Petition for Writ of Certiorari — Veitch v. Winter (No. 06-1187)

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Supreme Court of the United z States

REV. D. PHILIP VEITCH,

Petitioner,

THE HONORABLE GORDON R. ENGLAND,

SECRETARY OF THE NAVY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Arthur A. Schulcz, Sr.

Counsel of Record

2521 Drexel Street

Vienna, Virginia 22180

(703) 645-4010

Attorney for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (80! 847-0477

QUESTIONS PRESENTED FOR REVIEW

I. In determining whether a chaplain’s resignation is

voluntary, may the Court of Appeals, contrary to the

principles of Sorrells v. U.S., 287 U.S. 435 (1932), Mapp v. Ohio,

367 U.S. 642 (1961) and Rochin v. California, 342 U.S. 165

(1952) ignore gross governmental misconduct, specifically

forbidden by statute, that formed the motive, basis, and

source of information for the government's adverse action

leading to the resignation?

II. May the Court of Appeals ignore the religious nature of

conversations between two chaplains disputing sermon

techniques and topics in the statutory protection given those

sermons that formed the basis for an allegation of disrespect

on the part of the junior chaplain?

Il]. Is the lower courts’ failure to confront and sanction

obvious and gross government conduct a_ significant

departure from the accepted and usual course of judicial

proceedings such that it calls for an exercise of this Court's

supervisory power?

PARTIES TO THE PROCEEDINGS

Petitioner, who was Plaintiff-Appellant in the Court

of Appeals, is the Rev. D. Philip Veitch, a former Navy

chaplain.

Respondents who were Defendants-Appellants in the

court of appeals below are the United States Navy and the

following persons in their official capacity: Secretary of the

Navy (the “Secretary”) currently the Hon. Donald C. Winter,

(Gordon England when argued to the Court of Appeals );

Chief of Naval Personnel, currently Vice Admiral John C.

Harvey; Chief of Chaplains Rear Admiral Robert F. Burt;

Captain Ronald Buchmiller, Petitioner's former command

chaplain in Naples, Italy; and the U.S. Navy.

CORPORATE DISCLOSURE STATEMENT

No party is a Corporation.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........cccscssssssssesees i

PARTIES TO THE PROCEEDINGS ......c.cecscscsssssosssorsosseeseosees il

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CITATIONS OF ORDERS AND OPINIONG.............2-::0000+ 1

STATEMENT OF JURISDICTION ...........:ssscssssessseseessesesenees 1

CONSTITUTIONAL PROVISIONS ...........s:sssssssseesesesesseeeeeees 1

STATUTORY AND REGULATORY PROVISIONS ............ 1

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REASONS FOR GRANTING THE WRIT ....0...ccceeeeeeeeees 10

I. THE DECISION BELOW CONFLICTS WITH

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Il. THE DECISION BELOW UNDERMINES

IMPORTANT NATIONAL POLICY .............. escpidasadnciten 18

Il. © THIS CASE RAISES FUNDAMENTAL FIRST

AMENDMENT ISSUES OF FIRST IMPRESSION ............. 19

APPENDIX

Decision of the United States Court of Appeals in

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Decision of the United States District Court in

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Order of the United States District Court in

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TABLE OF AUTHORITIES CITED

Pages

FEDERAL CASES:

Committee for Public Education v. Nyquist, 413 U.S. 756

ICE soshciienicnes shaltantschebinieaeesiabncbigelistenamianicsidsenbieaasineiaieesiets 16

County of Allegheny v. ACLU, 492 U.S. 593 (1989) ........:s0000 1

Mage v. OF6i0, SET US. GEE TDG) 2 cenccvcccecoerercesssecsosssorcnesens 11

Olmstead v. United States, 277 U.S. 438 (1928) ..........ceseeeee 11

Rochin v. California, 342 U.S. 165 (1952) ......escecsescesceecesseens 11

School Board of Abbington Township v. Shempp, 374 U.S. 203

PON sicsakschiesidbseahecsdsaptiirka ohednedhelinahsadiieabiiaibteiolilaanibasivicnla piciiwbaopineite 11

Sherman v. United States, 356 U.S. 369 (1958) 0.00... eeseeeees 11

United States v. Russell, 411 U.S. 423 (1973) 00... eeccesseeseeeee 11

STATUTES AND REGULATIONS:

10 U.S.C. § 6031(a) ............ 1, 2, 4, 6, 7, 8, 9. 13, 14, 15, 16, 18

U.S. Navy Regulations, Article 0817 .........ccsssessseseeseeees: 2

- Department of Defense Instruction 1304.28 ..........cceeceees 17

iv

PETITION FOR A WRIT OF CERTIORARI

Reverend D. Philip Veitch respectfully petitions for a

writ of certiorari to review the judgment of the United States"

Court of Appeals for the District of Columbia in this case.

CITATIONS OF ORDERS AND OPINIONS

The opinion and judgment of the United States Court

of Appeals for the District of Columbia is reported as Veitch

v. England, 471 F.3d 124(D.C. Cir. 2006), and is set forth in

the Appendix beginning at A-1. The opinion and judgment

of the District Court for the District of Columbia granting

the Respondents’ motion for summary judgment and is set

forth in the Appendix beginning at A-24.

STATEMENT OF JURISDICTION

The judgment for which review is sought was

entered by the Court of Appeals for the District of Columbia

on November 28, 2006. This Court has jurisdiction over this

Petition pursuant to 28 U.S.C. § 1254. The District Court had

jurisdiction over these actions under 28 U.S.C. §§ 1331, 1343

and 1346, and 5 U.S.C. § 702.

CONSTITUTIONAL PROVISIONS INVOLVED

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof....” Establishment and Free Exercise Clauses of the

First Amendment to the Constitution of the United States.

“...nor shall any person be...deprived of life, liberty,

or property, without due process of law....” Due Process of

Law Clause of the Fifth Amendment to the Constitution of

the United States.

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

“An officer in the Chaplain Corps may conduct

public worship according to the manner and forms of the

church of which he is a member.” 10 U.S.C. § 6031(a).

“Chaplains shall be permitted to conduct public

worship according to the manner and forms of the church of

which they are members”. Navy Regulations, Article 0817.

STATEMENT OF THE CASE

This case is likely to determine the judicial treatment

of governmental misconduct in military civil cases, the

protection of free exercise in the military, and whether there

may by an establishment of a military religion of

“pluralism”. The District of Columbia Circuit Court

concluded that the Navy’s violations of federal law, its own

regulations and the Constitution could not be considered.

This case addresses the question whether the Court

of Appeals can close its eyes to obvious and open statutory

violations which prevented Protestant free exercise on

American military bases in Italy and ultimately led to

Petitioner’s resignation as a Navy chaplain. Sorrells v. ULS.,

287 U.S. 435 (1932), Mapp v. Ohio, 367 U.S. 642 (1961) and

Rochin v. California, 342 U.S. 165 (1952), hold in a pure

criminal context that courts should not close their eyes to or

lend their powers to approve gross misconduct on the part

of the government. Here, obvious statutory violations

which protected the Petitioner chaplain’s right to preach

according to the customs and doctrines of his church were

ignored by the Navy and the courts, authorizing the Navy’s

censorship and retaliation against the chaplain for failing to

conform his sermons to an undefined doctrine called

“pluralism among religions.” When confronted with that

question, the Court of Appeals looked at the constitutional

dimensions of whether the Navy could require a chaplain to

conform to its own view of the proper sermon and declined

to address the issue.

Veitch would have us confront a

rather troubling constitutional question:

whether chaplains in the armed services can

be required to endorse “pluralism” in their

religious practices. The services are

understandably concerned about unit morale.

And those of us old enough to remember

World War II movies will recall scenes of

chaplains at the front line performing services

for soldiers of different religions. On the other

hand, Reverend Veitch’s argument that a

chaplain cannot be obliged to preach counter

to his or her religious beliefs consistent with

the First Amendment is hardly a frivolous

claim. Fortunately for us—and unfortunately

for Veitch—we need not decide this difficult

question. We agree with the district court that

Reverend Veitch may not raise this issue

because his resignation was voluntary and

because the Navy did not act unreasonably in

refusing to permit Veitch to withdraw his

resigna’

App. at page A-5. The Court of Appeals either forgot or

closed its eyes to the fact Congress had already spoken on

the issue with § 6031 and the Navy had reproduced that

statute in its regulations. Because Congress had spoken, the

Court of Appeals had an obligation to address the question

because it was obvious that the Navy had violated the

statute and its own regulation. The Court of Appeals’

decision is totally silent on § 6031.

The Court of Appeals also failed to address the

consequences of the Navy’s violations of § 6031 and the

consequences to petitioner by objecting to its violation by his

command chaplain. By ducking both the statutory and

constitutional dimensions, the Court of Appeals failed to

follow this Court’s rule that the appellate courts have a

special responsibility to examine Establishment Clause

issues. By so doing, it gave court approval to an obvious

and gross statutory and constitutional violation, allowing a

Catholic to abridge Protestant free exercise, denying

Petitioner of his rights and blessing the Navy’s blatant

violation of the rule of law. Once the legality of the basis

and source of information for all the Navy’s adverse actions,

the flawed Equal Employment Opportunity (“EEO) report,

is addressed in the context of § 6031, all of Respondents’

actions against Petitioner become not only retaliation, but

violations of the Establishment, Free Exercise, and Due

Process Clauses.

The lower courts ignored the obvious violation of §

6031, its consequences and the adverse action which flowed

from Respondents’ faulty investigations. The lower courts

thereby incorrectly concluded that Petitioner resigned

voluntarily. This inherently assumed that objection to a

senior chaplain’s censorship of Petitioner’s sermons in

private e-mails was disrespect, and it treated the

circumstances surrounding that resignation and subsequent

quest to withdraw it as having no consequence to the

question.

At both the district court and the Court of Appeals,

petitioner argued that all of the events which led to his

resignation, including misconduct charges for disputing his

Catholic command chaplain’s right to censor sermons in a

Protestant congregation, were based on the EEO

investigation report which falsely and unconstitutionally

concluded that petitioner must preach pluralism among

religions. The command also believed that petitioner must

preach pluralism among religions, as shown on a comment

on Petitioner’s fitness report, “Removed from his pulpit for

failure to preach pluralism among religions.” This

erroneous belief motivated the command impermissibly to

encourage the command chaplain to continue his illegal

harassment and bias against Petitioner which led to his

sending further emails defending his rights. This erroneous

belief also motivated the command to characterize previous

emails as _ disrespectful, and to produce untimely

unauthorized (and unsubstantiated) absence charges from

the command chaplain’s secret, erroneous file, unknown to

Petitioner.

The Court of Appeals and the District Court also

ignored the impact of the Naval Inspector General’s (NIG)

failure to adequately examine the EEO complaint and its

resultant illegal conclusion, upon which the Secretary of the

Navy relied in refusing to allow Petitioner to withdraw his

resignation. The Department of Defense had directed such

review and raised doubts as to the EEO’s validity. A-16 n.5.

It is obvious that had the NIG done its job and applied §

6031, it would have had to come to the conclusion that the

EEO report was erroneous, and that all the actions against

Petitioner that followed were retaliation because those

adverse actions against Petitioner sprung from that report.

The underlying action involves a dispute between a

Catholic senior chaplain and Petitioner, the senior Protestant

chaplain but junior in rank to the senior, over the junior

chaplain’s sermons which the Catholic chaplain did not like.

A series of e-mails between these two chaplains ensued.

When petitioner filed an EEO complaint asking whether a

Catholic command chaplain could censor his sermons to his

Protestant congregation, the EEO investigator concluded

Petitioner had failed to comply with a Navy doctrine called

“pluralism”, which meant that a chaplain’s sermon could

not offend anyone in the audience. In making his report, the

EEO investigator ignored 10 U.S.C. § 6031 which specifically

states that a chaplain “may conduct public worship

according to the norms and customs of the church of which

he is a member” and Navy Regulation 0817 which

implements § 6031, ‘Chaplains shall be permitted to conduct

public worship according to the manner and forms of the

church of which they are members”. There was no dispute

that Petitioner’s sermons were in accord with the norms and

customs of his church and with general Protestant beliefs,

yet the EEO investigator found they violated pluralism

because someone could be offended in the congregation. A

subsequent investigation by the Navy Inspector General

(NIG) also concluded that Petitioner’s sermons violated

pluralism and that the EEO investigator’s report was correct.

The NIG also ignored § 6031 and NR 0817.

The basic nature of the issues surrounding § 6031 are

also shown in the Navy’s treatment of e-mails between

Petitioner and his command chaplain. They addressed

religious topics such as sermons and preaching, ¢.g.,

Petitioner asked for clarification of the Catholic chaplain’s

comments about Petitioner’s sermons being anti-priest. A-

28. And although they were between two different

denominational representatives with fundamentally

opposite denominational perspectives, the fact Petitioner

objected to censorship was considered disrespect, although

Petitioner was merely exercising the right § 6031 provided

him. The e-mails have no vulgar language nor directly

communicate disrespect, merely disagreement.

The governmental misconduct in this case increased

when Petitioner requested an equal opportunity

investigation to determine whether his command chaplain

could censor his sermons. The EEO investigator concluded

the command chaplain could because Petitioner was not

preaching according to a mandatory Navy religious doctrine

the investigator defined as “pluralism”, which he explained

as preaching in a manner that would not offend anyone,

regardless of faith perspective, who might be in the

congregation.

The EEO investigator’s report to the command

included an e-mail between Petitioner and the command

chaplain over the sermons, and the command concluded

that petitioner was disrespectful because as a junior officer

he challenged the command chaplain’ attempt to censor his

sermons.

Another exchange of e-mails concerning religious

issues in which Petitioner objected to continued

maltreatment and disrespect by the command chaplain led

the command to bring disciplinary charges against

petitioner for disrespect to his command chaplain. After this

decision, the command chaplain also alleged that petitioner

had missed some formations months before - events which

had never before been mentioned but which the Command

included in its disciplinary charges.

Petitioner declined non-judicial punishment,

insisting on court-martial, and then, at the suggestion of the

command’s JAG, submitted his resignation, after which the

charges were withdrawn. Petitioner then filed an Inspector

General’s complaint asking for an investigation of the

actions taken against him following his filing of his EEO

complaint and review of the EEO investigator’s conclusion

concerning pluralism. The Department of Defense

specifically directed the NIG to investigate the validity of the

EEO investigator’s conclusions concerning pluralism. With

the acceptance of his complaint, Petitioner requested the

Secretary of Navy allow him to withdraw his resignation.

The Secretary suspended the resignation until the NIG

completed its task.

The NIG ignored § 6031, NR 0817, and concluded the

EEO report was correct because it believed Petitioner had to

preach pluralism and had not. Because it ignored the

obvious: implications of censorship of Petitioner’s sermons,

and the legality of the EEO investigator’s report, the NIG

concluded Petitioner's problems, which stemmed from the

EEO report, were the result of his own misconduct. After

the NIG issued its report, the Secretary discharged

Petitioner.

Petitioner challenged in the courts below the

voluntariness of his resignation as a Navy chaplain. He

claims the resignation was coerced because (1) the EEO

Report forming the source and basis for the command’s

disciplinary action against him was based on illegal findings

that he must preach “pluralism” among religions, a Navy

religious doctrine and requirement the command believed

was mandated by the Navy, and he was disrespectful for

objecting to the command chaplain’s attempt to impose

pluralism on his sermons; (2) those findings violate the

Constitution, 10 U.S.C. § 6031, and Navy regulations; (3) the

command's subsequent disciplinary action based on the

EEO report's legal conclusion was illegal retaliation and

coercion; (4) the resulting NIG report failed to consider 10

U.S.C. § 6031 and regulatory protections for chaplains

conducting worship services; (5) his Judge Advocate General

(JAG) legal counsel failed to inform him of the only relevant

case addressing whether a chaplain could be a superior

commissioned officer under Article 89; and (6) the Navy

created a culture of religious prejudice that led to a

constructive discharge.

During discovery, both the EEO and NIG

investigators admitted they were clueless about § 6031 and

NR 0817, did not consider the statute or regulation, but

claimed they would have made no difference in the report's

conclusions. Petitioner's Commanding Officer was familiar

with both the statute and regulation but testified that he

could censor a chaplain’s sermons. Although he had not

reviewed Petitioner’s sermons, the Commanding Officer

nevertheless found them offensive because they violated

pluralism. The record shows the Commander's JAG also

concluded Petitioner's preaching violated the Navy’s

doctrine of pluralism.

After discovery, both sides filed for summary

judgment. The District Court granted Respondents’

summary judgment, found Petitioner’s resignation was

voluntary, and dismissed the case. Petitioner appealea to

the Court of Appeals for the District of Columbia which

denied his appeal on November 28, 2006.

REASONS FOR GRANTING THE WRIT

Petitioner's fitness report states: "Removed from his

pulpit for failure to preach pluralism among religions."

Absent this Court’s review, this case will be a precedent for

courts to disregard gross governmental misconduct in

military cases. It will also be a precedent for allowing and

tacitly approving the repression of free exercise in the

military depending on the whim and religion of the

command chaplain or commander.

For eight years the military and the lower courts

have turned a blind eye to the suppression of the free

exercise of Protestant evangelicals on American military

bases in and around Naples, Italy. Petitioner’s Catholic

command chaplain was entrusted with government power

to provide for the free exercise of all faiths. Instead, the facts

of the case demonstrate that he created and maintained a

hostile and intimidating environment in Protestant chapel

congregations. The facts show he attempted to subvert their

free exercise by forcing Petitioner to preach a religious

doctrine called pluralism among religions to his Protestant

congregation. Rather than reject the idea that a Navy official

can dictate what a chaplain can preach, or a Catholic may

10

determine what is best for a Protestant evangelical

congregation, the Navy defends both the Commander's

determination Petitioner was required to preach pluralism

and his subsequent decision to punish Petitioner for

defending his rights. The lower courts impermissibly

avoided coming to grips with the effect of the gross

governmental misconduct in this case. Without the

governmental misconduct which repressed Petitioner, his

congregation and his community, he would have not have

been removed from his ministry and career.

I. THE DECISION BELOW CONEFLICTS WITH THIS

COURT’S PRECEDENTS

A. Courts Are Not to Participate in or Sanction

Governmental Misconduct.

In Sorrells v. United States, 287 U.S. 435 (1932), this

Court overturned the conviction of a man who had been

entrapped by government officials. The Court held that

government action should not incite violations of the law.

' Id. at 448, 451. Subsequent decisions have expressed the idea

that courts should not close their eyes when government

conduct “falls below standards ... for the proper use of

governmental power.” Sherman v. United States, 356 US.

369, 382 (1958) (Frankfurter, J. concurring). This Court has

required law enforcement officials to “respect certain

decencies of civilized conduct” while rejecting actions that

“offend a sense of justice.” Rochin v. California, 342 U.S. 165,

173 (1952) (citing Brown v. State of Mississippi, 297 U.S. 278,

285-86 (1936)). Mapp v. Ohio, 367 U.S. 643, 660 (1961) rejected

the idea that officers “in the name of law enforcement itself”

could suspend the law. This was because “judicial integrity”

was “so necessary in the true administration of justice.” Id.

11

As the Court noted in United States v. Russell, 411 U.S. 423,

430 (1973), “the principal reason behind the adoption of the

exclusionary rule was the Government's ‘failure to observe

its own laws.” (citing Mapp v. Ohio, 367 U.S. at 659).

These cases indicate the courts cannot become a

participant in or sanction gross governmental misconduct.

They reflect the principle expressed in Mr. Justice Brandeis

oft quoted dissent in Olmstead v. United States, 277 U.S. 438,

485 (1928): “If the government becomes a lawbreaker, it

breeds contempt for law; it invites every man to become a

law unto himself; it invites anarchy.” These were criminal

cases and expressed concern for due process of law.

Even though the concept of due

process of law is not final and fixed, these

limits are derived from considerations that

are fused in the whole nature of or judicial

process. See Cardozo, The Nature of the

Judicial Process; The Growth of the Law; The

Paradoxes of Legal Science. These are

considerations deeply rooted in reason and in

the compelling traditions of the legal

profession. The Due Process Clause places

upon this Court the duty of exercising a

judgment, within the narrow confines of

judicial power in reviewing State convictions,

upon interests of society pushing in opposite

directions.

Rochin, 342 U.S. 170-71.

12

The question Petitioner raises is whether these same

principles that preclude the courts from shutting their eyes

to obnoxious violations of the law in the criminal context

also apply in this case. If the fruit of a poisonous tree allows

a criminal to escape conviction, can courts close their eyes

and ears to open and notorious governmental misconduct

that results in an unaddressed adverse action against the

victim of the government misconduct? The underlying

action which led to Petitioner’s resignation stems from

government violations of a clear statutory right to preach

according to the customs of his church. Petitioner’s

objections to these violations, which came to his command’s

attention only because he sought to protect that right by

asking for an EEO investigation, form the basis for the

command’s subsequent disciplinary action for “disrespect.”

The EO investigator concluded Petitioner violated a Navy

doctrine called “pluralism” which required Petitioner to

preach in a manner that would offend no one, real or

potential, in his congregation. The record is clear that the

command not only adopted the EO investigator’s

conclusion, but earnestly believed that it could evaluate a

chaplain’s sermon and censor it if it was not pluralistic.

Petitioner’s fitness report states: “removed from his pulpit

for failure to preach pluralism.” This raises obvious

Establishment, Free Exercise and Free Speech issues.

Indeed, Congress had already decided in 10 U.S.C. § 6031

that chaplains could “conduct public worship according to

the norms and customs of the church of which they are a

member.”

Petitioner has been rebuffed at every level at which

he sought a decision on the question of whether the Navy

may censor his sermons and take action against him because

‘of his defense of the right the statute provided. The EEO

and the NIG investigators both ignored § 6031 and its

obvious controlling impact when they investigated whether

(1) a command chaplain could censor a junior chaplain’s

sermons and (2) the junior chaplain was required to preach

pluralism among religions to a congregation that rejected

such a belief. The lower courts deftly sidestepped this issue.

Although the Court of Appeals specifically acknowledged

“Veitch would have us confront a rather troubling

constitutional question: whether chaplains in the armed

services can be required to endorse ‘pluralism’ in their

religious practices,” A-5, it totally ignored the fact that

Congress had already spoken on the issue. Although

Petitioner pointed out to the Court of Appeals this Court’s

precedents likewise addressed this question and have held

that the government has no business evaluating a sermon or

prayer, e.g., Fowler v. State of R.I., 345 U.S. 67, 69-70 (1953), he

also emphasized that § 6031 addressed the issue and, in the

context of the investigations, should have been an essential

consideration because it was determinative of the issue.

Petitioner had a right to preach in accord with the customs

and doctrine of his church, which he did. The command

chaplain’s attempt to insert himself or place himself in the

position of Petitioner’s ecclesiastical authority is a violation

of Petitioner's right under § 6031, not to mention the

Constitution.

Petitioner argued the obvious at every level:

Respondents had ignored the law and their own regulations.

If § 6031 had been applied, the command chaplain would

have been guilty of breaking the law. Petitioner’s e-mails in

defense of his right would be just that, evidence of defense.

The command chaplain’s actions in continuing to impose his

own view of a proper sermon would be ultra vires, and

would preclude the Navy from retaliating against Petitioner.

14

Additionally, the command’s actions against Petitioner

would have been retaliation, because all of those actions

have their origin and source in the illegal and incompetent

EEO report. This combination of gross indifference to a

statute that specifically addressed Petitioner’s conduct at

issue and his defense of his rights constitute the same sort of

gross governmental misconduct this Court found

objectionable in Sorrells, Mapp, and Rochin. The question

before the Court is whether the Court of Appeals had the

obligation in a civil matter not to sanction what can aptly be

described as gross governmental misconduct.

Petitioner’s claim of governmental misconduct was

before the lower courts. Resolution of that issue would have

resolved all other issues in Petitioner’s favor. Instead the

courts sidestepped the issue. The Court of Appeals was

technically correct when it said the EEO report did not result

in Veitch’s resignation. A-8. However, it is clear that the

EEO report began a series of events that lead to that

resignation and formed the basis for all of the command’s

adverse action against Petitioner culminating in his

resignation. If this were a criminal case, all the fruit from the

poison tree would be excluded. Here the tree was ignored

and the fruit was blessed with judicial approval.

The NIG’s failure to adequately and _ properly

conduct this investigation into the EEO report is another

example of gross governmental misconduct. There can be

no other description for its failure to address the statutory

and regulatory basis which was determinative of the issue

before it, i.e. whether a senior Catholic chaplain could direct

a junior Protestant chaplain what he should preach to his

Protestant congregation.

15

The Court of Appeals ignored the fact that the NIG’s

failure to address the basic issue deprived the Secretary of

critical information while he was deciding whether to allow

Petitioner to withdraw his resignation. It is unreasonable to

conclude that the Secretary would have refused Petitioner’s

resignation withdrawal request if the NIG done its duty and

cast Petitioner as a victim and the command chaplain as a

perpetrator. This is the only conclusion that can be drawn

from the proper application of § 6031 to the facts concerning

Petitioner’s sermons and the command chaplain’s attempts

to censor them.

B. Courts Have a Duty to Carefully Examine

Establishment Clause Claims

“What our cases require is careful examination of

any law challenged on establishment grounds with a view to

ascertain whether it furthers any of the evils against which

that Clause protects.” Committee for Public Education v.

Nyquist, 413 U.S. 756, 772 (1973); County of Allegheny v.

ACLU, 492 U.S. 593, 609 (1989) (explaining court’s duty of

“unwavering vigilance” against Establishment Clause

violations).

The Court of Appeals clearly recognized that

Petitioner raised Establishment Clause claims. “Veitch

would have us confront a rather troubling constitutional

question: whether chaplains in the armed services can be

required to endorse “pluralism” in their religious practices.”

A-5. Although § 6031 provides the clear answer, Petitioner's

appeal raised specific Establishment Clause issues that flow

from the underlying dispute. These concern the emails

between Petitioner and his command chaplain. They were

16

private and in almost all cases addressed religious issues

such as sermons and differences in theological perspectives.

The command chaplain never brought these e-mails

to the command’s attention, nor did he ever express concern

that they were disrespectful or violated any rules of ©

decorum. As the senior chaplain he had an obligation to

inform and counsel the junior chaplain on any and all

deficiencies. He never did this. The command only became

aware of those e-mails because of the EEO investigation

which included one e-mail. It is obvious that both chaplains

considered these e-mails to be a discussion of religious

issues between two clergy with conflicting theological

viewpoints and positions. The precedents of this Court are

clear that the government must be neutral in matters of

religion and may not take sides in religious disputes. E.g.,

Larsen v. Valente, 456 U.S. 228, 244 (1982). Because of the

essential religious nature of these e-mails, the Navy’s actions

subsequent to the illegal EEO report in effect show that it

has taken sides. The Navy has established that a senior

chaplain’s opinion on a sermon is the same as law and the

junior chaplain’s duty is to salute and say “Aye, aye, Sir”

regardless of whether it offends the junior chaplain’s beliefs,

the doctrines of his church, or his congregation. This also is

gross governmental misconduct which the Court of Appeals

had an obligation to examine and address.

The Department of Defense Instruction 1304.28

“Guidance for The Appointment of Chaplains for the

Military Departments” defines chaplains as denominational

representatives. This Court’s precedents have clearly

established that the government may not direct a religious

organization how to pray or conduct its services. The

Establishment Clause forbids the Navy establishing any

such doctrine is “pluralism among religions” or taking sides

in religious disputes, and this includes censoring, directing

or evaluating sermon content. See, e.g., Fowler, 345 U.S. at 69-

70; Lee v. Weisman, 505 U.S. 577, 589-90 (1992). To allow a

government official to do so results in the forbidden fusion

of government and religious power. Bd. of Education of Kiryas

Joel v. Grummet, 512 U.S. 657, 658-99 (1994), and Larkin v.

Grendel's Den, Inc., 459 U.S. 116, 126 (1982).

The Court of Appeals recognized that it was faced

with Establishment Clause issues. “Veitch would have us

confront a rather troubling constitutional question: whether

chaplains in the armed services can be required to endorse

“pluralism” in their religious practices.” A-5. Although

there was an obvious statutory violation for addressed the

relevant question whether the Navy’s actions concerning his

sermons were legal, i.e., § 6031, the Court of Appeals ignored

its responsibilities to both address the obvious statutory

violation and the constitutional implications.

I. THE DECISION BELOW UNDERMINES

IMPORTANT NATIONAL POLICY

A. The Decision Encourages the Politicization

of Religion

The Court has consistently warned against the fusion

of government and religious functions, Larkin, 459 U.S. at

126, and the resulting “political fragmentation on sectarian

grounds”. Larson v. Valente, 456 U.S. 228, 252-53 (1982).

Here, the Navy has assumed the forbidden power to censor

a chaplain’s sermons and abridge free exercise.

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B, this Decision Effectively Authorizes the

Establishment of an Official Navy Religion

of “Pluralism”

This Court’s precedents are crystal clear that the

government may not establish a religion. Wallace v. Jaffre,

472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 576 (1987).

In effect, this decision places the judiciary’s imprimatur on

the establishment of an official Navy religion called

pluralism. Rather than denounce any implication resulting

from the EEO investigator's report and the commander's

basis for removing Petitioner from his pulpit, i.e., “for failure

to preach pluralism among religions”, the Navy has

defended this decision at every level. Unfortunately, the

courts have winked at or ignored the obvious implications of

allowing this unprecedented litigation position to stand, that

Navy officials may determine the content of the chaplain’s

sermons insisting they must be in accord with the official

Navy religion of pluralism among religions. Does this Court

mean to allow the Armed Forces to establish their own

religions?

Ill. THIS CASE RAISES FUNDAMENTAL FIRST

AMENDMENT ISSUES OF FIRST IMPRESSION

This chaplain case stands at the intersection of the

Free Exercise, Free Speech and Establishment Clauses. This

Court has rejected the idea that the government may

regulate religious speech based on the heckler’s veto. Good

News Club v. Milford Central School, 533 U.S. 98, 119 (2201).

This Court has often cited military chaplains as examples of

the accommodation available in the Constitution and the

“play in the joints” of these two clauses. See School Board of

Abbington Township v. Shempp, 374 U.S. 203,296-98 (1963)

(Brennan, J. concurring, citing chaplains as accommodation

necessary to provide for the free exercise of religion by

military personnel). The underlying issue posed by this

petition is whether the judiciary will ignore the principles

underlying Sorrells, Mapp and Rochin and allow the Navy to

cast off its moorings to the rule of law and the Constitution

and set its own course independent of law and judicial

accountability.

CONCLUSION

For all the above reasons, the Court should grant this

Petition for Certiorari.

Respectfully Submitted,

Arthur A. Schulcz, Sr.

2521 Drexel Street

Vienna, Virginia 22180

(703) 645-4010

Counsel of Record for

Petitioner

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