throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided August 1, 2008
`
`Argued April 24, 2008
`
`
`No. 07-5359
`
`IN RE: NAVY CHAPLAINCY
`
`
`CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,
`APPELLANTS
`
`v.
`
`UNITED STATES NAVY, ET AL.,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 07ms00269)
`
`
`
`
`
`
`
`
`
`Arthur A. Schulcz, Sr., argued the cause and filed the
`briefs for appellants.
`
`
`Lowell V. Sturgill, Jr., Attorney, U.S. Department of
`Justice, argued the cause for appellees. With him on the
`briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney
`General, Jeffrey A. Taylor, U.S. Attorney, and Robert M.
`Loeb, Attorney. Daniel E. Bensing, Attorney, entered an
`appearance.
`
`

`
`2
`
`
`
`Before: ROGERS and KAVANAUGH, Circuit Judges, and
`SILBERMAN, Senior Circuit Judge.
`
`filed by Circuit Judge
`the Court
`for
`Opinion
`KAVANAUGH, in which Senior Circuit Judge SILBERMAN
`joins.
`
`Dissenting opinion filed by Circuit Judge ROGERS.
`
`KAVANAUGH, Circuit Judge: A group of Protestant Navy
`
`chaplains sued the Navy, alleging that the Navy’s operation of
`its retirement system discriminates in favor of Catholic
`chaplains in violation of the Establishment Clause. But the
`plaintiffs do not claim that the Navy actually discriminated
`against any of them. We conclude that plaintiffs lack
`standing to bring this claim, and we therefore affirm the
`judgment of the District Court.
`
`I
`
`The U.S. Navy maintains a Chaplain Corps of
`
`commissioned Navy officers to meet the spiritual needs of
`those who serve in the Navy and their families. Like other
`officers, chaplains are subject to military regulations with
`respect to hiring, promotion, and retirement.
`
`The Navy divides its chaplains into four categories –
`Catholic, liturgical Protestant, non-liturgical Protestant, and
`Special Worship. As we explained in a previous opinion in
`this litigation, “liturgical Protestant” includes Protestant
`denominations that follow an established liturgy in worship
`services and practice infant baptism, such as Lutheran,
`Episcopal, Methodist, Presbyterian, and Congregational.
`Chaplaincy of Full Gospel Churches v. England, 454 F.3d
`
`
`
`

`
`3
`290, 294 (D.C. Cir. 2006) (Chaplaincy). “Non-liturgical
`Protestant” includes Protestant denominations that do not
`follow a formal liturgy in worship services and that baptize at
`the age of reason, such as Baptist, Evangelical, Pentecostal,
`and Charismatic. Id. at 294. The “Special Worship” category
`refers to other religious faiths, both Christian and non-
`Christian, and it includes Jewish, Christian Science, Seventh-
`Day Adventist, Mormon, Buddhist, Hindu, Muslim,
`Jehovah’s Witness, and Unitarian. Id. at 295 n.3.
`
`Plaintiffs are non-liturgical Protestant Navy chaplains,
`both current and retired.1 Plaintiffs filed suit, alleging that the
`Navy discriminates in favor of Catholic chaplains in certain
`aspects of its retirement system. See In re Navy Chaplaincy,
`No. 07-ms-269, slip op. at 1 (D.D.C. Oct. 15, 2007).
`Plaintiffs also sought a preliminary injunction.
`
`The District Court initially denied plaintiffs’ preliminary
`injunction motion, finding that the chaplains had not shown
`the necessary irreparable injury to support a preliminary
`injunction. See Adair v. England, Nos. 00-cv-566 & 99-cv-
`2945, slip op. at 2 (D.D.C. Feb. 7, 2005). On appeal, this
`Court reversed, explaining that, for purposes of a preliminary
`injunction, the allegation of an Establishment Clause violation
`itself demonstrates sufficient harm to satisfy the irreparable
`injury prong of the preliminary injunction test – assuming, of
`course, that the party has standing to allege the violation in
`the first place. See Chaplaincy, 454 F.3d at 303-04 & n.8.
`The Court therefore vacated the denial of a preliminary
`
`1 Plaintiffs also include certain organizations of non-liturgical
`Protestant chaplains. Because the organizations have standing in
`these circumstances only if one of their individual members has
`standing, we do not address them separately. See Hunt v.
`Washington State Apple Adver. Comm’n, 432 U.S. 333, 342-43
`(1977).
`
`
`
`

`
`4
`injunction and remanded for the District Court to consider the
`remaining factors in the preliminary injunction analysis,
`including likelihood of success on the merits. See id. at 304-
`05.
`
`On remand, in a well-reasoned opinion, the District Court
`concluded that plaintiffs lacked standing to bring this claim.
`This appeal followed.
`
`II
`
`Article III of the Constitution limits the judicial power to
`deciding “Cases” and “Controversies.”
` “One of
`the
`controlling elements in the definition of a case or controversy
`under Article III is standing.” Hein v. Freedom from Religion
`Foundation, Inc., 127 S. Ct. 2553, 2562 (2007) (internal
`quotation marks and alteration omitted).2 The three factors
`establishing the “irreducible constitutional minimum” of
`standing are well established. Lujan v. Defenders of Wildlife,
`504 U.S. 555, 560 (1992). First and most relevant here is
`injury-in-fact: A would-be plaintiff must have suffered “an
`invasion of a legally protected interest” that is (i) “concrete
`and particularized” rather than abstract or generalized, and (ii)
`“actual or
`imminent” rather
`than remote, speculative,
`conjectural or hypothetical. Id. (internal quotation marks
`omitted); see also Pub. Citizen, Inc. v. Nat’l Highway Traffic
`Safety Admin., 489 F.3d 1279, 1292-93 (D.C. Cir. 2007).
`Second is causation: The asserted injury must be “fairly
`traceable to the challenged action of the defendant.” Lujan,
`504 U.S. at 560 (internal quotation marks and alterations
`omitted). Third is redressability: It must be likely that a
`
`2 In referring to Hein throughout our opinion, we are referring
`specifically to Justice Alito’s opinion, which is the binding opinion
`of the Court in that case. See Marks v. United States, 430 U.S. 188,
`193 (1977).
`
`
`
`

`
`5
`favorable decision by the court would redress the plaintiff’s
`injury. Id. at 561.
`
`“[T]he law of Art. III standing is built on a single basic
`idea – the idea of separation of powers.” Allen v. Wright, 468
`U.S. 737, 752 (1984). The doctrine is “founded in concern
`about the proper – and properly limited – role of the courts in
`a democratic society.” Warth v. Seldin, 422 U.S. 490, 498
`(1975). The federal courts are “not empowered to seek out
`and strike down any governmental act that they deem to be
`repugnant to the Constitution.” Hein, 127 S. Ct. at 2562.
`“Vindicating the public interest (including the public interest
`in Government observance of the Constitution and laws) is
`the function of Congress and the Chief Executive.” Lujan,
`504 U.S. at 576; see also Valley Forge Christian Coll. v.
`Americans United for Separation of Church & State, Inc., 454
`U.S. 464, 474-75 (1982).
`
`Those critical and bedrock principles of separation of
`powers inform our approach to plaintiffs’ claim.
`
`III
`
`In reviewing the standing question, we must be “careful
`not to decide the questions on the merits for or against the
`plaintiff, and must therefore assume that on the merits the
`plaintiffs would be successful in their claims.” City of
`Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). For
`purposes of our analysis in this case, we therefore must
`assume arguendo that the Navy’s operation of its retirement
`system favors Catholic chaplains and disfavors non-liturgical
`Protestant chaplains in violation of the “clearest command of
`the Establishment Clause” – that “one religious denomination
`cannot be officially preferred over another.” Larson v.
`Valente, 456 U.S. 228, 244 (1982). Even assuming that
`plaintiffs’ allegations are accurate, however, they do not have
`
`
`
`

`
`6
`standing to bring this claim against the Navy because they
`have not sufficiently demonstrated their own injury-in-fact.
`
`If plaintiffs had alleged that the Navy discriminated
`against them on account of their religion, plaintiffs would
`have alleged a concrete and particularized harm sufficient to
`constitute injury-in-fact for standing purposes. But plaintiffs
`have conceded
`that
`they
`themselves did not suffer
`employment discrimination on account of their religion. They
`have conceded that the Navy did not deny them any benefits
`or opportunities on account of their religion. See In re Navy
`Chaplaincy, No. 07-ms-269, slip op. at 7-9 (D.D.C. Oct. 15,
`2007). Rather, they suggest that other chaplains suffered such
`discrimination.
`
`Plaintiffs argue that they nonetheless have standing for
`either of two reasons: (i) they are taxpayers who object to the
`Navy’s allegedly discriminatory operation of its chaplaincy
`program, or (ii) they have been subjected to the Navy’s
`“message” of religious preference as a result of the Navy’s
`running a retirement system that favors Catholic chaplains.
`We disagree. Because plaintiffs’ claim does not fit within the
`narrow confines of Establishment Clause taxpayer standing
`permitted by Flast v. Cohen, 392 U.S. 83 (1968), they do not
`have standing as taxpayers. See Hein v. Freedom from
`Religion Foundation, Inc., 127 S. Ct. 2553, 2562-72 (2007).
`Nor do plaintiffs have standing based on their exposure to the
`Navy’s alleged “message” of religious preference.
`
`A
`
`As the Supreme Court has repeatedly held, a taxpayer’s
`interest in ensuring that appropriated funds are spent in
`accordance with the Constitution does not suffice to confer
`Article III standing. See Hein, 127 S. Ct. at 2563 (2007).
`Back in Frothingham v. Mellon, 262 U.S. 447 (1923),
`
`
`
`

`
`7
`taxpayers sued the Government, arguing that the Maternity
`Act of 1921 improperly invaded powers reserved to States by
`the Tenth Amendment. The Supreme Court rejected taxpayer
`standing in that case: “The administration of any statute,
`likely to produce additional taxation to be imposed upon a
`vast number of taxpayers, the extent of whose several liability
`is indefinite and constantly changing, is essentially a matter of
`public and not of individual concern. If one taxpayer may
`champion and litigate such a cause, then every other taxpayer
`may do the same . . . .” Id. at 487; see also Doremus Bd. of
`Educ. v. Hawthorne, 342 U.S. 429, 433-34 (1952).
`
`In 1968, 45 years after Frothingham, the Supreme Court
`carved out a narrow exception to the general constitutional
`bar on taxpayer suits; the Court held that federal taxpayers
`had standing to bring an Establishment Clause challenge to
`federal financing for parochial schools. See Flast, 392 U.S.
`83. But according to Flast, taxpayers may bring an
`Establishment Clause challenge only when they challenge
`legislation passed pursuant to the Taxing and Spending
`Clause in Article I, § 8 of the Constitution. See id. at 102-03.
`
`The Court has subsequently made clear that Flast is a
`very narrow exception to the general bar against taxpayer
`standing. In Valley Forge, for example, the plaintiffs argued
`that the Government violated the Establishment Clause when
`it transferred a tract of “surplus property” to a Christian
`college. Valley Forge Christian Coll. v. Americans United for
`Separation of Church & State, 454 U.S. 464, 467-68 (1982)
`(internal quotation marks omitted). The Court found that the
`plaintiffs, a group composed of “90,000 taxpayer members,”
`did not have standing both because the challenged action was
`executive rather than legislative and because the property
`transfer was an exercise of executive authority pursuant to
`legislation passed under the Property Clause in Article IV, § 3
`
`
`
`

`
`8
`of the Constitution rather than the Taxing and Spending
`Clause in Article I, § 8. Id. at 469, 479-80 (internal quotation
`marks omitted).
`
`In Bowen v. Kendrick, the Supreme Court allowed a
`group of federal taxpayers to challenge the Adolescent Family
`Life Act, a statute appropriating funds for religious
`organizations, among others, to fight teen pregnancy. 487
`U.S. 589, 593, 596-97 (1988). The Court found that
`plaintiffs’ claim challenged a program expressly authorized
`by Congress under the taxing and spending power, thus fitting
`within Flast. Id. at 619. The key to Bowen’s conclusion, as
`the Court has subsequently explained, was that the statute was
`‘“at heart a program of disbursement of funds pursuant to
`Congress’ taxing and spending powers’” and that plaintiffs’
`claims were concerned with the expenditure of funds
`‘“pursuant to the AFLA’s statutory mandate.’” Hein, 127 S.
`Ct. at 2567 (quoting Bowen, 487 U.S. at 619-20) (emphasis
`omitted).
`
`In its recent decision in Hein, the Court declined to
`expand Flast to encompass discretionary Executive Branch
`spending: “Because almost all Executive Branch activity is
`ultimately funded by some congressional appropriation,
`the Flast exception
`extending
`to purely executive
`expenditures would effectively subject every federal action –
`be it a conference, proclamation or speech – to Establishment
`Clause challenge by any taxpayer in federal court.” Id. at
`2569. Although Hein did not eliminate the Flast exception to
`the bar against
`taxpayer standing,
`the case forcefully
`emphasized the exception’s extremely limited contours: “It is
`significant that, in the four decades since its creation, the
`Flast exception has largely been confined to its facts.” Id. at
`2568-69. As Hein explained, the Court has limited the
`“expansion of federal taxpayer and citizen standing in the
`
`
`
`

`
`9
`absence of specific statutory authorization to an outer
`boundary drawn by the results in Flast.” Id. at 2569 (internal
`quotation marks and emphasis omitted).3
`
`In this case, plaintiffs’ claim does not fit within the
`narrow Flast exception. No legislative enactment expressly
`authorizes or appropriates funds for the Navy to favor
`Catholic chaplains in its retirement system. Plaintiffs cite, for
`example, the statutes establishing the Navy Chaplain Corps,
`but those statutes make no reference to denominational
`category, only to chaplains generally. See 10 U.S.C. §§ 5142,
`5150.
` And plaintiffs, who
`themselves are chaplains,
`obviously do not contend that congressional legislation
`establishing
`the Navy Chaplaincy
`itself violates
`the
`Establishment Clause; they merely want the Navy to operate
`the Chaplain Corps differently. Cf. Katcoff v. Marsh, 755
`F.2d 223 (2d Cir. 1985) (approving military chaplaincy
`program).
`
`As in Hein, the challenged expenditures here – extra
`salary and retirement-related benefits allegedly provided to
`Catholic chaplains – “were not expressly authorized or
`mandated by any specific congressional enactment.” Hein,
`127 S. Ct. at 2568. Indeed, plaintiffs contend that the
`Chaplain Corps
`is being operated by
`the Navy
`in
`contravention of the law, not in accordance with the law. See
`Plaintiffs’ Br. 48 (“Appellees have not followed either the law
`
`3 The Flast exception may be further limited to Congress’s
`disbursement of federal funds outside the Government. In both
`Flast and Bowen v. Kendrick, the only two Supreme Court cases
`upholding taxpayer standing, the statutes authorized disbursement
`of
`federal
`funds
`to outside entities,
`including
`religious
`organizations. But we need not address that question in this case
`given that plaintiffs’ argument for taxpayer standing fails at a more
`basic level.
`
`
`
`

`
`10
`or the DOD regulations.”). Under the Supreme Court’s
`precedents, that contention directly undermines any claim to
`taxpayer standing. In sum, plaintiffs do not have standing as
`taxpayers.
`
`B
`
`Plaintiffs alternatively contend that they have standing
`because “Establishment Clause
`injury flows from
`the
`forbidden messages of preference or disapproval” inherent in
`the Navy’s denominational preference. Plaintiffs’ Br. 28. In
`so arguing, they rely primarily on this Court’s decision in
`Chaplaincy, which explained that for the purposes of a
`preliminary
`injunction,
`the “mere allegation” of an
`Establishment Clause violation is always sufficient to show
`irreparable harm. Chaplaincy of Full Gospel Churches v.
`England, 454 F.3d 290, 303-04 (D.C. Cir. 2006). Plaintiffs
`claim that because their allegations demonstrate irreparable
`injury for preliminary
`injunction purposes,
`they have
`necessarily shown injury-in-fact for standing purposes.
`
`But the Court in Chaplaincy merely held that the
`allegation of an Establishment Clause violation is sufficient to
`satisfy
`the
`irreparable harm prong of
`the preliminary
`injunction standard – presupposing that a party has standing
`to allege such a violation. See id. at 303-04 & n.8. A per se
`rule defining automatic injury-in-fact for every plaintiff who
`claims an Establishment Clause violation – as plaintiffs strain
`to find in the Chaplaincy opinion – would run counter to
`decades of settled jurisprudence setting forth the requirements
`for standing in Establishment Clause cases. Jurisdictional
`requirements are not disposed of so easily, and the Court in
`Chaplaincy did not purport to make the sweeping change
`attributed to it by plaintiffs.
`
`
`
`

`
`11
`Apart from citing Chaplaincy, plaintiffs also claim
`injury-in-fact from their being subjected to the “message” of
`religious preference conveyed by the Navy’s allegedly
`preferential retirement program for Catholic chaplains. The
`program, they say, makes them feel like second-class citizens
`within the Navy Chaplaincy even if they themselves have not
`suffered discrimination on account of their religion.
`
`As the Supreme Court has often stated, mere personal
`offense to government action does not give rise to standing to
`sue. Allen v. Wright, 468 U.S. 737, 752-54 (1984); see also
`Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-76 (1992).
`“By the mere bringing of his suit, every plaintiff demonstrates
`his belief that a favorable judgment will make him happier.
`But although a suitor may derive great comfort and joy” from
`knowing that the Government is following constitutional
`imperatives, “that psychic satisfaction is not an acceptable
`Article III remedy because it does not redress a cognizable
`Article III injury.” Steel Co. v. Citizens for a Better Env’t,
`523 U.S. 83, 107 (1998). “Recognition of standing in such
`circumstances would transform the federal courts into no
`more than a vehicle for the vindication of the value interests
`of concerned bystanders.” Allen, 468 U.S. at 756 (internal
`quotation marks omitted).
`
`Plaintiffs respond that their claim is similar to religious
`display and prayer cases where courts have found (or at least
`apparently assumed) standing. See, e.g., McCreary County v.
`ACLU, 545 U.S. 844, 851-52 (2005) (Ten Commandments
`displays that were “readily visible” to citizens conducting
`civic business) (internal quotation marks omitted); Van Orden
`v. Perry, 545 U.S. 677, 681-82 (2005) (Ten Commandments
`display on the grounds of the Texas State Capitol that
`petitioner frequently encountered); County of Allegheny v.
`ACLU, 492 U.S. 573, 578 (1989) (crèche display in county
`
`
`
`

`
`12
`courthouse and menorah display outside city-county
`building); Suhre v. Haywood County, 131 F.3d 1083, 1086
`(4th Cir. 1997) (Ten Commandments display in county
`courtroom; noting that display cases are “particularized
`subclass of Establishment Clause standing jurisprudence”);
`see also Lee v. Weisman, 505 U.S. 577, 580 (1992)
`(governmental prayer at school graduation); Marsh v.
`Chambers, 463 U.S. 783, 784-85 (1983) (daily prayer at
`opening of state legislature); Sch. Dist. of Abington Township
`v. Schempp, 374 U.S. 203, 205-12 (1963) (daily Bible reading
`in class); Engel v. Vitale, 370 U.S. 421, 422-23 (1962)
`(official state prayer in class).
`
`These Supreme Court cases do not all directly discuss the
`standing issue. It is a well-established rule that “cases in
`which jurisdiction is assumed sub silentio are not binding
`authority for the proposition that jurisdiction exists.” John
`Doe, Inc. v. DEA, 484 F.3d 561, 569 n.5 (D.C. Cir. 2007)
`(internal quotation marks omitted). In any event, accepting
`those cases as precedents on standing,4 we nonetheless find
`significant differences between plaintiffs’ case and the
`religious display and prayer cases. In the religious display
`and prayer cases, the Government was actively and directly
`communicating a religious message through religious words
`or religious symbols – in other words, it was engaging in
`religious speech that was observed, read, or heard by the
`plaintiffs in those cases. Here, by contrast, the Navy is not
`communicating a religious message through religious words
`or religious symbols. Plaintiffs’ objection here is more akin
`to the objection to the property transfer in Valley Forge,
`
`4 See generally Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d
`494, 499-502 (5th Cir. 2007) (DeMoss, J., concurring); Ira C. Lupu
`& Robert W. Tuttle, Ball on a Needle: Hein v. Freedom from
`Religion Foundation, Inc. and the Future of Establishment Clause
`Adjudication, 2008 B.Y.U. L. REV. 115, 158-64 (2008).
`
`
`
`

`
`13
`where the Court stated that the plaintiffs failed “to identify
`any personal injury suffered by them as a consequence of the
`alleged constitutional error, other than the psychological
`consequence presumably produced by observation of conduct
`with which one disagrees. That is not an injury sufficient to
`confer standing under Art. III, even though the disagreement
`is phrased in constitutional terms.” Valley Forge, 454 U.S. at
`485-86 (emphasis added and omitted); see also Suhre, 131
`F.3d at 1086 (quoting Valley Forge and stating “a mere
`abstract objection to unconstitutional conduct is not sufficient
`to confer standing”).
`
`Plaintiffs’ argument would extend the religious display
`and prayer cases in a significant and unprecedented manner
`and eviscerate well-settled standing limitations. Under
`plaintiffs’ theory, every government action that allegedly
`violates the Establishment Clause could be re-characterized as
`a governmental message promoting religion. And therefore
`everyone who becomes aware of the “message” would have
`standing to sue. The neighbors in Valley Forge, the hotel
`workers at a conference for faith-based organizations in Hein,
`the list goes on – all could have obtained standing to sue
`simply by targeting not the government’s action, but rather
`the government’s alleged “message” of religious preference
`communicated through that action. Indeed, as plaintiffs’
`counsel acknowledged at oral argument, under plaintiffs’
`standing theory any recipient of the Navy’s “message” in this
`case, including the judges on this panel, would have standing
`to bring suit challenging
`the allegedly discriminatory
`Chaplain Corps. Oral Arg. Tr. at 6-7. The jurisdictional
`requirements of Article III are not so manipulable. They do
`not allow anyone who becomes aware of a government action
`that allegedly violates the Establishment Clause to sue over it
`on the ground that they are offended by the allegedly
`unconstitutional “message” communicated by that action. In
`
`
`
`

`
`14
`the government employment context at issue here, it thus
`comes as no surprise that neither plaintiffs nor the dissent has
`cited any case holding that a plaintiff can maintain a religious
`employment discrimination suit under the Religion Clauses
`when complaining about employment discrimination suffered
`by others, not by the plaintiff himself or herself. We think the
`reason for the dearth of precedent is evident: When plaintiffs
`are not themselves affected by a government action except
`through their abstract offense at the message allegedly
`conveyed by that action, they have not shown injury-in-fact to
`bring an Establishment Clause claim, at least outside the
`distinct context of the religious display and prayer cases.
`
`To be sure, we recognize that plaintiffs’ creative analogy
`to the religious display and prayer cases has some surface
`logic. But the implications of plaintiffs’ theory for standing
`doctrine are quite radical: Plaintiffs seek to use the religious
`display and prayer cases to wedge open the courthouse doors
`to a wide range of plaintiffs alleging Establishment Clause
`violations who were previously barred by bedrock standing
`requirements – requirements that are essential to preserving
`the separation of powers and limited judicial role mandated
`by the Constitution. We decline the invitation to transform
`Establishment Clause standing doctrine in this way. What the
`Supreme Court said last year in Hein applies just as well to
`plaintiffs’ reliance on the religious display and prayer cases
`here: “It is a necessary concomitant of the doctrine of stare
`decisis that a precedent is not always expanded to the limit of
`its logic.” Hein, 127 S. Ct. at 2571.
`
`* * *
`
`We affirm the judgment of the District Court.
`
`So ordered.
`
`
`
`

`
`ROGERS, Circuit Judge, dissenting: The Establishment
`Clause prevents “the Government’s placing its official stamp of
`approval upon one particular kind of prayer or one particular
`form of religious services,” Engel v. Vitale, 370 U.S. 421, 429
`(1962), and ensures that “all creeds . . . be tolerated and none
`favored,” Lee v. Weisman, 505 U.S. 577, 590 (1992); see
`McCreary County v. Am. Civ. Liberties Union of Ky., 545 U.S.
`844, 860 (2005). A governmental accommodation for religion
`may violate the Establishment Clause if it “singles out a
`particular religious sect for special
`treatment” because
`“whatever the limits of permissible . . . accommodations may be
`. . . , it is clear that neutrality as among religions must be
`honored.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
`512 U.S. 687, 706-07 (1994) (citations omitted). “‘When the
`power, prestige and financial support of government [are] placed
`behind a particular religious belief, the indirect coercive
`pressure upon religious minorities to conform to the prevailing
`officially approved religion is plain.’” Sch. Dist. of Abington
`Twp. v. Schempp, 374 U.S. 203, 221 (1963) (quoting Engel, 370
`U.S. at 430-31).
`
`In Chaplaincy of Full Gospel Churches v. England, 454
`F.3d 290 (D.C. Cir. 2006), the court thus observed that the
`liberty interest shielded by the Establishment Clause is
`“protection against government imposition of a state religion or
`religious preference,” id. at 302 (emphasis added). Stating that
`“the Establishment Clause is implicated as soon as the
`government engages in impermissible action,” id., the court
`explained that unlike freedom of expression cases, for example,
`“[t]he harm inflicted by religious establishment is self-executing
`and requires no attendant conduct on the part of the individual,”
`id. at 303; see also id. at 302. In describing the impermissible
`government action at issue, the court stated:
`
`Where, as here, the charge is one of official preference
`
`

`
`2
`
`of one religion over another, such governmental
`endorsement “sends a message to nonadherents [of the
`favored denomination] that they are outsiders, not full
`members of
`the political community, and an
`accompanying message to adherents that they are
`insiders, favored members of the political community.”
`
`Id. at 302 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
`(O’Connor, J., concurring)) (alteration in original). The court
`held that such an allegation sufficed to show irreparable harm,
`or “injury [that is] beyond remediation [by monetary damages],”
`id. at 297, for the purpose of obtaining injunctive relief,
`crediting appellants’ allegation of “the harm that flows from the
`‘forbidden message’ of marginalization [that the Navy’s] actions
`send to [them],” id. at 299 (quoting Appellants’ Br. at 20). The
`court did not expressly hold that appellants had Article III
`1
`standing, but see Steel Co. v. Citizens for a Better Env’t, 523
`U.S. 83, 94-95 (1998), but noted that its legal “conclusion
`presupposes, of course, that the party has standing to allege such
`a violation,” Chaplaincy, 454 F.3d at 304 n.8.
`
`The court’s decision in Chaplaincy regarding appellants’
`liberty interest that is protected by the Establishment Clause and
`the nature of their injury is no less applicable here. The same
`parties and the same charge are involved, see LaShawn A. v.
`Barry, 87 F.3d 1389, 1393-95 (D.C. Cir. 1996) (en banc), and
`injury sufficient for irreparable harm has resonance for injury-
`in-fact under Article III, see Taylor v. Resolution Trust Corp., 56
`
`1
` Due to the consolidation of three cases, appellants include
`active duty, reserve, retired, and former non-liturgical Protestant Navy
`chaplains as in Chaplaincy, and two endorsing agencies — Chaplaincy
`of Full Gospel Churches and Associated Gospel Churches.
`Hereinafter in referring to “appellants,” I refer only to the chaplains
`currently serving in the Navy Chaplain Corps.
`
`

`
`3
`
`F.3d 1497, 1508 (D.C. Cir. 1995), because to show irreparable
`harm “[a] plaintiff must do more than merely allege . . . harm
`sufficient to establish standing,” Associated Gen. Contractors of
`Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410 (9th
`Cir. 1991). As explained in Chaplaincy, “[t]his court has set a
`high standard for irreparable injury” within the preliminary
`injunction inquiry. 454 F.3d at 297. Such injury must be “both
`certain and great,” “actual and not theoretical,” “beyond
`remediation,” and also “of such imminence that there is a clear
`and present need for equitable relief to prevent irreparable
`harm.” Id. (quotation marks and citations omitted). For Article
`III,
`the requisite
`injury-in-fact must be “concrete and
`particularized” and “actual or imminent,” not “hypothetical.”
`Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
`(quotation marks omitted). Because “the Navy’s alleged
`violation of the Establishment Clause per se constitutes
`irreparable harm,” Chaplaincy, 454 F.3d at 299, appellants have
`met their burden on the injury prong of Article III standing.2
`
`As members of non-liturgical Protestant churches and
`fellowships, appellants assert that the Navy has singled out the
`Catholic faith as the preferred religious tradition in its Chaplain
`Corps by choosing over several decades to allow only Catholic
`
`2
` To the extent the court seeks to avoid this precedent by
`interpreting a footnote in Chaplaincy to indicate that the court was
`“presupposing” appellants’ standing, Op. at 10, and thus addressing
`the request for injunctive relief without satisfying itself that appellants
`had standing, its approach is contrary both to the principle in Steel
`Co., 523 U.S. at 94-95, and to the more natural reading of the footnote
`as merely recognizing, as this court has done before, that this prong of
`the preliminary injunction inquiry and the entirety of the Article III
`standing inquiry “overlap[] . . . somewhat,” but are not coextensive,
`see Taylor, 56 F.3d at 1508.
`
`

`
`4
`
`chaplains to serve beyond the required separation dates. This
`3
`sends a message of denominational preference for Catholics and
`marginalization for non-Catholic adherents, causing appellants
`to suffer psychological harm while serving as chaplains. Compl.
`¶¶ 3, 37(e), 39. By endowing Naval officer status in a
`preferential manner upon the representatives of a particular type
`of religious ministry, who then, as part of their Naval service
`4
`duties, use words and symbols to serve their religious cause, the
`
`3
` According to appellants, “the 4109 program” has three
`parts: (1) illegal appointments to active duty through age waivers for
`over-age Catholic clergy, (2) the consequent illegal continuation of
`such clergy as chaplains to the age of 67, and (3) the eventual illegal
`transfer of such clergy to the Retired Reserve and subsequent recall to
`active duty as designated 4109 Reservists. The program is designed
`in part to allow Catholic chaplains who have reached their statutory
`separation age to continue to serve until they have completed twenty
`years of service and become eligible for pensions. See 10 U.S.C. §§
`1251, 14509, 14703; see also Chaplaincy, 454 F.3d at 293-96. At the
`time appellants filed
`their complaints,
`the age
`limit for
`the
`appointment of chaplains, like other officers, was forty-two, see 10
`U.S.C. § 532(a)(2); while this provision is no longer applicable to
`chaplains, id. at § 532(d)(1) (as amended by Ronald W. Reagan
`National Defense Authorization Act for Fisca

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket