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Foundation sues state attorney general over creation of Department of Justice chaplaincy program

November 14, 2018

Madison-based Freedom From Religion Foundation filed a lawsuit Tuesday challenging the establishment last month of the state Department of Justice’s Chaplaincy Program, arguing that it is an unconstitutional violation of the separation between church and state and that it excludes atheists and non-believers from participating.

According to the lawsuit, filed in Dane County Circuit Court, the program was announced on Oct. 18 and was described by Attorney General Brad Schimel as a “critical component” of the DOJ. The program was developed and is now directed by a DOJ staff member.

DOJ has said that the program is part of a wider push at the agency to improve the physical and mental wellness of law enforcement officers.

The lawsuit seeks to have the program discontinued. The case has been assigned to Circuit Judge Josann Reynolds.

DOJ spokeswoman Rebecca Ballweg said DOJ is reviewing the lawsuit. A spokeswoman for Attorney General-elect Josh Kaul, who defeated Schimel in the Nov. 6 general election, did not respond to a request for comment. Schimel said last week that while it appears Kaul won, he is awaiting the results of municipal and county canvasses and the counting of all absentee ballots.

All of the chaplains initially appointed to the program are white Christian males, the lawsuit states. In order to be part of the program, the lawsuit states, chaplains must be ordained or licensed clergy, and the program excludes atheists and other non-believers from taking part.

Chaplains aren’t required to be licensed mental health providers, the lawsuit states, nor is the program coordinator.

“The DOJ Chaplaincy Program, premised on the conceit that only religious counseling be provided, belies the fact that the number of religiously unaffiliated adults in America has grown by nearly 20 million persons in recent years, and the number continues to increase,” the lawsuit states. That increase has been driven by declines among mainline Protestants and Catholics, it states.

The program, the lawsuit states, “gives non-religious DOJ employees and their family members no option other than receiving counseling from religious clergy. The DOJ Chaplaincy Program is intended to and does advance religion, which is the qualifying feature of the DOJ program.”

Private clergy, the lawsuit states, are readily available to DOJ employees who need them, without the need for DOJ to establish a chaplaincy program.

DOJ’s Chaplaincy Program, the lawsuit states, violates the Establishment Clause of the First Amendment to the Constitution.

“Favoring the needs of religious DOJ employees offends the Establishment Clause by sending a message that non-religious persons are outsiders,” the lawsuit states. Attempts to manage the program by DOJ also create “excessive entanglement of government with religion,” according to the lawsuit.

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