Prior to dropping its previous lawsuit against the Department of Defense, the Military Religious Freedom Foundation filed a new lawsuit on behalf of an Army soldier who was required to attend military formations at which “sectarian Christian” prayers were delivered.

The relief sought by the MRFF is not that the prayers end, but that the soldier not be required to attend those mandatory formations.  The unwieldiness of implementing this relief would have the effect of requiring all mandatory formations (whether in fact or perceived) to be free from sectarian prayer (which the 11th Circuit said would be impossible to define), or simply free from any prayer at all.

In its current filing, the MRFF does not attempt to prove that the prayers advanced a religion or disparaged another, but instead decries the prayers themselves in the presence of non-faith adherents.  The MRFF also does not assert that the prayers establish a government religion; again, the relief sought is not the end of the prayers, only the ability to be absent from them.  Had the prayers violated the Establishment Clause, the logical relief would be their cessation.  The primary allegation, then, is not that the prayers advance a religion, but that they are offensive to those not of that religion.

The MRFF then cites 17 unrelated (and often vague or unsubstantiated) allegations that purport to prove that the military prayers are “evidence” of institutional support of the Christian faith.  (These are essentially a laundry list of the complaints Weinstein has collected to date, none of which have anything to do with the atheist soldier’s complaint; several of them date to 2006.  Over the past years they have been consistently recycled into the most current iteration of accusations against the military; in fact, most were included in the previous lawsuit that was just dropped.)

For example, a nearly two-page diatribe is leveled against Campus Crusade for Christ, even though Campus Crusade is not a plaintiff, is not a government entity bound by the Establishment Clause (which is the legal basis for the suit), and is not accused of wrongdoing, even in the lawsuit itself.  The lawsuit mentions neither what Campus Crusade did wrong, nor how the lawsuit against the Department of Defense would relieve that grievance.  The lawsuit also repeats complaints about the 523rd Fighter Squadron “Crusaders,” even though, as repeatedly pointed out, they no longer exist.

The MRFF cites three instances in which the soldier was required to attend formations with Christian prayers; however, as the courts have noted, the mere fact that a single faith group is represented (even repeatedly) does not result in “establishment.”  Even if it did, the Department of Defense would only have to provide negative examples.  That is, they would need only show that a non-sectarian prayer (if it could be defined by the plaintiff) or a non-Christian prayer was delivered at a mandatory function.  As these routinely happen (both “imperceptibly religious” prayers as well as those delivered by non-Christian Chaplains), it would be a fairly easy argument to refute.

It is also worth remembering that the Air Force and Navy both attempted to institute guidelines regarding the content of prayers at mandatory functions (that would have effectively made the lawsuit moot).  Those regulations were rescinded not by the Department of Defense, but by Congress — which is authorized by the Constitution to make military law. Thus, it would appear that if the MRFF wants to influence prayer in the military, then the appropriate defendant is not the military, but Congress.

Perhaps the most important weakness in the lawsuit against the DoD is provided by the MRFF itself.  The relief that the plaintiff seeks is the freedom to not attend mandatory military functions in which there is a “sectarian prayer.”  Thus, the content of the prayer (Christian or not) is irrelevant to the case at hand; he does not, after all, request relief from only Christian prayers, nor would such a request be consistent with the premise of the suit.

Thus, the court does not have to address allegations of pervasive Christianity in order to address the plaintiff’s alleged harm (exposure to religion at mandatory formations).  This eliminates the 17 examples in the suit, since they deal only with Christian issues irrelevant to prayer at mandatory formations.  Instead of answering a question as to Christian endorsement or favoritism in the military, the only true question in the suit is whether or not an atheist should be required to attend events where sectarian prayers, regardless of faith tradition, are delivered.

The fact that Weinstein recycles allegations from one lawsuit to the next seems to indicate that he views the plaintiff as a mere vehicle for his agenda.  (In fact, there are indications that he abandoned the first lawsuit, and moved his allegations to the new one, because he believed the newer one stood a better chance in litigation.)  The soldier’s specific complaint is irrelevant to the MRFF; it is merely a means to attempt to get Weinstein’s laundry list of accusations into a courtroom in the hopes that the court will rule on a “bigger issue” than the complaint at hand.

In 2006, Judge Parker dismissed Weinstein’s first lawsuit in part because it contained only unrelated and vague allegations with no evidence of actual harm to any plaintiff.  It does not appear that this lawsuit improves on that failure.