A RELIGIOUS BIAS SUIT BY EVANGELICAL CHAPLAINS AGAINST THE NAVY:
The Law Confronts Denominational Diversity

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Aug. 29, 2002

In a recent class action lawsuit, Evangelical Navy chaplains are suing the Navy for religious bias. They claim they have been passed over for promotion in favor of more mainstream Protestants. So far, it remains to be seen whether they seek to unmask rampant discrimination or seek, in effect, to impose a denominational quota on the Navy in its hiring decisions.

Meanwhile, within the last year, we have witnessed a similar tussle over the religious identity of the House Chaplain. Such struggles say a great deal about religious liberty and the law in the United States today - as well as about the trend of increasing diversity among religious denominations that they reflect.

Protecting Denominations, Not Just Religions

The Constitution also directly guarantees the right to the free exercise of religion, and prohibits the government from establishing a state religion. And it bans government-supported religious discrimination - through the Fourteenth Amendment's Equal Protection clause, the First Amendment's Free Exercise and Establishment Clauses, and Fifth Amendment equal protection principles.

Under the Constitution, as interpreted by the courts, not only religions but also religious denominations are protected - for good reason. Within Christianity, for example, there are many distinctive denominations - so distinctive, in fact, that some may get preferential treatment and some may not.

One Theory the Chaplains Might Use: Intentional Discrimination

Pursuant to equal protection doctrine, there are two constitutional theories a person who feels he or she has been the victim of religious discrimination can invoke. (The chaplains may well be bringing claims under the statutory anti-discrimination laws as well, but I'll leave that to the side for today.)

First, he or she can try to prove intentional discrimination against their denomination, which is plainly unconstitutional. Indeed, such discrimination is a constitutional abomination that should be rooted out wherever it is found.

For the chaplains to show intentional discrimination, there would need to be some smoking gun evidence that the Navy intentionally excluded Evangelical chaplains from promotion, and did so because the Navy is hostile to Evangelicals - as opposed to, say, because all Evangelical chaplains happened, by coincidence, to be less experienced than the others. Though I would think highly unlikely, it is not impossible such evidence might be unearthed.

Another Theory the Chaplains Could Invoke: Disparate Impact

But the more likely scenario is that the Navy has been promoting chaplains through a merit system without reference to religious identity. If that is the case, can the Evangelical chaplains still attempt to change the system, based on the fact that the resulting promotions were not evenly spread through every denomination?

To do so, they would have to make what would amount to a demand for affirmative action for religions that are less well-connected - arguing that neutral Navy procedures nevertheless have a "disparate impact" on adherents of the Evangelical denomination of Christianity.

Were the Navy to respond to the lawsuit by attempting to institute a quota system for denominations, it would face constitutional problems as well. In the race context, for government-supported affirmative action to be constitutional, it must be redressing a plainly established past history of discrimination that still continues to have effects. It must also be tailored to address specifically the pre-existing harm arising from the discrimination. The same requirements presumably apply when religious affirmation action is sought, as well.

Hence, if the chaplains are seeking a constitutionally-required affirmative action plan or trying to pressure the Navy into instituting one, they face an uphill battle.

How Should We Respond Legally to the Proliferation of Religious Denominations?

The Navy case, along with the House Chaplain debate, are harbingers of future sociolegal debate, raising a key question: what are we to do about a diversity that stretches well beyond racial identity to religious identity?

In the religious context, our diversity is astounding. Entire websites, such as adherents.com, are devoted to listing the variety of religious denominations in the world and the United States. The increase in diversity is going to challenge church-state relations in the future.

As James Madison understood, when the government gets into the business of providing spiritual guides, it is asking for trouble. And that trouble is tripled when the variety of religions proliferates.

It was always a myth, but a useful myth, that religious practice could be nicely divided into Protestant, Catholic, and Jewish. But none of these are truly unitary groups.

For instance, as the class action suit shows, Protestants are not a unitary group. There are Evangelicals and there are mainstream Protestants. Moreover, within those two categories are denominations that would swear they differ on all of the important issues.

Meanwhile, there are Roman Catholics, Byzantine Catholics, Ukrainian Orthodox, Coptic, and Greek Orthodox Catholics, and so on. Divisions within Judaism and Islam, of course, also persist.

The Navy thus will have to identify with clarity, if it has not already done so, standards of merit for chaplain promotion and rigorously, even ruthlessly, follow those standards. The standards must be generally applicable, and they must be neutral. Like the House of Representatives, the Navy is now in the position of having to explain how and why it chooses a chaplain.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is Hamilton02@aol.com

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