The Obama Administration’s Department of Justice has filed a motion to dismiss the lawsuit brought by Specialist Dustin Chalker and the Military Religious Freedom Foundation.  The lawsuit (discussed previously and available here) alleged that Chalker was forced to attend formations that had Christian prayers.  It asked that the Courts direct that the DoD not require Chalker to attend formations at which a prayer was given.

The motion to dismiss contains a variety of strong points (some of which have been mentioned on this site previously).  In particular:

Chalker does not ask that prayer be prohibited, only that he not be forced to attend.  Such religious accommodation is already incorporated into Army and DoD regulations.

Though Chalker claims he “sought relief from his chain of command,” an affidavit from his former Commander, who would have received that request, says Chalker did not request any such accommodation.

Chalker says he “exhausted” the Equal Opportunity system and “obtained no substantial relief.”  However, he NEVER used the EO system for the three complaints listed in the lawsuit.

Chalker DID use the Equal Opportunity system for a fourth complaint that occurred after the lawsuit was already filed. However, he did not appeal the EO decision, even though he was given instructions on how to do so.  Instead of appealing, the MRFF amended the lawsuit to include this “failure” of the EO system.

As noted in an attached affidavit, this EO complaint was filed the day after Chalker’s current commander APPROVED his request for accommodation to be excused from a formation.  Thus, he received the very relief for which he is suing.  In addition, as relief, his EO complaint requested that the “government prohibit government prayers at all military ceremonies,” which is not the relief he seeks in his lawsuit.

As with the previous lawsuit that was dismissed, Chalker did not use intra-military grievance mechanisms, including

“his chain of command, or his unit’s Equal Opportunity Advisor, or a Chaplain, or an Inspector General, or anyone else authorized by Army regulations to field such a complaint.”

As with the previous lawsuit, the MRFF is mentioned only in a single footnote, which says they have no standing to be party to the suit.  That footnote, however, makes a fascinating statement:  because the MRFF voluntarily dismissed its previous lawsuit with the same allegations, it cannot sue over them again.

Moreover, even if MRFF could establish standing, its “pattern and practice” claims would be precluded by Rule 41(a)(1)(B), which provides that “if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”

MRFF has already voluntarily dismissed under Rule 41(a)(1)(i) two federal lawsuits raising the “pattern and practice” claims alleged here…Accordingly, the second of these dismissals “operates as an adjudication on the merits” that bars MRFF from bringing these claims yet a third time. (emphasis added)

Further, the long list of unrelated allegations “identify no person, least of all Specialist Chalker, who is affected by the alleged practices,” which negates his standing to sue.

The response also includes a long discourse on the history of prayer at military events, with examples dating back to George Washington and including the entire text of General Patton’s prayer (distributed with official resources at the General’s command during the war) as well as that of General Norman Schwarzkopf (whom the MRFF has held up as an icon in dealing with religious issues in the military).

The motion to dismiss appears to raise concerns that significantly weaken the legitimacy and viability of Chalker’s lawsuit against the DoD.

As noted at the Military Times.