{"id":394,"date":"2009-08-06T00:14:13","date_gmt":"2009-08-06T04:14:13","guid":{"rendered":"http:\/\/christianfighterpilot.com\/blog\/2009\/08\/06\/mrff-files-response-against-motion-to-dismiss\/"},"modified":"2015-06-27T19:16:33","modified_gmt":"2015-06-27T22:16:33","slug":"mrff-files-response-against-motion-to-dismiss","status":"publish","type":"post","link":"https:\/\/christianfighterpilot.com\/blog\/2009\/08\/06\/mrff-files-response-against-motion-to-dismiss\/","title":{"rendered":"MRFF Files Response against Motion to Dismiss"},"content":{"rendered":"

The Military Religious Freedom Foundation quietly filed its response<\/a> to the US Department of Justice’s motion to dismiss<\/a> the Chalker v Gates<\/em> lawsuit.\u00a0 The lawsuit challenges the practice of allowing prayer at mandatory military formations and ceremonies.\u00a0It demands that Specialist Dustin Chalker, an atheist, and “those similarly situated” not be forced to attend ceremonies that include a “sectarian prayer.”\u00a0In comparing the two filings, it seems as if the two groups of lawyers were sometimes speaking past each other.<\/p>\n

The\u00a0MRFF’s response\u00a0brings up some interesting points, but also ignores\u00a0some valid issues. It also significantly changes the concept of the original suit.<\/p>\n

For example, the DoJ claimed that Chalker did not have standing to assert Weinstein’s infamous\u00a0“pattern and practice” allegations because Chalker was never actually harmed by them.\u00a0 In response, the MRFF said:<\/p>\n

Plaintiff Chalker has, on at least three occasions sustained a cognizable injury and the abrogation of his rights.<\/p><\/blockquote>\n

The MRFF is referring, of course, to the three examples of “official prayer” at mandatory functions, which isn’t\u00a0what the DoJ was talking about.\u00a0 The MRFF accurately points out that the motion to dismiss did not challenge Chalker’s standing in re: the three examples he listed.<\/p>\n

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”\u00a0allegations 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<\/a>).\u00a0<\/p>\n

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.\u00a0 It appears they are either relying on non-severability of the list with the primary complaint, or resigning themselves to their dismissal.<\/p>\n

In another example, the MRFF’s\u00a0response claims that the DoJ did not contest Chalker’s claims that he was at mandatory events with sectarian prayers:<\/p>\n

Defendant does not controvert these allegations in his motion.<\/p><\/blockquote>\n

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:<\/p>\n

Plaintiffs [make] conclusory assertions that Specialist Chalker was exposed to \u201csectarian Christian\u201d prayer–without alleging any facts to indicate what made those prayers \u201csectarian\u201d or \u201cChristian\u201d…<\/p><\/blockquote>\n

One of the primary weaknesses of the Hall<\/em> lawsuit<\/a> (which the MRFF dropped<\/a> just after filing the Chalker<\/em> suit) was that the plaintiff hadn’t used the military’s in-place systems for addressing grievances.\u00a0 The fact that Chalker had complained to the official systems was one of the cornerstones of this new suit.<\/p>\n

Chalker even went through the effort of lodging a complaint with the Equal Opportunity office after<\/em> the lawsuit had been filed.\u00a0 (The MRFF amended the lawsuit when the MEO office’s response was not “satisfactory.”)\u00a0<\/p>\n

In the response, the MRFF says<\/p>\n

Plaintiff Chalker sought relief from mandatory attendance at the subject sectarian events through his chain of command, the equal opportunity process and the army\u2019s intra-military administrative process. None of these courses of action led to a satisfactory result.<\/p><\/blockquote>\n

(Here the MRFF uses an interesting\u00a0change in language; the lawsuit is about prayers at mandatory formations that are secular<\/em> events.\u00a0 This has morphed into allegations of “sectarian events,” a phraseology that sounds more offensive but is factually inaccurate.)<\/p>\n

However,\u00a0the MRFF appears to concede\u00a0that Chalker did not<\/em> exhaust the available intra-military grievance systems.\u00a0 Instead, they have asserted that use of the internal military systems is “futile.”\u00a0 This is in stark contrast, however, to the government’s statement that Chalker sought and received<\/em> the relief he wanted from within the military system.<\/p>\n

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”).\u00a0\u00a0Apparently, 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.<\/p>\n

The government’s motion to dismiss notes that<\/p>\n

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.<\/p><\/blockquote>\n

Thus, the in-place systems are not<\/em> futile, and they did<\/em> yield a “satisfactory result,” unless the desired result is the prohibition of prayer–which is not the result requested in the lawsuit…\u00a0<\/p>\n

…at least, it wasn’t originally.\u00a0 The MRFF’s response reveals an interesting tack.\u00a0 It says:<\/p>\n

…an administrative exhaustion process would not prevent personnel at the mandatory sectarian prayer events from spontaneously initiating a sectarian prayer.<\/p><\/blockquote>\n

While the lawsuit initially sought to prevent the military from forcing its members to attend formations at which sectarian prayer<\/em> is given, the Plaintiffs appear to advocate\u00a0banning the tradition of prayer outright.\u00a0 (What other means could prevent personnel from “spontaneously initiating sectarian prayer?”)<\/p>\n

The MRFF appears to have quietly moved the goalposts.\u00a0 In the original filing,\u00a0the desired outcome of Chalker’s lawsuit was an injunction that:<\/p>\n

would specifically prohibit mandatory attendance by plaintiff Chalker and those similarly situated at military functions\/formations that include a sectarian prayer.<\/p><\/blockquote>\n

However, the newly filed\u00a0response to the motion to dismiss says this:<\/p>\n

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.<\/p><\/blockquote>\n

No such statement appears in the original lawsuit, and it changes the face of the suit itself.\u00a0 Instead of\u00a0allowing Chalker not to attend, which is what the original lawsuit demands, the new demand is that the\u00a0nature of the events themselves be enjoined (even though, as the government points out, no one has said what made the particular prayers “sectarian”).<\/p>\n

The MRFF\u00a0response strays again from the premise of mandatory formations and government prayer when it says<\/p>\n

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.<\/p><\/blockquote>\n

The problem with the “too numerous” assertion\u00a0is that Chalker seeks relief from formations that, by his own examples, occur only a few times a year (in\u00a0Chalker’s case,\u00a0four\u00a0events over a period of 11 months, which assumes all four\u00a0had a “Christian sectarian” prayer).<\/p>\n

In a separate statement, the lawyers seem to forget some of their own examples of precedent.\u00a0 For example, they say<\/p>\n

it is inconceivable that Army officials are vested with the authority to infringe upon the rights and protections afforded by the Constitution.<\/p><\/blockquote>\n

Actually, the Supreme Court has said that military officials can, in fact, “infringe” upon such rights.\u00a0 See Goldman v. Weinberger<\/em>, referenced here<\/a>.\u00a0 The lawyers actually discussed Goldman<\/em> within the response, but appeared to miss the Supreme Court’s deference to\u00a0military judgement.<\/p>\n

Toward the end of the response, the MRFF makes another\u00a0semantic change.\u00a0 Rather than the primary\u00a0complaint of\u00a0prayers at military functions, the Plaintiffs\u00a0allege that the basis of the lawsuit is “sectarian prayer events” and the government’s actions\u00a0“regulating beliefs:”<\/p>\n

In this case, Defendant is requiring attendance at sectarian prayer events, and essentially regulating beliefs, not conduct.<\/p><\/blockquote>\n

In a final related display of altering the character of the allegations,\u00a0the Plaintiffs compare their situation to that of cadets forced to attend chapel services.\u00a0 Anderson v. Laird<\/em> is the 1972 DC Circuit appellate case that found compulsory chapel attendance at all the US military academies unConstitutional.\u00a0 In the comparison, the MRFF equates military formations with church services:<\/p>\n

Factually, Anderson v. Laird<\/em>…is strikingly similar to the present case….Much like Plaintiff Chalker\u2019s claim, the suit in Anderson<\/em> challenged the constitutionality of the military\u2019s practice of requiring attendance at chapel services.<\/p><\/blockquote>\n

Thus, the\u00a0Plaintiffs are attempting to re-frame the circumstances of the complaint.\u00a0\u00a0Rather than a prayer at a\u00a0military function, it is now a military “sectarian prayer event.”\u00a0 Rather than excusing those who do not wish to be exposed to the prayers, the demand is now that the prayers be prohibited.\u00a0<\/p>\n

The MRFF does bring up an interesting\u00a0rebuttal.\u00a0\u00a0Many prior cases of\u00a0this kind involved a military member opposing a regulation on Constitutional grounds.\u00a0 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:<\/p>\n

if the constitutional challenge is not one of a military regulation, then a lesser degree of deference is due.<\/p><\/blockquote>\n

They fail to note, however, that there are<\/em> applicable regulations governing this scenario.\u00a0 To wit, Army Regulation 165-1<\/a>:<\/p>\n

Military and patriotic ceremonies may require a chaplain to provide an invocation, reading, prayer, or benediction.\u00a0 Such occasions are not considered to be religious services.\u00a0<\/p><\/blockquote>\n

Thus, the US Army has determined that the presence of\u00a0a 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.<\/p>\n

This is nearly irrelevant to the primary complaint, but the\u00a0Plaintiffs make it relevant by their arguments that go beyond mandatory attendance\u00a0of a\u00a0‘military [or] patriotic ceremony.’\u00a0 The Plaintiffs’ shifting arguments are challenging the Constitutionality of this regulation, which delegitimizes their argument against\u00a0judicial deference to the military.<\/p>\n

In the end, it is uncertain what judicial course this case will take.\u00a0 Weinstein’s first lawsuit was dismissed and the second was abandoned.\u00a0 By the same token, the mere presence of the lawsuits has influenced the military environment (a result Weinstein both\u00a0anticipated and desired).\u00a0 In lowering expectations and setting himself up as the underdog,\u00a0Weinstein has said he expects to lose at the Supreme Court.\u00a0 On the other hand, Weinstein appears to have chosen the venue and has culled his vehicle co-plaintiff\u00a0for a potentially more successful one.\u00a0 The judicial process can potentially be unpredictable.\u00a0 Time will tell who prevails.<\/p>\n

Of note, the law firm that filed this response was not the same as the one that filed the initial suit.\u00a0 Other activity by the MRFF contains references to both law firms.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Military Religious Freedom Foundation quietly filed its response to the US Department of Justice’s motion to dismiss the Chalker v Gates lawsuit.\u00a0 The lawsuit challenges the practice of allowing prayer at mandatory military formations and ceremonies.\u00a0It demands that Specialist Dustin Chalker, an atheist, and “those similarly situated” not be forced to attend ceremonies that include a “sectarian prayer.”\u00a0In comparing […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,9],"tags":[4,2,5218,7,11],"class_list":["post-394","post","type-post","status-publish","format-standard","hentry","category-chaplain","category-military-academies","tag-churchandstate","tag-military","tag-military-religious-freedom-foundation","tag-mrff","tag-prayer"],"_links":{"self":[{"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/posts\/394","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/comments?post=394"}],"version-history":[{"count":0,"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/posts\/394\/revisions"}],"wp:attachment":[{"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/media?parent=394"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/categories?post=394"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/christianfighterpilot.com\/blog\/wp-json\/wp\/v2\/tags?post=394"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}