Posted on Nov 19, 2012 | by Ken Walker
EDITOR'S NOTE: This story, posted 11/27/12, is a replacement for the original version that was posted 11/19/12. Key changes were made in the first four paragraphs.
WASHINGTON (BP) -- Sixty-five chaplains alleging evangelicals have been discriminated against by the U.S. Navy are moving closer to a preliminary injunction in their case, even though many are nearing retirement age.
In early November, the District of Columbia Court of Appeals overruled a lower court's denial last January of the chaplains' injunction request. The plaintiffs had hoped the injunction would delay promotion board hearings until their motion challenging the constitutionality of the Navy's chaplain promotion procedures could be argued in court.
The appeals court ruling returned the case to a lower court for further action, with both sides to submit summaries of their pleadings and exhibits to federal District Court Judge Gladys Kessler by mid-December. Judge Kessler was assigned to the cases last April.
The evangelical chaplains contend the Navy's chaplain promotion process allows and encourages denominational discrimination and has favored mainline Protestants and Roman Catholics.
"We believe our statistics show discrimination and favoritism in the process the Navy has used," said Tom Rush, pastor of Berea Baptist Church in Social Circle, Ga. "I'm pleased that we finally have a chance to tell our side of the story."
Originating with a single lawsuit in late 1999, over the next seven years evangelicals from numerous denominations filed additional suits. The cases that weren't settled or otherwise resolved later were consolidated into one class action.
Art Schulcz, an attorney in Vienna, Va., hopes the ruling finally will move his clients closer to an injunction -- and then a trial.
"My hope is the court will look at our data and come to the conclusion that this system with its secret procedures allows all kinds of bias to enter into decisions," said Schulcz, a retired Army officer.
"We're looking for a level playing field, where promotions are based on how effective a chaplain's ministry is and how he's done in the field. It's not that way now."
The ruling does allow the plaintiffs to again press for a delay in the next promotion board meetings, tentatively scheduled for February.
While the U.S. Department of Justice has a policy against commenting on pending litigation, it has denied that the Navy engages in discrimination.
"With respect to the denominational preference theory, the Navy asserts that there is no factual basis for [plaintiffs'] claims that Navy chaplain promotion boards had discriminated against plaintiffs or would likely do so in the future," said a brief cited in the most recent ruling.
"Relying on its own statistical expert, the Navy challenges the methodology employed by plaintiffs' expert and asserts that its 'own evidence establish[es] the absence of any religious discrimination by the promotion boards.'"
In their ruling, the appeals judges said the district court made no factual findings to resolve the competing claims between the two sides. Schulcz said that is a primary reason it returned the case to district court.
The evidence the evangelicals have submitted includes a pair of analyses by statistician Harald Leuba.
Leuba said discrimination in the corps includes a pattern of candidates securing promotions more often when they come from the same denomination as the chief of chaplains.
"There is a now a 40 year long statistical record of preference for denominations which have had a member rise to chief of chaplains," Leuba said in his most recent court statement. "[That is] to the permanent and long standing disadvantage of all the chaplains who have never had one of their members rise to that level of influence."
The plaintiffs include 16 Southern Baptists. Some, like Rush, say winning on a matter of principle is the primary issue since they don't plan to return to active duty.
Two years after leaving active duty in 1994, the Georgia pastor enlisted in the Air Force Reserves and secured two promotions before he retired from that branch of the military in 2005.
"There are some [plaintiffs] who may have the opportunity to be promoted and serve, but what we're looking for is the Navy to do the right thing," said Rush, a member of the Georgia Baptist Convention's Executive Committee. "That is, change the system so that promotions for the chaplain corps are in the same way as promotions for all officers."
Greg DeMarco, who retired in September as pastor of Fincastle Baptist Church in Waxhaw, N.C., said he would like to see the line officers have more input.
"I have no thoughts of going back into the military. The fight has been going on so long that most of the guys are nearing retirement age. This is 15 years for me, and the fight was going five or six years before that," DeMarco said.
Jim Weibling, who left active duty in 1994 and continued in the Naval Reserves until 2005, said the contested policies allow discrimination not only by denomination but also by race and gender.
"To our disappointment, rather than change the contested policies, the Navy has worked to enact legislation that disallows public disclosure of illegal acts by board members and allows the discriminatory behavior to continue," Weibling said.
A pastor for many years after leaving active duty, Weibling now works in property development in the Houston area. He said chaplains as well as all others who serve their country should be graded on performance.
Ken Walker is a writer in Huntington, W.Va. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress
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