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.