Jottings By An Employer's Lawyer

Tuesday, November 28, 2006

D.C.Cir. Ducks A Constitutional Bullet

It was not just the 6th Circuit which was happy to avoid a tough constitutional call, see the discussion of the first amendment status of a USN tattoo here, but the same was also true in today's decision in Veitch v. England (D.C. Cir. 11/28/06) [pdf]. The issue in Veitch arises out of a well documented fight within the military chaplain corps between evanagelical chaplains and those from more traditional faiths. See the Washington Post story from last year, Military Wrestles With Disharmony Among Chaplains.

The Court explained it this way:

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, 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 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 resignation.

Although ducking the constitutional question, the Court does spend the rest of its opinion, including a concurrence, dispatching the resigned chaplain's argument that he was constructively discharged because of religious harassment. This is certainly not the last word on this issue.

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