Chaplaincy of Full Gospel Churches v. United States Navy

KAVANAUGH, Circuit Judge: A group of Protestant Navy chaplains sued the Navy, alleging that the Navy’s operation of system its retirement discrim- inates in favor of Catholic chaplains in violation of the Establishment Clause. But do not claim Navy actually against discriminated any of them. We conclude that plaintiffs lack standing to bring claim, this we there- fore affirm the judgment of the District Court.

I The U.S. Navy maintains a Chaplain Corps of commissioned Navy officers to meet spiritual needs of those who serve in and their families. Like officers, other chaplains subject to mil- itary regulations with respect to hiring, promotion, and retirement. preliminary injunction, four of a purposes into Navy divides The Protestant, liturgical allegation of Establishment Clause vio- categories—Catholic, Protestant, Special Wor- non-liturgical lation itself demonstrates sufficient harm opin- explained previous we ship. As satisfy the'irreparable injury prong litigation, “liturgical Protestant” ion injunction preliminary test—assuming, fol- denominations that includes Protestant course, that party has liturgy worship ser- low an established in the allege place. the violation first See infant such practice baptism, vices and & n. Chaplaincy, Methodist, Lutheran, Presbyte- Episcopal, the denial of Court therefore vacated rian, Chaplaincy Congregational. injunction preliminary arid remanded England, Gospel Full Churches the District Court to consider the remain- (D.C.Cir.2006) 290, (Chaplaincy). injunction in ing preliminary factors Prot- “Non-liturgical Protestant” includes including analysis, likelihood of success on a that follow estant denominations do id. the merits. See at 304-05. liturgy worship in services and formal remand, opinion, in On a well-reasoned reason, Bap- such as baptize age plaintiffs the District Court concluded that Pentecostal, tist, and Charis- Evangelical, standing bring claim. lacked this This Worship” “Special at 294. The matic. Id. appeal followed. faiths, refers to other category non-Christian, and it both Christian II Science, Jewish, Sev- Christian includes Buddhist, Article III of Adventist, Mormon, the Constitution enth-Day Witness, Muslim, judicial power deciding limits Hindu, Jehovah’s Id. at 295 n. 3. and “Controversies.” “One of the Unitarian. “Cases” in the a controlling elements definition of non-liturgical Protestant Plaintiffs controversy or under Article III is case and retired.1 Navy chaplains, both current From standing.” Hein v. Freedom Reli suit, Navy that the alleging Plaintiffs filed — Foundation, Inc., U.S.-, gion chaplains in favor Catholic discriminates 2562, 2553, aspects system. of its retirement in certain (internal marks and alteration quotation Navy Chaplaincy, F.Supp.2d In re See omitted).2 establishing The three (D.D.C.2007). factors 119, also Plaintiffs minimum” the “irreducible constitutional injunction. sought preliminary Lujan v. standing are well established. initially plain The District Court denied 555, 560, Wildlife, 504 U.S. motion, Defenders of injunction finding preliminary tiffs’ (1992). 119 L.Ed.2d 351 chaplains had not shown the nec that the injury-in- First most relevant here is injury support pre essary irreparable A plaintiff fact: must have suf would-be Eng injunction. See Adair v. liminary legally protected “an invasion of a fered land, 99-cv-2945, slip 00-cv-566 & Nos. (i) 2005). particu is (D.D.C. interest” that “concrete appeal, On op. at 2 Feb. that, general- reversed, larized” rather than abstract explaining this Court throughout opinion, referring organizations to Hein our also 1. Plaintiffs include certain non-liturgical chaplains. referring Be- specifically Protestant Alito’s we are to Justice organizations standing have cause the binding opinion opinion, which is of the only if of their indi- these circumstances one v. See Marks United in that case. standing, we not ad- vidual members has do States, Washing- separately. them See Hunt dress (1977). L.Ed.2d 260 Comm'n, Apple ton State Adver. (1977). 342-43, 97 S.Ct. (ii) ized, “actual or imminent” rather on the merits would be suc remote, speculative, conjectural or than City cessful their claims.” Waukesha (internal hypothetical. quotation EPA, (D.C.Cir.2003). Id. Citizen, omitted); marks see also Pub. Inc. case, purposes our analysis For this Admin., Highway Safety v. Nat’l arguendo must we therefore assume Traffic (D.C.Cir.2007). sys operation retirement n injury Second causation: The asserted chaplains tem favors Catholic and disfa be “fairly challenged must traceable to the non-liturgical vors Protestant Lujan, action defendant.” violation of the “clearest command of the (internal 560, 112 quotation reli Establishment Clause”—that “one marks and Third alterations is gious denomination officially cannot be redressability: likely It must be preferred over another.” Larson Va favorable decision the court re- would lente, plaintiffs injury. Id. at dress assuming Even accurate, plaintiffs’ allegations are howev er, they do not have bring Ill

“[T]he law Art. against claim on a because single idea;—the built basic idea of separation sufficiently of Allen their in powers.” Wright, v. demonstrated own 752, 3315, jury-in-fact. 468 U.S. 104 S.Ct. (1984). The L.Ed.2d 556 doctrine is If plaintiffs alleged had that the “founded in concern the proper— about Navy against discriminated them ac on properly of limited—role the courts count of religion, their plaintiffs would Seldin, society.” a democratic Warth v. alleged particularized have a concrete and 422 U.S. 95 S.Ct. ham sufficient to injury-in-fact constitute (1975). The federal courts standing purposes. plaintiffs for But have are “not empowered to seek out and strike they conceded that themselves did not suf any governmental down act they employment fer discrimination on account to repugnant deem be to the Constitution.” religion. They of their have conceded that

Hein, 127 the “Vindicating Navy deny any the did not them benefits public (including public interest inter opportunities or on account of reli them est in Government observance of the Con gion. See In re Chaplaincy, 516 laws) stitution and is the function of Con (D.D.C.2007). F.Supp.2d gress and the Chief Lujan, Executive.” Rather, they suggest that other chaplains 112 S.Ct. see also suffered such discrimination. Valley Forge Christian Coll. Americans State, Separation United Church & argue they Plaintiffs nonetheless Inc., 464, 474-75, 454 U.S. 102 S.Ct. (i) standing have for either of two reasons: (1982). 70 L.Ed.2d 700 they object are taxpayers who to the Navy’s allegedly discriminatory operation Those critical and principles bedrock (ii) chaplaincy program, have separation of powers inform our approach subjected Navy’s been to the “message” of plaintiffs’ to claim. as a result Ill Navy’s a running system retirement chaplains. favors Catholic We reviewing disagree. standing question, plaintiffs’ we must Because claim be “careful not to does fit within decide the questions on or against the merits for the narrow confines of Establishment plaintiff, and must therefore assume that taxpayer permitted by standing I, Cohen, § of the at 102- Constitution. See id. Flast (1968), they do not have OS, 88 S.Ct. 1942. Hein v. Free- standing taxpayers. See subsequently The Court has made clear — Foundation, Inc., Religion From dom a very exception that Flast narrow 2553, 2562-72, -, general against taxpayer standing. bar (2007). do have plaintiffs Nor Forge, In Valley example, exposure on their standing based argued that the Government violated the alleged “message” religious pref- it Establishment Clause when transferred erence. “surplus tract property” a Christian Valley college. Forge Christian Coll. v. A Separation Americans United for Supreme re As the Court has State, 464, 467-68, Church & held, in en taxpayer’s interest peatedly (1982) (internal 752, 70 L.Ed.2d 700 spent funds are suring appropriated quotation marks The Court does in accordance with Constitution plaintiffs, composed group found that standing. III not suffice to confer Article “90,000 members,” taxpayer did not Hein, at 2563 Back See challenged both because Mellon, Frothingham than legislative action was executive rather (1923), taxpay L.Ed. 1078 was Government, property and because the transfer arguing that ers sued the authority pursuant invaded executive Maternity improperly Act of 1921 exercise of the Tenth powers reserved States legislation passed Property' under reject Supreme Amendment. IV, § Clause Article the Constitu- “The ed that case: taxpayer Taxing Spending tion rather than the and statute, likely pro to any administration of I, 469, 479-80, § in 8. Id. at Clause Article imposed additional taxation to be duce (internal quotation marks S.Ct. upon taxpayers, a number of the ex vast omitted). liability several is indefinite tent of whose Kendrick, Supreme In Bowen v. the constantly changing, essentially and is group taxpayers of federal Court allowed public not of individual con matter of and Family challenge Adolescent Life to the taxpayer may champion If cern. one Act, a for reli- appropriating statute funds cause, every such a then other litigate others, among fight to gious organizations, may same....” Id. at taxpayer do the pregnancy. teen 596- see also Doremus v. Bd. (1988). Hawthorne, 429, 433-34, Educ. plaintiffs’ chal- The Court found that claim 96 L.Ed. 475 program expressly by authorized lenged a years after Frothingham, In taxing spending Congress under the the carved out narrow Supreme Court fitting within Flast. Id. at power, thus general the constitutional bar exception to key 2562. The to Bowen’s 108 S.Ct. suits; the held that taxpayer on conclusion, subsequently has as the Court bring had to an taxpayers federal “ explained, was that the statute was ‘at challenge to Establishment Clause federal of funds heart a of disbursement Flast, financing parochial schools. See Congress’ taxing spending to pursuant according S.Ct. 1942. But ” plaintiffs’ claims were powers’ Flast, may taxpayers bring to an Estab- funds expenditure concerned with the they challenge only lishment Clause when “ statutory AFLA’s man- ‘pursuant the challenge passed pursuant legislation ” Hein, (quoting Spending in Article date.’ Taxing Bowen, 2562) lishing Navy Chaplaincy itself violates (emphasis Clause; they merely want Navy operate Chaplain In its recent Hein, in decision the Court Corps differently. Marsh, expand declined Flast to encompass dis- Cf. Katcoff (2d Cir.1985) 755 F.2d 223 cretionary (approving mili Executive Branch spending: tary chaplaincy program). “Because almost all Executive Branch ac- tivity ultimately is by funded some con- Hein, challenged As expen gressional appropriation, extending the ditures salary here —extra and retirement- exception Flast to purely expen- executive related benefits allegedly provided to ditures would effectively subject every fed- Catholic not expressly —“were eral conference, action—be it a proclama- authorized or mandated by any specific tion speech Establishment Clause —to congressional Hein, enactment.” by challenge any taxpayer in federal Indeed, plaintiffs contend that court.” Id. at Although Hein did Chaplain Corps being operated by not eliminate the Flast exception to the law, contravention of the bar against taxpayer standing, the case in accordance with the law. See Plaintiffs’ forcefully emphasized the exception’s ex- Br. 48 (“Appellees followed either tremely limited contours: “It significant the law or the DOD regulations.”). Under that, in the four creation, decades since its Supreme Court’s precedents, that con exception Flast largely has been con- directly tention any undermines claim to fined to its facts.” Id. at 2568-69. As taxpayer standing. sum, In plaintiffs do Hein explained, the Court has limited the not have standing as taxpayers. “expansion of taxpayer federal and citizen specific absence of statuto- B ry authorization outer boundary drawn results Flast.” Id. Plaintiffs alternatively contend (internal quotation marks and emphasis have standing because “Establishment omitted).3 Clause injury flows from the forbidden messages or disapproval” case, in- plaintiffs’ claim does not fit herent in pref- within the denominational narrow Flast exception. No erence. Plaintiffs’ Br. legislative 28. In so arguing, enactment expressly authorizes they rely primarily on appropriates this Court’s funds for the decision Navy to fa- in Chaplaincy, vor which explained Catholic in that for retirement system. the purposes cite, of a preliminary Plaintiffs injunction, for example, the statutes the “mere allegation” establishing the an Navy Chaplain Corps, but those Clause statutes violation always no make refer- sufficient to ence to show denominational category, only irreparable to harm. Chaplaincy of chaplains generally. Gospel See 10 Full U.S.C. Churches v. England, 454 §§ 5142, 5150. plaintiffs, And (D.C.Cir.2006). who them- 303-04 Plaintiffs selves chaplains, are obviously not do con- claim that because allegations their dem- tend congressional that legislation estab- irreparable onstrate injury for preliminary 3. The exception Flast may be entities, further limited funds to including outside Congress's to disbursement of federal funds organizations. But we not need address that outside the Government. both Flast and question given in this case plaintiffs’ ar- Kendrick, Bowen v. only Supreme two gument taxpayer standing for fails at a more Court upholding cases taxpayer standing, the basic level. statutes authorized disbursement of federal necessarily cognizable does not redress a Article III they

injunction purposes, standing purposes. for injury-in-fact injury.” Steel Co. a Better shown v. Citizens for Env’t, U.S. Chaplaincy merely in But the Court “Recognition L.Ed.2d 210 allegation Establish- held that standing in such circumstances would to sat- Clause violation is sufficient ment transform the into federal courts no more irreparable prong harm isfy a vehicle for than the vindication of the injunction standard—presup- preliminary bystanders.” value interests of concerned party has to al- posing that Allen, id. such a violation. See lege U.S. S.Ct. (internal defining rule automatic per & n. 8. A se quotation marks every plaintiff for who injury-in-fact respond Plaintiffs their claim is viola- claims an Establishment Clause religious display similar to and prayer strain to find tion—as (or cases where courts have found at least opinion—would run counter Chaplaincy assumed) See, standing. e.g., apparently jurisprudence of settled set- to decades ACLU, McCreary County v. ting requirements forth the 162 L.Ed.2d cases. in Establishment Clause Jurisdic- (2005) (Ten displays that Commandments disposed requirements not so tional “readily were visible” citizens conduct- Chaplaincy easily, did Court business) (internal ing civic quotation sweeping change purport make the omitted); Perry, marks Van Orden it by plaintiffs. attributed 677, 681-82, Apart citing Chaplaincy, plaintiffs from (2005) (Ten Commandments being from injury-in-fact claim their also display grounds on the of the Texas State subjected “message” Capitol petitioner frequently encoun- Navy’s alleg- preference conveyed tered); ACLU, 492 County Allegheny v. edly preferential retirement 578, 109 106 L.Ed.2d chaplains. program, Catholic (1989) (creche court- display county them feel second-class citi- say, makes like city- display house and menorah outside even if Chaplaincy within the zens county building); Haywood discrim- Suhre they themselves have not suffered (4th Cir.1997) religion. County, of their ination on account (Ten county display Commandments has Supreme As the of courtroom; cases are noting display stated, gov personal mere offense ten “particularized of Establishment subclass to stand give ernment action does rise standing jurisprudence”); see also ing Wright, to sue. Allen Weisman, 577, 580, 112 Lee v. 752-54, 104 S.Ct. (1992) (gov- S.Ct. L.Ed.2d 467 (1984); Lujan also Defenders graduation); prayer ernmental at school 555, 575-76, Wildlife, Chambers, 783, 784-85, Marsh “By 119 L.Ed.2d (1983) 77 L.Ed.2d suit, every plaintiff his bringing mere legisla- (daily prayer opening of state belief that a favorable demonstrates his ture); Abington Township v. Sch. Dist. happier. But judgment will make him al 205-12, Schempp, may great derive though a suitor comfort (daily Bible knowing joy” from that the Govern Vitale, class); in reading Engel impera is following ment constitutional 421, 422-23, 8 L.Ed.2d tives, an psychic “that satisfaction is not (1962)(official class). remedy prayer in III it state acceptable Article because all Supreme These Court cases do not eviscerate well-settled limita- standing directly plaintiffs’ theory, every gov- is a tions. Under standing discuss the issue. It ernment action that allegedly violates the well-established rule that “cases which could be re-charac- jurisdiction not is assumed sub silentio are governmental pro- terized as a message binding authority proposition for the moting religion. everyone And therefore Doe, jurisdiction exists.” John Inc. v. “message” who becomes aware of the (D.C.Cir.2007) 569 n. DEA standing neigh- would have to sue. The (internal quotation In marks Forge, in Valley bors the hotel workers at event, any accepting prece- those cases as a organizations conference faith-based on standing,4 we find dents nonetheless Hein, goes the list on—all could have significant plaintiffs’ differences between standing simply obtained by target- sue religious display prayer case and the action, ing government’s not the but rath- religious In the display prayer cases. government’s er the alleged “message” of cases, the actively Government was communicated directly communicating a mes- through Indeed, that action. as plaintiffs’ sage through religious or religious words acknowledged counsel argument, at oral symbols—in words, other it was engaging plaintiffs’ any under standing theory re- observed, speech that was cipient Navy’s “message” of the in this read, by plaintiffs or heard in those case, including judges panel, on this Here, contrast, by cases. is not would bring chal- suit communicating religious message lenging allegedly discriminatory Chap- through religious religious sym- words or Corps. lain Arg. Oral Tr. at 6-7. The objection bols. Plaintiffs’ here is more jurisdictional requirements of Article III akin objection to the to the property manipulable. They are not so do not al- Forge, transfer Valley where the Court anyone low who gov- becomes aware of a identify stated that the plaintiffs failed “to ernment action that allegedly violates the any personal injury by suffered them as a Establishment Clause to sue over it on the consequence alleged of the constitutional ground by offended the al- error, other than the psychological conse- legedly “message” unconstitutional com- quence presumably produced by observa- by municated that action. the govern- tion conduct disagrees. with which one employment here, ment context it issue injury That not is sufficient to confer surprise thus comes as no that neither Ill, under Art. though even plaintiffs any nor the dissent has cited disagreement phrased in constitutional holding plaintiff case can maintain a Valley Forge, terms.” religious employment discrimination suit (emphasis added and omit- Religion under Clauses when com- ted); Suhre, see also 131 F.3d at 1086 plaining about discrimination employment (quoting Valley Forge stating “a mere others, by suffered plaintiff objection abstract to unconstitutional con- himself herself. We think the reason duct sufficient to standing”). confer precedent for the dearth of is evident: argument Plaintiffs’ would extend When are not themselves affect- religious display and prayer cases in a by government ed except through action significant unprecedented and manner and their abstract offense at the al- message Foundation, generally v. Tangipahoa See Doe Religion Parish Sch. dom Inc. the and from Bd., (5th Cir.2007) 499-502 Adjudication, Future Establishment Clause of (DeMoss, J., concurring); Lupu Ira C. & Rob 2008 B.Y.U. L.Rev. Tuttle, ert W. Ball on a Needle: Hein v. Free accommodation (2005). A governmental action, they have by that conveyed Iegedly the Establishment may violate religion for an Es- bring to injury-in-fact shown reli- particular “singles if it out Clause outside claim, at least Clause tablishment treatment” because special gious sect display religious the of distinct context the ... permissible limits of the “whatever cases. prayer and ..., it is clear may be accommodations plaintiffs’ that sure, recognize we beTo must religions be neutrality among as that display religious the analogy to creative Joel Kiryas Educ. Bd. honored.” of of logic. some surface has cases prayer and Grumet, 512 U.S. v. Sch. Dist. Vill. theory plaintiffs’ of implications the But 2481, 129 L.Ed.2d 546 706-07, 114 S.Ct. quite radical: are doctrine “ (citations the ‘When display religious the to use seek Plaintiffs of support financial and prestige power, the court- open wedge prayer cases particu- placed behind government [are] range of to a wide doors house belief, indirect coercive the religious lar violations Clause Establishment alleging to con- minorities religious upon pressure by bedrock barred previously who were officially approved prevailing form that standing requirements requirements ” — Abington Dist. plain.’ Sch. is religion of separation preserving essential are 203, 221, 83 Schempp, Twp. mandat- judicial role limited powers of (1963) (quoting 10 L.Ed.2d decline the We the Constitution. ed 1261). 430-31, 82 S.Ct. Engel, Establishment transform invitation Gospel Churches Full Chaplaincy In way. doctrine Clause (D.C.Cir.2006), England, year last said Supreme What liberty that observed the court thus reli- plaintiffs’ just as well applies Hein by the shielded interest prayer display ance on the against government “protection Clause necessary concomitant “It is a here: cases religion or state of a imposition a prec- decisis of stare the doctrine added). (emphasis id. at preference,” to the limit always expanded is not edent Clause “the Establishment Stating that at 2571. Hein, 127 S.Ct. logic.” en- government soon as implicated as id., action,” impermissible gages of ex- freedom that unlike explained court District judgment affirm We harm example, “[t]he cases, for pression Court. is self- establishment by religious inflicted attendant con- no requires ordered. executing and So individual,” id. part of on the duct dissenting: ROGERS, Judge, Circuit describing the at 302. id. see also issue, action “the government prevents impermissible The Establishment stamp of court stated: its official placing Government’s pray- charge is one here, kind particular Where, one upon approval over religion ser- of one form particular or one official er Vitale, endorse- another, governmental vices,” such Engel v. (1962), to nonadherents message 1261, L.Ed.2d “sends ment denomination] tolerated ... be the favored [of “all creeds ensures of the Weisman, members outsiders, not full favored,” Lee none accompany- community, and political 120 L.Ed.2d they are message to adherents County ing v. Am. McCreary (1992); see politi- insiders, members favored Ky., 545 Union Liberties Civ. community.” cal 860, 125 S.Ct. Id. at (quoting Lynch v. Donnelly, merely allege ... harm sufficient to estab- 668, 688, 79 L.Ed.2d lish standing,” Associated Gen. Contrac- (1984) Coal, (O’Connor, J., (al- Cal., concurring)) tors Inc. v. Equity, Econ. for teration in original). (9th The court held that 950 F.2d Cir.1991). As such an allegation explained sufficed to irrepa- show in Chaplaincy, court “[t]his has harm, rable “injury or beyond high [that set a is] standard for irreparable injury” [by remediation monetary damages],” within the preliminary id. injunction inquiry. for the purpose injunc- 454 F.3d at obtaining 297. Such injury must be relief, tive crediting appellants’ allegation “both certain great,” “actual and not of “the harm theoretical,” that flows “beyond from the ‘forbid- remediation,” and den message’ of marginalization also “of [that the such imminence that there is a Navy’s] [them],” send to actions clear and present id. equitable need for relief 20). (quoting Appellants’ Br. at prevent The to irreparable court (quota- harm.” Id. did expressly hold omitted). tion appellants1 had marks and citations For Article III standing, III, but see Steel Article requisite Co. v. injury-in-fact Env’t, Citizens a Better 83, must be “concrete and particularized” and 94-95, “actual imminent,” not “hypothetical.” (1998), but noted that legal Lujan “conclusion Wildlife, 504 U.S. Defenders of presupposes, course, party has (1992) allege violation,” such a (quotation Cha- marks Be- plaincy, 454 F.3d at 304 n. 8. cause “the alleged violation of the per se constitutes court’s decision in Chaplaincy re irreparable harm,” Chaplaincy, 454 garding appellants’ liberty interest that is appellants have protected met their burden the Establishment Clause on the injury prong of Article III and the stand- injury nature their is no less ing.2 applicable here. The parties same and the charge

same involved, see A. LaShawn As members of non-liturgical Protestant Barry, (D.C.Cir. churches and fellowships, appellants assert 1996) (en banc), and injury sufficient for that the Navy has singled out the Catholic irreparable harm has resonance for injury- faith as the preferred religious tradition in in-fact under III, Article Taylor see its Chaplain Corps by choosing over sever- Resolution Corp., Trust 1508 al decades to allow only Catholic chaplains (D.C.Cir.1995), because to show irrepara beyond serve required separation harm ble plaintiff “[a] must more do than dates.3 This sends a message of denomi- 1. Due cases, to the consolidation three junctive without satisfying relief ap- itself that appellants reserve, pellants include active duty, standing, re- had its approach is con- tired, trary non-liturgical Co., principle former both to the Protestant Steel Navy chaplains U.S. at Chaplaincy, to the two more reading natural endorsing of the footnote as mere- agencies Chaplaincy of Full Gos- — ly recognizing, before, as this pel court has done Churches Gospel Associated prong that this preliminary of the injunction Churches. referring Hereinafter in "appel- inquiry entirety and the lants,” of the Article III only I refer to the currently standing inquiry somewhat," "overlap[] ... serving in the Chaplain Corps. coextensive, but are not Taylor, 56 F.3d at 2. To the extent court to avoid seeks precedent by interpreting a footnote in Cha- 3.According appellants, pro- "the 4109 plaincy to indicate that the "pre- court was gram” (1) parts: has three illegal appoint- supposing” appellants' standing, Op. at 762- ments duty through active age waivers for 63, and thus addressing request over-age in- clergy, Catholic consequent

767 Chaplain within membership Their mar and for Catholics preference national receipt of mes resulting adherents, their Corps and non-Catholic for ginalization make preference sage of denominational psychological to suffer appellants causing has who to a citizen comparable Compl. them chaplains. serving as while harm alleged estab contact with “personal officer endowing Naval ¶¶ 37(e), By 3, 39. Haywood v. Suhre religion,” upon lishment of manner preferential in a status (4th 1083, Cir. 1086 of reli type County, 131 F.3d a particular of representatives religious display their then, 1997), of part as as in such ministry,4 who gious sym more than duties, charge and does Appellants’ words use cases.5 service Naval cause, with “some religious analogy” their a “creative present to serve bols 765, in a reli sides as the court at “take[n] has allegedly logic,” Op. Navy surface in discriminating conclu matter, unsupported effectively for its basis gious offers no view,” from “the religion’s] Commack different is of this case [one sion that favor Weiss, Meats, 294 display Inc. v. Kosher context of distinct Self-Serv. Cir.2002), type of (2d of the for the 415, cases,” 425 id. As counsel prayer F.3d and most appropriate is ministry chaplain ... is “if a acknowledged, Navy sailors,” In of needs [message of reli “the to serve exposed personally (D.C.Cir. 1169, 1171 F.3d be tradi England, re there would preference], gious County, 545 McCreary 2004). See, e.g., (Apr. at 13 Arg. Tr. standing.” Oral tional 2722; Kiryas Joel 860, 125 S.Ct. allege 2008). appellants what 24, That is 2481. 698-705, 114 S.Ct. Vill., estab program the 4109 charging one reli “official lishes an particularized have suffered Appellants psy them that causes another” gion over are not they injury because III Article and personal to their injury due chological program. to the strangers forty-two age and appointed after chap- Catholics clergy as of such illegal continuation they dates 67, duty and the eventual on active extended age of lains example, clergy pensions. to the Retired For eligible such illegal transfer become duty subsequent recall active Chaplain Stewart non-liturgical Reserve Protestant 4109 Reservists. designated Chaplain Eres- over-age Catholic with served chaplains Catholic part to designed allow Chaplain- decision this court's tain. After statutory separation their have reached who two Navy extended cy, appears that it com- until to serve to continue age beyond the chaplains for service non-Catholic become twenty years of service pleted at 295. F.3d age 62. See 454 1251, §§ U.S.C. See 10 pensions. eligible for F.3d 14509, Chaplaincy, 454 also see County, F.3d See, Vasquez L.A. e.g., v. their appellants filed time theAt at 293-96. Cir.2007); Tangi (9th Doe v. 1250-51 appointment age limit for complaints, the (5th Bd., 473 F.3d pahoa Parish Sch. officers, forty- was like other chaplains, City Platts Cir.2006); v. Found. ACLUNeb. 532(a)(2); two, while § U.S.C. (8th Cir. mouth, 1026-31 chaplains, F.3d longer applicable to provision no (as part, W. 419 F.3d 532(d)(1) 2004), Ronald adopted in relevant § amended id. banc); Act Cir.2005) (en v. Authorization Altman (8th Reagan Defense National 774 n. 4 (2d Dist., No. Pub.L. Fiscal Year F.3d Sch. Cent. Bedford 28, 2004)), (Oct. the statuto- Bloomingdale Stat. Pub. Cir.2001); Washegesic v. chaplains other age for ry separation 1994); (6th Schs., Cir. 682-83 in effect. remains officers Montgomery, 41 F.3d County v. Doe City 1994); (7th Foremaster Cir. 1159-60 Catholic a list of Appellants cite (10th Cir. George, F.2d St. them serving with currently as "4109” coded Milledgeville, 812 1989); City Saladin Corps, assert Chaplain Cir.1987); (11th Allen 687, 691-93 to become destined chaplains are additional (D.C.Cir.1970). Hickel, Navy's list view of chaplains in “ direct receipt of the ‘message ... nizing their standing would, in this court’s ” they outsiders, not full words, members’ of inappropriately “wedge open the Chaplain Corps. Chaplaincy, doors,” 765; courthouse Op. at see also id. 454 F.3d at 302 Lynch, (quoting 762, at Appellants’ U.S. charge is based 688, at (O’Connor, J., S.Ct. 1355 con- on an injury distinct to their status within curring)). Appellants’ injury is thus as the Chaplain Corps, see Schempp, 374 U.S. particularized, Lujan, see at 9, U.S. 561 at 1560; 224 n. 83 S.Ct. Chaplaincy, 454 1, 573-74, n. 2130; 112 S.Ct. 302; Warth v. F.3d at WEAL, see also 879 F.2d at Seldin, 422 490, 502, U.S. 2197, 95 S.Ct. 884-85, and, “like it, Schempp before Val (1975), L.Ed.2d 343 as that of the children ley Forge recognized that direct contact in Schempp, 374 223-24, U.S. at 83 S.Ct. with an unwelcome religious exercise or 1560, to whom prayers school read, were display works a personal injury distinct plaintiffs in Equity Women’s Action from and in addition to each gen citizen’s (WEAL) League Cavazos, 880, 879 F.2d eral grievance against unconstitutional (D.C.Cir.1989), 884-85 who were government enrolled conduct,” Suhre, 131 F.3d at or employed in segregated schools, and 1086. Their alleged “genuine feeling of legislator Chambers, state in Marsh v. exclusion from ..., the community and the 783, U.S. 786 n. 103 S.Ct. 77 deep offense perceived from a insult to (1983), L.Ed.2d 1019 objected who “as one’s view by committed gov member of the Legislature” to the use aof ernment in one’s community,” Ariz. Civ. state-employed chaplain to convene its ses- Liberties Dunham, Union sions. As members of a statutorily-de- F.Supp.2d 927, (D.Ariz.2000); see fined community forces, within the Suhre, armed 1087; Saladin, F.3d at appellants are not bystanders, mere 692-93, Allen F.2d at demonstrates that appel v. Wright, 737, 756, 104 S.Ct. lants have personal suffered a injury-in- 3315, 82 (1984), they did fact. not “roam the country,” Valley Forge To reach opposite conclusion, the Christian Coll. v. Ams. United Separa- ignores court both the nature of appel- tion State, Church lants’ charge and binding precedent. 102 S.Ct. (1982), First, the court describes charge as if in impermissible search of government ac- it concerns only religious discrimination in tion.6 traditional monetary terms, such as retire-

The uniqueness appellants’ injury as ment benefits not denied to appellants or chaplains in relation to their service “discrimination by suffered others.” See Navy Chaplain Corps eliminates the Op. 758-59, con- at 760-61, 764. ap- Yet cern expressed in Valley Forge that recog- pellants do not so delimit their charge; 6. Contrary to the court’s suggestion, Op. at sonalize their stake the suit. See 764, Valley Forge 486-87, included no 752; indication that at see also ASARCO the Supreme questioned plaintiffs' Kadish, Inc. standing ground on the government that a 104 L.Ed.2d 696 As our sister land transfer to a held, institution could circuits have ValleyForge's holding, 454 not send a message government endorse- suggests that ment religion and thus violate the neighbors Estab- Valley "[t]he Forge,” Op. at lishment Clause. The Court based its Article may very be plaintiffs who would have holding III on the fact that See, Suhre, did standing had e.g., there. live state where the land transfer Washegesic, 682-83; 33 F.3d at occurred, had had learned indirectly it about ACLU Ga. County v. Rabun Chamber release, through press Commerce, Inc., and indicated no connection with the (11th transfer per- 1983). that could Cir. 150, 90 S.Ct. Camp, 397 U.S. Inc. v. Navy’s 4109 rather, allege that (1970), may ... person “[a] the Establishment violates Amendment government in First creating stake spiritual have a Chaplaincy, to raise give preference, values sufficient thus does Appellants’ 302.7 the Establishment concerning issues any indi- of mistreatment hinge upon by the chal- directly if affected Clause” al- upon the but chaplain vidual 154, id. at practice, governmental lenged for an- of a endorsement leged 203, 374 U.S. (citing Schempp, 827 90 S.Ct. directly affects faith other 844); 1560, Valley L.Ed.2d see 83 S.Ct. 10 ignores focus narrow The court’s them. 22, 102 & n. at 486-87 454 U.S. Forge, that, in as- requirement the Constitution’s 755, Allen, Later, at 468 U.S. 752. S.Ct. injury, keep “we constitutional sessing 3315, plain- that a holding while 104 S.Ct. ways in which myriad, subtle ‘the mind violation equal protection an alleging tiff can be erod- values Establishment Clause denial of personal claim a must generally ” the mistreat- ed,’ that in addition treatment, ob- Supreme Court equal individual, guard [must] “we of an ment no doubt that can be that “[t]here served different, impor- yet equally other against stigmatiz- injury as [such ... noneconomic such as injuries,” tant, constitutional serious con- of the most ing injury] is one of a gov- implementation unconstitutional discriminatory government sequences Indep. Fe Sch. Santa policy. ernment circum- in some is sufficient action and 290, 314, Doe, 120 S.Ct. 530 U.S. Dist. v. fact, standing.”9 support stances (2000) (quoting 295 2266, L.Ed.2d 147 the merits has reached Supreme Court 694, 104 S.Ct. 1355 at 465 Lynch, U.S. Clause cases in numerous Establishment (O’Connor, J., concurring)). offense,” Op. at personal where “mere per- “mere Second, states that the court connec- 761-62, plaintiffs from a resulting injury is never or emotional offense” sonal appears challenged practice tion to 763, Op. at injury, III enough for Article possible injury main provided have Supreme law.8 As is not the but that Fourth Circuit As the standing.10 ground acknowledged Association has observed: Organizations, Processing Service Data 884-85; WEAL, Gray See, v. e.g., 879 F.2d at appellants 9. suggests that Although the court 7. 169, Lines, E., 175 F.2d Greyhound 545 allegations, Op. aspects of waived their have Hunt, 517 (D.C.Cir.1976); v. also Shaw 763, 764, is the record clear at 1894, 904, 899, 135 S.Ct. 116 U.S. their Establishment abandoned Hays, 515 v. (citing United States 207 charge endorsement of an unconstitutional 2431, 737, L.Ed.2d 635 132 S.Ct. 115 particular- U.S. denomination 630, Reno, (1995); Shaw v. Arg. Tr. 8- personally. Oral to them ized (1993)); v. 2816, 511 125 L.Ed.2d appel- it is 10; emphasized that Counsel Trafficante 25. Co., 93 Metro. Ins. program 4109 [with the "direct contact lants’ Life (1972); 364, H. Richard 415 34 L.Ed.2d S.Ct. message] small commu- because Harms, Niemi, Expressive G. & Richard Pildes injury, id. at their nity” creates Districts,” Voting Rights: Evalu chaplains, exposure as “Bizarre direct due to their Appearances ating Election-District type as a After they experience the 483, Reno, 511-15 discrimination, religious gerryman- Shaw “a Mich. L.Rev. faith Educ., U.S. (1993); Bd. Brown der,” to favor one draws lines” "[i]t because cf. 762-63; 98 L.Ed. Id. at religious faith another. over Br. at 27. Appellants' see also See, Perry, U.S. e.g., Orden v. Van (2005); 162 L.Ed.2d Cruelty See, ’y Prevention e.g., Am. Soc. 853, 125 County, McCreary & Ringling & Barnum Bros. Animals 2649; Lee, (D.C.Cir. Circus, Bailey Pitts- Greater County v. ACLU Allegheny 2003). plaintiff [T]he Establishment Clause “religious as to use religious sym words or likely to suffer physical injury or bols,” Op. at to establish unconsti pecuniary loss. Rather spiritual, Rather, tutional endorsement. value-laden beliefs of the “the Establishment Clause forbids subtle directly often most affected an al- departures neutrality, ‘religious from ger leged religion. establishment of Accord- rymanders,’ well as obvious abuses.” ingly, rules of recognize that Gillette, 91 S.Ct. 828 intangible injury noneconomic or may (quoting Comm’n, Walz v. Tax suffice to make an Establishment Clause 664, 696, justiciable. claim (1970) (Harlan, J., concurring)). And, “the Suhre, 131 F.3d at (quotation marks most basic command the Establishment omitted); and citations supra see note 5. (and prefer Clause—not to religions some

Equally problematic is the at- thereby court’s approaches some to indoctrinating tempt to contrast appellants’ case with religion) to others” —does only not apply has, those the government where in the government a action such prayer as a or words, court’s “actively directly and com- ceremony explicitly adopts a denomi religious a message through municat[ed] nation’s chosen religious symbols, but also religious words or religious symbols,” Op. to other action taken in the usual course of at 764. precedent Establishment Clause is government regulation or operation. not conveniently so cabined into the nar- NLRB, Univ. Great Falls v. 278 F.3d row by court, circumstances described 1335, (D.C.Cir.2002) 1346 (citing Larson v. where government itself “engag[ed] Valente, 228, 244, 456 1673, U.S. 102 S.Ct. religious speech,” id. For thing, one see, (1982)); 72 L.Ed.2d 33 e.g., Mt. Royal government need intentionally favor Venture, 748; Joint 477 F.3d at Littlefield one religious denomination over another in Dist., v. Forney Indep. 275, Sch. F.3d 268 order to violate the Establishment Clause (5th Cir.2001). Thus, 294 government ac if its action has such an effect.11 When tion that a draws line around religious considering whether a government action denomination community in a can send a has the effect of conveying denomina- symbolic message that needs endorsement, tional “[t]he question gov- no just words easily as as govern ernmental neutrality is by not concluded ment’s direct presentation religious of a the observation that policy] [a on its face See, symbol. e.g., Vill., Kiryas Joel makes no discrimination between reli- 697, U.S. at Larkin, (citing 114 S.Ct. 2481 gions.” States, Gillette v. United 401 U.S. 125-26, S.Ct.505). 437, 452, 828, 91 S.Ct. 28 L.Ed.2d 168 (1971). Equally important, there also is no The court ignores all of precedent requirement that government go so far adopting the novel conception appel- 573, 587, burgh 3086; Chapter, 492 U.S. Den, Inc., 109 S.Ct. Larkin v. Grendel's 3086, (1989); 116, 125-26, 505, Edwards v. 103 S.Ct. 74 L.Ed.2d 578, 581, Aguillard, (1982); Kurtzman, 107 S.Ct Lemon (1987); Jaffree, 602, 612-13, Wallace v. 29 L.Ed.2d 745 (1971); 86 L.Ed.2d 29 Royal Mt. Joint Kempthorne, Venture v. (1985); Lynch, 465 U.S. 104 (D.C.Cir.2007); 77 F.3d 4 1355; Op. see also at 763-64 & n. 4. United Christian Scientists v. Christian Sci. Dirs., Christ, Scientist, Bd. First Church See, Felton, e.g., Agostini 11. (D.C.Cir.1987); 1161-62 Allen Morton, (1997); (D.C.Cir.1973) County Allegheny, (Tamm, J., Robb, J., U.S. at joined by concurring). religious particular to a benefits copyright purposes harmed are lants ... upon Church “bestowed Clause institution the Establishment standing under guardian of recognition as directly symbolic uses reli- Navy itself unless text,” consequent practical in the with as occurred symbols [contested] words gious cases, 764-65. the unmistakable Op. at advantages, “ha[d] display religious in a cause.” precedent the Church’s distinguish advancing effect Rather than holding Scientists, manner, court’s F.2d at reasoned Christian United institution “[w]hen Although the assertion by government affected symbols, not themselves words used alone of- abstract through their except action of one treatment government’s unusual conveyed allegedly message at the fense unqualifiedly “unequivocally church injury- action, not shown they interpreter first endorsed [it] Establishment bring an in-fact to Id. [copyrighted] work.” guardian th[e] context distinct claim, outside at least Commack, also prayer cases.” display of the Yet, original). (emphasis at 764-65 Id. chapla- Here, of their the context within Clause, very at the “[t]he of a in the absence incy assignments and appear- from least, government prohibits the 4109 explanation, legitimate questions of on position a to take ing religious as a fairly be understood could ‘making adherence or from religious belief of it has the effect because endorsement way to a any relevant religion a to “religious words selecting particular ” community,’ ... standing in the person’s enhanced play to an Op. at symbols,” at 109 Allegheny, County of by Chaplain Corps Navy the role within 465 U.S. at Lynch, (quoting 3086 of retaining only representatives specially J., (O’Connor, concurring)) 1355 service for extended faith the Catholic gov- the added), directs and so (emphasis speech on religious they engage which “may practice a to avoid ernment Indep. Fe Santa Corps. See behalf of to or dissenter to the nonbeliever appear Dist., 307-09, 120 S.Ct. at Sch. machinery of attempt employ an be for all chaplain, as job of a religious a to enforce [government] particu- a representing chaplains, requires Lee, at orthodoxy,” U.S. ministry “religious a lar as denomination added). Moreover, awhen (emphasis “individual endorsed an professional,” cases involv- “[i]n reaches merits court organization religious a represent reli- a participation ing [government] cere- observances its conduct of employment as activity” gious —such 1304.28, Guidance Instruction monies.” ministry pro- chaplains as Chaplains for Appointment for the ob- is “whether an question fessionals—the ¶¶ 6, (Dep’t E.2.1.9 Military Departments perceive [its would ... jective observer 2004); England, see June Def. endorsement” [governmental] as a action] understood, due 1171.12 So F.3d at Dist., Indep. Sch. Fe Santa religion. the 4109 exposure direct appellants’ (quotation 530 U.S. at Catholics, the for program’s secular act Even so marks ... “message conveys to held, Navy them this court a grant copyright, de- the favored nonadherents exceptional [as providing aground ran because 1730.ID, 12, 2000); Reli- 1730.7B, Religious Instruction Oct. Instruction 12. See also ¶ Navy, (Dep’t of Navy 4 Ministry gious in the Department of Ministry Support within 6, 2003). May Operations ¶ of Ch. of Naval Sec’y Ofc. Navy, (Dep’t Ofc. of Navy 4.a outsiders, nomination] not full 33 F.3d at one feel making like members ... community,” ],” Saladin, “second class citizen! McCreary County, 545 U.S. at 693; Suhre, see 131 F.3d at 1090. This (quotation omitted), S.Ct. 2722 marks for directly follows from Chaplaincy and Su- government! “the [appears lending ] to be] preme precedent, both of which the support to the communication of a reli- court misconstrues. Because appellants’ gious organization’s religious message,” injury-in-fact traceable to the County Allegheny, program likely and is to be redressed 3086; Larkin, 125-26, see by holding that is unlawful 505; Commack, 294 F.3d at enjoining preferential treatment of Scientists, United Christian 829 F.2d at and the message it sends to 1170-71, and thus causes them psychologi- appellants, they also meet the other cal harm as Navy chaplains that cogniza- prongs test, the standing Lujan, see ble under the Establishment Clause. 112 S.Ct. 2130. event, In any whether the Navy’s 4109 Accordingly, I would reverse the denial program sends prohibited message is a of the motion for a preliminary injunction question merits is not before the leave the district court to deter- court, Servs., Handling Inc. v. Info. mine upon remand appellants whether Servs., Automated Printing Def. have otherwise requirements met the (D.C.Cir.2003). course, Of obtaining preliminary injunction, see premature court’s determination of this is Chaplaincy, 454 F.3d at respect- may sue arise from the realization that if a fully dissent. Because appellants have Ar- personally observed message III ticle I standing, do not ques- reach the causes harm “there would be traditional tion whether also taxpayer standing,” Navy’s as the counsel acknowl standing. edged, Arg. 13; Oral Tr. at see also id. at 18-22. At point in the proceedings in

determining however, Article III standing,

the court must assume the merits appel

lants’ charge pro

gram “d[oes], fact, convey” a message of

denominational preference directly harm ASSOCIATION OF CIVILIAN TECH- ing them chaplains. Vasquez, NICIANS, PUERTO RICO ARMY 1251; Warth, Chapter, Petitioner 2197; Servs., Handling Info. F.3d at City EPA, Waukesha v. (D.C.Cir.2003). FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

Under the Clause, then, appellants’ membership in a narrowly de- No. 07-1422. fined community Navy Chaplain —the United States Court Appeals, Corps directly affected pro- — District of Columbia Circuit. gram, and the message this program com- municates to them as particular- Argued May injury-in-fact, izes their practices for “[t]he Aug. Decided community [one’s] own may create a larger psychological wound than someplace just

[one passing through,” is] Washegesic,

Case Details

Case Name: Chaplaincy of Full Gospel Churches v. United States Navy

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 1, 2008

Citation: 534 F.3d 756

Docket Number: 07-5359

Court Abbreviation: D.C. Cir.