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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION
JASON DANIEL HEAP and THE HUMANIST SOCIETY,
Plaintiffs,
v.
HON. CHARLES T. HAGEL, HON. RAYMOND E. MABUS, JR., VICE ADMIRAL WILLIAM F. MORAN, REAR ADMIRAL MARK L. TIDD, Case No.: 1:14-CV-1490-JCC-TCB REAR ADMIRAL ANNIE B. ANDREWS, REAR ADMIRAL MARGARET G. KIBBEN, BRIEF OF AMICUS CURIAE THE HON. JESSICA L. GARFOLA WRIGHT, CENTER FOR INQUIRY IN SUP- REAR ADMIRAL BRENT W. SCOTT, PORT OF PLAINTIFFS MAJOR GEN. HOWARD D. STENDAHL, BRIGADIER GEN. BOBBY V. PAGE, MAJOR GEN. DONALD L. RUTHERFORD, BRIGADIER GEN. CHARLES R. BAILEY, REAR ADMIRAL DANIEL L. GARD, REAR ADMIRAL GREGORY C. HORN, THE UNITED STATES NAVY, THE UNITED STATES DEPARTMENT OF DEFENSE, and JOHN and JANE DOES # 1-40,
Defendants.
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TABLE OF CONTENTS
TABLE OF CONTENTS ...... ii
INTEREST OF AMICUS CURIAE ...... 1
SUMMARY OF ARGUMENT ...... 1
DISCUSSION ...... 3
I. The Rights of Humanists are Protected Under The Establishment Clause ...... 3
II. The Role of Chaplains in the United States Military Extends Beyond the Provision of Liturgical Services ...... 7
III. The United States Military is, Like Society, Increasingly Diverse as to Member Beliefs ...... 11
IV. The Refusal to Appoint Humanist Chaplains Violates the Establishment Clause ...... 14
i. Discrimination Against Non-Religious Groups Is Constitutionally Suspect ...... 14
ii. This Court Should Apply Strict Scrutiny to the Navy’s Decision ...... 15
iii. The Navy’s Exclusion of Humanists from the Chaplain Corps Fails the Lemon Test ...... 19
iv. Non-Appointment of Humanist Chaplains Cannot Survive Even “Relaxed Strict Scrutiny” ...... 21
v. Both Prospective Chaplains and Military Personnel Are Discriminated Against by This Policy ...... 23
CONCLUSION ...... 24
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TABLE OF AUTHORITIES
Cases
Am. Humanist Ass’n v. United States, 2014 U.S. Dist. LEXIS 154670 (D. Oreg. Oct. 30, 2014) ...... 6
Bd. of Educ. Of Kiryas Joel Will. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ...... 16
Chappell v. Wallace, 462 U.S. 294 (1983) ...... 21
County of Allegheny v. ACLU, 492 U.S. 573 (1989) ...... 19
Ctr. For Inquiry, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869 (7th Cir. 2014) ...... 6, 24
Epperson v. Ark., 393 U.S. 97 (1968) ...... 3
Everson v. Board of Education, 330 U.S. 1 (1947) ...... 4, 18
Goldman v. Weinberger, 475 U.S. 503 (1986) ...... 22, 23
Holt v. Hobbs, 574 U.S. ___ (2015), No. 13-6827, slip op...... 23
Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) ...... 8, 11, 19, 20
Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) ...... 6, 7
Larsen v. U.S. Navy, 486 F. Supp. 2d 11 (D.D.C. 2007) ...... 21, 23
Larson v. Valente, 456 U.S. 228 (1982) ...... 14, 16, 18, 22
Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013) ...... 19
Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) ...... 19
Orloff v. Willoughby, 345 U.S. 83 (1950) ...... 21
Parker v. Levy, 417 U.S. 733 (1974) ...... 21
Saunders v. White, 191 F. Supp. 2d 95 (2002) ...... 22
Texas Monthly v. Bullock, 489 U.S. 1 (1989) ...... 7, 16, 18
Torcaso v. Watkins, 367 U.S. 488 (1961) ...... 4, 15
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Veitch v. England, No. 00-2982, 2005 U.S. Dist. LEXIS 6257 (D.D.C. Apr. 4, 2005)...... 9
Wallace v. Jaffree, 472 U.S. 38 (1985) ...... 4
Warner v. Orange County Dep’t of Probation, 827 F. Supp. 261 (S.D.N.Y. 1993) ...... 7
Welsh v. United States, 398 U.S.333 (1970) ...... 5, 7
Other Authorities
America’s Navy: Career and Jobs; Chaplain, available at http://tinyurl.com/navychaplainrecruitment (last visited May 19, 2015) ...... 8
Cdr. William A. Wildhack III, Navy Chaplains at the Crossroads: Negotiating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection, 51 Navy L. Rev. 217 (2005) ...... 18
Council for Secular Humanism, What is Secular Humanism? (2015), available at https://www.secularhumanism.org/index.php/3260 ...... 4
Erin L. Miggantz, Stigma of Mental Health Care in the Military, Naval Center for Combat & Operational Stress Control, available at http://tinyurl.com/StigmaWhitePaper (last visited May 19, 2015) ...... 10
Ira C. Lupin and Robert W. Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, 110 W. Va. L. Rev. 89 (2007) ...... 17
Military Association of Atheists and Freethinkers, Military Religious Demographics, July 2102, available at http://militaryatheists.org/demographics/ (last visted May 24, 2015) ...... 13, 14
Military Leadership Diversity Commission, Religious Diversity in the US Military, June 2010, available at http://secular.org/files/mldc- ripsdemographics_0.pdf (last visited May 24, 2015) ...... 13, 20
Office of the Deputy Assistant Secretary of Defense (Military Community and Family Policy), 2013 Demographics: Profile of the Military Community, 2013, available at http://download.militaryonesource.mil/12038/MOS/Reports/2013- Demographics-Report.pdf (last visited May 24, 2105) ...... 13
Pew Research Center, America’s Changing Religious Landscape (“Pew Report”), May 12, 2015, available at http://www.pewforum.org/files/2015/05/RLS-05-08- full-report.pdf (last visited May 24, 2015)...... 12
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Susanne Kaplar, Army Recalls Path to Making History, June 12, 2009, available at http://www.army.mil/article/22584/chaplain-recalls-path-to-making-history/ (last visited May 25, 2015) ...... 21
Travis K. Lunasco, et al., One Shot – One Kill: A Culturally Sensitive Program for the Warrior Culture, 175 Mil. Med. 509 (2010) ...... 11
Regulations
Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members, Department of Defense Instruction No. 6490.08, August 17, 2011, available at http://www.dtic.mil/whs/directives/corres/pdf/649008p.pdf (last visited May 19, 2015) ...... 11
Department of Defence Health Information Privacy Regulation, DoD 6025.18- R.C7.11.1.3, 24 January 2003, available at http://tinyurl.com/DoD6025-18-R (last visited May 19, 2015) ...... 10
OPNAVINST 1730.1E, 25 April 2012, available at http://tinyurl.com/OPNAVINST1730-1E (last visited May 19, 2015) ...... 7
SECNAVINST 1730.9(4), 7 February 2008, available at http://tinyurl.com/SECNAVINST1730-9 (last visited May 19, 2015) ...... 10, 17
SECNAVINST 5351.1, available online at http://tinyurl.com/SECNAVINST5351-1 (last visited May 24, 2015) ...... 14, 23
Constitutional Provisions
U.S. Const. amend I ...... passim
Court Filings
Brief of Plaintiff at ¶16, Heap v. Hagel, No. 1:14-CV-1490-JCC-TCB (E.D. Va. Feb. 13, 2015) ...... 1, 2, 15
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INTEREST OF AMICUS CURIAE1
This amicus curiae brief in support of Jason Daniel Heap and The Humanist Society is
being filed on behalf of the Center for Inquiry (“CFI”). CFI is a nonprofit educational organiza-
tion dedicated to promoting and defending reason, science, and freedom of inquiry. Through ed-
ucation, research, publishing, social services, and other activities, including litigation, CFI en-
courages evidence-based inquiry into science, pseudoscience, medicine and health, religion, and
ethics. CFI believes that the separation of church and state is vital to the maintenance of a free
society that allows for a reasoned exchange of ideas about public policy. Currently CFI repre-
sents in excess of 50,000 members located across the United States and the world.
SUMMARY OF ARGUMENT
Dr. Jason Heap is a well-educated theologian, having been awarded degrees from Walden
University, the faculty of theology at the University of Oxford, Howard Payne University, and
Brite Divinity School.2 He is certified as a Humanist Celebrant by The Humanist Society.3 After
more than 10 years of serving as a Baptist minister, and then teaching courses on religion across
1 No counsel for a party authored this brief in whole or part, nor did any person or entity, other than amicus or its counsel, financially contribute to preparing or submitting this brief. Both parties permission for filing this amicus brief was requested. Counsel for plaintiffs granted per- mission, which is attached to this brief as Appendix A. Counsel for both the official capacity de- fendants and the individual capacity defendants have not granted permission, but have stated that they will take no position as to the proposed filing. An email expressing this is attached to this brief as Appendix B.
2 Brief of Plaintiff at ¶16, Heap v. Hagel, No. 1:14-CV-1490-JCC-TCB (E.D. Va. Feb. 13, 2015) (“Heap Brief”)
3 Heap Brief at ¶1
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the world,4 Dr. Heap decided he wished to use his talents in order to serve his country, and he
applied to serve as a chaplain in the United States Navy.5 Dr. Heap received the endorsement of
the Humanist Society in this application.6 After initial encouragement from the Navy, Dr. Heap’s
application was rejected. The sole reason for the rejection of this qualified candidate was his
identification as a humanist, shown by the endorsement of the Humanist Society. This rejection
by the Navy of a qualified candidate based on his non-membership of a recognized religious
faith violates the core of the Establishment Clause and, as such, is unconstitutional.
CFI does not claim that secular humanism is a religion; in fact, CFI does not accept this
characterization. Case law is, however, clear that the protections of the First Amendment are not
solely for the religious, but also for the non-religious. Secular humanism does not need to wear
the robes of religion in order for it to be protected. In the United States military, chaplains serve
multiple roles, and play an important part in providing for the mental, physical, and spiritual wel-
fare of the men and women serving to defend this nation. A humanist chaplain is equally able to
provide this support as one from any religious denomination, and to deny the opportunity to
serve to a person based solely on his or her lack of recognized religious beliefs violates the basic
principles of the First Amendment.
Over recent years, American society has become increasingly pluralistic in its moral,
philosophical, and religious make up. These changes have seen a declining percentage of the
country identifying with Roman Catholicism and mainstream Protestantism, and an increase in
4 Heap Brief at ¶16
5 Heap Brief at ¶5
6 Heap Brief at ¶7
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the number of adherents to Islam, Eastern religions such as Buddhism, and those who identify
with no religion or eschew faith in a deity entirely. Unsurprisingly, as the makeup of society has
altered, so has the makeup of the United States Armed Forces. More of the US military identifies
as atheists, as agnostic, as humanist than at any time before. These men and women in uniform
may not have faith in a deity, but they face the same moral and ethical dilemmas which their fel-
low service personnel who do believe in gods face. And they therefore benefit equally from the
services provided by the Chaplain Corps.
Refusal to permit humanist chaplains to serve, despite their presence in militaries around
the world, sends a message that secular humanism is not considered equal to religious faiths by
the United States military. It discriminates against humanists, like Dr. Heap, who apply to serve
their country in this manner. It discriminates against humanist men and women serving in the
military, telling them that their belief system is second rate compared to those of their Christian,
Jewish, or Islamic comrades-in-arms. “The First Amendment mandates government neutrality
between religion and religion, and between religion and nonreligion.” Epperson v. Ark., 393 U.S.
97, 104 (1968). The Navy policy challenged here violates this neutrality without any reasonable
basis, compelling or otherwise, and so violates the Establishment Clause.
DISCUSSION
I. The Rights of Humanists are Protected Under The Establishment Clause
Secular humanism is a comprehensive lifestance which incorporates three key elements: a
naturalistic philosophy, holding that the world of everyday physical experience is all there is; a
cosmic outlook rooted in science, grounding life in the context of our universe and relying on the
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scientific method for exploration and discovery; and, a consequentialist ethical system, judging
the ethical nature of actions by their results.7
Though some organizations claim humanism to be a religion, CFI does not. This does not,
however, indicate that secular humanism, as a philosophical system providing a framework for
an individual to develop a moral and ethical lifestance, is unprotected under the First Amend-
ment. Indeed, courts at all levels have repeatedly found that the protections afforded by both the
Free Exercise Clause and the Establishment Clause are enjoyed by atheists and theists alike, and
that humanists, both those who view themselves as following a religion, and those who do not,
are no different as regards their belief system in the eyes of the judiciary than Roman Catholics,
Sunni Muslims, or Orthodox Jews.
In overturning a Maryland law banning atheists from holding public office as a violation of
the Establishment Clause, the Supreme Court held that “[N]either a State nor the Federal Gov-
ernment can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Nei-
ther can constitutionally pass laws or impose requirements which aid all religions as against non-
believers, and neither can aid those religions.” Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
This requirement of neutrality between belief and non-belief goes to the very core of the Reli-
gion Clauses of the First Amendment. E.g., Everson v. Board of Education, 330 U.S. 1, 15-16
(1947) (“The ‘establishment of religion’ clause of the First Amendment means at least this: …
No person can be punished for entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance.”); Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985) (“But
7 Council for Secular Humanism, What is Secular Humanism? (2015), available at https://www.secularhumanism.org/index.php/3260 (last visited May 21, 2015).
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when the underlying principle has been examined in the crucible of litigation, the Court has un-
ambiguously concluded that the individual freedom of conscience protected by the First
Amendment embraces the right to select any religious faith or none at all.” (emphasis added))
Whether secular humanism is referred to as a religion, or recognized as a philosophical
lifestance which fulfills many of the same functions as a religion in people’s lives, granting them
a framework to develop an ethical and moral code, it is clear that government may not discrimi-
nate against secular humanists or secular humanism, or indeed against atheists and atheism,
without coming up against the restrictions of the Establishment Clause. For example, self-
confessed non-religion based opposition to the use of war to settle international disputes has been
recognized by the Supreme Court as an equally legitimate basis for conscientious objector status
as religious based opposition. Welsh v. United States, 398 U.S.333, 340 (1970) (“If an individual
deeply and sincerely holds beliefs that are purely ethical and moral in source and content but that
nevertheless impose upon him a duty of conscience to refrain from participating in any war at
any time, those beliefs certainly occupy in the life of that individual ‘a place parallel to that filled
by … God’ in traditionally religious persons.”)8
Courts have continued to recognize the rights of the non-religious to the protection of the
First Amendment. For example, last year the Seventh Circuit struck down Indiana’s wedding
8 Justice Harlan, in his concurrence, noted he would have found the statute with its limitation to religious reasoning alone unconstitutional, rather than simply expand the definition of reli- gious to include such non-religious views as those expressed by the appellant in the case. He noted that “having chosen to exempt, [the state] cannot draw the line between theistic or nonthe- istic religious beliefs on the one hand and secular beliefs on the other. Any such destinctions are not … compatible with the Establishment Clause of the First Amendment.” Welsh, 398 U.S. at 356. To pass constitutional muster, the conscientious objector law must protect “individuals guided by an inner ethical voice that bespeaks secular and not ‘religious’ reflection.” Id. at 357.
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celebrant law that permitted all religious ministers to solemnize weddings, but excluded trained
secular humanist celebrants, as a violation of the Establishment Clause. Ctr. For Inquiry, Inc. v.
Marion Circuit Court Clerk, 758 F.3d 869, 873 (7th Cir. 2014) (“Atheists don’t call their stance
a religion but are nonetheless entitled to the benefit of the First Amendment’s neutrality princi-
ple, under which the states cannot favor (or disfavor) religion vis-à-vis comparable secular belief
systems.”)9 A prison system’s denial of an atheist prisoner’s request to hold discussion meetings
with fellow atheists on the same basis as religious groups were permitted was found to violate
the Establishment Clause. Kaufman v. McCaughtry, 419 F.3d 678, 681-2 (7th Cir. 2005)
(“[W]hen a person sincerely holds beliefs dealing with issues of ‘ultimate concern’ that for her
occupy a place ‘parallel to that filled by … God in traditionally religious persons,’ those beliefs
represent her religion.”)10 Similarly, in 2014, an Oregon prison discovered it could not prevent
humanist study groups from being formed when it permitted multiple religious groups. Am. Hu-
manist Ass’n v. United States, 2014 U.S. Dist. LEXIS 154670 (D. Oreg. Oct. 30, 2014). Cases
involving court mandated attendance at Alcoholics Anonymous sessions have also recognized
the rights of atheists and secular humanists to protection under the First Amendment. E.g. Warn-
9 Judge Easterbrook noted the insulting nature of requiring secular humanists to ‘make do’ with religious celebrants in order to receive government recognition of their relationship. “Plain- tiffs … are unwilling to pretend to be something they are not, or pretend to believe something they do not; they are shut out as long as they are sincere in following an ethical system that does not worship any god, adopt any theology, or accept a religious label.” Ctr. For Inquiry, 758 F.3d at 872.
10 Judge Wood made clear that he was not describing atheism as a religion, except for the limited purpose of whether it should be protected under the First Amendment. Kaufman, 419 F.3d at 681. (“[W]hether atheism is a ‘religion’ for First Amendment purposes is a somewhat dif- ferent question that whether its adherents believe in a supreme being, or attend regular devotion- al services, or have a sacred Scripture.”)(emphasis added)
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er v. Orange County Dep’t of Probation, 827 F. Supp. 261, 265 (S.D.N.Y. 1993) (“On the basis
of Supreme Court Establishment Clause jurisprudence, therefore, we find that atheism falls with-
in the protection of the First Amendment.”)
If this court finds that secular humanism is a religion, then it is clear that the U.S. Navy’s de-
cision to exclude humanist chaplains from consideration must face critical examination under the
Establishment Clause. However, even if this court holds, as CFI maintains, that secular human-
ism is not a religion, its provision of an “inner ethical voice,” Welsh, 398 U.S. at 356, regarding
“issues of ‘ultimate concern’,” Kaufman, 419 F.3d at 681, requires this court to grant secular
humanism the full protections of the First Amendment, as if it were a religion. As the Supreme
Court has found, “[a] statutory preference for the dissemination of religious ideas offends our
most basic understanding of what the Establishment Clause is all about and hence is constitu-
tionally intolerable.” Texas Monthly v. Bullock, 489 U.S. 1, 22 (1989) (Blackmun, J., concur-
ring). The U.S. Navy must therefore justify why excluding humanist chaplains from the Chaplain
Corps does not constitute a violation of the Establishment Clause. This is a burden the Navy
cannot meet.
II. The Role of Chaplains in the United States Military Extends Beyond the Provision of Liturgical Services
The Chaplain Corps of the United States Navy “provides for the free exercise of religion; at-
tends to the sacred, spiritual, and moral aspects of life; and serves to enhance the resilience of
Service members, civilians and their families.” OPNAVINST 1730.1E, 25 April 2012, available
at http://tinyurl.com/OPNAVINST1730-1E (last visited May 19, 2015). This intended function
clearly extends beyond the simple provision of church services. In seeking new recruits, the Na-
vy stresses this broad function. A Navy Chaplain is expected to serve “as the spiritual guide and
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moral anchor for servicemembers of all backgrounds…. Chaplains offer everything from faith
leadership to personal advice to much needed solace.” America’s Navy: Career and Jobs; Chap-
lain, available at http://tinyurl.com/navychaplainrecruitment (last visited May 19, 2015).
A chaplain’s role is complex and broad, and covers a multiplicity of areas only a few of
which can be seen to be the exclusive province of the ordained ministry. A chaplain will hold
worship services for the particular faith of which he or she is a member, but beyond that, will al-
so perform weddings and funerals, services requested by the religious and non-religious alike. A
chaplain, as part of the military, embedded in a unit, but also consciously and deliberately set
aside from the command structure, is also responsible for providing counseling and solace to all
members of that military unit. The stresses faced by members of the military include “tensions
created by separation from their homes, loneliness when on duty in strange surroundings involv-
ing people whose language or customs they do not share, fear of facing combat or new assign-
ments, financial hardships, personality conflicts, and drug, alcohol, or family problems.” Katcoff
v. Marsh, 755 F.2d 223, 228 (2d Cir. 1985).
These problems and stresses faced by serving personnel are independent of their religious
and faith background. Christians and Jews, Muslims and Buddhists, atheists and believers in
gods alike suffer from these stresses, and, in a military environment, turn to their unit chaplain
for assistance. As the military’s role has changed in the post-Cold War environment, such prob-
lems have magnified. Military personnel are deployed to far flung areas of the world, separated
from their families, facing dangers not from an opposing Soviet army, but instead the danger of
suicide bombs carried by children. The moral and ethical dilemmas service personnel may face
have changed as the enemy has changed from the monolithic image of the totalitarian communist
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bloc to current day asymmetric warfare against insurgents. However, what has not changed is
how military personnel look to their chaplain to provide them with guidance and solace regard-
ing the issues they face.
While a Roman Catholic chaplain will provide liturgical services such as Holy Communion
to Roman Catholic service personnel, the counseling and comfort that he provides is done on an
ecumenical basis. Soldiers with any religious faith or none are encouraged to bring such prob-
lems to their chaplain, who may well come from a completely different faith background to the
individual seeking assistance. Military personnel can and do expect a chaplain to provide help
and solace regardless of religious differences, and chaplains seek to meet those expectations.
This concept of pluralism is considered central to a chaplain’s role in the Navy. In an employ-
ment discrimination case, a Navy officer’s report noted that pluralism “had a long history in the
Chaplains Corps…. In laymen’s terms the Navy chaplain must minister to all faiths in such a
manner as to be inclusive … to all and unoffensive … to all Navy personnel.” Veitch v. England,
No. 00-2982, 2005 U.S. Dist. LEXIS 6257 at *10 (D.D.C. Apr. 4, 2005) (aff’d 471 F. 3d 124
(D.C. Cir. 2006).
It is true that each individual service can be found in other places in the military environ-
ment. However, the combination of these roles provided by chaplains, embedded as they are
within the military unit, is unique, and makes the functions of the chaplain irreplaceable by other
resources available to serving personnel. The immediacy and availability of the chaplain in times
of great stress, including during combat, makes the chaplain the “go to” source for these services,
and provides a level of connection between the military man or woman and the chaplain which
cannot be duplicated elsewhere.
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Moreover, discussions with a chaplain take place under the explicit protection of privacy.
“All Navy chaplains have the professional obligation to keep private all confidential communica-
tion disclosed to them.” SECNAVINST 1730.9(4), 7 February 2008, available at
http://tinyurl.com/SECNAVINST1730-9 (last visited May 19, 2015). The importance of this
confidentiality cannot be overstated. Unlike in the civilian world, in the majority of situations
where a serving member of the United States military seeks help, he or she is not protected by
the cloak of confidentiality. For example, a member of the Armed Forces’ mental health records
may be disclosed for purposes including “[t]o determine the member’s fitness to perform any
particular mission, assignment, order, or duty, including compliance with any actions required as
a precondition to [such] performance.” Department of Defense Health Information Privacy
Regulation, DoD 6025.18-R.C7.11.1.3, 24 January 2003, available at
http://tinyurl.com/DoD6025-18-R (last visited May 19, 2015).
The benefits of such confidentiality include, but go far beyond simple avoidance of embar-
rassment. In many situations of distress, a member of the military may that fear seeking assis-
tance will jeopardize his or her future career and promotion prospects. The military itself has
long recognized the existence of this stigma against seeking mental health treatment. See Erin L.
Miggantz, Stigma of Mental Health Care in the Military, Naval Center for Combat & Operation-
al Stress Control, available at http://tinyurl.com/StigmaWhitePaper (last visited May 19, 2015)
(“While anti-stigma efforts have been employed through all branches of the military, research
shows that the stigma of mental illness in the military remains high). This stigma attached to ad-
mitting the need for help remains stubbornly high despite repeated attempts to dispel it. Howev-
er, even in the attempts to encourage military personnel to avail themselves of mental health ser-
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vices, the absence of confidentiality is noted. See Command Notification Requirements to Dispel
Stigma in Providing Mental Health Care to Service Members, Department of Defense Instruction
No. 6490.08, August 17, 2011, available at
http://www.dtic.mil/whs/directives/corres/pdf/649008p.pdf (last visited May 19, 2015) (“b. Pro-
vides guidance for balance between patient confidentiality and the commander’s right to know
for operation and risk management decisions.”) A visit to the chaplain, on the other hand, not on-
ly carries less stigma to military personnel themselves, see Travis K. Lunasco, et al., One Shot –
One Kill: A Culturally Sensitive Program for the Warrior Culture, 175 Mil. Med. 509 (2010),
but also does not leave the service personnel fearing the end of his or her chances of promotion
for admitting doubts and weakness.
A final role of the chaplaincy also benefits service personnel outside of a liturgical function.
The chaplain “because of his close relationship with the soldiers in his unity, often serves as a li-
aison between the soldiers and their commander, advising the latter of racial unrest, drug or al-
cohol abuse, and other problems affecting the moral and efficiency of the unit.” Katcoff, 755
F.2d at 228. The chaplain’s position as a commissioned officer, but outside of the standard mili-
tary chain of command, places him or her in an excellent position to act as an intermediary be-
tween enlisted personnel and their commanders, while avoiding the regulations and formalism of
communication within the chain of command.
III. The United States Military is, Like Society, Increasingly Diverse as to Member Be- liefs
All evidence points to increasing religious diversity in the population of the United States.
Not only is Christianity the faith espoused by a smaller percentage of Americans than at any time
in the past, so the percentage of those willing to self-identify as atheists, agnostics, or having no
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religious affiliation (the “Nones”) has reached historically high levels. Most recently, the Pew
Research Center’s report on religious diversity in the United States showed how these demo-
graphic shifts have quickened in recent years. Over the past 7 years, the report indicates that the
percentage of American adults who identified themselves as Christian to the survey fell almost 8
percentage points from 78.4% in 2007, to 70.6% in 2014.11 During the same period, the percent-
age following non-Christian faiths increased from 4.7% to 5.9%, while the number of Nones, the
religiously unaffiliated, soared from 16.1% to 22.8%.12 Within the Nones, atheists almost dou-
bled from 1.6% to 3.1%, agnostics rose from 2.4% to 4.0%, and those stating “nothing in particu-
lar” increased from 12.1% to 15.8%.13
This increasingly rapid shift away from religious practice in the United States is most pro-
nounced amongst younger citizens. 85% of those born from 1928-1945, and 78% of those born
from 1946-1964, identify as Christians; respectively 11% and 17% have no religious affiliation.14
For younger Americans, those born from 1981-1989, 57% are Christian, while that number is
56% for those born from 1990-1996; these age groups have 34% and 36% Nones.15 Over a third
11 Pew Research Center, America’s Changing Religious Landscape (“Pew Report”), May 12, 2015, at 3, available at http://www.pewforum.org/files/2015/05/RLS-05-08-full-report.pdf (last visited May 24, 2015).
12 Id. at 3.
13 Id. at 4.
14 Id. at 11.
15 Id.
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of American adults under the age of 35 therefore express no religious affiliation. It is this age
group, 18 to 35, that forms the significant majority (75.5%) of the American military.16
While the population from which the United States military recruits is thus increasingly non-
religious, surveys of religious affiliation within the military itself indicate the representation of
atheists, agnostics and humanists within the ranks of serving personnel. Data from the Religious
Identification and Practices Survey, administered as part of the Defense Equal Opportunity Cli-
mate Survey in 2009 showed 3.61% of recruits identifying as humanist, and 25.5% expressing no
religious preference.17 A 2012 study by the Military Association of Atheists and Freethinkers
found 0.67% of respondents self-identifying as atheists and agnostics, 6.71% unknown, and
22.5% expressing no religious preference.18 This would make atheism the fifteenth largest reli-
gious preference in the military, with more respondents identifying as atheist than 88 religious
preferences, including 73 Christian denominations and all non-Christian religious faiths.19
Atheism, agnostism, humanism, and religious non-identification are therefore significantly
represented in the United States military. They are, however, completely unrepresented amongst
16 Office of the Deputy Assistant Secretary of Defense (Military Community and Family Pol- icy), 2013 Demographics: Profile of the Military Community, 2013, at 7, available at http://download.militaryonesource.mil/12038/MOS/Reports/2013-Demographics-Report.pdf (last visited May 24, 2105).
17 Military Leadership Diversity Commission, Religious Diversity in the US Military, June 2010, at 2, available at http://secular.org/files/mldc-ripsdemographics_0.pdf (last visited May 24, 2015).
18 Military Association of Atheists and Freethinkers, Military Religious Demographics, July 2102 (“MAAF Survey”), available at http://militaryatheists.org/demographics/ (last visted May 24, 2015).
19 Id.
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military chaplains. The Navy states that its policy is to recruit so as to maintain “a diverse corps
made up of the best and most fully qualified chaplains.” SECNAVINST 5351.1, available online
at http://tinyurl.com/SECNAVINST5351-1 (last visited May 24, 2015). As part of this quest for
diversity, the Navy looks as to whether groups represented by service personnel is under, or not,
represented in the Chaplain Corps. Id. Despite being significantly less prevalent in the military
than humanists, Buddhists and Muslims, Jews and Hindus, all have chaplains.20 Humanism, as
well as other atheistic philosophies, has no representation amongst chaplains. As the number of
military personnel who identify as humanist and atheist rises, and as the percentage of those
groups in the demographics from which the military recruits increases, this disparity will become
more and more apparent.
IV. The Refusal to Appoint Humanist Chaplains Violates the Establishment Clause
i. Discrimination Against Non-Religious Groups Is Constitutionally Suspect
As demonstrated supra, “[Tt]he Supreme Court has recognized atheism as equivalent to a
‘religion’ for purposes of the First Amendment on numerous occasions.” Kaufman, 419 F.3d at
682. To treat humanists differently from Christians in recruitment is no different to a court of law
than treating Hindus differently from Christians. Such a form of denominational discrimination
would be immediately ruled unconstitutional by the court system. “The clearest command of the
Establishment Clause is that one religious denomination cannot be officially preferred over an-
other.” Larson v. Valente, 456 U.S. 228, 244 (1982).
It is not sufficient for the Navy to argue that service in the military, and in particular the
Chaplain Corps, is voluntary. The availability of employment by Federal or state government
20 MAAF Survey.
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may not be conditioned on a profession of a particular faith, or on the profession of faith in a su-
pernatural or transcendent order at all. Torcaso, 367 U.S. at 495 (“The fact, however, that a per-
son is not compelled to hold public office cannot possibly be used as an excuse for barring him
from office by state imposed criteria forbidden by the Constitution…. ‘[W]hether or not an ab-
stract right to public employment exists,’ Congress could not pass a law providing ‘… that no
federal employee shall attend Mass or take any active part in missionary work.’”)
After being informed by the Navy that he was highly qualified to serve as a chaplain in the
U.S. Navy,21 Dr. Heap saw his application rejected when it was discovered his endorsing organi-
zation was the Humanist Society.22 In absence of any other reason for rejecting Dr. Heap’s appli-
cation, and in light of the Navy’s stated policy of recruiting from a diverse pool of applicants, the
presence of significant numbers of humanists among Navy personnel, and the complete absence
of humanist chaplains in the Navy, the actions of the Navy indicate a policy of denominational
discrimination against humanists. Such a policy strikes to the very heart of the Establishment
Clause of the First Amendment.
ii. This Court Should Apply Strict Scrutiny to the Navy’s Decision
By denying humanists the opportunity to serve as chaplains, the Navy not only grants to a list
of officially approved religions an employment opportunity it denies to humanists, it also places
the official, government stamp of approval on those beliefs. The government is announcing that
it views theistic beliefs as worthy of chaplains, whereas atheistic military personnel, including
those who identify as humanists, do not merit such consideration. In order to be constitutional,
21 Heap Brief at ¶75.
22 Heap Brief at ¶82.
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legislation may not “have the purpose or effect of sponsoring certain religious tenets or religious
belief in general.” Texas Monthly, 489 U.S. at 17.
Where basic, fundamental constitutional rights, such as those enshrined in the First Amend-
ment, are concerned, courts are particularly careful to ensure that the government must justify
any action that shows preference to any particular group. Equal treatment for religion and non-
religion, and for different types of religion, is precisely this type of core constitutional value.
Texas Monthly, 489 U.S. at 22 (Blackmun, J., concurring) (“A statutory preference for the dis-
semination of religious ideas offends our most basic understanding of what the Establishment
Clause is all about and hence is constitutionally intolerable.”); Bd. of Educ. Of Kiryas Joel Will.
Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994) (“A proper respect for both the Free Exercise and
the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion,
favoring neither one religion over others nor religious adherents collectively over nonadherents.”
(internal citations omitted).)
The Navy’s decision to permit only certain religious denominations to endorse candidates for
the Chaplain Corps, denying members of other denominations, as well as adherents to non-
religious belief systems, the opportunity to serve as chaplains, constitutes denominational dis-
crimination. As such, courts are required to examine such policies using strict scrutiny, the high-
est level available. Larson, 456 U.S. at 246. (“In short, when we are presented with a … law
granting a denominational preference, our precedents demand that we treat the law as suspect
and that we apply strict scrutiny in adjudicating its constitutionality.”)
In order to survive strict scrutiny, a law or government action must both be “justified by a
compelling government interest … and closely fitted to further that interest.” Id. at 247. The Na-
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vy has not advanced, and indeed cannot advance any interest of sufficient magnitude to meet this
burden. There is no reason why humanist chaplains would not be able to attend to the multiple
needs of humanist serving men and women in exactly the same way that Christian chaplains pro-
vide services to Christian military personnel, or Jewish chaplains to Jewish soldiers, sailors and
airmen and women. There is nothing about humanists in the military that immunizes them from
facing fear of death, or moral dilemmas regarding particular actions, or personal upheaval result-
ing from deployment to a foreign land. Humanists face these issues in the same way as their reli-
gious comrades-in-arms. They equally deserve the opportunity to be able to speak to a chaplain
who shares their nontheistic world view, protected by the same level of confidentiality religious
personnel are afforded. See SECNAVINST 1730.9(4).
Members of the Chaplain Corps provide a whole range of services beyond traditional reli-
gious activities. See supra at II. Chaplains currently provide these services to those of all faiths,
and those of no faiths. It would be a logistical impossibility to ensure that every member of the
military at all times had immediate access to a chaplain from his or her particular belief system.
The willingness and ability to provide these services outside of their own faith is a requirement
for those who seek become chaplains. Army chaplain candidates, for example, are required to
endorse a statement which reads: “While remaining faithful to my denominational beliefs and
practices, I understand that, as a chaplain, I must be sensitive to religious pluralism and will pro-
vide for the free exercise of religion by military personnel, their families, and other authorized
personnel served by the Army.” Ira C. Lupin and Robert W. Tuttle, Instruments of Accommoda-
tion: The Military Chaplaincy and the Constitution, 110 W. Va. L. Rev. 89, 133 (2007). The
ability to perform such duties on behalf of service members of other faiths or of no faiths is un-
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challenged in current chaplains, and is talked of with pride by the military. E.g. Cdr. William A.
Wildhack III, Navy Chaplains at the Crossroads: Negotiating the Intersection of Free Speech,
Free Exercise, Establishment, and Equal Protection, 51 Navy L. Rev. 217, 219-20 (2005) (“In
their ministry, the chaplains on the Dorchester [a troop ship sunk by torpedo in 1943] and in Bei-
rut [following the 1983 terrorist bombing] sought and found the ‘highest common denominator
without compromise of conscience’ and ministered to all without any preferential treatment for
one faith over another.”)
If a Christian chaplain can provide such aid and comfort to a grieving atheist, and a Muslim
chaplain can do so to a wounded Jewish soldier, then so, equally, can a humanist chaplain minis-
ter to the needs of a theist. For the Navy to deny this is to provide a special place for belief over
non-belief, the very thing the Supreme Court has been adamant is a violation of the First
Amendment. Epperson, 393 U.S. at 104; Everson, 330 U.S. at 15-16; Larson, 456 U.S. at 244;
Texas Monthly, 489 U.S. at 17.
The Navy’s current policy of seeking religious diversity amongst chaplains, but denying hu-
manists the opportunity to join the Chaplain Corps leaves it between a constitutional rock and a
hard place. On the one hand, if the Navy acknowledges that chaplains provide multiple non-
religious services to those of different faiths or none (e.g. Wildhack III, Navy Chaplains at the
Crossroads, at 240-41), yet claims without evidence that humanist chaplains are unable to pro-
vide these services to theist personnel, it violates the constitutionally mandated neutrality be-
tween religion and non-religion. On the other hand, if the Navy acknowledges humanists are
equally able to provide these services, its exclusion of humanists from the Chaplain Corps cannot
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be seen as closely fitted to furthering a compelling government interest. In either situation, the
Constitution is violated.
iii. The Navy’s Exclusion of Humanists from the Chaplain Corps Fails the Lemon Test
The Supreme Court has used multiple tests to determine if government action regarding reli-
gion violates the Establishment Clause. The most commonly used test is that provided in Lemon
v. Kurtzman, 403 U.S. 602 (1971). It is this test which is preferred in the Fourth Circuit. Mellen
v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003) (“During the past decade, we have emphasized that
the Lemon test guides our analysis of Establishment Clause challenges.”); Liberty Univ., Inc. v.
Lew, 733 F.3d 72, 101 (4th Cir. 2013). Under the Lemon test, in order to be constitutional, an ac-
commodation granted to religion must meet a three pronged test: it must have a secular legisla-
tive purpose; it must neither advance nor inhibit religious practice; and it must not result in ex-
cessive government entanglement in religion. Lemon, 403 U.S. at 612-13. A failure to pass any
one of these three prongs will render an accommodation unconstitutional. County of Allegheny v.
ACLU, 492 U.S. 573, 593 (1989).
In a challenge to the constitutionality of chaplains in the Army as a whole, the Second Circuit
noted that “if the current Army chaplaincy were viewed in isolation, there could be little doubt
that it would fail to meet the Lemon v. Kurtzman conditions.” Katcoff, 755 F.2d at 232.That
court, however, upheld the program as a whole, finding that its existence was necessary to pro-
tect the Free Exercise rights of military personnel who may be stationed far from home. Id. at
235. Such concerns with Free Exercise are not present with regard to the Navy’s policy of ex-
cluding humanist from the Chaplain Corps.
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There is no secular purpose to refusing to appoint humanist chaplains. As noted supra, hu-
manist chaplains are equally capable of performing the functions of the chaplaincy as those of
any theistic faith background. The majority of the functions provided by a chaplain are not reli-
giously specific, and chaplains pledge to provide these services equally to all serving personnel
regardless of their beliefs or lack thereof. Moreover, they are better suited to minister to the spe-
cial needs of the greater than 3% of the military23 who identify as humanists than any currently
commissioned chaplain. The Navy policy also fails the second prong of Lemon by having the
clear effect of advancing theism as a whole at the expense of nontheistic belief systems. Human-
ist candidates are denied entry to the Chaplain Corps, and humanist service personnel are denied
access to a chaplain of their choice, based on nothing other than the Navy’s decision that human-
ism is not to be treated equally to theistic religions. Finally, the policy unconstitutionally entan-
gles the Navy in religion, by requiring it to determine which ethical lifesystems count as reli-
gions, thus warranting chaplains, and which ethical lifesystems do not. It is not the role of the
military to determine which beliefs constitute religion, and should therefore be privileged.
Refusing to appoint humanists as chaplains does not advance free exercise in the way that
Katcoff, 755 F.2d 223, found that the Army chaplaincy program benefitted soldiers by increasing
their opportunities to freely exercise their chosen religion. Denying humanist service personnel
the ability to discuss the issues they are facing with humanist chaplains actually hinders the abil-
ity of those men and women to freely practice humanism, while no member of the military who
subscribes to a theistic faith is less able to practice that faith if Dr. Heap, or other humanists, be-
23 Military Leadership Diversity Commission, Religious Diversity in the US Military, June 2010, at 2, available at http://secular.org/files/mldc-ripsdemographics_0.pdf (last visited May 24, 2015).
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come chaplains, any more than a Christian soldier’s free exercise was limited in 1994 by the
Army appointing its first Muslim chaplain.24 Unlike in Katcoff, then, which sought to remove the
presence of chaplains from the military, reversing the current Navy policy would increase diver-
sity in the Chaplain Corps, and thus increase the avenues for free exercise amongst Navy person-
nel.
iv. Non-Appointment of Humanist Chaplains Cannot Survive Even “Relaxed Strict Scrutiny”
The simple fact of service in the United States military does not deny an individual his or her
constitutional rights. Chappell v. Wallace, 462 U.S. 294, 304 (1983) (“Our citizens in uniform
may not be stripped of basic rights simple because they have doffed their civilian clothes.”)
Courts recognize, however, that exigencies of the military require, at certain times, that the rules
which apply to civilian life cannot always apply to service personnel. “[T]he military is, by ne-
cessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743
(1974). Within this “specialized society,” it is, at times, required to “subordinat[e] the desires and
interests of the individual to the needs of the service.” Orloff v. Willoughby, 345 U.S. 83, 92
(1950). In cases where a challenged military policy furthers “operational, strategic, or tactical ob-
jectives” courts have applied a lower standard, called ‘relaxed strict scrutiny.’ Larsen v. U.S. Na-
vy, 486 F. Supp. 2d 11, 29 (D.D.C. 2007) This greater deference recognizes that “[j]udges are not
given the task of running the army.” Orloff, 345 U.S. at 93.
24 Susanne Kaplar, Army Recalls Path to Making History, June 12, 2009, available at http://www.army.mil/article/22584/chaplain-recalls-path-to-making-history/ (last visited May 25, 2015).
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The Supreme Court applied this more deferential standard in ruling that an airman’s free ex-
ercise rights were not violated by an Air Force regulation preventing him from wearing a yar-
mulke while in uniform. Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“Our review of mil-
itary regulations challenged on First Amendment grounds is far more deferential than constitu-
tional review of similar laws or regulations designed for civilian society.”).
The rationale advanced in Goldman, however, does not apply to the current case. The Air
Force’s policy, based on a need for a single, common, uniform, was designed to “foster instinc-
tive obedience, unity, commitment, and esprit de corps.” Id. It sought to apply a common rule to
everyone, regardless of their religious faith. The Navy’s policy challenged here identifies and
excludes an individual group, humanists (among other non-theists) from the chaplaincy. Military
hiring practices are subject to review by the courts. Saunders v. White, 191 F. Supp. 2d 95, 123-
24 (2002) (applying strict scrutiny to the Army’s use of minority preferences in hiring). Had the
Air Force determined that Captain Goldman could not serve in the Air Force because of his Juda-
ism, such a recruitment decision would rightly have been held to violate the First Amendment.
Dr. Heap is being excluded from the Chaplain Corps because he is a humanist; he is not being re-
fused an exemption from a rule all other Navy personnel must follow. As such, the relaxed strict
scrutiny standard is inapplicable, and this court should apply strict scrutiny against the Navy’s
policy of denominational discrimination as required by Larson, 456 U.S. at 246.
Even if this court decides to grant relaxed strict scrutiny review to the Navy’s decision to ex-
clude humanists from the Chaplain Corps, it should still find for Dr. Heap. The Navy has ad-
vanced no credible reason for its refusal to appoint humanist chaplains. Indeed, such a policy
runs contrary to the expressed purposes of the Navy as regards the chaplaincy. It has announced
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a desire to increase diversity in the Chaplain Corps. SECNAVINST 5351.1. It is not disputed
that many humanists serve in the Navy. Where deferential review is granted, it does not consti-
tute carte blanche for the military to ignore the strictures of the U.S. Constition. Goldman, 475
U.S. at 507. (“These aspects of military life do not, of course, render entirely nugatory in the mil-
itary context the guarantees of the First Amendment.”) The Navy’s policy here does not advance
unit readiness, or increase moral. It runs directly contrary to the expressed policy of ensuring,
where possible, the diversity of beliefs in the Navy is represented by a diversity of beliefs
amongst chaplains. Despite this policy, the Navy has never appointed a humanist chaplain. The
policy does not further “operational, strategic, or tactical objectives.” Larsen, 486 F. Supp. 2d at
29. It does not “foster instinctive obedience, unity, commitment, and esprit de corps.” Goldman,
475 U.S. at 507. As such, mere ipse dixit from the Navy that humanist chaplains are not needed
cannot be sufficient to pass even relaxed strict scrutiny.25
v. Both Prospective Chaplains and Military Personnel Are Discriminated Against by This Policy
The Navy policy at issue here instead discriminates against humanists seeking commissions
as chaplains, and against humanist Navy personnel who look for a chaplain who shares their eth-
ical worldview. In order to become a chaplain under the current regulations, Dr. Heap would
25 Deference to the military does not require a blind acceptance of any justification put for- ward. See Holt v. Hobbs, 574 U.S. ___ (2015), No. 13-6827, slip op. at 10. (Finding deference to prison authorities determinations regarding security is not unquestioning when it impacts the re- ligious rights of inmates); see also Goldman, 475 U.S. at 516 (Brennan, J., dissenting). “A defer- ential standard of review, however, need not, and should not, mean that the Court must credit ar- guments that defy common sense. When a military service burdens the free exercise rights of its members in the name of necessity, it must provide, as an initial matter and at a minimum, a cred- ible explanation of how the contested practice is likely to interfere with the proffered military in- terest. Unabashed ipse dixit cannot outweigh a constitutional right.”
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have to abandon his deeply held beliefs, and seek the endorsement of an approved religious or-
ganization. Humanist members of the military seeking the ministrations of a chaplain are current-
ly faced with the choice of doing without, or relying on a chaplain whose advice and solace
comes from a theistic viewpoint.26 Were Buddhists or Muslims pre-emptively excluded from
service as chaplains, or if Greek Orthodox or Roman Catholics were told their beliefs were not
important enough to warrant their own chaplains, and that Southern Baptist chaplains would in-
stead be provided exclusively for them, the regulations would be seen as facially unconstitution-
al. It is equally unconstitutional that humanists are treated in the same way.
CONCLUSION
For these reasons, the Navy’s policy of excluding humanists from the Chaplain Corps vi-
olates the Establishment Clause of the First Amendment, and is unconstitutional as a matter of
law. The defendants’ motion to dismiss should be denied.
Dated: May 28, 2015
26 Compare Ctr. For Inquiry, 758 F.3d at 875. (Striking law that allowed religious ministers to solemnize marriages but denying that privilege to secular humanists. “It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare they are a ‘religion.’… [L]ike many others, humanists want a ceremony that celebrates their values, not the ‘values’ if people who will say or do whatever it takes to jump through some statutory hoop.”)
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Respectfully,
By /s/Matthew B. Kaplan Matthew B. Kaplan VSB No. 51027 The Kaplan Law Firm 509 N. Jefferson St. Arlington, VA 22205 Telephone: (703) 665-9529 Fax: (888) 958-1366 Email: [email protected] Counsel for Amicus Curiae
Nicholas J. Little Legal Director, Center For Inquiry (pro hac vice motion to be filed) 1020 19th Street NW Washington, DC 20036 Telephone: (202) 629-2403 Email: [email protected] Counsel for Amicus Curiae
Certificate of Service
I hereby certify that, on the date indicated below, the foregoing document (and any at- tachments or accompanying documents) was served via the Court’s CM/ECF System on counsel for all parties who have appeared in this matter.
/s/ Matthew B. Kaplan Matthew B. Kaplan
Dated: May 28, 2015
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