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Examples of Permissible Religious Exercise
Praying by Chaplains at Military Ceremonies and Other Events
Many of the complaints about religious exercise in the military center around prayers proffered by military chaplains at ceremonies or other events where adherents of many different faiths, or persons of no faith, are present.104 Yet such prayers have been permitted since the founding of our nation. Further, the fact that the first Congress established the tradition of clergy-led prayer at presidential inaugurations—in themselves, change of command105 ceremonies between outgoing and incoming commanders in chief—indicates that contemporaries of the First Amendment did not regard such prayers as violating the establishment clause. Moreover, in light of the fact that the first Congress commissioned the first chaplain of the Army,106 and subsequent Congresses appointed the first Navy chaplain and directed that divine worship take place aboard Navy ships,107 it is inconceivable that those who drafted the First Amendment intended it to prohibit chaplain-led prayers at military ceremonies. The Marsh Court has aptly recognized that actions of the first Congress are “contemporaneous and weighty evidence” of the Constitution’s “true meaning.”108
Given our long and unbroken history of permitting prayers to solemnize military ceremonies and other events, calling on chaplains to continue such historical practice today merely reflects long-held traditions and constitutes “tolerable acknowledgment[s] of beliefs widely held among the people of this country.”109 Hearing such prayers is also the price one pays for living in a pluralistic society that honors free exercise of religion and free expression of religious sentiments. It is, in fact, a testimony to the religious tolerance that we have been able to achieve in the United States and is something that should be recognized and applauded, not rejected and forbidden.
Some worry that prayers said at military ceremonies will cause discomfort to, or offend, attendees of different faiths, or of no faith. Yet potential discomfort about things one does not like to hear is, once again, the price one pays for the rights of free speech and free exercise in a pluralistic society. The First Amendment protects speech, including religious speech; it does not—and was never intended to—protect potential hearers against discomfort at what is spoken. Generally, if everyone agrees with what is said, such sentiments need no constitutional protection. Only speech and sentiments which are disfavored or disliked require such protection. In Lee, the Supreme Court explicitly declared that it did “not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation.”110 Hence, one must proceed cautiously when one tries to proscribe speech based on highly suspect and subjective standards, such as the potential “discomfort” of the hearers.111
The US Navy, for example, has an unbroken tradition of saying a prayer aboard each Navy ship each day.112 That tradition is consistent with the sanctions of Congress concerning religious activity on board naval ships that were enacted shortly after the adoption of the First Amendment.113 That in itself is strong evidence that such prayers were not considered as violating the establishment clause. Similarly, the US Naval Academy has a 164-year tradition of having a Navy chaplain recite a short prayer before noon meals at the Naval Academy.114 These activities are long-standing traditions in the US Navy and serve to remind Sailors and Marines of their proud heritage as well as accommodate “beliefs widely held” by the American people.115
Praying by Chaplains as Their Faith Tradition Requires or Permits
Some argue that to avoid giving offense chaplains must—at a minimum— offer only “nonsectarian” prayers when praying at events where adherents of other faiths, and persons of no faith, are present. There are numerous problems with such an argument. One problem is that it is not clear how or when an otherwise “sectarian” prayer becomes “nonsectarian”—or who is to judge. As the Tenth Circuit has aptly noted, “All prayers ‘advance’ a particular faith or belief in one way or another” if for no other reason than “the act of praying to a supreme power assumes the existence of that supreme power.”116 A second problem is that offense at what is being said has never been a valid reason to proscribe such speech. The same is true today. Were our government or the US armed forces ever to adopt the nonsectarian prayer standard, they would then be in violation of the establishment clause by preferring one form of prayer (the nonsectarian form) over alternative forms of prayer (the sectarian forms). Such a policy would not only violate the establishment clause but also the free exercise and free speech rights of every chaplain.
The Supreme Court has held that “the First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the [Government]” (emphasis added).117 Lee involved the giving of a “nonsectarian” prayer at a high school graduation ceremony. Much of the criticism about the prayer in Lee centered not only on the fact that school officials selected which clergyman would deliver the prayer but also on the inappropriateness of the school principal’s telling the rabbi that he should render a “nonsectarian” prayer.118 The Lee Court concluded, “The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all” (emphasis added).119 This comment applies with equal force to the oft-expressed desire that military chaplains deliver “nonsectarian” prayers in settings where adherents of other faith groups are present. No one questions the military’s good intentions, but as the Lee Court concluded, adopting such a policy is simply unconstitutional.
Further, any attempt to restrict religious speech (such as a prayer) to avoid causing offense to the hearer is sure to fail. First, the free speech clause of the First Amendment protects free expression from government interference. And there is no language in the First Amendment that protects a hearer from being offended. In truth, inoffensive speech needs no protection. If everyone were to agree with the sentiment expressed, no one would challenge it, and no protection would be needed. It is offensive speech that needs protection. Praying in Jesus’ name is offensive to some but not to others. Invoking the name of Allah also offends some people but not others. Still others—atheists and agnostics—may be offended by any and all prayer, no matter to what deity it may be directed. Hence, try as one might, one cannot avoid offending someone. Advocating a “cause no offense” strategy will surely fail. More importantly, it is unconstitutional.
As Supreme Court Justice O’Connor aptly noted in Elk Grove Unified School District v. Newdow,120 “given the dizzying religious heterogeneity of our Nation, adopting a subjective approach would reduce the [reasonable observer] test to an absurdity. Nearly any government action could be overturned as a violation of the Establishment Clause if a ‘heckler’s veto’ sufficed to show that its message was one of endorsement.”121 Further,
there is always someone who, with a particular quantum of knowledge,
Likewise, service members are deemed to be “reasonable observers.” Consequently, they are deemed to know that chaplains represent different faith groups and traditions and that prayers offered at certain military ceremonies are part of military tradition meant to solemnize the event, not to endorse the faith or religious sentiments of the chaplain delivering the prayer. Thus, the establishment clause is not violated by an individual chaplain’s private choice of words for a prayer to solemnize a military ceremony.
Prayers at presidential inaugurations (which constitute, in fact, change of command ceremonies at the highest level of the armed forces) have been delivered by clergymen of many different faiths and have frequently included references to Jesus or the Trinity.123 Marsh refutes the contention that clergy-led, ceremonial prayer violates the establishment clause merely because a particular prayer might reference monotheistic terminology or beliefs. In Marsh, the Court rejected the argument that selection by the Nebraska legislature of a Presbyterian clergyman who chose to pray in the “Judeo-Christian” tradition violated the establishment clause. The Court declared: “We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergy man of one denomination advances the beliefs of a particular church.”124 The Court noted that “the content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or disparage any other, faith or belief ” (emphasis added).125 The same holds true in the military. Moreover, were the government to outlaw prayer altogether at military ceremonies and other events, it would demonstrate hostility, not neutrality, towards religion in light of the long history of such prayers in the military and in light of the Supreme Court’s recognition that solemnizing, nonproselytizing prayers do not violate the establishment clause.
Many of the complaints about prayers in the military revolve around the issue of praying “in Jesus’ name.”126 Not every Christian chaplain feels compelled to pray explicitly in Jesus’ name, but some do. Such differences reflect the religious pluralism not only within American society but also within Western Christianity. Ending a prayer in Jesus’ name (or a similar phrase)—without more—is not proselytizing. To proselytize is defined as “to make or try to make converts.”127 To assert that merely adding the words “in Jesus’ name” to a prayer said in the presence of adherents of different faiths, or persons of no faith, constitutes proselytizing is absurd. Orthodox Christian theology teaches that Jesus is God128—hence, praying in Jesus’ name is another form of praying in God’s name. There is no principled reason why invoking Jesus by name is any different than invoking the name of Adonai or Allah or Vishnu, something few are suggesting should be forbidden.
Saying a prayer that ends in Jesus’ name clearly identifies the religious faith of the person praying, just as beginning a prayer with the words “in the name of Allah the compassionate, the merciful” identifies the person praying as a Muslim, or invoking the “God of Abraham” before reciting the Shema identifies the person praying as Jewish. None of these prayers—without more—can be remotely construed as constituting proselytizing. Yet were any of these chaplains to pray in such a manner that the prayer was meant to convince the hearer to adopt the chaplain’s specific faith, such a prayer would constitute proselytizing, whether Jesus, the God of Abraham, or Allah were specifically mentioned or not. Hence, fixating on praying explicitly in Jesus’ name, without more, is without merit.
Because chaplains are intentionally brought into the armed forces as members of different religious faith groups, the military knows and indeed expects that those chaplains will proclaim and practice the tenets of their respective religious faiths in the military.129 Hence, in such circumstances, as an accommodation to the chaplain’s religious obligations, the chaplain must be allowed leeway to pray as his conscience and faith tradition require.130
The Constitution prohibits any federal official—including senior civilian leaders, military commanders, and senior chaplains—from directing that a chaplain either pray or refrain from praying in a certain manner, except when required to maintain good order and discipline in the respective service. This position comports fully with the Constitution—it avoids government entanglement with religion, religious beliefs, and religious practices, while upholding the free speech and free exercise rights of military chaplains.
Chaplains May Prefer Their Own Faith Group in Appropriate Circumstances
Although chaplains exist in part to assist commanders in executing their command religious programs for all service members in their respective commands, there are nevertheless times when a chaplain may legitimately focus exclusively on his own faith group. The most obvious example is when the chaplain is conducting worship services for adherents of his respective faith and others who are interested in attending such services. Yet chaplains, as staff officers charged with implementing the commander’s religious program, should also be free to advertise religious activities of a specific denominational character via e-mail (and other communications channels) to the same extent that nonreligious activities are permitted to be advertised. For example, a Southern Baptist chaplain should be able to advertise a retreat aimed at Southern Baptist service members and their families; a Jewish chaplain should be able to advertise High Holy Day service opportunities to Jewish service members; a Muslim chaplain should be able to advertise events surrounding the observance of Ramadan; and so forth. In each instance, the advertisement need not be inclusive of other faith groups, or sensitive to those of no faith, and the chaplain should be able to freely share religious sentiments about the events advertised. Moreover, such advertising does not run afoul of the establishment clause.131
The same is true when a chaplain is teaching the truths of the chaplain’s specific faith group to interested service members or their family members. Chaplains are selected by faith group to meet the religious needs of adherents of that faith group. Hence, the chaplain need not be inclusive of nonadherents during such times and may be exclusive, without violating the Constitution.
Commanders and Other Leaders May Speak of Religious Matters with Subordinates
Given the hierarchical nature of the military, some argue for the complete prohibition of superiors’ discussing their faith with their subordinates or otherwise engaging in religious endorsements in the company of subordinates. Although senior officers and noncommissioned officers must be careful not to impose their religious views on subordinates, an absolute prohibition on all sharing of faith by a superior to a subordinate is patently unconstitutional and an egregious violation of the free exercise and free speech clauses.132 Aside from the difficulty in defining exactly when discussion of religious matters would cross the line from protected religious expression to prohibited “proselytizing” and “religious endorsements,” however such terms are defined, the First Amendment clearly protects such activity.133
Opponents of such interaction simply ignore the fact that it is the commander who bears full responsibility for the moral and spiritual welfare of his subordinates and their family members.134 Such persons also fail to take into account that frequent, intimate interaction with one’s subordinates is what helps to solidify one’s command and create a healthy, effective unit.135 Hence, speaking on topics of morality and spirituality with subordinates is a necessary part of the commander’s job,136 irrespective of the commander’s personal belief system. Further, some of those who complain about such interaction are hypersensitive or hostile to religious matters and may see proselytizing or religious endorsement where there is none.137 Individual hypersensitivity to religious discussions and sentiments must not be permitted to interfere with the commander’s responsibility to develop and implement an effective program to meet the moral and spiritual needs of the men and women under his command.
An absolute ban on interaction between superiors and subordinates about religious matters, a ban that clearly violates the constitutional rights of free speech and free exercise, is worse than the putative disease. It denies the commander the access he needs to fulfill his responsibility to develop and implement an effective moral/spiritual program for his command. Surely, the military and civilian chains of command are fully capable of handling isolated incidents of abuse of a superior’s position vis-à-vis a subordinate without resorting to a draconian sanction of prohibiting all such interaction between superiors and subordinates. When superiors overstep the bounds of their authority, for whatever reason, the means already exist in the US armed forces to appropriately sanction such behavior. Such means run the gamut from verbal or written reprimand to relief for cause, to administrative reduction in rank, to court-martial. Recent examples of investigating and/or disciplining senior military officers for misbehavior should suffice to demonstrate that the military services can take care of such problems as they arise, thereby avoiding the need for adopting an absolute policy of forbidding interaction between superiors and subordinates regarding issues of morality and spirituality.138
Moreover, there is no legitimate reason why commanders cannot mention their educational, professional, and religious backgrounds when introducing themselves to their subordinates. The Army Leader Transitions Handbook, a book for leaders based on the “best practices and proven techniques from military and civilian sources,”139 declares, for example, that “talking to all your subordinates . . . about what is important to you and what you value as their leader will help establish trust.”140 The handbook recommends that military leaders discuss the following topics with their subordinates: (1) the leader’s background;141 (2) the leader’s expectations and standards;142 (3) the leader’s values;143 (4) the leader’s view of ethics;144 (5) the leader’s objectives for the unit;145 (6) the leader’s thoughts on integrity;146 (7) the leader’s priorities;147 (8) the leader’s standards of discipline;148 (9) the leader’s thoughts on training, education, and safety;149 (10) the leader’s thoughts on leadership;150 and (11) the leader’s thoughts on caring for Soldiers and their families.151 Sharing such thoughts is essential to informing one’s subordinates of what is expected of them from the leader’s perspective and what they can expect from the leader in return.152
Finally, an obvious example where commanders must speak to their subordinates about religious beliefs often occurs aboard ship. On board US Navy ships at sea, “divine services shall be conducted on Sunday[s] if possible.”153 Because so many Navy ships deploy without a “chaplain attached to the command[,] . . . [s]ervices led by laypersons are encouraged.”154 Regardless of whether a chaplain is embarked, the commanding officer is still responsible for ensuring “the religious preferences and the varying religious needs of individuals [are] recognized, respected, encouraged and ministered to.”155 Therefore, a commander must ensure that a religious lay leader is capable of adequately fulfilling a role like that of a chaplain so that the free exercise rights of his subordinates are protected. That commander must be free to communicate—in depth—with potential lay leaders to ensure the best quality spiritual care for those under his command.
All Service Members May Participate in Local Religious Groups and/or Parachurch Groups on Their Free Time
Despite the herculean efforts made by commanders and military chaplains to provide for the free exercise needs of all service members and their families, there are times when their efforts fall short of the service members’ religious needs and desires. As such, when possible, service members often avail themselves of religious opportunities in nearby civilian communities and/or participate in parachurch groups to meet their spiritual needs. Many religious groups in communities located near military installations offer outreach programs to service members and their families, most of whom are far away from their families and friends. Such efforts are to be lauded and encouraged. There are a limited number of chaplains available at any military installation, and it is virtually impossible for them to meet the needs of each denomination or faith group represented by service members on that installation. Local and parachurch groups help to fill that gap. Such groups may also fill the gap by providing a greater array of religious opportunities throughout the week than can normally be provided by chaplains, thus accommodating the often chaotic schedules that define service members’ lives. In some instances, without external help, chaplains would simply be unable to meet the spiritual needs of the men and women in uniform that constitute their respective flocks. For example, the Pentagon chaplain’s office comprises three persons whose mission it is to serve the men and women assigned to and working in the Pentagon. Thus, three persons are expected to provide spiritual support to over 24,000 persons,156 an impossible task. As such, the Pentagon chaplain must rely on volunteers—often from local religious and parachurch groups—to carry out his ministry. DOD and the armed services should applaud and encourage the efforts of such groups to minister to the spiritual needs of the men and women in uniform and their families. Working together, they help to ensure that the First Amendment’s guarantee of free exercise of religion can be realized by those serving all of us in uniform.
|Last Updated on Thursday, 14 July 2011 19:13|