*1 Bonham v. be tolled.4 See period should Industries, Inc., 187, Wieder, 569 F.2d
Dresser Joel KATCOFF and Allen M. (failure Cir.1977) post notice tolls (3rd Plaintiffs-Appellants, complainant con period until limitations v. acquires actual attorney an with sults MARSH, Jr., Secretary of John O. denied, 821, cert. knowledge), 439 U.S. Army, Department Army, 87, (1978). L.Ed.2d 113 Cano’s S.Ct. Defense, Department De- during period illness limitations fendants-Appellees. knowledge attorney’s her not affect 352, No. Docket 84-6184. appropriate to her situation. legal remedies id.; v. Kaiser Aluminum & See Edwards Appeals, States United Court of Sales, Inc., supra.5 Chemical Second Circuit. 29, Argued Oct. 1984. tolling hold that is not
Since we instance, failure to Decided Jan. 1985. justified in this Cano’s charge of discrimination within the file her period relief in the dis
required time bars Webster, v.
trict court. See Kizas 707 F.2d (“Relief (D.C.Cir.1983) under Title cases,
VII, private public sector both filing generally dependent upon the of a
is charge”), cert. de
timely administrative — States, sub nom. Kizas v. United nied -, GSA, also Brown v. 425 U.S. See (“Initially, at 1967
complainant must seek relief [feder allegedly agency that has discriminated
al] him”).6
against judgment of the district court is
affirmed.
Meskill, concurring Judge, Circuit filed dissenting opinion. period apparently of limitations or about the reasons relied on a “cеr- The district court 4. indicating Meyer Riegal official Products a Postal Service her dismissal. tificate” that the Cf. posting (where required had occurred. There Corp., supra mis- at 303-304 defendant however, question, as to whether some tolling appropriate plaintiff, even leads requirements for satisfies the counsel). this "certificate" affidavits set forth not decide whether though plaintiff has consulted 56(e). We do in Fed.R.Civ.P. another, it does as there is government’s argu- 6. We need not consider clear, ground for affirmance. proper party ment that Cano failed to name as defendant. allege employer or that her Cano does not anyone attempted mislead her about the else
joel Katcoff, City, pro (Al- New York se Wieder, len brief). M. York City, New Tepper, Miles M. Asst. Atty., U.S. Brook- lyn, (Raymond Dearie, N.Y. Atty., J. E.D.N.Y., Patrick Northup, B. Asst. U.S. N.Y., Atty., Brooklyn, Lt. Col. Michael J. Nardotti, Jr., Maj. Folk, Dept, Thomas R. D.C., Army, Washington, of coun- sel), for defendants-appellees. FEINBERG, Judge, Before Chief MESKILL, MANSFIELD and Circuit Judges, MANSFIELD, Judge, Circuit appeal This questi0n raises the of wheth Congress er and the United States (“Army”), in furnishing chaplains part arme(j of our forces to enable soldiers tо practice choice, religions of their violate that, except the Constitution. We hold in a respects require tew further consider- a^’on, they do not.
Appellants,
practicing attorneys
two
who
were Harvard Law School students when
action,
appeal
commenced the
from an
York,
July
Congress
the Continental
of New
On
of the Eastern District
order
granting
McLaughlin, Judge,
Army chap-
Joseph M.
authorized that a Continental
dismissing
(1775),
their com-
summary judgment
paid, Cont.Cong.Jour.
II
lain be
injunc-
declaratory and
which seeks
plaint,
year
George
General
Wash-
within
against continuation of
relief
tive
regimental
ington directed that
Continental
program as violative
Army’s chaplaincy
procured. V Writ-
Army chaplains
affirm ex-
We
Establishment Clause.
Washington From
*3
ings
George
The
of
applies to
the order
cept to the extent that
(J.
Original Manuscript Sources 244-45
program,,
aspects of the
specific
fewa
1932).
Fitzgerald ed.
for further
and remand
which we reverse
the
Upon
adoption
the
of
Constitution
proceedings.
the
1791 ratification
and before
December
powers
Congress,
in the exercise of its
Congrеss
Amendment
authoriz-
of the First
§I,
the
to
Art.
of
Constitution
under
appointment
ed the
of
commissioned
national
the conduct of our
provide for
3, 1791,
Army chaplain. Act of March
Ch.
defense,
Army
the
an
for
has established
§
XXVIII,
then,
5, 1 Stat. 222. Since
as
“preserving
peace
the
and se-
purpose of
Army
military
has increased in size the
defense,
of
curity,
providing
for
chaplaincy has
extended and Con-
been
§ 3062(a),
States,” 10 U.S.C.
the United
gress
Army
has increased the number of
“organized peace
that the
and has directed
See,
e.g.,
12, 1808,
chaplains.
April
Act of
Army” consist of all
of the
establishment
481;
January
Act
Stat.
of
“necessary to
organizations
persons
671;
5, 1838,
CLXII,
July
Ch.
Act of
Stat.
complete
and immedi-
form the basis for
§ 18,
259;
11,1847,
February
5 Stat.
Act
in
national defense
for the
ate mobilization
§
124;
VIII,
February
9 Stat.
Act of
Ch.
emergency,” 10
of a national
the event
123;
22, 1861,
July
Act of
9 Stat.
§ 3062(d).
specifically autho-
It has
U.S.C.
§
IX,
9, 12 Stat. 270.
Ch.
part
this establishment
rized that as
approximately
Army
In 1981 the
had
Army,”
“Chaplains in the
who
there be
1,427 active-duty
chaplains,
commissioned
Chaplains, and
the Chief of
shall include
1,383
auxiliary chaplains,
chaplain’s
as-
officers of the
and other
commissioned
sistants,
Religious
Edu-
and 48 Directors
chaplains.
10 U.S.C.
Army appointed as
chaplains
appointed
cation. These
are
§
§
chap-
each
10 U.S.C.
3073. Under
rank and uni-
commissioned officers with
practicable,
to hold
required,
lain is
when
command.
10 U.S.C.
form but without
to
the command
religious
services
§§ 3293,
applicant may
Before an
perform
assigned and to
burial
which he is
chaplain he
appointed
position
to
in
die while
for soldiers who
services
endorsement from an ecclesi-
must receive
obligates
also
The statute
command.
facilities,
endorsing agency recognized by the
in-
astical
commanding
to furnish
officer
Board,
chaplain
Chaplains
of which
transportation,
to assist a
Armed Forces
cluding
States, repre-
Id.
performing
his duties.
there are 47
the United
to
senting
denominations.
In addition
forces with a
providing our armed
In
of the
meeting
theological
standards
Congress
perpetu-
has
military chaplaincy
endorsing agency
applicant
must also
during
began
Revolu-
facility
ated
requirements
meet minimum educational
adoption of our
days before the
tionary
Defense,
Department of
established
Constitution,
ever
and that has continued
stringent
than those
are more
then,
chaplaincy
the size of the
since
having en-
religious denominations
some
the in-
larger
proportion
growing
designed
in-
dorsing agencies
Army. When the
in the size of our
crease
ability to communicate
applicant’s
sure
chap-
those
formed
was
Continental
to administer
of all ranks and
with soldiers
militia of the 13 colo-
to the
lains attached
deciding upon the
programs.
country’s first
of our
part
nies became
appointed
chaplains to be
denominations of
227 Army, experience members increased military personnel made religious pref- following being revealed needs for as the result of 1979 among personnel: enlisted environments, erences uprooted from their home transported often thousands of miles to Protestant 38.5% entirely them, strange territories 22.5% Catholic confronted there with new stresses 2.5% Mormon would not otherwise have been encountered Eastern Orthodox 0.5% if had remained at home.2 In 1981 Moslem 1.0% 0.7% Jewish approximately Army’s active 37% Buddhist 0.7% sоldiers, 293,000 duty amounting per- religions not listed 19.3% Other sons, were stationed overseas in locations religious preference No 14.3% Sinai, Greece, Turkey, such as or Korea. of these most areas Judeo-Christian arising problems out of Aside from the hardly faiths of most American soldiers are pluralistic nature of the sheer size 1980 DENOMINATION 1981 DENOMINATION 1980 1981 Reformed Church in America 8 2 2 7 Eastern Orthodox Presbyterian Evangelical Reformed Fellowship 1 1 Elim Synod Evangelical 1 8 Church in America 1 8 Seventh-Day Evangelical Congregational Adventist 7 4 3 7 Baptist Evangelical Southern 176 Free Church 9 162 9 Unitarian-Universalist Evangelical Association 2 Church 2 Covenant United Church of Christ 38 America United Methodist Evangelical Methodist *5 Pentecostal, United Fellowship International 2 of Grace Brethern 3 3 3 Presbyterian, United Baptist USA 48 Holiness 1 1 47 Fire Wesleyan Square Gospel 2 6 7 Four 2 Gospel Full Pentecostal 1 1 reviewing summary In the district court’s Bap- General Association of General accepted judgment the order we have facts as tist 6 7 interroga- by parties in answers to set forth tories, affidavits, Regular Bap- General Association of (including Army and exhibits tists 17 17 pamphlets, manuals and other United field Gospеl Fellowship Grace 0 1 publications) to the extent States Government Independent Fundamental Churches they by facts fur- are not controverted of America 12 11 by plaintiffs preferred in the form nished or Jewish 23 21 opposing affidavits. of Latter-Day Saints 18 20 Although Judge McLaughlin partially granted Latter-Day (Reorganized) Saints 1 1 strike, plaintiffs' motion to as not based on Lutheran Church in America 84 85 personal knowledge, some statements made in Synod Lutheran Church-Missouri 47 47 Army affidavits of various of Generals Free 7 8 Methodist Church other officers in direct command of our armed Missionary Church 1 1 Army’s chaplaincy program, forces and of the Moravian 2 3 by support which were filed the defendants in Bap- National Association of Free Will motion, simultaneously of their he informed the tists 4 4 parties accept that he would these affidavits as Baptist National Convention they evidence of the Generals’ views "for what America 6 7 worth,” i.e., (Pt. expert opinion. 2) are as See 6 Convention, Baptist National USA 30 33 Moore, J. Moore’s Federal Practice 56.22[1] f Nazarene 22 23 (2d 1982); ed. 1322-23 see abo United States v. Baptist American Conference No. 6 5 Corp., (E.D. F.Supp. Johns-Manville 259 457 Open Bible Standard 2 2 Pa.1966). Orthodox Church America 7 8 Presbyterian (Generals question 2 The Orthodox 2 affiants in Edward C. Johnson, Meyer, Vessey, Church of God in 2 2 Kermit D. Pentecostal America John W. Bagnal Kroesen) Charles W. Holiness 4 and Frederick J. Pentecostal 5 appear eminently qualified by Plymouth to be reason of Brethran 4 5 experience training testify their Presbyterian extensive 2 America 3 Church.in experts to the Presbyterian, matters sworn to them. Cumberland 11 11 not, plaintiffs Since the have with Presbyterian, one minor US (Aff. Mischke), exception of Rev. Carl H. fur- Progressive Baptist National Conven- contrary represented nished evidence or tion produced Episcopal such evidence could be obtained and Prostestant 22
represented clergy at all local through military services chaplains. In do- average separated soldier from the ing Army proceeded is local so the has on the populace by linguistic premise and cultural having uprooted wall. the soldiers problem Within the United States the same from natural habitats it owes them a that, way in a duty satisfy exists somewhat different their Free rights, Exercise although linguistic or cultural especially barrier since the failure do so would absent, morale, clergy local civilian in the thereby weakening be diminish our military camps rural areas most where national defense. inadequate satisfy
centered are the sol- religious To meet the needs of our armed religious they diers’ needs because are too Army chaplains forces and their assistants usually few number for the task and are engage variety in a wide of services to religious denominations from different military personnel and their families who nearby troops. those of most of the chaplain wish to use them. No is authoriz- problem meeting religious The proselytize ed to soldiers or their families. Army personnel compounded chaplain’s principal needs duties are to con- mobile, the' deployable religious nature of our duct (including periodic armed services forces, ready extremely who must worship, baptisms, marriages, funerals and transported like), short notice to from bases to furnish education to .(whether States) families, or not in the United to soldiers and their and to cоunsel parts distant duty respect world for combat soldiers variety with to a wide in fulfillment of our nation’s personal problems. international chap- In addition the lain, defense commitments. Unless there were relationship because of his close with chaplains ready simultaneously unit, to move the soldiers in his often serves as a troops spiritu- and to tend to their liaison between the soldiers and their com- death, manders, al possible needs as face advising the latter of racial un- lurch, rest, abuse, soldiers drug would be left reli- prob- or alcohol and other giously speaking. opinion top In the affecting lems efficiency morale and generals Army presently unit, helps those to find solutions. chaplaincy, chaplains unless were some areas the makes also available retreats, made available in such circumstances the in which soldiers volun- *6 motivation, willingness morale and tarily of sol- period withdraw for a short from the diers to face combat suffer living immea- routine of daily activities to another surable harm and our national spiritual defense location for reflection and renеw- would be accordingly. weakened al.
Many Army soldiers the also suffer For comprehensive this religious pro- serious stresses from other gram causes attribut- involving hundreds of of thousands largely able military service, to their families, which soldiers and their Army has a can be alleviated counseling spiritu- and large fairly and elaborate administrative al assistance from a respec- leader of their organization, including only the chap- not Among tive faiths. these are tensions cre- lains but supporting personnel, also facili- by separation ated homes, from ties, their publications, loneli- supplies. and other The duty ness when on in strange surroundings Chaplains, Chief of major general of the involving people language whose Army, or cus- general is in supervision and man- share, toms do not facing agement fear of of the Army’s chaplaincy. His assignments, combat new hard- (1) financial office contains three divisions: Adminis- ships, personality conflicts, drug, and alco- Management, which, tration and among family problems. hol or The soldier faced things, other maintains liaison with reli- problems of these gious home would organizatiоns, (2) Plans, and secular usually spiritual be able to consult his Programs Policies, (3) ad- and and Personnel viser. Army The seeks to furnish the same and Ecclesiastical Relations. These divi- 56(e) 56(f), required by "expert opinion,” as Fed.R.Civ.P. and appear satisfy to us to requirements 56(e). statements of affidavits furnished Rule
defendants, whether or not labelled "views” or
($412,000).
Department of
rectors
closely with the
Some
million of
$7.7
sions work
Chaplains Board.
funds,
Armed Forces
non-appropriated
representing
Defense
vol-
Army
or ac-
years the
has built
Over
untary
designated
contributions or
offer-
chapels
are
than 500
quired more
ings
dependents,
from soldiers and
religious
of
services
used for the conduct
year
were also used
the fiscal
1981 to
In addi-
denominations.
many
of
different
provide
Army’s chapla-
for the needs of the
Religious
more than
tion it has built
incy program. Generally speaking, non-ap-
Facilities,
used for
which are
Educational
propriated funds are used for denomina-
religious services-and classes
purchase
tional activities such
and members of their
education for soldiers
sacred items and literature and thе salaries
children).
(including
ages
all
families of
organists
and the choir directors.
made avail-
Army
purchased
has
and
The
Appellants’ complaint, filed on November
voluntary
by various denomi-
for
use
able
23,1979,
declaratory judgment
seeks a
kits,
chaplain’s
vocation-
nations numerous
vestments,
program
kits,
foregoing
and
and
violates the Estab-
al
communion sets
(including Holy Scrip-
religious publications
injunctive
lishment
relief.
Clause
Prayer
for
Person-
tures and
Books
Jewish
complaint alleges that
the “constitutional
nel,
Lord
New Testament of our
rights Army personnel
depend-
and their
Christ, and a Book of Wor-
Jesus
Savior
freely
ents to
exercise their
can
developed Cooperative
Cur-
ship), and has
Chapla-
served
an alternative
better be
Religious
Education
riculum
incy program
privately
which is
funded and
Forces. Professional education and
Armed
33).
(Compl.Par.
controlled.”
the dis-
Army
training
furnished to
has also been
appellants
trict court and here
have not
chaplains.
questioned
satisfy
the need to
the Free
provid-
huge
task faced in
In view
rights
military personnel
Exercise
but
forces the
ing religion to оur armed
funding
government
have claimed that
has,
chaplains, employed
civil-
in addition
chaplaincy program
unnecessary.
carrying
out the
ians to assist
them
However, appellants have- offered no evi-
of Reli-
These include Directors
program.
many religious denomina-
dence that
Education,
chaplains,
assistants
gious
organizations
sup-
tions and
involved would
who
organists, voluntary
teachers
than
port or finance such a
other
voluntary religious educa-
participate in its
July
affidavit of
Rev. Carl
“auxiliary
program,
tion
a small number
Mischke,
Spiritual
President
Leader
H.
clergy”
chaplains” and civilian or “contract
Evangelical Lutheran
the Wisconsin
perform denomina-
employed
who
Synod
Synod’s scrip-
to the effect that
military community
services for the
tional
pastors
principles
permit
tural
do not
operational
require-
when
accept
military chaplains
appointment as
permit
chaplains
for such de-
ments
*7
expense
responsibil-
and
but that at its own
religions
are unavailable
nominations
conducted a civilian
ity
successfully
it has
military installation.
the
chaрlaincy program
pas-
under
its
which
chaplaincy’s
great majority
provided spiritual support for
tors have
its
services, facilities,
supplies
pro-
and
in
serving in the armed forces
members
Army through
appropri-
by
cured
funds
States,
Europe.
For
United
Vietnam
to
by Congress, which amounted
over
ated
provided lo-
these activities the
has
year
million for the fiscal
$85
including
by military
travel
gistical support
used to
more than
was
$62
which
million
aircraft,
quarters at full-service
transient
compensation of
and other
pay the salaries
rates,
privi-
exchange privileges, open mess
chaplain’s assistants and auxilia-
chaplains,
military postal and bank-
leges and use of
chaplains. Much smaller amounts were
ry
opinion his
ing facilities.
In Rev. Mischke’s
chaplains
paid for the services of contract
fully effec-
Synod’s
chaplains are
civilian
($332,000),
religious education
directors of
mili-
in
ministering
in
to its members
($221,000),
organists
choir di-
tive
(USAREUR) Chaplain
Army Europe
unduly
States
and do not
burden
tary service
years
who has had 26
active
since
finances.
chaplain.
In
duty service as a
an October
affida-
Rev. Mischke’s
response
tо the
security
he
to the
1982 affidavit
attested
President of Con-
Hyatt,
W.
vit Gerhardt
permitting
encountered in
access
problem
Paul, and Vice-President
College, St.
cordia
clergy,
facilities
civilian
Synod,
Missouri
of the Lutheran Church
to the
limited service rendered
USAREUR
Army chaplain in the
an
served as
who
Synod
chap-
civilian
the two Wisconsin
Guam,
States,'
Korea and
Europe,
United
lains,
pointed
out that
event of
period
during the
at various times
Vietnam
along
evacuated
hostilities
would be
1975, rising
position
to the
1945 to
from
other civilians.
with all
Chaplains, and who is fa-
Deputy Chief of
ministers of
activities of civilian
miliar with
Shortly
commencement of the
after the
Synod, gives a somewhat
the Wisconsin
court,
opin-
in an
present action the district
picture in an
1982 affida-
different
October
Mishler,
Judge
ion
denied defendants’
that there
no Wiscon-
He swears
were
vit.
complaint,
which was
motion to dismiss
serving
Synod
chaplains
civilian
soldiers
sin
grounds (1)
plaintiffs
sought on the
that
locations;
only
U.S.
that
in certain
(2)
standing,
Army’s chapla-
lacked
that the
Europe
in
religious support
in locations
incy program did not violate
First
one week-end
he was stationed was
where
Amendment,
(3)
complaint
that
retreat;
during
period
that
political question
subject
not
presented a
staff of the
he was on the
Office
when
judicial
Relying principally on
review.
Europe,
Army Europe in
United States
Cohen,
Flast v.
392 U.S.
clergy
required to
which civilian
were
(1968), Judge Mishler held
231
83,
1942,
Separa-
For
College v. Americans United
(1968).
88 S.Ct.
20 L.Ed.2d
947
State, Inc.,
in Valley Forge,
supra,
454 U.S. Unlike the issue
tion
Church
of
defendants,
752,
(1982),
464,
relied on
which
102
(1983),
practice
vanee
legis-
that,
practice
opening
arrange
involving
program,
as with
tion of the
prayer, “the First
with a
organizations
lative sessions
many church
ments
no real
...
saw
Amendment draftsmen
denominations,
entangles
different
Clause,” id.,
to the Establishment
threat
accrediting bod
government with
3335, arising
at-,
jes.
tice ...
and maintain-
statutes
nor
Clause
Commission, 397
Tax
v.
aside.” Walz
interpret
Army chaplaincy
mg the
1416,
1409,
678,
664,
90 S.Ct.
U.S.
vacuum.
they existed
a sterile
ed as if
Mary-
v.
see McGowan
(1970);
L.Ed.2d 697
light of the
They must be viewed
1101,
429-49,
land,
420,
81 S.Ct.
366 U.S.
background of their enactment
historical
(1961).
1107-17,
6 L.Ed.2d
light
pur
on the
sheds
extent
it
Constitution,
the Framers
pose that our
against
the threat
protect
To
664,
Commission, 397 U.S.
v. Tax
Walz
might by indi-
governments
or state
federal
680,
25 L.Ed.2d
90 S.Ct.
protection of
legislation erode the
rect
Schempp,
v.
(1970); Abington
Dist.
School
Supreme Court
Establishment Clause
Walter,
194,
(1980);
v.
Den, Inc.,
Wolman
L.Ed.2d 199
459 U.S.
v. Grendel's
3. See Larkin
2598-99,
229, 235-36,
(1982);
97 S.Ct.
433 U.S.
Stone
103 S.Ct.
39, 40-41,
Graham,
L.Ed.2d
193-
*10
203, 212-14,
1560,
§
I,
374 U.S.
S.Ct.
1565- War Power
8,
Clause of Art.
which
67,
(1963). They
gress ... and with
available to soldiers
result, “[wjhile
military-
the members of the
who have been moved
*11
protection grant
excluded from the
are not
religion
areas of the world where
of their
Amendment,
by
First
the different
ed
own denominations is not
available
them.
military community and of
character of the
compulsory
Otherwise the effect of
mili-
requires a different
military mission
tary
rights
service could be to
violate
Parker
protections.”
applicаtion
those
Religion
under both
Clauses of the First
758,
2547,
733,
Levy,
v.
94 S.Ct.
417 U.S.
Army provided
Amendment. Unless the
Brown v.
2563,
(1974);
41
439
L.Ed.2d
chaplaincy
deprive
it would
the soldier of
Glines,
348,
594,
444 U.S.
100 S.Ct.
right
his
under the Establishment Clause
(First
(1980)
Amendment
L.Ed.2d 540
not to have
inhibited and of his
limited);
Middendorf right under the Free Exercise Clause to
rights
officer
25,
1281,
Henry, 425 U.S.
practice
freely
religion.
his
chosen
As the
(1976) (servicemen do not
Commission,
v.Walz Tax
Court stated in
right to counsel in
have Sixth Amendment
supra,
236 56(e), funding quired by sought Rule
Only the nor under source substan- 56(f) “permit differ.” Rule religious practice would continuance to affida tive 17-18). or depositions Br. vits to be obtained to (Appellants’ Reрly discovery taken or be had” would disagree. part, most we For the an issue but instead have create such rest with, begin have described To defendants general ed on their denial of the accuracy performed functions in detail the various of the affidavits submitted the defend Army’s inability chaplains and the response ants insufficient rebut special clergy organiza- civilian of local relied on facts defendants. clergy to meet the tions of civilian Service, First National Bank v. Cities many different denominations needs 1575, 1593, U.S. They in the armed forces. note (1968); Wyler v. United L.Ed.2d clergy among inadequacies of a civilian States, Cir.1983); (2d In 725 F.2d ability many questionable be the Corp., Re B.D. Intern. Discount 701 F.2d denominations, the smaller particularly — denied, (2d Cir.), cert. 1077 n. ones, chaplaincy to fund a civilian -, military subjects training lack of (1983); SEC Research Automation chaplain the civilian needed enable Corp., Cir.1978). (2d 585 F.2d effectively in the field. function short, plaintiffs’ proposal is so *13 response to the detailed affidavits sub- inherently impractical as to border on the by pursuant the mitted defendants to Fed. frivolous. Absent some substantial evi 56(e) plaintiffs not for- R.Civ.P. hаve come might dence it be realm that within the through or offer ward with evidence feasible, taxpay the we do not believe that discovery depositions or to that establish ers, lawsuit, merely by instituting a involved, many religious the denominations engage costly to in a entitled and time-con Catholic, including principal the Protestant suming investigation broad-scale into an organizations and Jewish the United entirely speculative suggestion, made with States, süpport willing would and be to pay evidentiary believing out an basis for respective $85 shares of the million well-grounded the claim is in fact. See required operate chaplaincy to a civilian sup sole evidence in Fed.R.Civ.P. provide to such additional sums as claim, port plaintiffs’ the affidavits of required in be case of war national emer- the Rev. Carl H. Mischke of the Wisconsin gency. plaintiffs Nor come forward have Evangelical Synod, Lutheran even if ac reli- with assurances from numerous value, cepted hardly can at face serve as an organizations they gious involved that Church, indication Catholic agree upon to each would seek dеnomina- Religion, Jewish and the numerous other proportionate tion’s share of the overall favor, Protestant denominations would obligation financial and that would be financially support, much less a civilian respective willing able and to honor their chaplaincy. obligations in years ahead. It is obvi- ous from the evidence offered the de- Aside from the obvious financial infeasi- bility appellants’ proposal, enforceable fendants without commit- alternative part plaintiffs these no ments on various denomi- offer evidence that civilian chaplains accept military discipline, would be to main- nations unable would functioning chaplaincy. operation As- which to tain a civilian is essential the efficient suming hypothetically discipline that such a of our armed forces. This de- launched, thorough constantly willingness undergo it be could mands teetering training except An im- use the brink of disaster. of fire- arms, Army unit for practical alternative is no alternative at all. to remain with an time, plaintiffs specified obey period Since have not submitted affida- orders to furnishing showing overnight vits faсts that move to .other “specific that unit trial,” locations, might genuine is a re- thousands of there issue for quires loyal identification and as ordered on commit- away, and to advance miles needs____ peculiar in order risk their lives ment to their battlefield and dying. minister to the wounded does not consider it Committee wise to Thus, suggested alterna- plaintiffs’ arbitrary since impose pre- limitations on the chaplaincy amounts to tive of a civilian sumption that someone else will do this unsup- speculation, than nothing more S.Rep. 93-617, important task.” No. showing practical feasi- by some ported (1973). Cong., 93rd 1st Sess. 66 evidentiary survive the bility, it fails to Congress, having considered al- Thereafter defendants. showing advanced ternatives, adhered to the view that a mili- feasibility of a civil- Any doubt as to the and, despite tary chaplaincy was essential chaplaincy must in our view be resolved ian person- cutbacks in 1976 in the substantial Congress’ judicial deference favor of forces, only nel of the armed made minimal area, closely tied to decision in this which is chaplaincy’s staff. reductions Under functioning armed of our the efficient circumstances, including plain- all of the significant that from time to forces. It is will-o’-the-wisp,factually unsupported tiffs’ rejected proposals for Congress time aboli- proposal chaplaincy, for a civilian Con- military chaplaincy favor of tion of gress’ military chaplain- continuation of the or other alterna- dependence on civilian cy after such consideration should be re- See, e.g., tives, scale. albeit on a smaller spected upheld. Cong., Mil.Aff.Doc. No. 24th 1st Sess. Lastly, plaintiffs’ proposal if even were Cong., (1836); No. 30th 2d S.Misc.Doc. would, assuming the Lemon feasible it (1848); H.R.Rep. Cong., No. 33rd Sess. plaintiffs standard advanced were Congress, in 7-8 In 1924 1st Sess. applicable, the Establishment held violate the number of deciding to increase whether Army, by Congress, Clause. The financed hearings military chaplains, joint held would to at least some extent still be com- inability to the which witnesses testified manding chaplains support- the civilian clergy to meet the needs of the civilian *14 ing taxpayer-provided “logistical them with of civilian soldiers and the ineffectiveness training in support, coordination and mili- clerics, сompared military chap- when 18), tary (Appellants’ Reply affairs” Br. lains, and control soldiers. to deal with including transport, food and facilities. See, Chap- Increase the Number To Army: Hearings on S. 2632 lains appropriate We find that the more the and H.R. 7038 Subcommittees Before relevancy standard of to our national de Military on the Committees Affairs of necessity by fense and is reasonable met and the House the United States Senate Army’s existing great majority the Representatives, 68th Cong., 1st Sess. purpose ef chaplaincy activities. The and In the Senate Committee program religion, make fect of the is to counterpart Appropriations, after its House education, counseling and reli Army’s the needs for requested a review of military person gious facilities available to and military chaplains, studied the issue nel their families under circumstances and reported: practice religion would other where the for some of churches can care “Civilian practical matter to all wise be denied as a women and men but the needs of service result, As or a substantial number. a profound daily that are other needs there soldiers, willingness our their to morale of pre- not churches are the denominational serve, efficiency as an and the pared identify or meet. This is not the to our national defense rests instrument for history diminish the moral time in our to military chaplain part in on the substantial spiritual support which our nation Army’s vital our function cy, which is military person- has made available to ing. Ministry years. hundred nel for two however, areas, In a few the reason Armed men and women of our necessity for certain activities of ministry that re- able specialized is a Forces readily apparent. Absent some military chaplaincy not substantial evidence that it instance, large might feasible, in appears that some be within the realm of the it For centers, Pentagon taxpayers, merely in we do not such as at believe urban D.C., lawsuit, City by instituting in Washington, New York are entitled to Francisco, engage costly in government time-consuming funds San chaplains, investigation entirely facilities broad-scale into an provide used to military person- speculative suggestion, to “armchair” made without аn and retreats who, evidentiary government believing nel like other civil ser- basis for that the vants, daily well-grounded in to their homes and claim is fact. commute See Fed. weekends) (including spend their free hours R.Civ.P. 11. clergy where civilian and facili- locations Majority Op. at 236. just as available to them as to ties are conclusions, Given the breadth of these I non-military citizens. Plaintiffs also other appellate see no reason for us as an court government-financed Army assert subject chaplaincy services for retired provided to re- chaplains and facilities personnel chaplaincy program military personnel and their families. tired large (e.g., activities urban areas at the personnel worship ability If of such Pentagon City) and New York to further by is not in their own communities inhibited deeper analysis. my opinion, military service and funds for these fringe chaplaincy program activities of the chaplains and facilities would not otherwise majori- that would be examined under the govern- expended, justification for a ty’s mag- remand are not of constitutional religious support mental Investigation nitude. peripheral into these and, questionable notwithstanding them is performed by services military chap- some Congress military mat- our deference to judicial lains amounts to little more than ters, requires showing are rele- Where, nit-picking. here, plaintiffs reasonably necessary vant to and for the have failed in their basic constitutional at- conduct of our national defense funding tack on the chaplaincy pro- Army. A remand therefore becomes neces- gram, we judicial would do well to exercise whether, sary according to determine to restraint and limit our dispo- decision to the outlined, government the standard we have sition the broad-scale attack mounted financing military chaplaincy of a in these plaintiffs. purposes
limited areas for the indicated is I surmise that the remand ordered constitutionally permissible. majority only will serve to burden the dis- Accordingly, the order of the district parties trict purpose- court and the with a *15 except court is affirmed to the extent so Indeed, less task. a few moments of re- appellees. remanded. to the Costs suggest flection what the results of contin- factfinding likely ued will It be. is com- MESKILL, Judge, concurring Circuit knowledge military per- mon that retired dissenting. frequently military sonnel settle near a in- I Because believe that no remand is re- post exchange stallation where have quired, I would affirm the order commissary privileges and free medical entirety. district court in I dissent from service. Whether such retirees attend reli- majority’s gious so much of the decision as re- services on bases or seek counseling military chaplains verses and remands to the district court. from does not judicial seem to me to further in- warrant Judge Mansfield describes the alterna- quiry Judge McLaugh- on the record before proposal present chaplaincy pro- tive to the lin. gram plaintiffs who, advanced inci- — dentally, high ranking chapla- have never the mili- Some officers in the served tary inherently impractical incy undoubtedly “so as to are stationed at —as Judge I agree. Pentagon. expected border on the frivolous.” That at Department headquarters. Mansfield continues: of Defense may also officiate at of these officers Some services, just Popes Bish- say Mass addition to
ops continue duties. There has been
their hierarchical showing per- here that services
no Pentagon at- at or around the
formed personnel other than
tended
duty military per- rather than time Washington, in the D.C.
sonnel stationed Considering
area who live suburbs. military personnel
the distances services, travel to attend such such
have to
practices highly unlikely. would be
I would affirm the order of the district entirety.
court in its SONS, INC.,
DURANTE BROS. AND
Plaintiff-Appellant, BANK,
FLUSHING NATIONAL Jack Gelman,
Farber and Richard
Defendants-Appellees.
No. Docket 84-7221. Appeals,
United States Court of
Second Circuit.
Argued Sept. 1984.
Decided Feb. 1985.
Final Briefs Oct. Submitted