The attorney who represents 65 former chaplains suing the Navy for discrimination says the possible dismissal of a chaplain for giving traditional biblical counsel is evidence of a continuing attack against evangelicals.
For Virginia attorney Arthur Schulcz, the charge of “intolerance” leveled against Navy chaplain Wesley Modder shows how once-subtle discrimination against evangelical chaplains is increasing. The 65 chaplains’ cases continue to be waged in various courts alleging instances of discrimination dating back to the mid-1970s.
The Navy’s action against Modder falls in the context of recent National Defense Authorization Act (NDAA) language that protects the chaplain’s right to speak on matters of religion and morality, Schulcz said.
“There is the alleged taking of information from Modder’s personal files for the purpose of attacking him,” Schulcz said. “That is clearly a violation of the Uniform Code of Military Justice, yet they’re attacking Chaplain Modder, not the perpetrators.
Chaplain Wes Modder, holding the ceremonial oar given to him by Naval Special Warfare Command.
“Now, the subtle attacks have transitioned to overt attacks. You have to understand the chilling effect this kind of attack has on other chaplains.”
Modder is a veteran of nearly 20 years in the military, including a four-year tour of duty with the Marines. On Feb. 17, his commanding officer sent Modder a letter calling for the chaplain’s “detachment for cause.”
Capt. Jon Fahs said Modder is unable to function in a diverse and pluralistic environment at the Naval Nuclear Power Training Command base.
Fahs’ accusations include Modder allegedly telling a student she was “shaming herself” for engaging in premarital sex; berating another unmarried student for getting pregnant; and telling another that homosexuality is wrong.
“He failed to show tolerance and respect for the rights of individuals to determine their own religious convictions as required …,” Fahs wrote. “On multiple occasions he discriminated against students who were of different faiths and backgrounds” at the Nuclear Field “A” School.
Stationed at the South Carolina post since last April, Modder has been temporarily reassigned as a staff chaplain at Naval Support Activity in Charleston, according to Christianne Witten, a spokesperson for the Navy Chaplain Corps.
Mike Berry, an attorney for Modder with the Dallas-based Liberty Institute, said the complaints lodged against Modder are “highly suspicious.”
One of them came from a young officer who had once worked in the same office with Modder and quite likely knew of his beliefs, said Berry, Liberty Institute’s senior counsel and director of military affairs.
“The actions the Navy has taken so far, particularly Fahs, potentially expose the Navy to liability in federal court for denying a chaplain his constitutional rights,” Berry said.
After receiving Fahs’ letter, Modder filed a request for accommodation of his religious views, which the Navy subsequently denied. Berry said the next step is filing appeals with the admirals responsible for overseeing these issues.
Berry said his client will challenge both the planned dismissal and the alleged infringement on his religious rights. The attorney said those are separate issues and likely to be decided by two different admirals.
The latter is especially significant, Berry said. Under previous Department of Defense (DoD) regulations, the burden fell on a service member to justify his/her religious expression – such as a Jewish soldier wanting to wear a yarmulke, Berry said.
NDAA legislation in fiscal 2013 and 2014 directed the DoD to change its regulations, Berry said. The new law places the burden on the military if it tries to restrict individuals from expressing their religious views – which is what the Navy is trying to do with Modder, the attorney said.
However, Witten replied that the Navy is complying with current DoD and Navy policies and the NDAA’s latest provisions. She said the Navy upholds the rights of conscience of chaplains and service members to express sincerely held beliefs.
“Upon commissioning, all Navy chaplains agree to serve in a diverse and pluralistic environment,” Witten said. “They are expected to treat everyone with dignity and respect, irrespective of differences in religious belief.”
Modder’s case has attracted statements of support from such leaders as evangelist Franklin Graham, Tony Perkins of the Family Research Council, former Arkansas Gov. Mike Huckabee and newly-announced Republican presidential candidate Texas Sen. Ted Cruz.
The chaplain’s endorsing agency, the Assemblies of God, also “stands solidly” behind Modder, issuing a statement that he is in good standing with the denomination.
“At the same time, we are committed to allowing the Navy to proceed with legal processing,” according to a statement from the denomination, based in Springfield, Mo.
“The Assemblies of God does not have any plans to become directly involved with the political aspects of Chaplain Modder’s situation. We believe this approach is in the best interests of Chaplain Modder, the Assemblies of God and the U.S. Navy.”
Schulcz said he hopes the Navy eventually will be called to account for violating Modder’s rights.
“Where are the [chaplain’s] rights this captain [Fahs] was sworn to uphold?” Schulcz said. “What’s important for people to understand is if you restrict religious freedom, you might as well throw out the rest of the Constitution.
“The right to worship, assemble and petition all come from the First Amendment. When those are under attack, you better watch out, because that’s the Bill of Rights.”
(EDITOR’S NOTE – Ken Walker is a freelance writer from Huntington, W. Va.)