                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0158p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                                                  -
 LINDEN BOWMAN,
                                                  -
                                Plaintiff-Appellant,
                                                  -
                                                  -
                                                       No. 07-4322
          v.
                                                  ,
                                                   >
                                                  -
                                                  -
 UNITED STATES OF AMERICA; DONALD

                       Defendants-Appellees. -
 RUMSFELD,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
               No. 06-01323—Solomon Oliver, Jr., District Judge.
                                   Argued: October 24, 2008
                                                                        *
                           Decided and Filed: December 18, 2008
                                                                                          **
         Before: GIBBONS and COOK, Circuit Judges; STEEH, District Judge.

                                      _________________

                                           COUNSEL
ARGUED: Robert T. Lynch, LYNCH LEGAL SERVICES, Cleveland, Ohio, for
Appellant. Lowell V. Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. Alexander Joseph Luchenitser, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for
Amici Curiae. ON BRIEF: Robert T. Lynch, LYNCH LEGAL SERVICES, Cleveland,
Ohio, for Appellant. Lowell V. Sturgill, Jr., Robert M. Loeb, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Alexander Joseph
Luchenitser, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE,
Washington, D.C., Richard L. Rosen, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Virginia
Beach, Virginia, for Amici Curiae.



        *
         This decision was originally issued as an “unpublished decision” filed on December 18, 2008.
On April 21, 2009, the court designated the opinion as one recommended for full-text publication.
        **
          The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                 1
No. 07-4322          Bowman v. United States, et al.                                       Page 2


                                     _________________

                                           OPINION
                                     _________________

        GEORGE CARAM STEEH, District Judge. This lawsuit arises from plaintiff
Linden Bowman’s early retirement from the United States Air Force and his failed
attempt to participate in a program that would allow him to have community service
work count toward his years of service needed to obtain a full twenty-year military
retirement. The Secretary of Defense failed to process his request for military service
credit for his work as a youth minister on grounds that the regulations specifically
prohibit credit for employment with “religious organizations engaged in religious
activities, unless such activities are unrelated to religious instruction, worship services,
or any form of proselytization.” Bowman claims the regulation violates the express
language of the enabling legislation and is unconstitutional on its face and as applied to
him in violation of his Fifth Amendment Equal Protection rights. The district court
dismissed his complaint for failure to state a claim. Bowman now appeals that
dismissal.1 Because we find the regulation is consistent with the enabling statute and
does not violate Bowman’s equal protection rights, we AFFIRM.

                                       BACKGROUND

        Bowman served in the United States Air Force from September, 1977 until
January, 1996, when he took an early retirement as part of a reduction in force. Bowman
received a final rank of Technical Sergeant. Because Bowman was just a few years shy
of the twenty-years required for a full retirement, he was eligible to participate in a
program (“Program”) allowing him to perform community service that would be counted
toward his years of military service for retirement. The Program was provided by the
National Defense Authorization Act for Fiscal Year 1993 which directed the Secretary
of Defense to “implement a program to encourage members and former members of the


        1
           Two amicus briefs have been filed. Americans United for Separation of Church and State
(AUSCS) has filed an amicus brief in support of the government. The National Legal Foundation (NLF)
has filed an amicus brief in support of Bowman.
No. 07-4322           Bowman v. United States, et al.                                          Page 3


armed forces to enter into public and community service jobs after discharge or release
from active duty.” See Pub. L. No. 102-484, § 4462(a)(1), 106 Stat. 2702, 2741 (1992),
codified at 10 U.S.C. § 1143a (“Statute”). Section 1143a is entitled “Encouragement of
postseparation public and community service.”2 The Statute defines “public service
organizations” as organizations providing school services and education administration,
law enforcement, public health care, social services and “[a]ny other public or
community service.” 10 U.S.C § 1143a(g).

        The Secretary of Defense promulgated regulations for the Community Service
Program. 32 C.F.R. §§ 77.1-77.6. The Program authorized service members who retired
from active duty with at least 15 but fewer than 20 years of service to accrue additional
retirement credit for work in a qualified public or community service organization.
32 C.F.R. § 77.3(c). The regulations permit qualified former military personnel to
accrue additional service credit for retirement through employment with “public or
community service organization[s] that provide the services listed in sections 77.3(d)(1)
through (d)(12).” 32 C.F.R. § 77.4(b)(2). Section 77.3(d) paints with a very broad brush
the types of public and community service organizations for which retirement credit is
allowed:

        (d) Public and community service organization. Government or private
        organizations that provide or coordinate the provision of the following
        services[:]
        (1) Elementary, secondary, or post secondary school teaching or
        administration.
        (2) Support of teachers or school administrators.
        (3) Law enforcement.
        (4) Public health care.
        (5) Social services.
        (6) Public safety.
        (7) Emergency relief.
        (8) Public housing.
        (9) Conservation.
        (10) Environment.


        2
          Section 1143a is a section of the Defense Conversion, Reinvestment, and Transition Assistance
Act of 1992 (the “Act”), which was Division D of the National Defense Authorization Act for Fiscal Year
1993. Pub. L. 102-484.
No. 07-4322        Bowman v. United States, et al.                                  Page 4


       (11) Job training.
       (12) Other public and community service not listed previously, but
       consistent with or related to services described in paragraphs (d)(1)
       through (11) of this section.

32 C.F.R. § 77.3(d)(1)-(12).       The regulations bar credit toward retirement for
employment with “organizations engaged in religious activities, unless such activities
are unrelated to religious instructions, worship services, or any form of proselytization.”
32 C.F.R. § 77.3(a). The regulations also exclude “businesses organized for profit, labor
unions, [and] partisan political organizations.” Id.

       At the time of his retirement, Bowman had 17 years and three months of service
in the Air Force. After retiring from the Air Force, Bowman began employment with
the People’s Church of C & MA (“Church”) in Geneva, Ohio, first as a lay intern, and
later as a youth minister. He does not dispute that his duties included religious
instructions, worship services, or proselytization. The complaint does not elaborate on
what his duties were either as a lay intern or as a youth minister. Bowman was
employed with the Church continuously from his retirement until February, 2001.
Bowman contends that this employment should be counted toward his years of service
so that he is entitled to a full retirement. According to his complaint, if he were granted
the retirement credit for his work as a youth minister, he would be entitled to receive 50
percent of his base military pay upon reaching the age of 62, as opposed to receiving
only 42 percent of his base military pay. The complaint does not quantify the money
difference.

       Bowman alleges that he filed for military service credit under the Program “late
in the year 1998,” again in November, 2002, and again in October, 2004, this time with
the assistance of counsel, by submitting a Validation of Public or Community Service
Employment Form to the Defense Manpower Data Center. Neither plaintiff nor his
counsel has ever received a response. Plaintiff alleges that his request for creditable
service has not been granted or even processed because the form shows that his
employment was with a religious organization. Bowman alleges that the exclusion of
employment with organizations engaged in religious activities from qualification for
No. 07-4322           Bowman v. United States, et al.                              Page 5


creditable early retirement under the Program conflicts with the broadly drafted enabling
legislation, 10 U.S.C. § 1143a, and is unconstitutional on its face and as applied to him
in violation of his Fifth Amendment Equal Protection rights.

                                        ANALYSIS

A.     Standard of Review

       Whether or not a district court properly dismissed a complaint for failure to state
a claim under Rule 12(b)(6) is subject to de novo review. Ass’n of Cleveland Fire
Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007). Under the Supreme
Court’s recent articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65 (2007), the Court must construe the
complaint in favor of the plaintiff, accept the allegations of the complaint as true, and
determine whether plaintiff’s factual allegations present plausible claims. To survive a
Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Ass’n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly, 127
S. Ct. at 1964-65).

       An agency must interpret its implementing legislation in a reasonable manner and
may not “promulgate regulations in a manner that are arbitrary or capricious in
substance, or manifestly contrary to the statute.” Clark Reg’l Med. Ctr. v. United States
Dep’t of Health & Human Res., 314 F.3d 241, 244-45 (6th Cir. 2002). Where Congress
empowers an agency to enact rules and regulations necessary to carry out an Act, those
regulations are to be upheld “so long as [they are] ‘reasonably related to the purposes of
the enabling legislation.’” Jackson v. Richards Med. Co., 961 F.2d 575, 585 (6th Cir.
1992) (quoting Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 369 (1973)).
No. 07-4322        Bowman v. United States, et al.                                  Page 6


B.     The regulation comports with the statute and Congressional intent

       Bowman argues that the regulatory exclusion in 32 C.F.R. § 77.3(a) is not
authorized by the enabling legislation, 10 U.S.C. § 1143a, and is contrary to the purpose
and intent of Congress in establishing the Program. The government, on the other hand,
argues that the regulatory exclusion is authorized by § 1143a, is supported by the
legislative history, and is entitled to substantial deference under Chevron U.S.A., Inc. v.
Nat’l Res. Def. Council Inc., 467 U.S. 837, 844 (1984). For the reasons discussed below,
the district court properly held that the regulatory exclusion contained in 32 C.F.R.
§ 77.3(a) is consistent with the authorization provision of 10 U.S.C. § 1143a.

       In deciding whether the regulatory exclusion conflicts with the statutory
enactment, 10 U.S.C. § 1143a(g), the proper starting point is the enabling legislation
itself. 10 US.C. § 1143a(a) provides:

       1143a. Encouragement of postseparation public and community
              service
       (a) In general. The Secretary of Defense shall implement a program to
       encourage members and former members of the armed forces to enter
       into public and community service jobs after discharge or release from
       active duty.
Id. This enabling legislation gives the Secretary broad power to implement the Program.
Congress defined community service organizations as set forth below:
       (g) Definitions. – In this section, the term “public service and
       community service organization” includes the following organizations:
       (1) Any organization that provides the following services:
       (A) Elementary, secondary, or postsecondary school teaching or
       administration.
       (B) Support of such teaching or school administration.
       (C) Law enforcement.
       (D) Public health care.
       (E) Social services.
       (F) Any other public or community service.
       (2) Any nonprofit organization that coordinates the provision of services
       described in paragraph (1).

The statute is silent on the issue of whether or not work for a religious organization is
exempt. The Secretary’s challenged regulation, 32 C.F.R. § 77.3(a), allows early retirees
No. 07-4322          Bowman v. United States, et al.                               Page 7


to participate in the Program when they work for nonprofit organizations engaged in
religious activities “if the activities are unrelated to religious instructions, worship
services, or any form of proselytization.”

       Bowman contends that Congress would have spoken on the issue if it had
intended to exclude certain work in religious activities as it has done so explicitly in
other legislation. For example, Bowman cites to three statutes that the district court
relied upon in its analysis that the regulatory exclusion was needed to avoid a violation
of the Establishment Clause of the First Amendment. Bowman v. United States, 512 F.
Supp. 2d 1056, 1069 (N.D. Ohio 2007). In each of those Acts, Congress specifically
prohibited government funds from being used for sectarian purposes. See 42 U.S.C.
§ 300X-65(i) (“No funds provided through a grant or contract to a religious organization
to provide services under any substance abuse program under this subchapter or
subchapter III-A of this chapter shall be expended for sectarian worship, instruction, or
proselytization”); 29 U.S.C. § 2938 (a)(3) (“Participants shall not be employed under
this chapter to carry out the construction, operation, or maintenance of any part of any
facility that is used or to be used for sectarian instruction or as a place for religious
worship”); and 42 U.S.C. § 9920(c) (“No funds provided directly to a religious
organization to provide assistance under any program described in subsection (a) of this
section shall be expended for sectarian worship, instruction, or proselytization”).
Bowman argues that because Congress has explicitly forbidden using public funds to
support a religious organization for sectarian worship, instruction, or proselytization in
other instances, the fact that it did not do so under § 1143a must be construed to mean
that Congress did not intend for any restriction to apply. Bowman makes too much of
Congressional silence.

       Congress endowed the Secretary with broad discretion to adopt eligibility criteria
for participation.     The government contends that drawing an inference from
Congressional silence is inappropriate because the Secretary’s regulations reasonably
construe statutory terms left undefined by Congress in a manner supported by the
legislative history. The government argues that an inference may not be drawn from
No. 07-4322         Bowman v. United States, et al.                                  Page 8


Congressional silence where the inference “is contrary to all other textual and contextual
evidence of congressional intent.” Burns v. United States, 501 U.S. 129, 136 (1991).
The government contends that since the enabling statute specifically allows the Secretary
to define the activities which qualify for a retirement credit, the Secretary is entitled to
substantial deference for those regulations. In Chevron, the Court held that where
Congress has explicitly given an agency the power to elucidate a specific provision of
a statute by regulation, the regulation must be upheld unless it is “arbitrary, capricious,
or manifestly contrary to the statute.” 467 U.S. at 844.

        The first question for the Court in deciding whether or not the Secretary’s
interpretation of § 1143a as set forth in 36 C.F.R. § 77.3(a) is permissible is “‘whether
Congress has directly spoken to the precise question at issue’ by employing precise,
unambiguous statutory language.” Alliance for Cmty. Media v. F.C.C., 529 F.3d 763,
776-77 (6th Cir. 2008) (quoting Chevron, 467 U.S. at 842). Where Congress has spoken
in unambiguous terms, the inquiry ends and the court must “give effect to the
unambiguously expressed intent of Congress.” Jewish Hosp., Inc. v. Sec’y of Health &
Human Serv’s, 19 F.3d 270, 273 (6th Cir. 1994). Congress’s definition of “public and
community service organization” is vague and leaves a gap for the Secretary to fill. This
is especially true given the myriad of organizations, public and private, offering various
services of value to the community.

        Since § 1143a(g) is ambiguous, the second prong of the Chevron analysis comes
into play, and the Court must determine if the Secretary’s interpretation of the statute is
reasonable. Alliance for Cmty. Media, 529 F.3d at 778. The Court is guided by the
specific language of the provision at issue and its legislative history. Id. The second
Chevron prong requires the court to decide if the regulation represents a “permissible
construction of the statute,” and substantial deference is given to the agency’s
interpretation. Estate of Gerson v. Comm’r of Internal Revenue, 507 F.3d 435, 438 (6th
Cir. 2007), cert. denied, __ U.S. __, 128 S. Ct. 2502 (2008) (quoting Chevron, 467 U.S.
at 842-43); Harris v. Olszewski, 442 F.3d 456, 466 (6th Cir. 2006).
No. 07-4322           Bowman v. United States, et al.                                           Page 9


         The government argues that the exemption is compelled by Congressional intent
to benefit only a very narrow class of community service organizations, namely, those
involved in education, law enforcement, and health care. The district court based its
decision on this distinction. The government relies on the Senate Report which
specifically provides that the purpose of the legislation is to “authorize active duty
personnel who are approved for early retirement to accrue additional military retirement
credit if they take critical jobs, such as in education, law enforcement, and health care.”
Senate Committee on Armed Services, National Defense Authorization Act for Fiscal
Year 1993, S. Rep. No. 102-352, at 202 (1992). The government contends that the
emphasis on “critical job vacancies” in “education, law enforcement, and health care,”
is in harmony with the Secretary’s exclusion of work for a religious organization if it
involves “religious instructions, worship services, or any form of proselytization.”

         Bowman, however, asserts that the exclusion is at odds with the expansive
language of § 1143a(g) which includes credit for organizations involved in “social
services” and “any other public or community service.” Nothing in the legislative
history suggests that Congress intended to encourage retirees to accept positions which
would involve “religious instructions, worship or proselytization.” Similarly, nothing
in the text of the statute itself suggests that Congress intended to benefit this kind of
activity. Under these circumstances, deference is owed to the Secretary of Defense who,
through his regulations, has excluded from § 1143a(g)’s definition of service all
activities involving “religious instructions, worship or proselytization.” Accordingly,
the district court properly held that the regulatory exclusion contained in 32 C.F.R.
§ 77.3(a) does not violate 10 U.S.C. § 1143a(g).3




         3
           Bowman argues, by way of a footnote, that his allegation that his work as a youth minister
constituted “public and community service” within the meaning of 10 U.S.C. § 1143a(g) must be taken
as true for purposes of a Rule 12(b)(6) motion. Bowman is incorrect. His allegation is not a factual
assertion but a legal conclusion which we need not accept. See e.g., Gahafer v. Ford Motor Co., 328 F.3d
859, 861 (6th Cir. 2003); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
No. 07-4322         Bowman v. United States, et al.                                  Page 10


C.      The regulation does not violate Bowman’s right to equal protection

        The district court also dismissed Bowman’s complaint on the grounds that
32 C.F.R. § 77.3(a) did not violate his equal protection claim both on its face and as
applied to him. Since Bowman did not set forth any facts challenging the application of
the statute to him, the district court properly found that his as-applied and facial claims
were one and the same and analyzed them as such. The district court correctly
recognized that equal protection applies to the federal government through the Due
Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
The Equal Protection Clause “protects against arbitrary classifications, and requires that
similarly situated persons be treated equally.” Jackson v. Jamrog, 411 F.3d 615, 618
(6th Cir. 2005) (quotations omitted).

        1.      Strict Scrutiny

        Bowman argues that his challenge of the constitutionality of the exclusion is
subject to strict scrutiny because the exclusion is a classification based on religion and
burdens his free exercise of religion. To survive strict scrutiny analysis, the regulation
must be narrowly tailored to advance a compelling governmental interest. An equal
protection claim is subject to rational basis review unless it involves infringement of a
fundamental right or application to a suspect class. City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985). Unless the Program violates Bowman’s fundamental
right to exercise his religion, it must be upheld as long as it bears a “rational relationship
to a legitimate state interest.” Jamrog, 411 F.3d at 618. Strict scrutiny applies where
the classification affecting eligibility for benefits is based on religion or burdens the
exercise of religion. See McDaniel v. Paty, 435 U.S. 618, 628 (1978). The First
Amendment provides: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I. Laws intended
to advance or inhibit religion, or having either effect, generally violate the Establishment
Clause. Agostini v. Felton, 521 U.S. 203, 222-23 (1997).

        On appeal, Bowman relies primarily on two Supreme Court cases in support of
his argument that strict scrutiny analysis applies to his equal protection claim. First, he
No. 07-4322         Bowman v. United States, et al.                                 Page 11


relies on McDaniel, in which the Supreme Court struck down a law prohibiting ministers
from participating as delegates or representatives in state constitutional conventions.
The Court applied strict scrutiny analysis because the law prohibiting ministers from
serving as delegates and legislators at state constitutional conventions pitted plaintiff’s
constitutional right to the free exercise of his religion against his constitutional right to
seek and hold public office. See Id. at 626. The district judge ruled that McDaniel did
not apply because the regulation in dispute does not involve Bowman’s right to
participate in the political affairs of the community. 512 F. Supp. 2d at 1066. In fact,
the Supreme Court’s recent decision in Locke v. Davey, 540 U.S. 712, 720 (2004),
supports this interpretation. In Locke, the Court upheld the State of Washington’s
constitutional prohibition against using a state scholarship toward a degree in devotional
theology and distinguished McDaniel on the basis that the prohibition at stake was much
less onerous than denial of a minister’s right to participate in the political affairs of the
community. Id. at 720, 725.

        Bowman also relies on Sherbert v. Verner, 374 U.S. 398 (1963) to support his
argument that strict scrutiny analysis applies to his constitutional challenge to 32 C.F.R.
§ 77.3(a). In Sherbert, the Court held that the denial of unemployment benefits to a
person because her religious beliefs prevented her from working on Saturday constituted
a burden on the exercise of religion that must be supported by a compelling state interest.
Id. at 403-06. Since Sherbert was decided, the Supreme Court has held that the
government cannot deny a public benefit based on a worker’s religious beliefs in a
number of employment cases. See Hobbie v. Unemployment Appeals Comm’n of
Florida, 480 U.S. 136 (1987) (strict scrutiny test applied to Florida’s refusal to award
unemployment compensation to claimant who was discharged for refusing to work on
her Sabbath); Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707
(1981) (strict scrutiny test applied to Indiana’s refusal to pay unemployment
compensation to Jehovah Witness who quit his job after his employer required him to
make armaments).
No. 07-4322         Bowman v. United States, et al.                                Page 12


        The facts of this case are markedly distinct from the situation presented in
Sherbert and its progeny. Here, Bowman need not choose between exercising his
religious beliefs and receiving a governmental benefit. He worked as a youth minister
for pay and any loss of an incremental increase in his retirement pay burdened him much
less than losing unemployment compensation altogether.

        In Locke, the Supreme Court addressed the question of whether Washington’s
constitution, which prohibits public funding for any religious worship, exercise or
instruction, as applied to bar state scholarships for degrees in devotional theology,
violated the Free Exercise Clause. Id. at 719. In addressing this question, the Supreme
Court noted that if the State of Washington chose to allow private recipients to use their
state scholarship to pursue a degree in devotional theology, there would be no violation
of the Federal Constitution. Id. at 719. The Ninth Circuit had ruled that the exclusion
of scholarships for devotional theology degrees was subject to strict scrutiny because the
state had singled out religion for unfavorable treatment. Id. at 718. Under strict scrutiny
analysis, the Ninth Circuit ruled that the exclusion must be “narrowly tailored to achieve
a compelling state interest.” Id. The Ninth Circuit determined that the state’s interest
in avoiding a violation of the Establishment Clause was not compelling and held that the
scholarship program was unconstitutional. Id.

        The Supreme Court reversed, finding that prohibiting the funding of devotional
degrees did not evince any religious animus toward religion. Id. at 725. The rationale
for this conclusion is that the exclusion did not prohibit students from attending religious
schools or even from taking devotional theology courses, but only barred students from
pursuing a vocation in the clergy. Id. at 721. The Supreme Court found that excluding
state funding of training for a religious profession is in keeping with the state’s
antiestablishment interests. Id. at 723-25. In reaching this conclusion, the Court
reviewed several of its prior decisions in which it found laws in violation of the Free
Exercise Clause and distinguished them. Id. at 725 (citing Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (criminalizing religious ritual of animal
sacrifice violates Free Exercise clause); McDaniel, supra (law denying ministers the
No. 07-4322          Bowman v. United States, et al.                              Page 13


right to participate in political affairs of the community unconstitutional). The Locke
Court further ruled that the exclusion did not require students to choose between
exercising their religious beliefs and receiving a government benefit, as the students
were free to pursue a secular degree while obtaining a religious degree. Id. at 720-21
(distinguishing Hobbie, supra; Thomas, supra; and Sherbert, supra).

          The Supreme Court ruled that the “State has merely chosen not to fund a distinct
category of instruction” and found that decision permissible. Id. at 721. Although the
Washington Constitution drew “a more stringent line than that drawn by the United
States Constitution,” id. at 722, the Court still found the State of Washington’s interest
in avoiding the establishment of religion and its concomitant interest in avoiding funding
for devotional degrees, to be “historic and substantial.” Id. at 725. In Locke, the
Supreme Court found that Washington’s “historic and substantial” interest in avoiding
an establishment of religion allowed it to choose not to fund training for religious
professions, even where such funding would not violate the Establishment Clause. Id.
at 725.

          As in Locke, Bowman has not shown that his fundamental right to the free
exercise of his religion has been violated. He was free to work as a youth minister but
could not have that work count toward his military retirement. The regulation at issue
here, 32 C.F.R. § 77.3(a), not only excludes work for religious organizations that “are
unrelated to religious instructions, worship services, or any form of proselytization,” but
also excludes all work for “businesses organized for profit, labor unions, and partisan
political organizations.” The breadth of the exclusion suggests that the Secretary was
not discriminating along religious lines.

          As AUSCS points out in its amicus brief, this case is most analogous to the
Supreme Court’s opinion in Johnson v. Robison, 415 U.S. 361 (1974). In Johnson, a
religiously-motivated conscientious objector to the Vietnam War sought but was denied
educational benefits for veterans. Id. at 362-64. By statute, the government provided
educational funding to veterans who had served on “active duty” in Vietnam. Id. at 363.
The conscientious objector was able to avoid the draft pursuant to a regulation which
No. 07-4322         Bowman v. United States, et al.                               Page 14


allowed him to perform “alternative civilian service.” Id. at 366, n.1. He completed two
years of alternative civilian service work at a hospital. Id. at 364. He then brought suit
alleging that his hospital service work should be counted as “active duty” toward the
educational benefits and that its exclusion violated his First Amendment right to the free
exercise of his religion and violated his right to equal protection under the Fifth
Amendment. Id. at 365.

        The Supreme Court addressed the question of whether the law limiting the class
of persons entitled to veterans’ educational benefits to those individuals who actually
served in the Armed Forces, and not to those who performed “alternative civilian
service” as conscientious objectors, violated the appellee’s equal protection rights. Id.
at 374. The Court applied the rational-basis test, over appellee’s argument that strict
scrutiny should apply, and ruled that Congress had a legitimate interest in treating those
men and women who served their country through active duty in the military differently
from those who served in civilian life as alternative service performers. Id. at 374 n.13,
381-82. The Court identified Congress’s legitimate public interest in attracting men and
women to serve in the military, to provide them with incentives to give up educational
and employment opportunities to do so, and to assist them in their return to civilian life,
as a sufficient reason to satisfy the rational-basis test. Id. at 376-82.

        The conscientious objector argued that denying his claim to veterans’ educational
benefits amounted to a violation of his right to exercise his religion freely because it
increased the price he must pay to adhere to his religious beliefs. Id. at 383. The Court
disagreed, finding that the “withholding of educational benefits involves only an
incidental burden upon appellee’s free exercise of religion - if, indeed, any burden exists
at all.” Id. at 385. The Court then looked at Congressional intent, which was aimed at
rewarding those who served in active duty and assisting them in returning to civilian life,
not to any legislative purpose to interfere with the free exercise of religion. Id.

        Similarly, in this case, the Secretary’s exclusion of different types of work from
the definition of “community service” was not intended to interfere with the free exercise
of religion. The withholding of a retirement credit for Bowman’s work as a youth
No. 07-4322         Bowman v. United States, et al.                                 Page 15


minister does not burden his right to practice or adhere to his religious beliefs. The
district court properly held that strict scrutiny did not apply because the regulation did
not interfere with Bowman’s fundamental right to exercise his religion and was not
motivated by animosity against religion.

        2.      Rational Basis Scrutiny

        Having found that 32 C.F.R. § 77.3(a) does not interfere with Bowman’s right
to freely exercise his religious beliefs and that he is not a member of a suspect class, the
rational basis test applies to the question of whether the exclusion may be upheld.
Jamrog, 411 F.3d at 618 (citing Cleburne Living Ctr., 473 U.S. at 500). Rational basis
review is extremely deferential. “[A] statutory classification that neither proceeds along
suspect lines nor infringes fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S.
307, 313 (1993). Under the rational-basis test, the question is whether the regulation at
issue is “rationally related to legitimate government interests.” Doe v. Michigan Dep’t
of State Police, 490 F.3d 491, 501 (6th Cir. 2007) (quoting Washington v. Glucksberg,
521 U.S. 720, 728 (1997)). “[C]ourts hold statutes unconstitutional under this standard
of review only in rare or exceptional circumstances.” Id. Although the standard is quite
liberal, a classification “must be reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial relation to the object of the legislation,
so that all persons similarly circumstanced shall be treated alike.” Johnson, 415 U.S. at
374-75 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920), and
citing Reed v. Reed, 404 U.S. 71, 75-76 (1971)). For the reasons set out below, the
regulation withstands the deferential rational-basis test.

        The government argued before the district court that the regulation in dispute,
10 C.F.R. § 77.3(a), met the rational basis test for two reasons. First, the government
argued that the regulation comports with the alleged sole purpose of the statute,
10 U.S.C. § 1143a(g), to fill critical needs in public service organizations limited to
those involving law enforcement, education, and public health.               Secondly, the
No. 07-4322         Bowman v. United States, et al.                                Page 16


government argued that the regulation was rationally related to the government’s interest
in avoiding an Establishment Clause violation. The district court held that the exemption
of 32 C.F.R. § 77.3(a) withstood rational basis scrutiny under both arguments. The
government has now abandoned the Establishment Clause violation argument; thus, this
court need not address it.

        The district court did not err in holding that the regulatory exclusion was
necessary to comport with Congressional intent to limit community service credit to
those serving in education, law enforcement, and public health. The government posits
that the regulations easily pass scrutiny under the rational-basis test since they limit the
class of activities that can support a group of a PACs retirement credit to the group
Congress identified. Nothing in the statute itself or the legislative history suggests that
a retirement credit should be given for a retiree whose work for a religious organization
involves religious instructions, worship or proselytization. As the district court properly
found, the regulation is rationally related to limiting the retirement credit to jobs which
fill “critical needs” in the community, such as in education, law enforcement, and health
care.

                                     CONCLUSION

        The regulation, 32 C.F.R. § 77.3(a), conforms with the definition of “community
service” set forth in the statute, 10 U.S.C. § 1143a(g), and with Congressional intent.
Accordingly, the district court’s dismissal of plaintiff’s complaint is AFFIRMED.

        The regulation easily survives rational basis review. It is not arbitrary and
capricious in its exclusion of certain religious activities. The exemption serves the
legitimate governmental interest of avoiding the mere appearance of excessive
governmental entanglement with religion. Thus, the district court’s ruling that the
regulation does not violate Bowman’s equal protection rights hereby is AFFIRMED.
