ACCTS

 

 

This Journal is sponsored by the Assn. for Christian Conferences, Teaching and Service.

ISSN: 2354-8315 (Online)

 

The Religious Rights of Those in Uniform - Recommendations
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Article Index
The Religious Rights of Those in Uniform
Military Roles, Responsibilities and Rights
Examples of Permissible Religious Exercise
Examples of Impermissible Religious Conduct
Recommendations
Endnotes 1 thru 50
Endnotes 51 thru 110
Endnotes 111 thru 170
All Pages

Recommendations

Teach and Foster Tolerance of Differences, Including Religious Differences, during All Phases of a Service Member’s Military Career

All of the armed services are in the team-building business. Each service must take men and women from all walks of life and all types of backgrounds and meld them into an effective team. Part and parcel of such a process is educating service members about their differences and building understanding, tolerance, and respect for each other despite those differences. Such differences manifest themselves, inter alia, through race, ethnicity, creed, gender, and culture. They mirror the American motto: E pluribus unum. Each service member must learn to tolerate and respect the differences exhibited by his fellows in uniform.

The same is true with respect to religion and chaplains. Religiously, we are a heterogeneous nation, and the military and its chaplains reflect that heterogeneity. Adherents of different faiths approach God differently. That is reflected in many ways, including how they pray. Rather than try to restrict how an individual chaplain prays at certain public events, the chaplain should pray consistent with his conscience and religious tradition. This presents a great opportunity to demonstrate, recognize, and celebrate diversity within the military.

All of the armed services have both entry-level schooling for enlisted service members and for officers as well as follow-on schooling as officers and enlisted service members increase in rank and assume greater responsibilities. Part of the team-building process is noting our differences and encouraging service members of all ranks to respect and tolerate those differences. Each member of the military takes an oath to defend the Constitution of the United States against all enemies, foreign and domestic. It should be a relatively simple task to teach enlisted service members and officers about the First Amendment’s religion clauses and how they play themselves out in the individual service member’s daily life. Service members can be taught that commanders are responsible to develop and implement moral and religious programs to meet their free exercise needs; that military chaplains traditionally offer prayers at various military ceremonies (such as at change of command ceremonies) to solemnize such events; that, due to the heterogeneous nature of religious beliefs in the United States, they are apt to hear prayers said from various religious perspectives; and that such prayers are evidence of the religious tolerance that our country has been able to achieve over time, not an indication that our government, DOD, or the armed services favor a certain faith group or belief.

Reminding the men and women in uniform that chaplains come from differing religious traditions and that their prayers reflect those traditions should be embraced and celebrated, since what we have achieved in the United States differs markedly from many cultures where certain religious groups are often denigrated and marginalized, if not outright persecuted. Because commanders set the tone within their commands, they too should receive training at command and staff schools concerning the roles of the chaplains within their commands as well as their responsibilities to ensure that their subordinates and their families may freely exercise their religious faiths. Commanders play the key role in ensuring that a chaplain’s free speech and free exercise rights are not violated as well as ensuring that those under their commands understand that allowing a chaplain to pray as he deems appropriate does not constitute governmental sanction of any particular faith group or religious belief. If this is done evenhandedly by commanders, there should be no reason—real or perceived—to direct how a chaplain should pray. Likewise, there should be no reason for any service member to misinterpret or misunderstand why a prayer is being offered or how the respective armed service views such prayer. After all, 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.”163 Similarly, reminding the men and women in uniform that their colleagues in uniform also reflect differing religious faiths, including no faith, and that such differences reflect our tolerant society should also be embraced and appreciated.

Tolerance is a two-way street, and military commanders must act as vigorously to protect the majority’s free exercise rights as they do to protect the rights of those in the minority. It is a given that the majority religious faith in the United States (and, hence, in the armed forces) is the Christian faith, in all its myriad forms. As such, it is the Christian message that will—simply by virtue of the sheer numbers of its adherents—be foremost among the religious sentiments publicly expressed in the military. That does not mean that the military is “favoring” the Christian faith merely because it is so visible, and commanders must always remember that their support of a service member’s free exercise rights does not mean that the military is establishing religion. Facilitating the free exercise rights of Christians (and of adherents of other faith groups) is a command responsibility and, without more, does not implicate the establishment clause.

Because the largest religious faith in the US armed forces is some variant of the Christian faith, most complaints are lodged against Christian chaplains and their prayers. Yet despite opponents’ attempts to lump all Christians together in one basket, if one listens closely, one will note that there are a wide variety of messages being shared and proclaimed because not all professing Christians share the same theology, practices, or biblical interpretation.164 Hence, to determine whether improper religious favoritism really exists, one must identify the specific Christian denomination that is allegedly being improperly advanced; it is not enough to assert that “Christianity” per se is being favored, as is the habit of some.165

In sum, a well-planned and executed program for educating service members—at all phases of their careers—about our religious heritage, chaplains and their roles, commanders’ responsibilities for the moral and spiritual welfare of those they command, and the First Amendment will reduce confusion about religious expression in the military and increase appreciation for what we as a nation, unlike too many others, have been able to achieve in the area of religious tolerance. This relatively easy fix should resolve problems of perceived religious discrimination. Regarding those isolated times when actual religious discrimination occurs, DOD and the uniformed services have ample tools to remedy such violations, and those tools should be used as required.

Trust Military Leaders to Know What Works in Training Effective Teams to Fight Our Nation’s Wars

One final topic needs to be addressed: that of training and preparing service members to assume the warrior ethos described earlier and to carry out their vital mission of national defense. Each military service is organized, equipped, and staffed to meet recognized military needs. Through long experience, military professionals learn how to train the men and women in uniform to accomplish the missions assigned to them. Because of the uniqueness of military life, what military leaders require for success has no civilian analog. It is, therefore, imperative that military leaders have the freedom to operate and train in ways that meld disparate individuals and units into combat-ready fighting formations, capable of achieving victory, whenever required. To do this, military commanders need sufficient leeway to apply principles proven over time and lessons learned from previous combat to conduct intense, realistic training in peacetime to ensure that our forces are ready to defeat the enemy in wartime. To that end, both the Congress and the courts have recognized that military commanders need flexibility to hone their forces to fighting trim.166

The defense of the nation is the highest priority of government,167 and the Supreme Court has correctly recognized “the limits of its own competence in advancing this core national interest.”168 Many of the complaints raised against DOD in US courts involve service members dissatisfied with, and complaining about, something they experienced as part of their training.169 In such circumstances, the trainee is, in effect, criticizing the training being conducted. This in itself constitutes a challenge to the military chain of command, suggests a potential breakdown in good order and discipline within the affected unit, and counsels caution before jumping in to remedy the alleged “violation” of the complaining service member’s rights. It is wrong (as a matter of policy and common sense) for civilian advocacy groups and civilian attorneys to sue in court seeking to apply civilian standards to military units. Life in the military and life in the civilian world are different, and they need to remain different.

The armed forces of the United States have a proven record of success honed over time. Training methods are entrusted to persons in each service who have proven themselves capable of assuming such heavy responsibilities. Courts and civilian society should defer to their experience and training and should not second-guess their judgment merely because it does not mirror what might be acceptable in civilian society.

In sum, military commanders are entrusted with training our sons and daughters to defend the nation as required. Senior military commanders are masters of the profession of arms. They are competent, smart, and dedicated. They are committed to defending the nation and the Constitution, to the point of laying down their lives on behalf of us all. They deserve our trust in developing and implementing the training regimens that they—in their professional opinions—believe will protect us. When commanders determine that a solemnizing prayer at certain ceremonies is appropriate as a team-building tool, for example, they are acting in accordance with military traditions that predate the founding of the republic, traditions that have been considered important to team-building throughout our history and are consistent with long-held values of the majority of our population—both in civilian society and in uniform. Given the unique nature of the military, such reasoned judgments should be supported, not challenged in court. Nothing in the Constitution requires that Americans shed their religious beliefs and heritage once they don a military uniform, and military commanders have recognized the positive role of religious faith on morale and service consistently over the course of our history.170 Commanders and leaders at all levels of our armed forces are responsible for the moral and spiritual health of their commands, and they deserve our support and our deferring to their professional judgment when it comes to planning and implementing those training regimens that they believe are necessary to defend the nation.

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In conclusion, the foregoing examples and recommendations are consistent with our history and fully in accord with the Constitution and laws of the United States. An aggressive education program performed at every level of the service member’s career should remove any misunderstanding about religious observance and expression in the military and should help each service member to understand and appreciate the degree of religious liberty and tolerance that our nation, unlike many others, has been able to achieve.

 


This treatise was originally published as "Religious Rights and Military Service," in Attitudes Aren't Free: Thinking Deeply about Attitudes in the US Armed Forces, eds. James E. Parco and David A. Levy, published by Air University Press: Maxwell Air Force Base, Alabama, 2010. The AU Press website is at: aupress.maxwell.af.mil.

A condensed version of this paper was published as a series, under the title used in this journal, in Command magazine, a publication of the Officers' Christian Fellowship of the USA, in 2010 and 2011. This version is published in the Journal of Faith & War with the permission of the authors.

Dr. Jay Alan Sekulow is chief counsel of the American Center for Law and Justice, a national public interest law firm specializing in constitutional litigation, including protecting religious freedom. Dr. Sekulow has argued a number of important First Amendment cases before the Supreme Court of the United States, including, most recently, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). He is also chief counsel of the European Centre for Law and Justice (ECLJ), a public interest law firm located in Strasbourg, France, which specializes in defending religious freedom. The ECLJ is also accredited to the United Nations as a non-governmental organization (NGO) and has been active in promoting freedom of religion worldwide. The National Law Journal has twice named Dr. Sekulow one of the “100 Most Influential Lawyers” in the United States. Dr. Sekulow earned his bachelor’s and juris doctor degrees from Mercer University and his doctor of philosophy degree from the Regent School of Leadership Studies.

Robert Weston Ash is an associate professor of law at the Regent University School of Law in Virginia Beach, Virginia, where he teaches courses in international law, national security law, comparative law, business associations, and First Amendment law. Mr. Ash also serves as senior litigation counsel for national security law at the American Center for Law and Justice. Mr. Ash received his bachelor of science degree from the United States Military Academy, his master of international public policy degree from the School of Advanced International Studies (SAIS) of the Johns Hopkins University, and his juris doctor degree from the Regent University School of Law. Mr. Ash served 22 years on active duty in the United States Army. His assignments included command of both armored cavalry and armor units, a tour on the history faculty at West Point, a tour as a Congressional Fellow in the office of Senator John McCain (R-AZ), a tour as the NATO desk officer in the War Plans Division of the Army staff in the Pentagon, and a tour as a strategist in the Office of the Secretary of Defense.




Last Updated on Thursday, 14 July 2011 19:13