MRFF Files Response against Motion to Dismiss

The Military Religious Freedom Foundation quietly filed its response to the US Department of Justice’s motion to dismiss the Chalker v Gates lawsuit.  The lawsuit challenges the practice of allowing prayer at mandatory military formations and ceremonies. It demands that Specialist Dustin Chalker, an atheist, and “those similarly situated” not be forced to attend ceremonies that include a “sectarian prayer.” In comparing the two filings, it seems as if the two groups of lawyers were sometimes speaking past each other.

The MRFF’s response brings up some interesting points, but also ignores some valid issues. It also significantly changes the concept of the original suit.

For example, the DoJ claimed that Chalker did not have standing to assert Weinstein’s infamous “pattern and practice” allegations because Chalker was never actually harmed by them.  In response, the MRFF said:

Plaintiff Chalker has, on at least three occasions sustained a cognizable injury and the abrogation of his rights.

The MRFF is referring, of course, to the three examples of “official prayer” at mandatory functions, which isn’t what the DoJ was talking about.  The MRFF accurately points out that the motion to dismiss did not challenge Chalker’s standing in re: the three examples he listed.

However, the MRFF “response” did not actually respond to the DoJ’s motion: the MRFF did not defend Chalker’s (or its own) standing to bring up its laundry list “pattern and practice” allegations that are unrelated to the case (a list that has been a mainstay of each of the MRFF’s three lawsuits, beginning several years ago). 

Interestingly, the response also neglects to mention the DoJ’s assertion that the MRFF has even less standing than does Chalker, or that its “pattern and practice” claims were already adjudicated.  It appears they are either relying on non-severability of the list with the primary complaint, or resigning themselves to their dismissal.

In another example, the MRFF’s response claims that the DoJ did not contest Chalker’s claims that he was at mandatory events with sectarian prayers:

Defendant does not controvert these allegations in his motion.

However, the motion to dismiss addressed them quite specifically, noting that the MRFF declared the prayers sectarian without providing any facts to support that conclusion:

Plaintiffs [make] conclusory assertions that Specialist Chalker was exposed to “sectarian Christian” prayer–without alleging any facts to indicate what made those prayers “sectarian” or “Christian”…

One of the primary weaknesses of the Hall lawsuit (which the MRFF dropped just after filing the Chalker suit) was that the plaintiff hadn’t used the military’s in-place systems for addressing grievances.  The fact that Chalker had complained to the official systems was one of the cornerstones of this new suit.

Chalker even went through the effort of lodging a complaint with the Equal Opportunity office after the lawsuit had been filed.  (The MRFF amended the lawsuit when the MEO office’s response was not “satisfactory.”) 

In the response, the MRFF says

Plaintiff Chalker sought relief from mandatory attendance at the subject sectarian events through his chain of command, the equal opportunity process and the army’s intra-military administrative process. None of these courses of action led to a satisfactory result.

(Here the MRFF uses an interesting change in language; the lawsuit is about prayers at mandatory formations that are secular events.  This has morphed into allegations of “sectarian events,” a phraseology that sounds more offensive but is factually inaccurate.)

However, the MRFF appears to concede that Chalker did not exhaust the available intra-military grievance systems.  Instead, they have asserted that use of the internal military systems is “futile.”  This is in stark contrast, however, to the government’s statement that Chalker sought and received the relief he wanted from within the military system.

As the government noted in its motion to dismiss, Chalker asked for–and received–permission not to attend a mandatory formation (though it is not clear if the formation included a “sectarian prayer”).  Apparently, the result was “not satisfactory” because it did not “prohibit government prayers at all military ceremonies”–even though that demand is not the relief sought in the lawsuit.

The government’s motion to dismiss notes that

Specialist Chalker requested that his command excuse him from attending [a change of command]. His commander granted that accommodation request, and Specialist Chalker was not required to attend. Curiously, Specialist Chalker filed an EO complaint the next day, claiming that he had suffered religious discrimination. As relief for this EO complaint, Specialist Chalker sought to prohibit government-led prayers during all military ceremonies–relief that is not requested in this lawsuit.

Thus, the in-place systems are not futile, and they did yield a “satisfactory result,” unless the desired result is the prohibition of prayer–which is not the result requested in the lawsuit… 

…at least, it wasn’t originally.  The MRFF’s response reveals an interesting tack.  It says:

…an administrative exhaustion process would not prevent personnel at the mandatory sectarian prayer events from spontaneously initiating a sectarian prayer.

While the lawsuit initially sought to prevent the military from forcing its members to attend formations at which sectarian prayer is given, the Plaintiffs appear to advocate banning the tradition of prayer outright.  (What other means could prevent personnel from “spontaneously initiating sectarian prayer?”)

The MRFF appears to have quietly moved the goalposts.  In the original filing, the desired outcome of Chalker’s lawsuit was an injunction that:

would specifically prohibit mandatory attendance by plaintiff Chalker and those similarly situated at military functions/formations that include a sectarian prayer.

However, the newly filed response to the motion to dismiss says this:

The injunction, as sought by Plaintiff…is a rule requiring the Department of Defense and its personnel to not deliver sectarian prayer at mandatory attendance events.

No such statement appears in the original lawsuit, and it changes the face of the suit itself.  Instead of allowing Chalker not to attend, which is what the original lawsuit demands, the new demand is that the nature of the events themselves be enjoined (even though, as the government points out, no one has said what made the particular prayers “sectarian”).

The MRFF response strays again from the premise of mandatory formations and government prayer when it says

The instances of sectarian prayer and endorsements of religion are too frequent and too numerous for Plaintiff to pursue, let alone be granted, adequate relief through intra-military channels.

The problem with the “too numerous” assertion is that Chalker seeks relief from formations that, by his own examples, occur only a few times a year (in Chalker’s case, four events over a period of 11 months, which assumes all four had a “Christian sectarian” prayer).

In a separate statement, the lawyers seem to forget some of their own examples of precedent.  For example, they say

it is inconceivable that Army officials are vested with the authority to infringe upon the rights and protections afforded by the Constitution.

Actually, the Supreme Court has said that military officials can, in fact, “infringe” upon such rights.  See Goldman v. Weinberger, referenced here.  The lawyers actually discussed Goldman within the response, but appeared to miss the Supreme Court’s deference to military judgement.

Toward the end of the response, the MRFF makes another semantic change.  Rather than the primary complaint of prayers at military functions, the Plaintiffs allege that the basis of the lawsuit is “sectarian prayer events” and the government’s actions “regulating beliefs:”

In this case, Defendant is requiring attendance at sectarian prayer events, and essentially regulating beliefs, not conduct.

In a final related display of altering the character of the allegations, the Plaintiffs compare their situation to that of cadets forced to attend chapel services.  Anderson v. Laird is the 1972 DC Circuit appellate case that found compulsory chapel attendance at all the US military academies unConstitutional.  In the comparison, the MRFF equates military formations with church services:

Factually, Anderson v. Laird…is strikingly similar to the present case….Much like Plaintiff Chalker’s claim, the suit in Anderson challenged the constitutionality of the military’s practice of requiring attendance at chapel services.

Thus, the Plaintiffs are attempting to re-frame the circumstances of the complaint.  Rather than a prayer at a military function, it is now a military “sectarian prayer event.”  Rather than excusing those who do not wish to be exposed to the prayers, the demand is now that the prayers be prohibited. 

The MRFF does bring up an interesting rebuttal.  Many prior cases of this kind involved a military member opposing a regulation on Constitutional grounds.  With regard to the traditions of military ceremonies, the MRFF says there isn’t necessarily a specific regulation at play, and thus the courts need not give deference to the military, as the government asserts:

if the constitutional challenge is not one of a military regulation, then a lesser degree of deference is due.

They fail to note, however, that there are applicable regulations governing this scenario.  To wit, Army Regulation 165-1:

Military and patriotic ceremonies may require a chaplain to provide an invocation, reading, prayer, or benediction.  Such occasions are not considered to be religious services. 

Thus, the US Army has determined that the presence of a prayer at a military function does not render it a “sectarian prayer event,” but does allow that certain ceremonies may “require” some form of prayer or invocation.

This is nearly irrelevant to the primary complaint, but the Plaintiffs make it relevant by their arguments that go beyond mandatory attendance of a ‘military [or] patriotic ceremony.’  The Plaintiffs’ shifting arguments are challenging the Constitutionality of this regulation, which delegitimizes their argument against judicial deference to the military.

In the end, it is uncertain what judicial course this case will take.  Weinstein’s first lawsuit was dismissed and the second was abandoned.  By the same token, the mere presence of the lawsuits has influenced the military environment (a result Weinstein both anticipated and desired).  In lowering expectations and setting himself up as the underdog, Weinstein has said he expects to lose at the Supreme Court.  On the other hand, Weinstein appears to have chosen the venue and has culled his vehicle co-plaintiff for a potentially more successful one.  The judicial process can potentially be unpredictable.  Time will tell who prevails.

Of note, the law firm that filed this response was not the same as the one that filed the initial suit.  Other activity by the MRFF contains references to both law firms.


  • I suppose attorneys have to get enmeshed in the detail of charges and counter charges, defenses and counter defenses in a law suit of this magnitude.

    Quite apart from the smoke screen of technicalities, dotting of i’s and crossing of tees and dwelling on form instead of substance, the basic question still remains: Is Christian Supremacy in the military and all that goes with it a serious violation of the United states Constitution, a detriment to morale and should it be stopped forthwith?

    Without question, the number of blatant Christian-based violations reported from the Air Force Academy to basic military training facilities to Mid East war zones and every military installation in between, have more than raised a few eyebrows and set some prominent media figures, authors and high ranking militray officers into motion in a growing in-depth examination of the Dominion Christian Movement’s infiltration of the armed forces and what appears to be an insidious and may I say treasonable agenda to establish their particular brand of Christianity as America’s State and Military Religion. Of course, if that is accomplished, a de facto Christian Theocracy would then exist because the constitution would have been abrogated.

    I understand that the number of complaints from military personnel and service academy cadets relative to overt and coercive Christian proselytizing reaching Military Religious Freedom Foundation exceed 13,000 at this time. Many of these complaints are being addressed directly between MRFF and the chain of command of those who filed them. Major law suits are expensive, drawn out and often stone-walled by military commanders or government agencies for one reason or another, whether they are complicit, clam up for the “corps” or see this as a fight between the religious and the secular, which of course, it is not.

    There is a certain uniformity to these complaints that show a well organized contingent of Christian extremists are operational and distributed in large numbers throughout the military and service academies.

    Taken in aggregate, these complaints paint a frightening picture of religious coercion throughout the armed forces and a chilling realization that many of the already forcefully indoctrinated personnel have proximity and access to weapons of immense destructive power.

    So whether a “Christian” nuclear missile crew, a “Christian” Bomber pilot or one of your own “Christian” Fighter Pilots, all are just one prayerful “Christian” command away from Armageddon.

    It is therefore desirable that no single religion be allowed to dominate the armed forces or American government and any attempt to achieve dominance through coercion be completely thwarted. We have witnessed the end result of such domination in the Islamic world and the so-called “Islamic Republics.”

    Religious hegemony and regimentation have not contributed well to military organization and function as the failures of Crusades and Jihads graphically point out. It is true that it does breed brief spurts of deadly fanaticism such as we now see in the insurgency in the Mid East of suicide bombings or have witnessed in the past as Kamikaze and other religious martyr oriented actions. But sooner than later, these religious acts of violence and terror were snuffed out by reason and civilized intellect. The problem now is that even brief deviations from the norm by fanatic military personnel equipped with today’s sophisticated weaponry can mean world-wide disaster, perhaps even world-ending disaster.

    That’s why it is vital that MRFF and other watch dog organizations, dedicated to rooting such religious hegemony from our armed forces and service academies, remain active and receive the support so necessary to maintain this most important vigil.

    The millions of decent moderate Christians in America who have no desire to dominate but wish only to enjoy and maintain the religious freedoms guranteed by the First Amendment are equally at the mercy of Dominion Christianity and often suffer the slings and arrows of misfortune along with non-Christians and non-believers at their hands. Factually, over 96% of the complaints received at MRFF are from such moderate Christians who have been deemed not “Christian enough” and are selected for “upgrading.”

    It is my hope that young, intelligent officers. NCO’s, lower graders and cadets, such as we now have in America’s front line services, will remain objective, independent and free thinkers who will not succumb to the bee-hive mentality called for by Christian Dominionism. It is also my hope that those in power will stop the obfuscation and dwelling on technicalities and allow for the unhindered and open examination of the egregious violations reported in such staggering number.

    America and its armed forces must remain free and independent of any single religion or political party. Religious domination has no place in this great Democratic Republic.

  • Richard-

    The lawsuit is not about dominionist theology, which makes most of your comment irrelevant. To assert that this practice is evidence of dominionist conspiracy is to say that the Obama administration is complicit, since its Department of Justice is defending the military from this lawsuit.

    So whether a “Christian” nuclear missile crew, a “Christian” Bomber pilot or one of your own “Christian” Fighter Pilots, all are just one prayerful “Christian” command away from Armageddon.

    So you have a problem with Christians in the service in general, I take it?

  • JD, Perhaps you should state clearly to your audience which you place first: your commitment to your brand of religious ideology, or your oath to the Constitution.
    As grads and general officers like Catton clearly state their loyalties to the Constitution are a second or third priority over their brand of religion, we have much to worry about in this country. The “Christian/family value” C Street party boys, Christian extremist Erik Prince and his band of merry men killing Muslims for sport, hypocrites Haggard, Dobson, Falwell and others — can we really risk these same types of Christian supremacists controlling our military and its weapons? JD, why dont you hang up your helmet and gsuit and stop playing Christian Cowboy. Put your money where your mouth is. Put on pastoral robes. Who knows, you might become a rich and famous televangelist. No one questions your loyalty to your brand of faith. You are a danger in uniform with your radical religious belief’s compromising your loyalty to the Constitution.

  • JD,

    The lawsuit really is all about Dominion Theology. It is part and parcel of the whole. It is one small corner of the rotting and festering dogma that has plagued the Christian norm for centuries. It is the continuation of the sick work of those who called themsleves Christian yet tore the fingernails out of the flesh of children and burned pregnant women alive during the Inquisition. It is a remnant of the genocide of indigenous South and North American natives by Catholic Conquistadors and made of the same stuff as the decimation of the Hawaiian population by Presbyterian Missionaries and their disease ridden crews. It is the rape and murder of minor children by Branch Davidians and the forced suicide of many hundreds of innocent men women and children by man of God, Jim Jones. It is the Holocaust enabled by the turning of a blind eye by Pope Pius XII, and the hypocrisy of national Christian leaders who pass out blessings with one hand and collect millions in graft with the other. It is the sexual perversion of self-proclaimed ministers of God who condemn the purveyors of pornography while at the same time debauching women and children in their care. And it is an adjunct to the millions lost to the idiocy of Christian Crusades and the betrayal of thousands of children sexually assaulted by Catholic priests in a position of trust. Dominionism is the dark side of the Christian force. All this they bring to their mission to contaminate the United States Armed Forces and turn them into a Dominion Christian fighting force to achieve their misplaced religious goals.

    No JD, I have no problem with Christians in general, in the service. I am talking not about America’s many honorable and moderate Christians to whom I referred in my original response but the Christianity of secret societies, Mafia-like families, Inquisition-like councils such as Opus Dei, vast numbers of caustic Evangelical organizations and mega churches leading their followers into a cabal to usurp the constitution of the United States and establish Dominion Christianity as the state religion.

    I speak of our primaryt focus, those “Christians” who ply their deadly trade of coercion, extortion and control via organizations such as Officers Christian Fellowship, Campus Crusade for Christ Military Mission, The Navigators, Focus on the Family, Christian Embassy and the many other so called evangelical groups that make a mockery of Christianity and would use their power for world conquest. And all in the name of God. How many have perished in that name?

    Their kingdom is very much of this earth. It’s where America used to be.

  • Richard-

    You appear to be connecting all known religious evils with the average Chaplain who gives an invocation. Such all-encompassing generalizations are ill-conceived.  They may also lead to the blind application of a prejudice to innocent people, as you have done when you equate this lawsuit–which is about prayer at formations–to entire groups of people and historical evils.

    I have no problem with Christians in general…

    Then why did you say military “Christian[s]”…are just one prayerful “Christian” command away from Armageddon”? You’re contradicting yourself. You either think Christians are capable of loyal military service or you don’t. Pick one and stick by it; otherwise, you come across as incoherently vitriolic.

    I speak of our primary focus, those “Christians” who ply their deadly trade of coercion, extortion and control…

    That may be your “primary focus,” but the lawsuit is only dealing with an allegation of prayer at military formations. There are no allegations of coercion, extortion, or control.  If you think there should have been, you might consider talking to your boss.

  • JD,

    I am, indeed, connecting all known religious evils with the bloated corps of Evangelical Chaplains in our armed forces. There are no longer “average Chaplains who simply give invocations” but a coterie of Dominionist operatives who use such opportunities to proselytize.

    My reference to “Christian Military,” as you well know, delineates those who purvey or are under the thrall of Dominion Chrtistianity. It is they who are prone to commit American ordinance to supplement Biblical prophecy.

    There is a danger here that transcends the mere criticism of a religious order run amok. There are real indications of a Christian revolution the scope of which has already been identified by alert and patriotic observation.

    No longer can Dominionists hide behind the traditional homage paid to Christianity and the blank check religion has been handed for centuries.

    Today’s practitioner of Christianity must submit to Constitutional tests that all other s who have been given guarantees must submit. No more free ride for Christanity. And those who assume that they can ride the coat tails of Christianity beyond constitutional limitations with relative immunity, they are simply, wrong. We will no longer allow the rewriting of the constitution to satisfy Christian doctrine.

    Prepare yourself to assume the role of a real American, with no Christian perks. The Air Force pays you to fly a plane not promote a stilted religious faith. Beyond that charge you are delinquent.

  • There are no longer “average Chaplains who simply give invocations” but a coterie of Dominionist operatives who use such opportunities to proselytize.

    The Jewish Chaplain who delivered the invocation at a recent change of command might be surprised at your statement that he is a dominionist. In the lawsuit (which is the point of this post), the MRFF never said what about the prayers made them either Christian or sectarian, nevermind an accusation that they were “proselytizing.” You’re adding words that aren’t there.

    Today’s practitioner of Christianity must submit to Constitutional tests that all others who have been given guarantees must submit.

    Given that you speak for the MRFF, your ignorance of the Constitution is appalling. The Constitution limits the government, not religion.  Religious liberty is not given by the Constitution, it is protected by it.

    My reference to “Christian Military”…[is to those] under the thrall of Dominion Christianity.

    But while its convenient for you to choose who is and is not a dominionist, it makes it difficult for the rest of us to follow your logic. You have accused whole sectors of American society of being “dominionist” when they have never espoused beliefs consistent with that ideology. Just because you think someone is a dominionist does not make them so.

    It is they who are prone to commit American ordinance [sic] to supplement Biblical prophecy.

    Please provide evidence that military Christians are “prone” to use weaponry to support “prophecy.”

  • An occasional invocation by a Jewish Chaplain is rare and innocuous.

    I speak of the bloated corps of evangelical protestant chaplains now operating in the military which far outnumber all other religions and denominations and their propensity to the use of sectarian Christian prayer and exclusive doctrine.

    The First Amendment protects the legitimate practice of religion. Coercive proselytizing is not so protected. Nor is government favoritism to any particular religion. Christianity, especially maverick sects of it may not have special rights, majority notwithstanding.

    Dominion Christians are prone to employ military weapons in the course of their mission. Campus Crusade for Christ Military Mission is very specific.

    CCC’s Military Ministry has six “strategic objectives.” The first is to “Evangelize and Disciple Enlisted Members of the US Military;” the sixth is to “Change Continents for Christ. Transform nations of world through the militaries of world. Train, Equip, and Partner with indigenous leaders to establish strategic sending platforms in each region of world.” To the most objective viewer this would appear to indicate armed conflict.

    In addition, there is a linear logic in the form of a simple Alebraic formula.
    A+B=C. A Christianized Military + Weapons of Immesnse Destructive Power= World Conquest for Jesus. the term “Covert or Kill” has been bandied about by Uber- Dominionists ranging from Pat Robertson to Tim LaHaye.

    The proof of the existence of a Dominion Christian presence in the US Military is overwhelming. One may not continue to obfuscate that fact with illogical protestations, weak technicalities and generalizations.

    There can be only two explanations for your dogged defense of this blight on American Democracy. One, you are complicit; or two, you are so immersed in your faith as to be completely blind as to the full implications of Dominionism.

    I think it is the latter. However, Religion, as politics, makes for strange bedfellows. Soon, unqestioned obedience to any philosophy, religious or secular, will carryn you to the extreme. Unthinking respect for authority is the greatest enemy of truth, ( I stole this from Albert Einstein.)

  • You have yet to address the substance of the post (the lawsuit), or provide any evidence to support your fantastical assertions. (For example, you have not provided a single example to support the absurd claim that American Christians are somehow more prone to employ military force than a non-Christian.)

    [An explanation] for your dogged defense of this blight on American Democracy [is that] you are complicit…

    President Obama’s Department of Justice is defending it. Are you accusing him of being complicit?

  • During the Bush years, the Justice Department belonged to him, lock stock and barrel. Now the Justice department is a truly independent organ which belongs only to the citizens of the United States. It will call them as they see them and will certainly be hesitant to leap into a case without much care and examination. The benefit of the doubt must go to the accused. President Obama has no say in this.

    However, when the full story is told and a full examination of the facts are in, this Justice Department will come to the same conclusion as thousands of thinking Americans have. A Dominion Christian cabal of international scope is underway and must be curtailed at all costs. Now it may take a few tries to accomplish this, given the entrenchment of Christianity in America and the fact that it wields much power and influence. But in the long term Dominionism will fall just as the hold the church had on the people of Europe had to yeild to reason and humane treatment.

    You must understand that a force such as the Christian church which can rule populations for centuries and force people to believe the earth is flat and the sun orbits the earth for almost two thousand years, is truly a force majeure and is a determined dark entity that will be difficult to best.

    Yet, true patriots hold their country first, as they swore to do. Those who have abrogated their oath to uphold and support the Constitution by giving their allegiance to a “higher authority” ultimately must make a choice to defend what their religious leaders say that God wants and what our national poiltical leaders say America wants. Seldom do those goals coincide.

    These true patriots will do their duty but I know the Dominion Christian will not.

    While Dominionists wait to be sucked naked into the arms of God in the Rapture the rest of us will be defending against the true terror of religious hegemony whether Islamic Jihad or misplaced Christian Crusade.

    You may sit by and watch these modern day benedict Arnold’s sell America down the river or wake up and help prevent what could soon turn out to be a full scale war on secular America.

  • An apparent abrupt ending to the debate.

    Dare I suppose that I have bested the Knoght of the Air? LOL

  • I think you pretty well proved my point for me.