Two Good Arguments For The Defense

I’ve received some e-mails that offer what look like pretty viable defenses to this lawsuit. I’m not 100% sure they would win, but these are viable legal arguments against it.

First, the civilian courts should not be the forum that enlisted personnel use to question the orders and actions of their superior officers. If a soldier could run to court every time he didn’t like something an officer told him, the efficient functioning of the command structure in the military would break down. Therefore, there is a very good policy reason to not allow a lawsuit like this to go forward.

Second, and related to the first, is the argument that the plaintiff did not exhaust his administrative remedies before seeking judicial relief. In particular, the plaintiff in this case did not complain up the chain of command, citing a belief that such a complaint would have been fruitless and would have opened him up to retaliation. But it does not seem to me that the complaint does a good enough job of explaining why the plaintiff felt that way. If he could describe an incident in which someone in the base’s command structure, with enough rank or position to control the offending officer, had engaged in other pro-Christian official activities (simply being Christian would not be enough) then it might be more reasonable to have bypassed the chain of command. But here, there seems to be a simple assumption that command would have taken the officer’s side of things, and we cannot reasonably assume that had a complaint been made, superior officers would have automatically sided with the officer over the enlisted man.

So if there existed a reasonable, realistic way for the soldier to lodge a grievance or complaint with a superior officer possessing sufficient authority to address the problem, that’s what he should have done instead of filing a civil lawsuit.

Like I said before, I’m not 100% sure that argument wins. But it’s a very strong argument and I could easily see it winning. And it can be brought at an early date, before any factual discovery takes place. Best of all from the Government’s perspective, would not prohibit the Army from later attempting to negate or contradict the facts (and bear in mind that we’re assuming that Major Welborn did what he is accused of doing — and he does deny those facts; nothing has been proven one way or another, yet).

I think that it would lose only if there are sufficient allegations that the Army has a de facto policy of favoring Christians and disfavoring non-Christians. Certainly no such policy exists as an explicit matter; the written policies of the Army are quite clear, so far as I know, that all soldiers have the right to practice, or not, the religion of their choice without interference from command. So the plaintiff must prove, by way of multiple incidences of pro-Christian conduct by the command structure, that there is an “unwritten rule” that controls what is and is not acceptable. Facts meeting this description do not appear in the complaint, even as allegations.

Thanks to the commenters who e-mailed me in their arguments.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.