Chaplaincy of Full Gospel Churches v. United States Navy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2008 Decided August 1, 2008

No. 07-5359

IN RE: NAVY CHAPLAINCY

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,
APPELLANTS

v.

UNITED STATES NAVY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 07ms00269)

Arthur A. Schulcz, Sr., argued the cause and filed the
briefs for appellants.

Lowell V. Sturgill, Jr., Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the
briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jeffrey A. Taylor, U.S. Attorney, and Robert M.
Loeb, Attorney. Daniel E. Bensing, Attorney, entered an
appearance.
 2

Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge
KAVANAUGH, in which Senior Circuit Judge SILBERMAN
joins.

Dissenting opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge: A group of Protestant Navy
chaplains sued the Navy, alleging that the Navy’s operation of
its retirement system discriminates in favor of Catholic
chaplains in violation of the Establishment Clause. But the
plaintiffs do not claim that the Navy actually discriminated
against any of them. We conclude that plaintiffs lack
standing to bring this claim, and we therefore affirm the
judgment of the District Court.

I

The U.S. Navy maintains a Chaplain Corps of
commissioned Navy officers to meet the spiritual needs of
those who serve in the Navy and their families. Like other
officers, chaplains are subject to military regulations with
respect to hiring, promotion, and retirement.

The Navy divides its chaplains into four categories –
Catholic, liturgical Protestant, non-liturgical Protestant, and
Special Worship. As we explained in a previous opinion in
this litigation, “liturgical Protestant” includes Protestant
denominations that follow an established liturgy in worship
services and practice infant baptism, such as Lutheran,
Episcopal, Methodist, Presbyterian, and Congregational.
Chaplaincy of Full Gospel Churches v. England, 454 F.3d
 3
290, 294 (D.C. Cir. 2006) (Chaplaincy). “Non-liturgical
Protestant” includes Protestant denominations that do not
follow a formal liturgy in worship services and that baptize at
the age of reason, such as Baptist, Evangelical, Pentecostal,
and Charismatic. Id. at 294. The “Special Worship” category
refers to other religious faiths, both Christian and non-
Christian, and it includes Jewish, Christian Science, Seventh-
Day Adventist, Mormon, Buddhist, Hindu, Muslim,
Jehovah’s Witness, and Unitarian. Id. at 295 n.3.

Plaintiffs are non-liturgical Protestant Navy chaplains,
both current and retired.1 Plaintiffs filed suit, alleging that the
Navy discriminates in favor of Catholic chaplains in certain
aspects of its retirement system. See In re Navy Chaplaincy,
No. 07-ms-269, slip op. at 1 (D.D.C. Oct. 15, 2007).
Plaintiffs also sought a preliminary injunction.

The District Court initially denied plaintiffs’ preliminary
injunction motion, finding that the chaplains had not shown
the necessary irreparable injury to support a preliminary
injunction. See Adair v. England, Nos. 00-cv-566 & 99-cv-
2945, slip op. at 2 (D.D.C. Feb. 7, 2005). On appeal, this
Court reversed, explaining that, for purposes of a preliminary
injunction, the allegation of an Establishment Clause violation
itself demonstrates sufficient harm to satisfy the irreparable
injury prong of the preliminary injunction test – assuming, of
course, that the party has standing to allege the violation in
the first place. See Chaplaincy, 454 F.3d at 303-04 & n.8.
The Court therefore vacated the denial of a preliminary

1
Plaintiffs also include certain organizations of non-liturgical
Protestant chaplains. Because the organizations have standing in
these circumstances only if one of their individual members has
standing, we do not address them separately. See Hunt v.
Washington State Apple Adver. Comm’n, 432 U.S. 333, 342-43
(1977).
 4
injunction and remanded for the District Court to consider the
remaining factors in the preliminary injunction analysis,
including likelihood of success on the merits. See id. at 304-
05.

On remand, in a well-reasoned opinion, the District Court
concluded that plaintiffs lacked standing to bring this claim.
This appeal followed.

II

Article III of the Constitution limits the judicial power to
deciding “Cases” and “Controversies.” “One of the
controlling elements in the definition of a case or controversy
under Article III is standing.” Hein v. Freedom from Religion
Foundation, Inc., 127 S. Ct. 2553, 2562 (2007) (internal
quotation marks and alteration omitted).2 The three factors
establishing the “irreducible constitutional minimum” of
standing are well established. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). First and most relevant here is
injury-in-fact: A would-be plaintiff must have suffered “an
invasion of a legally protected interest” that is (i) “concrete
and particularized” rather than abstract or generalized, and (ii)
“actual or imminent” rather than remote, speculative,
conjectural or hypothetical. Id. (internal quotation marks
omitted); see also Pub. Citizen, Inc. v. Nat’l Highway Traffic
Safety Admin., 489 F.3d 1279, 1292-93 (D.C. Cir. 2007).
Second is causation: The asserted injury must be “fairly
traceable to the challenged action of the defendant.” Lujan,
504 U.S. at 560 (internal quotation marks and alterations
omitted). Third is redressability: It must be likely that a

2
In referring to Hein throughout our opinion, we are referring
specifically to Justice Alito’s opinion, which is the binding opinion
of the Court in that case. See Marks v. United States, 430 U.S. 188,
193 (1977).
 5
favorable decision by the court would redress the plaintiff’s
injury. Id. at 561.

“[T]he law of Art. III standing is built on a single basic
idea – the idea of separation of powers.” Allen v. Wright, 468
U.S. 737, 752 (1984). The doctrine is “founded in concern
about the proper – and properly limited – role of the courts in
a democratic society.” Warth v. Seldin, 422 U.S. 490, 498
(1975). The federal courts are “not empowered to seek out
and strike down any governmental act that they deem to be
repugnant to the Constitution.” Hein, 127 S. Ct. at 2562.
“Vindicating the public interest (including the public interest
in Government observance of the Constitution and laws) is
the function of Congress and the Chief Executive.” Lujan,
504 U.S. at 576; see also Valley Forge Christian Coll. v.
Americans United for Separation of Church & State, Inc., 454
U.S. 464, 474-75 (1982).

Those critical and bedrock principles of separation of
powers inform our approach to plaintiffs’ claim.

III

In reviewing the standing question, we must be “careful
not to decide the questions on the merits for or against the
plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims.” City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). For
purposes of our analysis in this case, we therefore must
assume arguendo that the Navy’s operation of its retirement
system favors Catholic chaplains and disfavors non-liturgical
Protestant chaplains in violation of the “clearest command of
the Establishment Clause” – that “one religious denomination
cannot be officially preferred over another.” Larson v.
Valente, 456 U.S. 228, 244 (1982). Even assuming that
plaintiffs’ allegations are accurate, however, they do not have
 6
standing to bring this claim against the Navy because they
have not sufficiently demonstrated their own injury-in-fact.

If plaintiffs had alleged that the Navy discriminated
against them on account of their religion, plaintiffs would
have alleged a concrete and particularized harm sufficient to
constitute injury-in-fact for standing purposes. But plaintiffs
have conceded that they themselves did not suffer
employment discrimination on account of their religion. They
have conceded that the Navy did not deny them any benefits
or opportunities on account of their religion. See In re Navy
Chaplaincy, No. 07-ms-269, slip op. at 7-9 (D.D.C. Oct. 15,
2007). Rather, they suggest that other chaplains suffered such
discrimination.

Plaintiffs argue that they nonetheless have standing for
either of two reasons: (i) they are taxpayers who object to the
Navy’s allegedly discriminatory operation of its chaplaincy
program, or (ii) they have been subjected to the Navy’s
“message” of religious preference as a result of the Navy’s
running a retirement system that favors Catholic chaplains.
We disagree. Because plaintiffs’ claim does not fit within the
narrow confines of Establishment Clause taxpayer standing
permitted by Flast v. Cohen, 392 U.S. 83 (1968), they do not
have standing as taxpayers. See Hein v. Freedom from
Religion Foundation, Inc., 127 S. Ct. 2553, 2562-72 (2007).
Nor do plaintiffs have standing based on their exposure to the
Navy’s alleged “message” of religious preference.

A

As the Supreme Court has repeatedly held, a taxpayer’s
interest in ensuring that appropriated funds are spent in
accordance with the Constitution does not suffice to confer
Article III standing. See Hein, 127 S. Ct. at 2563 (2007).
Back in Frothingham v. Mellon, 262 U.S. 447 (1923),
 7
taxpayers sued the Government, arguing that the Maternity
Act of 1921 improperly invaded powers reserved to States by
the Tenth Amendment. The Supreme Court rejected taxpayer
standing in that case: “The administration of any statute,
likely to produce additional taxation to be imposed upon a
vast number of taxpayers, the extent of whose several liability
is indefinite and constantly changing, is essentially a matter of
public and not of individual concern. If one taxpayer may
champion and litigate such a cause, then every other taxpayer
may do the same . . . .” Id. at 487; see also Doremus Bd. of
Educ. v. Hawthorne, 342 U.S. 429, 433-34 (1952).

In 1968, 45 years after Frothingham, the Supreme Court
carved out a narrow exception to the general constitutional
bar on taxpayer suits; the Court held that federal taxpayers
had standing to bring an Establishment Clause challenge to
federal financing for parochial schools. See Flast, 392 U.S.
83. But according to Flast, taxpayers may bring an
Establishment Clause challenge only when they challenge
legislation passed pursuant to the Taxing and Spending
Clause in Article I, § 8 of the Constitution. See id. at 102-03.

The Court has subsequently made clear that Flast is a
very narrow exception to the general bar against taxpayer
standing. In Valley Forge, for example, the plaintiffs argued
that the Government violated the Establishment Clause when
it transferred a tract of “surplus property” to a Christian
college. Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, 454 U.S. 464, 467-68 (1982)
(internal quotation marks omitted). The Court found that the
plaintiffs, a group composed of “90,000 taxpayer members,”
did not have standing both because the challenged action was
executive rather than legislative and because the property
transfer was an exercise of executive authority pursuant to
legislation passed under the Property Clause in Article IV, § 3
 8
of the Constitution rather than the Taxing and Spending
Clause in Article I, § 8. Id. at 469, 479-80 (internal quotation
marks omitted).

In Bowen v. Kendrick, the Supreme Court allowed a
group of federal taxpayers to challenge the Adolescent Family
Life Act, a statute appropriating funds for religious
organizations, among others, to fight teen pregnancy. 487
U.S. 589, 593, 596-97 (1988). The Court found that
plaintiffs’ claim challenged a program expressly authorized
by Congress under the taxing and spending power, thus fitting
within Flast. Id. at 619. The key to Bowen’s conclusion, as
the Court has subsequently explained, was that the statute was
‘“at heart a program of disbursement of funds pursuant to
Congress’ taxing and spending powers’” and that plaintiffs’
claims were concerned with the expenditure of funds
‘“pursuant to the AFLA’s statutory mandate.’” Hein, 127 S.
Ct. at 2567 (quoting Bowen, 487 U.S. at 619-20) (emphasis
omitted).

In its recent decision in Hein, the Court declined to
expand Flast to encompass discretionary Executive Branch
spending: “Because almost all Executive Branch activity is
ultimately funded by some congressional appropriation,
extending the Flast exception to purely executive
expenditures would effectively subject every federal action –
be it a conference, proclamation or speech – to Establishment
Clause challenge by any taxpayer in federal court.” Id. at
2569. Although Hein did not eliminate the Flast exception to
the bar against taxpayer standing, the case forcefully
emphasized the exception’s extremely limited contours: “It is
significant that, in the four decades since its creation, the
Flast exception has largely been confined to its facts.” Id. at
2568-69. As Hein explained, the Court has limited the
“expansion of federal taxpayer and citizen standing in the
 9
absence of specific statutory authorization to an outer
boundary drawn by the results in Flast.” Id. at 2569 (internal
quotation marks and emphasis omitted).3

In this case, plaintiffs’ claim does not fit within the
narrow Flast exception. No legislative enactment expressly
authorizes or appropriates funds for the Navy to favor
Catholic chaplains in its retirement system. Plaintiffs cite, for
example, the statutes establishing the Navy Chaplain Corps,
but those statutes make no reference to denominational
category, only to chaplains generally. See 10 U.S.C. §§ 5142,
5150. And plaintiffs, who themselves are chaplains,
obviously do not contend that congressional legislation
establishing the Navy Chaplaincy itself violates the
Establishment Clause; they merely want the Navy to operate
the Chaplain Corps differently. Cf. Katcoff v. Marsh, 755
F.2d 223 (2d Cir. 1985) (approving military chaplaincy
program).

As in Hein, the challenged expenditures here – extra
salary and retirement-related benefits allegedly provided to
Catholic chaplains – “were not expressly authorized or
mandated by any specific congressional enactment.” Hein,
127 S. Ct. at 2568. Indeed, plaintiffs contend that the
Chaplain Corps is being operated by the Navy in
contravention of the law, not in accordance with the law. See
Plaintiffs’ Br. 48 (“Appellees have not followed either the law

3
The Flast exception may be further limited to Congress’s
disbursement of federal funds outside the Government. In both
Flast and Bowen v. Kendrick, the only two Supreme Court cases
upholding taxpayer standing, the statutes authorized disbursement
of federal funds to outside entities, including religious
organizations. But we need not address that question in this case
given that plaintiffs’ argument for taxpayer standing fails at a more
basic level.
 10
or the DOD regulations.”). Under the Supreme Court’s
precedents, that contention directly undermines any claim to
taxpayer standing. In sum, plaintiffs do not have standing as
taxpayers.

B

Plaintiffs alternatively contend that they have standing
because “Establishment Clause injury flows from the
forbidden messages of preference or disapproval” inherent in
the Navy’s denominational preference. Plaintiffs’ Br. 28. In
so arguing, they rely primarily on this Court’s decision in
Chaplaincy, which explained that for the purposes of a
preliminary injunction, the “mere allegation” of an
Establishment Clause violation is always sufficient to show
irreparable harm. Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 303-04 (D.C. Cir. 2006). Plaintiffs
claim that because their allegations demonstrate irreparable
injury for preliminary injunction purposes, they have
necessarily shown injury-in-fact for standing purposes.

But the Court in Chaplaincy merely held that the
allegation of an Establishment Clause violation is sufficient to
satisfy the irreparable harm prong of the preliminary
injunction standard – presupposing that a party has standing
to allege such a violation. See id. at 303-04 & n.8. A per se
rule defining automatic injury-in-fact for every plaintiff who
claims an Establishment Clause violation – as plaintiffs strain
to find in the Chaplaincy opinion – would run counter to
decades of settled jurisprudence setting forth the requirements
for standing in Establishment Clause cases. Jurisdictional
requirements are not disposed of so easily, and the Court in
Chaplaincy did not purport to make the sweeping change
attributed to it by plaintiffs.
 11
Apart from citing Chaplaincy, plaintiffs also claim
injury-in-fact from their being subjected to the “message” of
religious preference conveyed by the Navy’s allegedly
preferential retirement program for Catholic chaplains. The
program, they say, makes them feel like second-class citizens
within the Navy Chaplaincy even if they themselves have not
suffered discrimination on account of their religion.

As the Supreme Court has often stated, mere personal
offense to government action does not give rise to standing to
sue. Allen v. Wright, 468 U.S. 737, 752-54 (1984); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-76 (1992).
“By the mere bringing of his suit, every plaintiff demonstrates
his belief that a favorable judgment will make him happier.
But although a suitor may derive great comfort and joy” from
knowing that the Government is following constitutional
imperatives, “that psychic satisfaction is not an acceptable
Article III remedy because it does not redress a cognizable
Article III injury.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 107 (1998). “Recognition of standing in such
circumstances would transform the federal courts into no
more than a vehicle for the vindication of the value interests
of concerned bystanders.” Allen, 468 U.S. at 756 (internal
quotation marks omitted).

Plaintiffs respond that their claim is similar to religious
display and prayer cases where courts have found (or at least
apparently assumed) standing. See, e.g., McCreary County v.
ACLU, 545 U.S. 844, 851-52 (2005) (Ten Commandments
displays that were “readily visible” to citizens conducting
civic business) (internal quotation marks omitted); Van Orden
v. Perry, 545 U.S. 677, 681-82 (2005) (Ten Commandments
display on the grounds of the Texas State Capitol that
petitioner frequently encountered); County of Allegheny v.
ACLU, 492 U.S. 573, 578 (1989) (crèche display in county
 12
courthouse and menorah display outside city-county
building); Suhre v. Haywood County, 131 F.3d 1083, 1086
(4th Cir. 1997) (Ten Commandments display in county
courtroom; noting that display cases are “particularized
subclass of Establishment Clause standing jurisprudence”);
see also Lee v. Weisman, 505 U.S. 577, 580 (1992)
(governmental prayer at school graduation); Marsh v.
Chambers, 463 U.S. 783, 784-85 (1983) (daily prayer at
opening of state legislature); Sch. Dist. of Abington Township
v. Schempp, 374 U.S. 203, 205-12 (1963) (daily Bible reading
in class); Engel v. Vitale, 370 U.S. 421, 422-23 (1962)
(official state prayer in class).

These Supreme Court cases do not all directly discuss the
standing issue. It is a well-established rule that “cases in
which jurisdiction is assumed sub silentio are not binding
authority for the proposition that jurisdiction exists.” John
Doe, Inc. v. DEA, 484 F.3d 561, 569 n.5 (D.C. Cir. 2007)
(internal quotation marks omitted). In any event, accepting
those cases as precedents on standing,4 we nonetheless find
significant differences between plaintiffs’ case and the
religious display and prayer cases. In the religious display
and prayer cases, the Government was actively and directly
communicating a religious message through religious words
or religious symbols – in other words, it was engaging in
religious speech that was observed, read, or heard by the
plaintiffs in those cases. Here, by contrast, the Navy is not
communicating a religious message through religious words
or religious symbols. Plaintiffs’ objection here is more akin
to the objection to the property transfer in Valley Forge,
4
See generally Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d
494, 499-502 (5th Cir. 2007) (DeMoss, J., concurring); Ira C. Lupu
& Robert W. Tuttle, Ball on a Needle: Hein v. Freedom from
Religion Foundation, Inc. and the Future of Establishment Clause
Adjudication, 2008 B.Y.U. L. REV. 115, 158-64 (2008).
 13
where the Court stated that the plaintiffs failed “to identify
any personal injury suffered by them as a consequence of the
alleged constitutional error, other than the psychological
consequence presumably produced by observation of conduct
with which one disagrees. That is not an injury sufficient to
confer standing under Art. III, even though the disagreement
is phrased in constitutional terms.” Valley Forge, 454 U.S. at
485-86 (emphasis added and omitted); see also Suhre, 131
F.3d at 1086 (quoting Valley Forge and stating “a mere
abstract objection to unconstitutional conduct is not sufficient
to confer standing”).

Plaintiffs’ argument would extend the religious display
and prayer cases in a significant and unprecedented manner
and eviscerate well-settled standing limitations. Under
plaintiffs’ theory, every government action that allegedly
violates the Establishment Clause could be re-characterized as
a governmental message promoting religion. And therefore
everyone who becomes aware of the “message” would have
standing to sue. The neighbors in Valley Forge, the hotel
workers at a conference for faith-based organizations in Hein,
the list goes on – all could have obtained standing to sue
simply by targeting not the government’s action, but rather
the government’s alleged “message” of religious preference
communicated through that action. Indeed, as plaintiffs’
counsel acknowledged at oral argument, under plaintiffs’
standing theory any recipient of the Navy’s “message” in this
case, including the judges on this panel, would have standing
to bring suit challenging the allegedly discriminatory
Chaplain Corps. Oral Arg. Tr. at 6-7. The jurisdictional
requirements of Article III are not so manipulable. They do
not allow anyone who becomes aware of a government action
that allegedly violates the Establishment Clause to sue over it
on the ground that they are offended by the allegedly
unconstitutional “message” communicated by that action. In
 14
the government employment context at issue here, it thus
comes as no surprise that neither plaintiffs nor the dissent has
cited any case holding that a plaintiff can maintain a religious
employment discrimination suit under the Religion Clauses
when complaining about employment discrimination suffered
by others, not by the plaintiff himself or herself. We think the
reason for the dearth of precedent is evident: When plaintiffs
are not themselves affected by a government action except
through their abstract offense at the message allegedly
conveyed by that action, they have not shown injury-in-fact to
bring an Establishment Clause claim, at least outside the
distinct context of the religious display and prayer cases.

To be sure, we recognize that plaintiffs’ creative analogy
to the religious display and prayer cases has some surface
logic. But the implications of plaintiffs’ theory for standing
doctrine are quite radical: Plaintiffs seek to use the religious
display and prayer cases to wedge open the courthouse doors
to a wide range of plaintiffs alleging Establishment Clause
violations who were previously barred by bedrock standing
requirements – requirements that are essential to preserving
the separation of powers and limited judicial role mandated
by the Constitution. We decline the invitation to transform
Establishment Clause standing doctrine in this way. What the
Supreme Court said last year in Hein applies just as well to
plaintiffs’ reliance on the religious display and prayer cases
here: “It is a necessary concomitant of the doctrine of stare
decisis that a precedent is not always expanded to the limit of
its logic.” Hein, 127 S. Ct. at 2571.

***

We affirm the judgment of the District Court.

So ordered.
 ROGERS, Circuit Judge, dissenting: The Establishment
Clause prevents “the Government’s placing its official stamp of
approval upon one particular kind of prayer or one particular
form of religious services,” Engel v. Vitale, 370 U.S. 421, 429
(1962), and ensures that “all creeds . . . be tolerated and none
favored,” Lee v. Weisman, 505 U.S. 577, 590 (1992); see
McCreary County v. Am. Civ. Liberties Union of Ky., 545 U.S.
844, 860 (2005). A governmental accommodation for religion
may violate the Establishment Clause if it “singles out a
particular religious sect for special treatment” because
“whatever the limits of permissible . . . accommodations may be
. . . , it is clear that neutrality as among religions must be
honored.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687, 706-07 (1994) (citations omitted). “‘When the
power, prestige and financial support of government [are] placed
behind a particular religious belief, the indirect coercive
pressure upon religious minorities to conform to the prevailing
officially approved religion is plain.’” Sch. Dist. of Abington
Twp. v. Schempp, 374 U.S. 203, 221 (1963) (quoting Engel, 370
U.S. at 430-31).

In Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290 (D.C. Cir. 2006), the court thus observed that the
liberty interest shielded by the Establishment Clause is
“protection against government imposition of a state religion or
religious preference,” id. at 302 (emphasis added). Stating that
“the Establishment Clause is implicated as soon as the
government engages in impermissible action,” id., the court
explained that unlike freedom of expression cases, for example,
“[t]he harm inflicted by religious establishment is self-executing
and requires no attendant conduct on the part of the individual,”
id. at 303; see also id. at 302. In describing the impermissible
government action at issue, the court stated:

Where, as here, the charge is one of official preference
 2

of one religion over another, such governmental
endorsement “sends a message to nonadherents [of the
favored denomination] that they are outsiders, not full
members of the political community, and an
accompanying message to adherents that they are
insiders, favored members of the political community.”

Id. at 302 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(O’Connor, J., concurring)) (alteration in original). The court
held that such an allegation sufficed to show irreparable harm,
or “injury [that is] beyond remediation [by monetary damages],”
id. at 297, for the purpose of obtaining injunctive relief,
crediting appellants’ allegation of “the harm that flows from the
‘forbidden message’ of marginalization [that the Navy’s] actions
send to [them],” id. at 299 (quoting Appellants’ Br. at 20). The
court did not expressly hold that appellants1 had Article III
standing, but see Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94-95 (1998), but noted that its legal “conclusion
presupposes, of course, that the party has standing to allege such
a violation,” Chaplaincy, 454 F.3d at 304 n.8.

The court’s decision in Chaplaincy regarding appellants’
liberty interest that is protected by the Establishment Clause and
the nature of their injury is no less applicable here. The same
parties and the same charge are involved, see LaShawn A. v.
Barry, 87 F.3d 1389, 1393-95 (D.C. Cir. 1996) (en banc), and
injury sufficient for irreparable harm has resonance for injury-
in-fact under Article III, see Taylor v. Resolution Trust Corp., 56

1
Due to the consolidation of three cases, appellants include
active duty, reserve, retired, and former non-liturgical Protestant Navy
chaplains as in Chaplaincy, and two endorsing agencies — Chaplaincy
of Full Gospel Churches and Associated Gospel Churches.
Hereinafter in referring to “appellants,” I refer only to the chaplains
currently serving in the Navy Chaplain Corps.
 3

F.3d 1497, 1508 (D.C. Cir. 1995), because to show irreparable
harm “[a] plaintiff must do more than merely allege . . . harm
sufficient to establish standing,” Associated Gen. Contractors of
Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410 (9th
Cir. 1991). As explained in Chaplaincy, “[t]his court has set a
high standard for irreparable injury” within the preliminary
injunction inquiry. 454 F.3d at 297. Such injury must be “both
certain and great,” “actual and not theoretical,” “beyond
remediation,” and also “of such imminence that there is a clear
and present need for equitable relief to prevent irreparable
harm.” Id. (quotation marks and citations omitted). For Article
III, the requisite injury-in-fact must be “concrete and
particularized” and “actual or imminent,” not “hypothetical.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(quotation marks omitted). Because “the Navy’s alleged
violation of the Establishment Clause per se constitutes
irreparable harm,” Chaplaincy, 454 F.3d at 299, appellants have
met their burden on the injury prong of Article III standing.2

As members of non-liturgical Protestant churches and
fellowships, appellants assert that the Navy has singled out the
Catholic faith as the preferred religious tradition in its Chaplain
Corps by choosing over several decades to allow only Catholic

2
To the extent the court seeks to avoid this precedent by
interpreting a footnote in Chaplaincy to indicate that the court was
“presupposing” appellants’ standing, Op. at 10, and thus addressing
the request for injunctive relief without satisfying itself that appellants
had standing, its approach is contrary both to the principle in Steel
Co., 523 U.S. at 94-95, and to the more natural reading of the footnote
as merely recognizing, as this court has done before, that this prong of
the preliminary injunction inquiry and the entirety of the Article III
standing inquiry “overlap[] . . . somewhat,” but are not coextensive,
see Taylor, 56 F.3d at 1508.
 4

chaplains to serve beyond the required separation dates.3 This
sends a message of denominational preference for Catholics and
marginalization for non-Catholic adherents, causing appellants
to suffer psychological harm while serving as chaplains. Compl.
¶¶ 3, 37(e), 39. By endowing Naval officer status in a
preferential manner upon the representatives of a particular type
of religious ministry,4 who then, as part of their Naval service
duties, use words and symbols to serve their religious cause, the

3
According to appellants, “the 4109 program” has three
parts: (1) illegal appointments to active duty through age waivers for
over-age Catholic clergy, (2) the consequent illegal continuation of
such clergy as chaplains to the age of 67, and (3) the eventual illegal
transfer of such clergy to the Retired Reserve and subsequent recall to
active duty as designated 4109 Reservists. The program is designed
in part to allow Catholic chaplains who have reached their statutory
separation age to continue to serve until they have completed twenty
years of service and become eligible for pensions. See 10 U.S.C. §§
1251, 14509, 14703; see also Chaplaincy, 454 F.3d at 293-96. At the
time appellants filed their complaints, the age limit for the
appointment of chaplains, like other officers, was forty-two, see 10
U.S.C. § 532(a)(2); while this provision is no longer applicable to
chaplains, id. at § 532(d)(1) (as amended by Ronald W. Reagan
National Defense Authorization Act for Fiscal Year 2005, Pub. L. No.
108-375, 188 Stat. 1811, 1872 (Oct. 28, 2004)), the statutory
separation age for chaplains and other officers remains in effect.

4
Appellants cite a list of Catholic chaplains coded as “4109”
currently serving with them in the Navy Chaplain Corps, and assert
that additional chaplains are destined to become 4109 chaplains in
view of the Navy’s list of Catholics appointed after age forty-two and
extended on active duty and the dates they become eligible for
pensions. For example, non-liturgical Protestant Chaplain Stewart
served with over-age Catholic Chaplain Erestain. After this court’s
decision in Chaplaincy, it appears that the Navy extended two
non-Catholic chaplains for service beyond the age of 62. See 454 F.3d
at 295.
 5

Navy allegedly has “take[n] sides in a religious matter,
effectively discriminating in favor of [one religion’s] view,”
Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415,
425 (2d Cir. 2002), of the type of religious ministry that is most
appropriate to serve “the religious needs of sailors,” In re
England, 375 F.3d 1169, 1171 (D.C. Cir. 2004). See, e.g.,
McCreary County, 545 U.S. at 860; Kiryas Joel Vill., 512 U.S.
at 698-705.

Appellants have suffered particularized Article III injury
because they are not strangers to the Navy’s 4109 program.
Their membership within the Chaplain Corps and their resulting
receipt of a message of denominational preference make them
comparable to a citizen who has “personal contact with the
alleged establishment of religion,” Suhre v. Haywood County,
131 F.3d 1083, 1086 (4th Cir. 1997), such as in the religious
display cases.5 Appellants’ charge does more than present a
“creative analogy” with “some surface logic,” Op. at 14, as the
court offers no basis for its unsupported conclusion that this case
is different from “the distinct context of the religious display
and prayer cases,” id. As counsel for the Navy acknowledged,
“if a chaplain . . . is personally exposed to a [message of
religious preference], there would be traditional standing.” Oral
Arg. Tr. at 13 (Apr. 24, 2008). That is what appellants allege in

5
See, e.g., Vasquez v. L.A. County, 487 F.3d 1246, 1250-51
(9th Cir. 2007); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188,
196 (5th Cir. 2006); ACLU Neb. Found. v. City of Plattsmouth, 358
F.3d 1020, 1026-31 (8th Cir. 2004), adopted in relevant part, 419 F.3d
772, 774 n.4 (8th Cir. 2005) (en banc); Altman v. Bedford Cent. Sch.
Dist., 245 F.3d 49, 72 (2d Cir. 2001); Washegesic v. Bloomingdale
Pub. Schs., 33 F.3d 679, 682-83 (6th Cir. 1994); Doe v. County of
Montgomery, 41 F.3d 1156, 1159-60 (7th Cir. 1994); Foremaster v.
City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989); Saladin
v. City of Milledgeville, 812 F.2d 687, 691-93 (11th Cir. 1987); Allen
v. Hickel, 424 F.2d 944, 947 (D.C. Cir. 1970).
 6

charging that the 4109 program establishes an “official
preference of one religion over another” that causes them
psychological injury due to their personal and direct receipt of
the “‘message . . . that they are outsiders, not full members’” of
the Navy’s Chaplain Corps. Chaplaincy, 454 F.3d at 302
(quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)).
Appellants’ injury is thus as particularized, see Lujan, 504 U.S.
at 561 n.1, 573-74; Warth v. Seldin, 422 U.S. 490, 502 (1975),
as that of the children in Schempp, 374 U.S. at 223-24, to whom
school prayers were read, the plaintiffs in Women’s Equity
Action League (WEAL) v. Cavazos, 879 F.2d 880, 884-85 (D.C.
Cir. 1989), who were enrolled or employed in segregated
schools, and the state legislator in Marsh v. Chambers, 463 U.S.
783, 786 n.4 (1983), who objected “as a member of the
Legislature” to the use of a state-employed chaplain to convene
its sessions. As members of a statutorily-defined community
within the armed forces, appellants are not mere bystanders,
Allen v. Wright, 468 U.S. 737, 756 (1984), and they did not
“roam the country,” Valley Forge Christian Coll. v. Ams. United
for Separation of Church and State, 454 U.S. 464, 487 (1982),
in search of impermissible government action.6

6
Contrary to the court’s suggestion, Op. at 12-13, Valley
Forge included no indication that the Supreme Court questioned the
plaintiffs’ standing on the ground that a government land transfer to
a religious institution could not send a message of government
endorsement of religion and thus violate the Establishment Clause.
The Court based its Article III holding on the fact that the plaintiffs
did not live in the state where the land transfer had occurred, had
learned about it indirectly through a press release, and indicated no
connection with the transfer that could personalize their stake in the
suit. See 454 U.S. at 486-87; see also ASARCO Inc. v. Kadish, 490
U.S. 605, 616 (1989). As our sister circuits have held, Valley Forge’s
holding, 454 U.S. at 485-87, suggests that “[t]he neighbors in Valley
Forge,” Op. at 13, may be the very plaintiffs who would have had
standing there. See, e.g., Suhre, 131 F.3d at 1087; Washegesic, 33
 7

The uniqueness of appellants’ injury as chaplains in relation
to their service in the Navy Chaplain Corps eliminates the
concern expressed in Valley Forge that recognizing their
standing would, in this court’s words, inappropriately “wedge
open the courthouse doors,” Op. at 14; see also id. at 10, 13.
Appellants’ charge is based on an injury distinct to their status
within the Chaplain Corps, see Schempp, 374 U.S. at 224 n.9;
Chaplaincy, 454 F.3d at 302; see also WEAL, 879 F.2d at 884-
85, and, “like Schempp before it, Valley Forge recognized that
direct contact with an unwelcome religious exercise or display
works a personal injury distinct from and in addition to each
citizen’s general grievance against unconstitutional government
conduct,” Suhre, 131 F.3d at 1086. Their alleged “genuine
feeling of exclusion from the community . . . , and the deep
offense from a perceived insult to one’s religious view
committed by the government in one’s community,” Ariz. Civ.
Liberties Union v. Dunham, 112 F. Supp. 2d 927, 935 (D. Ariz.
2000); see Suhre, 131 F.3d at 1087; Saladin, 812 F.2d at 692-93,
demonstrates that appellants have suffered a personal injury-in-
fact.

To reach the opposite conclusion, the court ignores both the
nature of appellants’ charge and binding precedent. First, the
court describes the charge as if it concerns only religious
discrimination in traditional monetary terms, such as retirement
benefits not denied to appellants or “discrimination suffered by
others.” See Op. at 2, 3, 6, 14. Yet appellants do not so delimit
their charge; rather, they allege that the Navy’s 4109 program
violates the Establishment Clause by creating a government

F.3d at 682-83; ACLU of Ga. v. Rabun County Chamber of
Commerce, Inc., 698 F.2d 1098, 1106-07 (11th Cir. 1983).
 8

religious preference, see Chaplaincy, 454 F.3d at 302.7
Appellants’ standing thus does not hinge upon the mistreatment
of any individual chaplain but upon the Navy’s alleged
endorsement of a preference for another religious faith that
directly affects them. The court’s narrow focus ignores the
Constitution’s requirement that, in assessing constitutional
injury, “we keep in mind ‘the myriad, subtle ways in which
Establishment Clause values can be eroded,’” and that in
addition to the mistreatment of an individual, “we [must] guard
against other different, yet equally important, constitutional
injuries,” such as the unconstitutional implementation of a
government policy. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 314 (2000) (quoting Lynch, 465 U.S. at 694 (O’Connor, J.,
concurring)).

Second, the court states that “mere personal offense” or
emotional injury is never enough for Article III injury, Op. at 11,
but that is not the law.8 As the Supreme Court acknowledged in
Association of Data Processing Service Organizations, Inc. v.

7
Although the court suggests that appellants have waived
aspects of their allegations, Op. at 6, 13, the record is clear that they
have not abandoned their Establishment Clause charge of an
unconstitutional endorsement of a religious denomination that is
particularized to them personally. Oral Arg. Tr. at 8-10; 25. Counsel
emphasized that it is appellants’ “direct contact [with the 4109
program and its message] because of the small community” that
creates their injury, id. at 8, for due to their direct exposure as
chaplains, they experience the 4109 program as a type of faith
discrimination, “a religious gerrymander,” because “[i]t draws lines”
to favor one religious faith over another. Id. at 10; see also
Appellants’ Br. at 27.

8
See, e.g., Am. Soc’y for Prevention of Cruelty to Animals v.
Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 337-38
(D.C. Cir. 2003).
 9

Camp, 397 U.S. 150 (1970), “[a] person . . . may have a spiritual
stake in First Amendment values sufficient to give standing to
raise issues concerning the Establishment Clause” if directly
affected by the challenged governmental practice, id. at 154
(citing Schempp, 374 U.S. 203); see Valley Forge, 454 U.S. at
486-87 & n.22. Later, in Allen, 468 U.S. at 755, while holding
that a plaintiff alleging an equal protection violation generally
must claim a personal denial of equal treatment, the Supreme
Court observed that “[t]here can be no doubt that . . .
noneconomic injury [such as stigmatizing injury] is one of the
most serious consequences of discriminatory government action
and is sufficient in some circumstances to support standing.”9
In fact, the Supreme Court has reached the merits in numerous
Establishment Clause cases where “mere personal offense,” Op.
at 11, resulting from a plaintiff’s connection to a challenged
practice appears to have provided the main possible injury to
ground standing.10 As the Fourth Circuit has observed:

[T]he Establishment Clause plaintiff is not likely to

9
See, e.g., WEAL, 879 F.2d at 884-85; Gray v. Greyhound
Lines, E., 545 F.2d 169, 175 (D.C. Cir. 1976); see also Shaw v. Hunt,
517 U.S. 899, 904 (1996) (citing United States v. Hays, 515 U.S. 737
(1995); Shaw v. Reno, 509 U.S. 630 (1993)); Trafficante v. Metro. Life
Ins. Co., 409 U.S. 205, 211 (1972); Richard H. Pildes & Richard G.
Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights:
Evaluating Election-District Appearances After Shaw v. Reno, 92
M ICH . L. R EV . 483, 511-15 (1993); cf. Brown v. Bd. of Educ., 347 U.S.
483, 494 (1954).

10
See, e.g., Van Orden v. Perry, 545 U.S. 677, 682 (2005);
McCreary County, 545 U.S. at 853; Lee, 505 U.S. at 581; County of
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 587
(1989); Edwards v. Aguillard, 482 U.S. 578, 581 (1987); Wallace v.
Jaffree, 472 U.S. 38, 42 (1985); Lynch, 465 U.S. at 671; see also Op.
at 11-12 & n.4.
 10

suffer physical injury or pecuniary loss. Rather the
spiritual, value-laden beliefs of the plaintiffs are often
most directly affected by an alleged establishment of
religion. Accordingly, rules of standing recognize that
noneconomic or intangible injury may suffice to make
an Establishment Clause claim justiciable.

Suhre, 131 F.3d at 1086 (quotation marks and citations omitted);
see supra note 5.

Equally problematic is the court’s attempt to contrast
appellants’ case with those where the government has, in the
court’s words, “actively and directly communicat[ed] a religious
message through religious words or religious symbols,” Op. at
12. Establishment Clause precedent is not so conveniently
cabined into the narrow circumstances described by the court,
where the government itself “engag[ed] in religious speech,” id.
For one thing, the government need not intentionally favor one
religious denomination over another in order to violate the
Establishment Clause if its action has such an effect.11 When
considering whether a government action has the effect of
conveying a denominational endorsement, “[t]he question of
governmental neutrality is not concluded by the observation that
[a policy] on its face makes no discrimination between
religions.” Gillette v. United States, 401 U.S. 437, 452 (1971).
Equally important, there also is no requirement that the

11
See, e.g., Agostini v. Felton, 521 U.S. 203, 223 (1997);
County of Allegheny, 492 U.S. at 592-93; Larkin v. Grendel’s Den,
Inc., 459 U.S. 116, 125-26 (1982); Lemon v. Kurtzman, 403 U.S. 602,
612-13 (1971); Mt. Royal Joint Venture v. Kempthorne, 477 F.3d 745,
758 (D.C. Cir. 2007); United Christian Scientists v. Christian Sci. Bd.
of Dirs., First Church of Christ, Scientist, 829 F.2d 1152, 1161-62
(D.C. Cir. 1987); Allen v. Morton, 495 F.2d 65, 69-70 (D.C. Cir.
1973) (Tamm, J., joined by Robb, J., concurring).
 11

government go so far as to use “religious words or religious
symbols,” Op. at 12, to establish an unconstitutional religious
endorsement. Rather, “the Establishment Clause forbids subtle
departures from neutrality, ‘religious gerrymanders,’ as well as
obvious abuses.” Gillette, 401 U.S. at 452 (quoting Walz v. Tax
Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)).
And, “the most basic command of the Establishment Clause —
not to prefer some religions (and thereby some approaches to
indoctrinating religion) to others” — does not apply only to a
government action such as a prayer or ceremony that explicitly
adopts a denomination’s chosen religious symbols, but also to
other action taken in the usual course of government regulation
or operation. Univ. of Great Falls v. NLRB, 278 F.3d 1335,
1346 (D.C. Cir. 2002) (citing Larson v. Valente, 456 U.S. 228,
244 (1982)); see, e.g., Mt. Royal Joint Venture, 477 F.3d at 758;
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 (5th
Cir. 2001). Thus, government action that draws a line around a
religious denomination in a community can send a symbolic
message of preference that needs no words just as easily as the
government’s direct presentation of a religious symbol. See,
e.g., Kiryas Joel Vill., 512 U.S. at 697 (citing Larkin, 459 U.S.
at 125-26).

The court ignores all of this precedent in adopting the novel
conception that appellants are not harmed for purposes of
standing under the Establishment Clause unless the Navy itself
directly uses religious words or symbols as occurred in the
religious display cases, Op. at 12, 14. Rather than distinguish
precedent in a reasoned manner, the court’s holding is the
assertion that “[w]hen plaintiffs are not themselves affected by
a government action except through their abstract offense at the
message allegedly conveyed by that action, they have not shown
injury-in-fact to bring an Establishment Clause claim, at least
outside the distinct context of the religious display and prayer
cases.” Id. at 14 (emphasis in original). Yet, “[t]he
 12

Establishment Clause, at the very least, prohibits government
from appearing to take a position on questions of religious
belief or from ‘making adherence to a religion relevant in any
way to a person’s standing in the . . . community,’” County of
Allegheny, 492 U.S. at 594 (quoting Lynch, 465 U.S. at 687
(O’Connor, J., concurring)) (emphasis added), and so directs the
government to avoid a practice that “may appear to the
nonbeliever or dissenter to be an attempt to employ the
machinery of the [government] to enforce a religious
orthodoxy,” Lee, 505 U.S. at 592 (emphasis added). Moreover,
when a court reaches the merits “[i]n cases involving
[government] participation in a religious activity” — such as the
employment of Navy chaplains as religious ministry
professionals — the question is “whether an objective observer
. . . would perceive [its action] as a [governmental]
endorsement” of religion. Santa Fe Indep. Sch. Dist., 530 U.S.
at 308 (quotation marks omitted). Even so secular an act as the
grant of a copyright, this court held, ran aground because
providing exceptional copyright benefits to a particular religious
institution “bestowed upon the Church . . . symbolic recognition
as guardian of the [contested] text,” with consequent practical
advantages, and “ha[d] the unmistakable effect of advancing the
Church’s cause.” United Christian Scientists, 829 F.2d at 1171.
Although the religious institution alone used religious words and
symbols, the government’s unusual treatment of one church
“unequivocally and unqualifiedly endorsed [it] as first
interpreter and guardian of th[e] [copyrighted] work.” Id. at
1170; see also Commack, 294 F.3d at 425.

Here, within the context of their chaplaincy assignments
and in the absence of a legitimate explanation, the 4109 program
could fairly be understood as a religious endorsement because
it has the effect of selecting particular “religious words and
symbols,” Op. at 12, to play an enhanced role within the Navy
Chaplain Corps by specially retaining only representatives of the
 13

Catholic faith for extended service in which they engage in
religious speech on behalf of that Corps. See Santa Fe Indep.
Sch. Dist., 530 U.S. at 307-09. The job of a 4109 chaplain, as
for all chaplains, requires representing a particular denomination
as a “religious ministry professional,” an “individual endorsed
to represent a religious organization and to conduct its religious
observances or ceremonies.” Instruction 1304.28, Guidance for
the Appointment of Chaplains for the Military Departments ¶¶
6, E.2.1.9 (Dep’t of Def. June 11, 2004); see England, 375 F.3d
at 1171.12 So understood, due to appellants’ direct exposure to
the 4109 program’s preference for Catholics, the Navy conveys
to them the “message . . . that [as nonadherents of the favored
denomination] they are outsiders, not full members of the . . .
community,” McCreary County, 545 U.S. at 860 (quotation
marks omitted), for “the government[] [appears to be] lending
its support to the communication of a religious organization’s
religious message,” County of Allegheny, 492 U.S. at 601; see
Larkin, 459 U.S. at 125-26; Commack, 294 F.3d at 425; United
Christian Scientists, 829 F.2d at 1170-71, and thus causes them
psychological harm as Navy chaplains that is cognizable under
the Establishment Clause.

In any event, whether the Navy’s 4109 program sends a
prohibited message is a merits question that is not before the
court, see Info. Handling Servs., Inc. v. Def. Automated Printing
Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). Of course, the
court’s premature determination of this issue may arise from the
realization that if a personally observed religious message
causes harm “there would be traditional standing,” as the Navy’s
counsel acknowledged, Oral Arg. Tr. at 13; see also id. at 18-22.

12
See also Instruction 1730.7B, Religious Ministry Support
within the Department of the Navy ¶ 4.a (Dep’t of Navy, Ofc. of Sec’y
Oct. 12, 2000); Instruction 1730.1D, Religious Ministry in the Navy
¶ 4 (Dep’t of Navy, Ofc. of Ch. of Naval Operations May 6, 2003).
 14

At this point in the proceedings in determining Article III
standing, however, the court must assume the merits of
appellants’ charge that the Navy’s 4109 program “d[oes], in
fact, convey” a message of denominational preference directly
harming them as chaplains. Vasquez, 487 F.3d at 1251; see
Warth, 422 U.S. at 500, 502; Info. Handling Servs., 338 F.3d at
1029; City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003).

Under the Establishment Clause, then, appellants’
membership in a narrowly defined community — the Navy
Chaplain Corps — directly affected by the 4109 program, and
the message this program communicates to them as chaplains
particularizes their injury-in-fact, for “[t]he practices of [one’s]
own community may create a larger psychological wound than
someplace [one is] just passing through,” Washegesic, 33 F.3d
at 683, by making one feel like a “second class citizen[],”
Saladin, 812 F.2d at 693; see Suhre, 131 F.3d at 1090. This
directly follows from Chaplaincy and Supreme Court precedent,
both of which the court misconstrues. Because appellants’
injury-in-fact is traceable to the Navy’s 4109 program and is
likely to be redressed by holding that the program is unlawful
and enjoining preferential treatment of 4109 chaplains and the
message it sends to appellants, they also meet the other prongs
of the standing test, see Lujan, 504 U.S. at 560-61.

Accordingly, I would reverse the denial of the motion for a
preliminary injunction and leave for the district court to
determine upon remand whether appellants have otherwise met
the requirements for obtaining a preliminary injunction, see
Chaplaincy, 454 F.3d at 305, and respectfully dissent. Because
appellants have Article III standing, I do not reach the question
whether they also have taxpayer standing.