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KATCOFF v. MARSH

February 1, 1984

JOEL KATCOFF and ALLEN M. WIEDER, Plaintiffs, against JOHN O. MARSH, JR., SECRETARY OF THE ARMY, ET AL., Defendants.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 INTRODUCTION

 Chaplains have been members of the United States Army since the Revolutionary War. Plaintiffs, who brought this action while they were still Harvard law students, have never served in the military. They sue to declare the Army Chaplaincy Program (the "Chaplaincy Program," or the "Program") unconstitutional on the ground that it runs afoul of the First Amendment's command that Congress "shall make no law respecting the establishment of religion." U.S. Const. amend. I.

 There are some who might argue that this question is more the grist of a moot court competition than a case or controversy to occupy the energies of a federal court. There is, thus, a threshold question of plaintiffs' standing. *fn1"

 For the reasons set forth below, I conclude that there is a case or controversy, and that the plaintiffs do have standing. On the merits, I conclude that the Chaplaincy Program is constitutional. Accordingly, plaintiffs' motion for summary judgment is denied. Defendants' cross-motion for summary judgment is granted.

 PROCEDURAL BACKGROUND

 This case was filed in late 1979. Defendants promptly moved for judment on the pleadings, making three arguments: (1) plaintiffs lack standing to challenge the Program; (2) neither the program, nor its enabling statutes or implementing regulations violate the First Amendment; and (3) plaintiff's challenge presents a political question shielded from judicial scrutiny.

 By Memorandum of Decision and Order, dated August 20, 1980, Judge Mishler denied defendants' motion. The 1982 Supreme Court decision in Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), however, coupled with the completion of extensive discovery, apparently instilled both sides with renewed vigor.

 On April 13, 1982, defendants renewed their motion for judgment on the pleadings, or, in the alternative, for dismissal. Plaintiffs countered the very next day with a motion for summary judgment. Defendants, on May 19, 1982, cross-moved for summary judgment. Plaintiffs responded with a brace of memoranda: a Memorandum of Law in Opposition to Defendants' Motion to Dismiss for Lack of Standing was filed on June 24, 1982: and a Memorandum in Opposition to Defendants' Motions for Summary Judgment and for Judgment on the Pleadings was filed on October 4, 1982. Defendants had the last word when, on October 21, 1982, they filed a document styled "Defendants' Reply Memorandum of Law in Support of Their Motion in the Alternative for Dismissal, for Judgment on the Pleadings or for Summary Judgment." Also filed throughout the course of this litigation were a Niagara of affidavits, photocopied cases, letters, legislative documents, and law review articles.

 Rather than be distracted by the procedural posturings of the parties, I have determined to treat the various motions in this case as motions by each side for summary judgment. Accordingly, all documents that are part of the record have been studied.

 FACTS

 The material facts are undisputed, and many were clearly set forth in Judge Mishler's Opinion of August 20, 1980. Accordingly, I need do no more than broadly outline the operation of the Chaplaincy Program.

 The Program is authorized by 10 U.S.C. § 3073 (1976), which provides with Olympian generality that "[t]here are Chaplains in the Army." Implemented by a battery of federal regulations, the Program provides payment for, inter alia, salaries of Chaplains and other religious personnel, religious facilites, sacred items, religious publications of the Department of the Army, retreats, and the professional education and training of Chaplains. These activities are funded largely from the overall Army budget ("appropriated funds"). Some of the funding for the Chaplaincy, however, is derived from "non-appropriated funds," i.e., voluntary donations made by Army personnel. The distinction is significant because appropriated funds are generally used for inter-denominational purposes, such as religious facilities, while non-appropriated funds are "used in furtherance of the denominational activites." Defendants' Memorandum of Law For Summary Judgment at 15.

 The official dutues of Army Chaplains (set forth in 10 U.S.C. § 3547 (1976), Army Regulation ("AR") 165-20 and Field Manual No. 16-5) comprise a wide range of activities, including holding religious services, providing religious education, and counselling Army personnel.

 A cleric who would become a Chaplain must first be approved by an ecclesiastical endorsing agency recognized by the Army. The endorsing agencies are not limited to the largest religious groups in the United States; in fact, according to defendants, there are 47 such agencies, representing 120 denominations. Defendants' Memorandum of Law For Summary Judgment at 19; see Defendants' Responses To Plaintiffs' Second Set of Interrogatories.

 The religious endorsing agency establishes the theological requirements for those whom it wishes the Army to consider for the Chaplaincy. The religious standing of the Chaplains is left exclusively to the respective religious organizations. The Army, however, establishes minimum educational requirements for Chaplains, and provides them with specialized training, primarily in military subjects. The Army also decides rank promotions, based on the Chaplain's military performance. Defendants' Memorandum of Law For Summary Judgment at 19.

 Plaintiffs also cite the Office of the Chief of Chaplains as an entity inextricably tied to religious organizations. Plaintiffs are most troubled by the Ecclesiastical Relations Division, and the Administration and Management Division of the Chaplains' Office (the "Office"). The latter acts as a liaison between religious and secular organizations and media. Defendants' Admission No. 94. Further, the Conference of Ecclesiastical Endorsing Agents for the Armed Forces appears on the organizational chart of the Chaplains Board. Defendants' Admission No. 102.

 Defendants do not quarrel with this description of the Office of the Chief of Chaplains or the Conference of Ecclesiastical Endorsing Agents. They do, however, reject plaintiffs' conclusion that an excessive entanglement between church and state is thereby created. To summarize, defendants note that the liaison function is "an informational function . . . that most public agencies perform," and that, although the relationship between the Army and endorsing agencies does continue after a Chaplain has entered the Army, the Army's interest is limited to insuring that the Chaplains retain their endorsement. The Office of the Chief of Chaplains, defendants maintain, does not involve itself with the internal affairs of the these agencies. Defendants' Memorandum of Law For Summary Judgment at 61-62.

 One other area merits exposition: the voluntary religious instruction programs conducted as part of the Chaplaincy Program. Army Regulation 165-20, P2-1, which sets forth the duties of Army Chaplains, establishes the following educational program:

 b. Religious education. The education program will be centered around many religious needs and interests. Generally, the program includes the following:

 (1) Religious schools and classes.

 (2) Individual instruction.

 (3) Classes in marriage and family life enrichment.

 (4) Religious and cultural interest groups.

 (5) Choral groups.

 (6) Leadership development programs.

 (7) Religious dance, drama, and films.

 (8) Youth and adult programs and activities.

 By the Defendants' own admission,

 [t]he Executive Director of the Department of Defense Armed Forces Chaplains Board selects an approved curricula [sic] for Armed Forces religious education programs: Catholic, Jewish, and Protestant. Def. Adm. No. 78.

 These curricula are contained in the "the Cooperative Curriculum for Religious Education," and the program is directed primarily at children. Most of the classes for children are taught by civilian volunteers, not by Army Chaplains. Defendants note that use of the curriculum is voluntary and that it provides a measure of continuity for families transferred from one base to another. Defendants' Memorandum of Law for Summary Judgment at 12-13.

 The parties substantially agree with the Court's description of the operation of the program. Similarly, there are few disagreements as to the structural relationship between the variious ecclesiastical bodies and the Army hierarchy. The parties differ markedly, however, in their evaluation of that relationship.

 Plaintiffs see a program that spins a tightly-woven net binding the Army to religious institutions. Defendants perceive only a loose confederation between the Army and religious organizations that is no more than necessary to serve the dual goals of military efficiency and religious freedom. While plaintiffs focus on the establishment clause, defendants emphasize the free exercise clause of the First Amendment and maintain that the free exercise needs of military personnel ...


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