Friday, April 24, 2015

Liberty Institute Exposes Holes in Case Against Chaplain Modder—Urges Navy to Restore Him to Service


18-page response letter sheds light on misinformation and inaccuracies in Captain John Fahs’s rush to judgment against a highly-decorated military hero


Click here to watch Chaplain Wes Modder and his wife Beth share about
their painful and discriminatory experience.

On behalf of client U.S. Navy Chaplain Wes Modder, this week Liberty Institute sent a response letter to Rear Admiral Mary M. Jackson, USN, Commander, Navy Region Southeast. Admiral Jackson is now reviewing Captain Jon R. Fahs’s requested career-ending punishment of Chaplain Modder.

The detailed, 18-page letter asks Rear Admiral Jackson to reject Captain Fahs’s request that Modder be detached for cause (the military equivalent of being fired), removed from the promotion list, and sent to a Board of Inquiry where he could be involuntarily forced out of the Navy. 

Captain Fahs is Modder’s commanding officer at the Naval Nuclear Power Training Command in Goose Creek, South Carolina. He declined to meet with Chaplain Modder’s attorneys to discuss the case.

MAJOR HOLES AND VIOLATIONS

Liberty Institute’s review of the facts and law uncovered numerous major holes in Fahs’s initiation of, and response to, the internal investigation of Chaplain Modder.  Additionally, the letter spells out why the proposed punishment of Chaplain Modder would violate a host of federal and military laws and important procedural safeguards.

“We appreciate the opportunity the Navy afforded us to respond to Captain Fahs,” says Mike Berry, Liberty Institute Senior Counsel and Director of Military Affairs. “We believe that based on the evidence, the Navy will exonerate Chaplain Modder and restore him to continue his true calling of ministering to sailors and Marines as he has done for the past 19 years [4 years as a decorated U.S. Marine, and then as a Navy chaplain for the past 15 years].”

“GRAVE INFRINGEMENT” OF RELIGIOUS LIBERTY

Although Liberty Institute’s findings contain three major grounds for dismissing Fahs’s request for extraordinary punishment of Chaplain Modder, the most critical is the devastating effect such punishment could have on morale, religious freedom, and fighting readiness in the U.S. military.

This concern stems from the fact that the charges against Chaplain Modder originated over objections to his expression of religious beliefs in private counseling sessions—even though his expression is protected by law and required by the denomination that “endorses” (i.e., sponsors) him as a chaplain.

“[T]he proposed actions would effect a grave infringement of Chaplain
Modder’s rights under the Department of Defense (“DOD”) and Navy religious freedom regulations, the Religious Freedom Restoration Act, and the First Amendment,” the letter states.

The attorneys for Chaplain Modder warn, “This is a matter of serious concern not just for Chaplain Modder, but for the military as a whole, particularly as the military seeks to accommodate the significant and often unique spiritual needs of an increasingly diverse workforce.”

ACCUSED . . . FOR SERVING SPIRTUAL NEEDS

With a Doctorate in Military Ministry, Chaplain Modder is a respected and decorated chaplain. After his stellar service, including as Force Chaplain for Naval Special Warfare Command, in 2014 Chaplain Modder was assigned to the Naval Nuclear Power Training Command at the request of a 4-star Admiral.

A very small number of military personnel in private counseling sessions asked Chaplain Modder for spiritual guidance regarding certain personal conduct. Since Chaplain Modder is endorsed by the Assemblies of God—the respected Bible-believing denomination to which he belongs—he is required to provide spiritual guidance in line with their viewpoint, as he has consistently and faithfully done for 15 years. But in this case, these few individuals at Chaplain Modder’s relatively new location did not agree with his traditional, biblical views regarding their inquiries and they complained.

Berry explains: “They were looking for someone to simply tell them what they wanted to hear. And when they didn’t hear what they wanted to hear, they complained.”

Captain Fahs responded to the complaints by initiating an investigation. When the investigator recommended no punishment, Captain Fahs did the exact opposite and requested severe, potentially career-ending action against Chaplain Modder. He also removed Modder from his unit and isolated him at the base chapel. The chaplain has been cut off from his sailors, and he is forbidden from ministering to their spiritual needs.

 In a video interview, Chaplain Modder said that his “hope and prayer is that truth will prevail. It has to be the outcome, because that’s who we are as America.”

THREE STRIKES AGAINST THE ACCUSATIONS

Believing that the Navy is now taking its duty of review seriously and that a careful examination of the record will exonerate Chaplain Modder, Liberty Institute has offered Rear Admiral Jackson three reasons to reject Captain Fahs’s request:

PROBLEM #1:
The Requirements for Punishing Chaplain Modder
Simply Have Not Been Met

According to Navy regulations, “detachment for cause” on the basis sought by Captain Fahs must be supported by a showing of “one or more significant events resulting from gross negligence or complete disregard of duty.” Yet the investigation report fails to identify a single event resulting from gross negligence or a “complete disregard of duty.”

Significantly, Boards of Inquiry “are reserved for the investigation of major incidents . . . or serious or significant events” such as catastrophic loss of life or property. In the past, Boards of Inquiry were mainly used for incidents such as vessels being sunk due to alleged performance failures. In the Navy, because Boards of Inquiry are expensive and time-consuming they are typically reserved only for the most serious matters such as running a ship aground. 

The allegations in Captain Fahs’s report of investigation fall well short of constituting a major incident, or even a serious or significant event. To the contrary, according to Modder’s attorneys, the alleged conduct at issue, if it occurred, “represents nothing more than Chaplain Modder’s efforts to fulfill his duty to provide counsel and care to service members to allow them to serve their country effectively.”

The letter cites other instances where Fahs’s requested punishment of Chaplain Modder and the conduct of the investigation fail to comply with military procedure.

PROBLEM #2:
The Investigation Was Incomplete and Overlooked
Key Evidence and Witnesses

According to the response from Liberty Institute, "From the outset, the investigation evidenced a rush to judgment against Chaplain Modder and disregard for the procedures governing command investigations.”

The letter specifically cites problems such as Captain Fahs appointing an officer of the same rank as Chaplain Modder with no prior investigative experience, against which Navy regulations caution.

Similarly, Captain Fahs couched the order for the investigation in language skewed to pre-determine the outcome. This would have caused the investigator to believe his commander desired a particular result. Even then, however, the investigating officer recommended only that Chaplain Modder be given an alternative assignment and a letter of instruction—not potential expulsion from the Navy!

Not content to accept the investigating officer’s recommendations, Captain Fahs instead escalated the matter by seeking the detachment for cause, removal from the promotion list, and a Board of Inquiry.

PROBLEM #3:
Chaplain Modder’s Actions Are Protected
by the Religious Freedom Restoration Act (RFRA),
Military Regulations and the First Amendment

As stated by the Liberty Institute response, “Chaplain Modder is called and compelled to accomplish his chaplain duties—which include pastoral care and counseling—in accordance with the doctrinal tenets of the Assemblies of God denomination and his sincerely held religious beliefs.”

Granting Captain Fahs’s proposal “would violate [Chaplain Modder’s] rights under federal law and military regulations.”

The letter specifically cites the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the federal government from substantially burdening an individual’s sincerely held religious beliefs without a compelling interest that is furthered by the least restrictive means.

“By threatening to end Chaplain Modder’s Navy career as a result of expressing religious beliefs,” states the response, “Captain Fahs has placed a substantial burden on Chaplain Modder’s sincerely held beliefs, and no compelling government interest has been cited to justify Captain Fahs’s actions.”

That makes this case a potential tipping point for religious freedom in the U.S. military.

As the letter states, “If it imposes the proposed adverse actions against Chaplain Modder, the Navy would infringe his rights to express his religious beliefs in the context of providing counsel and care in violation of the Free Speech and Free Exercise clauses of the First Amendment to the United States Constitution.”

CONFIDENT OF CHAPLAIN MODDER’S EXONERATION

The law is on the side of Chaplain Modder, all chaplains, and all members of the U.S. military who want to exercise their faith. But as always, rights on paper must be fought for—including the use of forceful legal action—or they can be violated and made insignificant.

Chaplain Modder’s case, as the letter of response to Admiral Jackson notes, is reviewable by a federal civilian court, because men and women in the Armed Forces do not lose their religious freedoms when they join the military. 

Yet Liberty Institute is confident that the Navy will—after reviewing the information included in its response—reject Captain Fahs’s unwarranted request and will exonerate Chaplain Modder so he can continue ministering to sailors and Marines and fulfill his duty of service.


Please click here if you would like to give a donation to help defend and restore religious freedom.


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About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.LibertyInstitute.org.

VICTORY! City of Auburn Drops Cease-and-Desist Order Against First Presbyterian Church


House of worship seeks reimbursement from city for legal costs and plans to continue its summer glee camp outreach to local children and families

First Presbyterian Church of Auburn, New York's Glee Camp outreach has
served local children and their families each summer for the past three years.
Last week, the City of Auburn, New York withdrew its cease-and-desist order against First Presbyterian Church which demanded that the church stop its outreach to kids in the community through hosting a summer Glee Camp on the church’s own property.

“The City had no choice but to drop this lawsuit because the facts and the law are clearly on the side of the church,” says Hiram Sasser, Liberty Institute Director of Litigation. “Now that the city acceded to the church’s demand that it end this litigation, the final issue to be resolved will be the city’s reimbursement to the church for all of its costs and legal fees pursuant to federal statutory law. We look forward to restoring lost funds to the church that it may use for the good of serving the community rather than defending itself against frivolous prosecutions.”

CITY VIOLATED FEDERAL LAW

When the city sent the cease-and-desist order to the church in July 2014, the city stated that since the camp charged a fee for its summer Glee Camp it violated the city’s zoning ordinances.

In response, Liberty Institute and volunteer attorney Andrew Leja of Hiscock & Barclay LLP, then filed a brief in December 2014 on behalf of First Presbyterian Church of Auburn, New York,  defending it from the cease-and-desist order. At the time, Sasser commented: “We don’t know why the City chose to discriminate against the Glee Camp. As we win cases like this one, we will continue to set valuable precedent for churches across the country, and we look forward to this church once again offering the summer Glee Camp to the community it has faithfully served for two centuries.”

In February 2015, at a hearing Liberty Institute asked Judge David B. Thurston to dismiss the case and argued that the city’s unlawful enforcement action should be dismissed because it violates the First Amendment and federal law’s Religious Land Use and Institutionalized Person Act (RLUIPA) of which its Equal Terms Clause provides that:

“[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1).

A HISTORY OF COMMUNITY OUTREACH

Located in an R-2 Residential Zoning District, First Presbyterian Church conducted on its property many outreach programs from its campus where it has been located since 1975—including hosting veterans groups, prayer groups, grief support groups, youth and marriage retreats, and music festivals.

For the past three years, First Presbyterian Church donated part of its campus to host a musical theater summer camp—Glee Camp—to serve the community’s local children and their families. One of the church buildings is a 36,000 square-foot mansion that was constructed by Theodore Case, the inventor of sound recordings placed on film. When the home, which sat adjacent to the church’s property, became available for purchase, First Presbyterian Church saw this as an opportunity to acquire the home and expand the congregation’s outreach to the surrounding community.

In order to offset costs of instructors and materials for the three-week-long session that includes singing, dancing, and acting classes, young campers paid a fee. The church made no profit from hosting the Glee Camp.

Rev. Eileen Winter explained in her affidavit that the church hosted the Glee Camp to further its religious mission by helping children develop their musical skills and providing a way for the surrounding community to learn more about First Presbyterian Church.

“[Glee Camp] brings in persons with whom we want to build a faith relationship who may be reluctant to visit our church or may be looking for a church home. . . . The camp advances the church’s religious mission of supporting the community and the love of music. . . . [And] the camp trains an upcoming generation of future worship leaders and participants. . . .”

INCREASING DISCRIMINATION AGAINST HOUSES OF WORSHIP

While Liberty Institute is grateful for this victory for First Presbyterian Church, it continues to see an alarming trend of discrimination against houses of worship. The national non-profit religious liberty law firm is currently representing Congregation Toras Chaim in a lawsuit brought by the City of Dallas, Texas and has also documented more of this pattern in its annual survey, UNDENIABLE: The Survey of Hostility to Religion in America.

Liberty Institute also achieved recent court victories, including Opulent Life Church v. City of Holly Springs, Mississippi, when a city tried to ban a small African-American church from a downtown area, setting a precedent for tens of thousands of churches and synagogues. But much courtroom work remains to be done to apply this precedent, and other law, to case after case, and Liberty Institute remains committed to fight for the survival of houses of worship and others who are unlawfully oppressed, burden, or outlawed by government entities across America.


Please click here if you would like to give a donation to help defend and restore religious freedom.


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About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.LibertyInstitute.org.

Thursday, April 16, 2015

Liberty Institute Submits Friend-of-the-Court Brief on Behalf of ’60s Student-Speech Activist, Mary Beth Tinker


Plaintiff from landmark 1969 public school student speech case takes special interest in 21st century off-campus speech case



Mary Beth Tinker (l) and her brother John Tinker (r)
with their armbands they wore to peacefully protest the Vietnam War in 1969.

One of the great ironies of modern American law is that the ACLU—often a fierce opponent of religious expression in public schoolshelped win a case in the 1960s that is frequently used by Liberty Institute to advance religious freedom today (students represented by Liberty Institute recently include Brooks Hamby, Gabriella Perez, and Kendra Turner).

The case was Tinker v. Des Moines Independent Community School District, decided in 1969 in favor of peaceful high school anti-war protesters—and chronicled in Liberty Institute President & CEO Kelly Shackelford’s book, Supreme Ironyin which the Supreme Court famously ruled that school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”



The case began in 1965. Siblings Mary Beth Tinker (then 13 years old) and her brother John (then 15 years old) were the children of a Methodist minister and wanted to show their support of 1965 Christmas truce called for by Robert F. Kennedy in the Vietnam War. Influenced as well by their Methodist upbringing and their family’s involvement with the Religious Society of Friends (Quakers), the sister and brother decided to wear black armbands over their clothing to school to peacefully protest. But when they did, the Tinker children—along with three other students—were suspended for violating school policy against wearing black armbands.

The Tinker siblings and other students challenged the suspension as a violation of their First Amendment free speech rights. The Supreme Court agreed and in their decision struck a balance between the constitutional safeguards of free expression and the authority of school officials to maintain order and conduct in schools and make certain student safety.

YESTERDAY’S STUDENT SPEECH ACTIVIST STILL OUTSPOKEN TODAY

The dramatic Tinker case and its implications for religious freedom in schools today is the topic of a friend-of-the-court brief (amicus brief) recently submitted by Liberty Institute on behalf of amicus curiae, Mary Beth Tinker—supporting plaintiffs in Bell v. Itawamba County School Board—in the United States Court of Appeals for the Fifth Circuit.

Tinker, now a retired pediatric nurse in her early 60s, still remains active in student-speech issues and recently Tinker embarked on a bus tour known as the “Tinker Tour”—where she traveled over 25,000 miles by bus and spoke to more than 20,000 students and teachers at over 100 stops at schools, colleges, churches, youth detention facilities, courts, and several national conventions.

Tinker said that the goal of the tour was to “bring real-life civics lessons to schools and communities through the Tinker armband story. . . . History was made with just a simple, black armband. Can you imagine what a shy 13-year-old can do today with all of the extraordinary speech tools available?”

Tinker has strong interest in Bell v. Itawamba County School Board, explained Liberty Institute volunteer attorney Allyson N. Ho—who also serves as lead counsel in the fight against the destruction of the Mt. Soledad Veterans Memorial Cross which the ACLU has brought a lawsuit against claiming the memorial’s cross violates the First Amendment’s Establishment Clause.

Bell involves the regulation of student speech. There are times when a case does not involve religious speech but may nonetheless have a significant impact on religious student speech. While Bell does not involve religious speech and certainly would not be a regular Liberty Institute case, the non-profit law firm felt strongly that the Court needed to hear about the ramifications to religious speech should the Court go too far in regulating off-campus speech.

AMICUS CURIAE URGES THE COURT TO RULE NARROWLY

Liberty Institute’s friend-of-the-court brief states that amicus curiae  Mary Beth Tinker is “concerned that the Tinker standard—and the vital role it plays in protecting free speech, including political and religious speech—could be weakened if stretched too far.” With the submission of this amicus brief, Tinker hopes to “respectfully assist the Court in more fully understanding the ramifications of the standard the Court chooses to apply in this case for other types of student speech, including political and religious speech.”

On behalf of Tinker, Liberty Institute’s brief also points out that:

  • The Tinker standard is a bulwark against government censorship of speech at the heart of First Amendment concerns.
    Government school officials do not have carte blanche to regulate all student speech—especially off-campus speech. The consequences of a contrary rule would be grave for student and administrators alike, not only by curtailing the speech of students, but also by expanding the potential of administrators for liability and responsibility for off-campus speech.
  • The Tinker standard affords political and religious speech significant protection it might otherwise lack.
    Regulating off-campus speech in the absence of a threat of physical harm could well have serious and unintended consequences for the exercise of political and religious liberty—as extending the reach of school administrators can only expand the opportunities for school officials to impinge on the political and religious liberty of students (and their parents).

There are times when courts consider cases that Liberty Institute would not take because they do not involve religious speech, but nevertheless Liberty Institute and its clients feel compelled to file a brief explaining the impact of the case on religious speech. This is such a case. The Tinker standard is the most important legal protection for student religious speech. If any court threatens to erode the protections of the Tinker standard, Liberty Institute must stand up to defend the law or else risk losing an important protection for religious liberty. 

MAKE FREEDOM, NOT TOTALITARIANISM

“People of faith are in a fight for freedom right now—just like the families in this case were in the late 1960s,” said Shackelford in Supreme Irony.  “They, and the legal community, need to remember the Tinker case.  They need to remember the warning that suppressing freedom is, in the words of the Supreme Court, ‘totalitarianism.’  And they need to know that the law is on their side if they have the courage to stand up.”

Visit LibertyInstitute.org/SupremeIrony to learn more about the Tinker case and how it paved the way for the protection of freedom—including religious freedom—in the schoolhouse today.




Please click here if you would like to give a donation to help defend and restore religious freedom.



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About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.LibertyInstitute.org.