exercise of religion, and it is hard to see how the government would satisfy strict scrutiny, so the RFRA claim may succeed. A better plaintiff would probably be one of the individuals who is now unable to attend Mass. But if Fr. Leonard is not even permitted on base to hear individual confessions, for example (see paragraph 40 of the complaint), his own exercise of religion is substantially burdened. The RFRA claim is in Count I of the complaint. The next three counts assert free exercise, free assembly, and free speech claims. I am not familiar enough with the background of how the military supplies chaplains in order to have confidence in a legal analysis about those claims without learning more. (On special problems relating to access to military bases and the First Amendment, see United States v. Albertini, 472 U.S. 675 (1985)).I do wonder, though, about the interpretation of the Pay Our Military Act described in the complaint at paragraphs 51-52:
51. The Secretary of Defense issued a statement on October 5, 2013, providing guidance for the implementation of the Pay Our Military Act and “instructions for identifying those civilian personnel within the Department who ‘are providing support to members of the Armed Forces’ within the meaning of the Act. Secretary of Defense, October 5, 2013 Mem. available at http://www.defense.gov/pubs/POMA-implementation-guidance.pdf last visited Oct. 14, 2013.
52. The Memorandum states that after consulting with the Department of Justice, the Department of Defense reads the Pay Our Military Act’s standard of “support to members of the Armed Forces” to “require[ ] a focus on those employees whose responsibilities contribute to the morale, well-being, capabilities, and readiness of covered military members during the lapse of appropriations.” Id.; see Dept. of Defense Press Release, October 5, 2013, Statement by Secretary Hagel on the Pay Our Military Act, available at http://www.defense.gov/Releases/ReleaseID=16293 last visited Oct. 11, 2013.
Why wouldn't the chaplain services contribute to the "morale" and "well-being" of covered military members? Maybe the problem here is not with the rule but with its application?
Merits aside and procedural/jurisdictional glasses on, I am surprised that the complaint does not explicitly mention 28 U.S.C. § 2201 (providing a cause of action for declaratory relief) or explicitly mention the statutory provision in RFRA supplying the cause of action under that statute, but mistakenly cites 42 U.S.C. § 1983 as supplying a cause of action for the free assembly count. (Section 1983 supplies a cause of action against state officials, not federal officials. And insofar as the complaint seeks damages, stinginess with Bivens remedies is likely to be a problem, particularly because of the military context.)