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by Jay Alan Sekulow, D.Jur. and Robert W. Ash, D.Jur.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
We live in a very litigious society, where almost anyone can sue another for virtually any offense, real or imagined. DOD policy makers are not immune from such litigation. In fact, there are growing numbers of persons and advocacy groups in the United States actively seeking to remove from public life—including in the armed services—virtually all symbols and expression of religion and America’s religious heritage by advocating strict separation of church and state.1 Many of these groups are already actively engaged in filing lawsuits against DOD and its leaders over various concerns about religious expression in the armed services.2 Still others have threatened lawsuits.3 Persons and groups have every right to hold and zealously advocate such views, but many of their views on church-state separation go well beyond what the Constitution and US law require. In fact, they endanger the very freedoms the First Amendment was intended to protect. Indeed, protecting free exercise of religion is particularly important in the armed services because it is a key component in developing and strengthening the warrior ethos, an indispensible factor in fighting and winning our nation’s wars. This chapter will examine a number of issues of concern regarding free exercise of religion and religious expression in the armed services. It also will suggest ways of protecting service members’ free exercise and expressive rights while maintaining good order and discipline.
General Legal Principles
Separation of Church and State
When discussing free exercise of religion and its limits in the US armed forces, one quickly encounters arguments citing the phrase “separation of church and state.” Those making such arguments often use that phrase when what they are really referring to is the establishment clause in the First Amendment.4 In truth, the phrase “separation of church and state” is found nowhere in the US Constitution. Instead, that phrase comes from a letter written in 1802 by Pres. Thomas Jefferson to members of a Baptist association in Danbury, Connecticut.5 Hence, rather than wasting time trying to determine the meaning of a phrase that does not exist in the Constitution, time would be better spent determining what the drafters of the First Amendment meant by “establishment of religion,” a phrase that does exist in the Constitution.
One of the methods used by the Supreme Court of the United States for interpreting the meaning and legal reach of the First Amendment is to examine how early Congresses acted in light of the amendment’s express terms. One can begin to understand what the establishment clause allows (and disallows) by examining what transpired in the earliest years of our nation during the period when Congress drafted the First Amendment and after the states ratified it.6 For example, “the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer,”7 and a “statute providing for the payment of these chaplains was enacted into law on September 22, 1789.”8 Moreover, within days of legislating to pay congressional chaplains from the federal treasury, “final agreement was reached on the language of the Bill of Rights.”9 From these facts, the Supreme Court concluded that, whatever its ultimate meaning and reach, the establishment clause was not intended to forbid paid, legislative chaplains and their daily, public prayers.10 The Marsh Court concluded that chaplain-led prayer opening each day’s session in both houses of Congress “is not . . . an ‘establishment’ of religion,” but rather “a tolerable acknowledgment of beliefs widely held among the people of this country.”11 Additionally, the First Congress—the same Congress that drafted the First Amendment—established the tradition of clergy-led prayer at presidential inaugurations (which, in truth, constitute military change-of-command ceremonies, where the nation’s new commander in chief assumes office from his predecessor).12 These practices have continued to this very day.
Early national leaders also acted in ways that some today argue expressly violate the establishment clause. For example, Pres. George Washington issued proclamations of thanksgiving to Almighty God during his presidency,13 and Pres. John Adams called for a national day of fasting and prayer.14 Pres. Thomas Jefferson—a man often described as a strong defender of strict church-state separation—signed multiple congressional acts to support Christian missionary activity among the Indians.15 Further, during his presidency, Jefferson also developed a curriculum for schools in the District of Columbia which used the Bible and a Christian hymnal as the primary texts to teach reading,16 and he signed the Articles of War, which “earnestly recommended to all officers and soldiers, diligently to attend divine services.”17 Once the US Navy was formed, Congress also enacted legislation directing the holding of, and attendance at, divine services aboard US Navy ships.18 As one honestly examines governmental acts contemporaneous with the adoption of the First Amendment, it is difficult to deny that, in the early days of our republic, church and state existed relatively comfortably (and closely) together, with contemporaries of the drafters of the First Amendment showing little concern that such acts violated the establishment clause. As the Marsh Court aptly recognized, actions of the First Congress are “contemporaneous and weighty evidence” of the Constitution’s “true meaning.”19
More recent court decisions have confirmed that strict separation between church and state is not required by the Constitution. In fact, the government must often yield what it might otherwise be able to do to ensure that free exercise rights are protected. In Corporation of Presiding Bishop v. Amos,20 the Supreme Court noted that “this Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”21 Furthermore, permissible religious accommodation need not “come packaged with benefits to secular entities.”22 The Supreme Court has also noted that strict separation could lead to absurd results. In Zorach v. Clauson,23 the Court stated that the First Amendment
does not say that in every and all respects there shall be a separation of
Rather than a bright-line rule, the so-called “wall” separating church and state “is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship,”25 and the location of the line separating church and state must be determined on a case-by-case basis.26 Hence, strict church-state separation has never been required in the United States and is not required now.
In the area of religious expression, the Supreme Court has held that “private religious expression receives preferential treatment under the Free Exercise Clause” (emphasis in original).36 In fact, “discrimination against speech because of its message is presumed to be unconstitutional.”37 Of special note, the Supreme Court has “not excluded from free-speech protections religious proselytizing . . . or even acts of worship . . . .”38 Further, “the [government’s] power to restrict speech . . . is not without limits. The restriction must not discriminate against speech on the basis of viewpoint . . . and the restriction must be ‘reasonable in light of the purpose served by the forum.’ ”39 These views are fully in line with the well-established principle that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”40 The Mergens Court aptly noted that it is not a difficult concept to understand that the government “does not endorse or support . . . speech that it merely permits on a nondiscriminatory basis.”41
Another key legal principle to keep in mind concerns the uniqueness of the military in American society. “‘It is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise’ . . . and this Court has recognized the limits of its own competence in advancing this core national interest.”42 “Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale.”43 In 10 US Code, § 654, Congress expressly noted in its findings that the military is a “specialized society” that “is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.”44
Within that specialized military society, the Department of Defense has chosen to strongly support free exercise of religion by the men and women in uniform, and that DOD position deserves due deference from the courts.45 In DOD Instruction 1300.17, Accommodation of Religious Practices within the Military Services, DOD lays out its policy on free exercise:
The U.S. Constitution proscribes Congress from enacting any law prohibiting
The military services concur in the DOD policy. In Air Force Policy Directive 52-1, Chaplain Service, the Air Force acknowledges free exercise of religion as “a basic principle of our nation” and then declares that “the Air Force places a high value on the rights of its members to observe the tenets of their respective religions. In addition, spiritual health is fundamental to the wellbeing of Air Force personnel . . . and essential for operational success” (emphasis added).47 The Air Force defines “religious accommodation” as follows:
Allowing for an individual or group religious practice. It is Air Force policy
Similarly, the Department of the Navy (DON) is fully committed to accommodating the religious practices of Sailors and Marines:
The DON recognizes that religion can be as integral to a person’s identity as
In Army Regulation 600-20, Army Command Policy and Procedures, the Army recognizes the importance of an individual’s spiritual state for “providing powerful support for values, morals, strength of character, and endurance in difficult and dangerous circumstances.”50 Like its sister services, the Army “places a high value on the rights of its Soldiers to observe tenets of their respective religious faiths. The Army will approve requests for accommodation of religious practices unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, and/or health.”51
Though not part of DOD, as a uniformed service, the US Coast Guard also supports the free exercise rights of its personnel: “It is Coast Guard policy that commanding officers shall provide for the free exercise of religion by all personnel of their commands.”52
The remainder of this chapter will focus on the following areas: (1) the importance of the free exercise of religion to developing and strengthening the warrior ethos; (2) the role and responsibility of military commanders and other leaders in maintaining and protecting the moral and spiritual health of their units, including protecting the free exercise rights of the men and women they lead; (3) the general role of chaplains in assisting commanders in executing the commanders’ programs to protect and assist free exercise of religion and the role of the individual chaplain in meeting the unique needs of service members from the individual chaplain’s own faith group while assisting adherents of other faith groups, and of no faith, to obtain the specific help they may be seeking; (4) the rights enjoyed by all members of the armed forces to exercise their faith; (5) specific examples of permissible religious exercise in the military; (6) specific examples of impermissible religious conduct in uniform; and (7) recommendations to policy makers on how to protect the religious rights of men and women in uniform while maintaining good order and discipline.
|Last Updated on Thursday, 14 July 2011 19:13|