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August 21, 1980


The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge

 Seeking both declaratory and injunctive relief against any continuation of the United States Army's chaplaincy program, two federal taxpayers instituted this action against Clifford L. Alexander, Secretary of the Army, the Department of the Army and the Department of Defense. The plaintiffs, Joel Katcoff and Allen M. Wieder, allege that the chaplaincy program constitutes an establishment of religion in violation of the First Amendment of the United States Constitution.

 The defendants have moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings on the grounds that: (1) the plaintiffs lack standing to challenge the Army chaplaincy program; (2) the Army chaplaincy program, its authorizing statute and implementing regulations do not violate the First Amendment; and (3) the plaintiffs' challenge presents a political question not subject to judicial review.

 For the reasons set forth below the defendants' motion is in all respects denied.

 The Complaint

 According to the complaint the plaintiffs, citizens of the United States and residents of this district, "have paid and expect to continue to pay United States income taxes." (P3).The defendants are charged with the responsibility for the organization and operation of the United States Army. (P4).

 According to paragraph 5, the Army's chaplaincy program is authorized by 10 U.S.C. § 3072, which provides that "there are chaplains in the Army." Paragraphs 6 and 7 set forth in some detail the operational scheme of the chaplaincy program, at least as it exists on paper. Paragraph 6 charges that the program involves the expenditure of public funds for a "comprehensive religious program" including but not limited to payment for: the salaries of chaplains and other religious personnel; religious facilities; sacred items; denominational literature and chaplain kits; religious publications of the Department of the Army; missions, retreats and religious emphasis weeks; the professional education and training of chaplains; and a religious library.The official duties of Army chaplains as set forth in 10 U.S.C. § 3547, Army Regulation 165-20 and Field Manual No. 16-5, are identified in paragraph 7. These duties include: holding appropriate religious services such as services of worship, marriages, baptisms, funerals and prayer breakfasts; providing religious educatioin including religious classes, individual instruction, cultural groups, choral groups, leadership development programs, religious dance, drama and films; and developing pastoral relationships with members of the command through visits with soldiers and their families and through guidance counseling and other forms of spiritual assistance.

 Paragraphs 9 through 23 present additional factual as well as legal allegations. Many of the factual and legal contentions are interwoven. Thus, it is charged that the United States "by design and appearance lends its prestige, influence and power to organized religion by granting commissions, rank and uniform to Army chaplains" (P9); that the Army chaplaincy is designed to inculcate religious values and thus provides encouragement for religious activity among the troops (P10); that because chapels and other religious facilities may be used only for religious and allied purposes the government favors religion over non-religion (P11); that by granting scheduling priority to general Protestant services over Protestant denominational services the government favors one Protestant rite over others (P12); and that because clergy whose denominations do not have endorsing agencies recognized by the Armed Forces Chaplain's Board are "effectively excluded from the chaplaincy" the system favors certain religions over others (P13). Moreover, it is alleged that the government promotes and enforces its own religious viewpoint through a mandatory unified curriculum of religious education (P18). It is also contended that church participation in the recruitment and selection of chaplains, the requirement that chaplains maintain an active relationship with civilian religious bodies, and the government's contracts with religious organizations for the purpose of providing religious services all constitute excessive entanglement between state and church. (P20, 21, 22).

 Other factual claims are set forth without legal argument. For example, it is alleged that the government authorizes the sale, donation or transfer of excess religious items to civilian religious organizations (P14), and that the Army chaplains are involved in civilian fund raising (P15). Similarly, it is alleged that Army chaplains are authorized to display and distribute denominational literature (P16); that the government provides religious education to "military personnel and their impressionable children" (P17); and that the government provides a program of professional development for chaplains (P19).

 All of these practices "among others" demonstrate, according to the complaint, that "Title 10, United States Code, Sections 3073 and 3547, and the regulations and rules promulgated thereunder, insofar as they result in the expenditure of public funds for religious activities, are on their face and as construed and applied by the defendants laws respecting an establishment of religion in violation of the First Amendment of the United States Constitution...." (P23).

 Furthermore, the complaint charges that the chaplaincy program serves to inhibit the right of military personnel to the free exercise of their religion guaranteed by the First Amendment (P24). Many of the practices alleged earlier in the complaint in support of plaintiffs' Establishment Clause claim are realleged in support of this contention. Thus, the complaint attacks the use of a uniform curriculum (P25) and the requirement that chaplains provide "general Protestant services" (P27). The complaint alleges that the free exercise rights of members of the Army are inhibited by restrictions on the types of literature which may be distributed by chaplains (P26), a limitation on the chaplaincy to members of the Protestant, Catholic and Jewish faiths (P28), educational requirements for chaplain appointments (P29), and denominational quotas for chaplains based on the national population as a whole rather than the composition of the Army alone (P30).Finally, it is alleged that the free exercise of religion is inhibited in that the military commander, not the chaplain or the church, has the ultimate responsibility for the religious programs in the military and because promotion decisions regarding chaplains are made by the government, not the chaplain's church (P32, 32). These numerous allegations culminate in the statement that "[t]he constitutional rights of Army personnel and their dependents to freely exercise their religion can better be served by an alternative chaplaincy program which is privately funded and controlled." (P33).

 As we noted at the outset the complaint prays for both declaratory and injunctive relief. Plaintiffs ask this court to declare that the Army chaplaincy program is unconstitutional as violative of the First Amendment and to enjoin the defendants from approving or otherwise providing funds or support in any respect to religious ...

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