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111. See Rosenberger v. Rector, 515 U.S. at 828 (“Discrimination against speech because of its message is presumed to be unconstitutional.” Citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. at 641–43.).
112. See “Chaplain John Maurice Delivers Meaningful Shipboard Prayer on the Eve of the War in Iraq,” Military Christian, Summer 2003, http://members.iquest.net/~c_m_f/cmfnew56 .htm (accessed 6 May 2009); Navy Recruiting Command, Delayed Entry Program, “Daily Routine,” http://www.cnrc.navy.mil/DEP/daily.htm (accessed 6 May 2009), including the traditional evening prayer in Navy recruits’ daily schedules; and Robert S. Lanham, ENCM (SW/AW), USN, “I Love the Navy,” Goat Locker, http://www.goatlocker.org/retire/lovenavy.htm (accessed 6 May 2009), noting, through poetry, a myriad of naval traditions, including the evening prayer.
113. See note 107 and accompanying text.
114. Jacqueline L. Salmon, “ACLU Might File Suit to End Lunch Prayer,” The Washington Post, 26 June 2008, B04; see also Charles J. Gibowicz, Mess Night Traditions, 115 (2007).
115. Marsh v. Chambers, 463 U.S. at 792.
116. Snyder v. Murray City Corporation, 159 F.3d 1227, 1234 n.10 (10th Cir. 1998).
117. Lee v. Weisman, 505 U.S. at 589.
118. Ibid., 588.
119. Ibid., 588–89.
120. 542 U.S. 1 (2004).
121. Ibid., 34–35 (Justice O’Connor concurring). Capitol Square Review & Advisory Board v. Pinette, 515 U.S. at 780; see also Rosenberger v. Rector, 515 U.S. at 828 (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional.”).
122.Capitol Square Review & Advisory Board v. Pinette, 515 U.S. at 780: see also Rothenberg v. Rector, 515 U.S. at 828 ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys....Discrimination against speech because of its message is presumed to be unconstitutional.").
123. See Newdow v. Bush, 355 F. Supp. 2d at 286–87.
124. Marsh v. Chambers, 463 U.S. at 793.
125. Ibid., 794–95.
126. For example, “Efforts Afoot to Protect Military Prayers,” WorldNetDaily, 17 November 2005, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=47432, describing the backlash following the US Air Force’s decision to ban prayers in Jesus’ name “in the wake of complaints from non-Christians at the Air Force Academy who believed Christians, both cadets and staff, were being too heavy-handed about their faith on campus.”
127. The New Lexicon Webster’s Encyclopedic Dictionary of the English Language, Deluxe ed. 1991, s.v. “proselytize.”
128. See John 1:1, 14 (“In the beginning was the Word, and the Word was with God, and the Word was God. . . . The Word became flesh and made His dwelling among us.”); and John 10:30 (“I and the Father are one.”).
129. For example, AFPD 52-1, Chaplain Service, para. 3.4.
130. See Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 144–45 (1987), noting that “the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause”; and Marsh v. Chambers, 463 U.S. at 791–92, approving legislative prayers from the “Judeo-Christian tradition.”
131. Rosenberger v. Rector, 515 U.S. at 839, recognizing that government neutrality is respected, not offended, when evenhanded policies are applied to diverse viewpoints, including religious viewpoints.
132. See ibid., 828 (“Discrimination against speech because of its message is presumed to be unconstitutional.” Citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. at 641–43); Capitol Square Review & Advisory Board v. Pinette, 515 U.S. at 767, noting that “private religious expression receives preferential treatment under the Free Exercise Clause”; and Zorach v. Clauson, 343 U.S. at 313 (“We are a religious people whose institutions presuppose a Supreme Being. . . . [The Government] sponsor[s] an attitude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.”).
133. See Capitol Square Review & Advisory Board v. Pinette, 515 U.S. at 760–61, noting that the free speech clause protects, inter alia, “religious proselytizing.”
134. Operational Naval Instruction 1730.1, Chaplains’ Manual, 1973, § 1301(1); US Air Force, “Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force,” 2006, § 3. D.1; and Army FM 1-05, Religious Support, 2003, § 1-16.
135. See Center for Army Leadership, Army Leader Transitions Handbook, 14 (“Open communications early.”), 18 (“Spend time . . . talking to Soldiers. . . . Never be too busy to stop and share thoughts and ideas with your subordinates.”), 20 (“Never pass up an opportunity to talk with your Soldiers.”), 25 (“Spend more time listening and talking to subordinates.”), 26 (“As their leader, provide . . . an ear for listening. Listening to your subordinates gives individuals a share in the organization’s future.”).
136. See ibid., 11, identifying topics to be addressed with subordinates, including values, ethics, and integrity; and 20 (“You are the role model for the ethical and moral climate of the unit. Your example speaks of what is acceptable and what is not.”).
137. See, for example, Americans United v. City of Grand Rapids, 980 F.2d at 1553, noting the existence of those who see religious endorsement, “even though a reasonable person, and any minimally informed person, knows that no endorsement is intended.”
138. For example, Josh White, “4-Star General Relieved of Duty: Rare Move Follows Allegations of an Extramarital Affair,” The Washington Post, 10 August 2005, A01; William Fisher, “Jesus Is Not Our Co-Pilot, Academy Insists,” AntiWar.com, 20 June 2005, http://www.antiwar.com/ips/ fisher.php?articleid=6484 (accessed 6 May 2009); and Dave Moniz and Blake Morrison, “General Who Led Abu Ghraib Prison Guard Unit Has Been Suspended,” USA Today, 25 May 2004, http://www.usatoday.com/news/world/iraq/2004-05-24-abuse-karpinski_x.htm.
139. Center for Army Leadership, Army Leader Transitions Handbook, 1.
140. Ibid., 19.
143. Ibid., 11.
152. Ibid., 15.
153. DON, United States Navy Regulations: 1990, ch 8, § 1, art 0817(2).
154. Ibid., art. 0817(3).
155. Ibid., art. 0817(2).
156. “The Pentagon,” GlobalSecurity.org, http://www.globalsecurity.org/military/facility/ pentagon.htm (accessed 6 May 2009).
157. Marsh v. Chambers, 463 U.S. at 792.
158. Ibid., 794–95. To proselytize is defined as “to make or try to make converts.” The New Lexicon Webster’s Encyclopedic Dictionary of the English Language, Deluxe ed. 1991, s.v. “proselytize.” To disparage is defined as “to belittle, deprecate,” Ibid., s.v. “disparage.”
159. There are a number of suggested alternatives being proffered by well-meaning persons to resolve alleged violations of church-state separation. Yet some of the proposed cures are fraught with constitutional infirmities. Among suggested cures, for example, is a proposal to require all commanders to take an oath (called the “Oath of Equal Character”). Fagin and Parco, “A Question of Faith,” 43. The Oath of Equal Character reads as follows:
I am a [Fill in your belief system (e.g., Christian, Muslim, Jew, atheist, Buddhist, Hindu, Wiccan, nontheist, etc.)]. I will not use my position to influence individuals or the chain of command to adopt [Fill in your belief system (e.g., Christianity, Islam, Judaism, atheism, etc.)], because I believe that soldiers who are not [Fill in your belief system (e.g., Christians, Muslims, Jews, atheists, etc.)] are just as trustworthy, honorable and good as those who are. Their standards are as high as mine. Their integrity is beyond reproach. They will not lie, cheat or steal, and they will not fail when called upon to serve. I trust them completely and without reservation. They can trust me in the same way.
The underlying assumptions of the oath appear to suggest that all religious/philosophical belief systems are essentially equivalent and that the adherents of one religious/philosophical system essentially exhibit the same characteristics as adherents of every other religious/philosophical system. Aside from the fact that it is impossible to prove the truthfulness of the underlying assumptions contained in the oath—to wit, about the trustworthiness, dependability, integrity, and the like, of adherents of belief systems other than the oath taker’s—and the fact that many could convincingly argue that readily available evidence indicates that such assertions are, in fact, demonstrably untrue, requiring the taking of such an oath would violate a whole host of constitutional provisions. First, it seeks to compel belief in the equivalence of different religions and between religion and nonreligion. No government official may require that. Simply put, things are rarely equivalent, and some things are definitely not equivalent to others. For example, one could legitimately argue that a philosophy or religion that demeaned women would be inferior (and so not equivalent) to one that did not do so. Likewise, a philosophy or religion that preferred one race over another would be inferior (and so not equivalent) to a philosophy or religion that did not do so. Second, the undertaking seeks to compel speech with which one may disagree, and freedom of speech includes the right to refrain from expressing ideas with which one disagrees. See Wooley v. Maynard, 430 U.S. at 714 (recognizing that freedom of expression includes the right to refrain from such expression). Third, the undertaking seeks to replace the religious/philosophical views held by various commanders—as of right—with a view of religion and its adherents acceptable to the oath’s proponents (and, they hope, ultimately the US government).
Yet, once government officials put their stamp of approval on a religious belief, they have violated the very establishment clause that they were sworn to uphold. The above oath, if required, would violate the free exercise, the free speech, and the establishment clauses of the First Amendment, irrespective of the good intentions of those proffering the suggestion. The Supreme Court stated in Lee v. Weisman that “the First Amendment’s Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the [Government]” (emphasis added), 505 U.S. at 589. Further, there seems to be a basic non sequitur in the argument. The authors correctly recognize that “beliefs remain a right, ” and “freedom of conscience is among the oldest and most precious freedoms enshrined in the history of America’s founding” (emphasis added) (Fagin and Parco, 43). In the very next sentence, they acknowledge, correctly, that members of the armed forces take an oath to uphold the Constitution of the United States (including, one presumes, the First Amendment). But then they argue that military leaders who believe that adherents of other faiths are less likely to have good character than adherents of the leader’s own faith/philosophy should leave the military and seek another career. What happened to the constitutional “right” of that leader to believe as he does? What happened to that leader’s constitutionally protected “freedom of conscience”? On what legal basis do the authors conclude that those who do not share their views on how to resolve potential religious misunderstandings in the military have any less right to remain in the military than those who agree with them? The authors refer to the First Amendment, but that amendment protects the leader’s right to believe as he wishes, not as the government or the authors may prefer. The First Amendment does not stand for what the authors contend. It protects the individual’s right to believe against government coercion or government-supported orthodoxy, even when the individual’s beliefs are strange or offensive.
160. Merely being present when a prayer is being said does not mean that one is assenting to the sentiments being expressed, that one is actively participating in religious worship, or that one is actively engaging in a religious act. Instead, the service member is an observer. People encounter and observe religious ceremonies all the time without their mere presence converting them into participants in the ceremonies. The same is true when present at military ceremonies or formations where a short, solemnizing prayer is said. Solemnizing prayers constitute only a minute part of such ceremonies and, thus, do not convert such gatherings into religious gatherings.
161. See Lee v. Weisman, 505 U.S. at 588–89, noting that it is inappropriate for a government official to tell a member of the clergy how to pray.
162. See Center for Army Leadership, Army Leader Transitions Handbook, 11, 15, and 19.
163. Board of Education v. Mergens, 496 U.S. at 250.
164. At its most obvious level in the West, one easily notes that Roman Catholics and Protestants share different theological views and practices. There continue to be theological differences separating Roman Catholics from Eastern Orthodox as well. Likewise, there are significant differences in theological beliefs and practices within Protestantism, such as between liturgical denominations (e.g., Episcopalians, Lutherans) and nonliturgical denominations (e.g., Baptists, Assemblies of God). Then, there are differences between denominations that believe that spiritual gifts (i.e., charismata) are still in use today (e.g., Church of God in Christ) and denominations that believe that such gifts are no longer in use (e.g., Independent Fundamental Churches of America). Further, there are religious groups that do not fall neatly into any category (e.g., Latter-Day Saints [Mormons], Christian Scientists). Even within groups with a common heritage, there can be significant theological differences (e.g., the Evangelical Lutheran Church in America versus the Lutheran Church-Missouri Synod or the Presbyterian Church [USA] versus the Presbyterian Church in America). To accommodate free exercise of religion as much as possible in the military, military chaplains represent many different Christian denominations, based in large part on the relative numbers of adherents of the respective denominations in uniform (i.e., denominations with greater numbers of adherents in uniform are allotted more chaplains than denominations with fewer numbers). See also, http:// www.religionfacts.com/christianity/charts/denominations_beliefs.htm (accessed 5 May 2009).
165. For example, complaint at 3-4, Chalker v. Gates, No. 08-CV-2467-KHV-JPO (D. Kan filed 25 Sep 2008), describing the “requirement for [P]laintiff . . . to attend military functions and formations where sectarian Christian prayers are delivered” (emphasis added).
166. See, for example, 10 U.S.C. § 164(c) (2006), delegating substantial authority to military combatant commanders in the performance of their duties; and Goldman v. Weinberger, 475 U.S. 503, 507, acknowledging that “the military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps.”
167. See Haig v. Agee, 453 U.S. 280, 307 (1981), noting as “obvious and unarguable” that there is no governmental interest more compelling than security of the nation (citing Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964).
168. Loving v. United States, 517 U.S. at 778.
169. See, for example, Chalker v. Gates, No. 08-CV-2467-KHV-JPO (D. Kan. filed 25 Sep 2008), complaining about “sectarian prayers” given at three required formations.
170. Order No. 50 of George Washington, in Revolutionary Orders of General Washington, 74–75 (“The Commander-in-Chief directs that Divine service be performed every Sunday at 11 o’clock, in each Brigade which has a Chaplain. Those Brigades that have none will attend the places of worship nearest them.”); “The Prayer at Sumter,” Harper’s Weekly: A Journal of Civilization, 26 January 1861, http://www.sonofthesouth.net/leefoundation/major-anderson-ft-sumter_Dir/civil-war-prayer -fort-sumter.htm, describing the dramatic prayer offered by the command chaplain following Maj Robert Anderson’s raising of the American flag over Fort Sumter just days before the post fell, signaling the start of the Civil War; “Proud to Pay Debt, says Gen. Pershing,” New York Times, 1 December 1918 (“[General Pershing] paid tribute to the dead and wounded, urged the soldiers to thank God for the victory, and declared that a new vision of duty to God and country had come to all.”); James H. O’Neill, “The True Story of the Patton Prayer: The Author of General Patton’s Famous Third Army Prayer Reveals the Story of its Origin, Paying Tribute Both to the General’s Trust in God and to the Power of Faith-filled Prayer,” The Review of the News, 6 October 1971, reprinted in The New American, 12 January 2004, http://findarticles.com/p/articles/ mi_m0JZS/is_1_20/ai _n25081623?tag=untagged, describing General Patton as a self-proclaimed “firm believer in prayer” as he issued his famous Third Army Prayer to his subordinates; and Don M. Snider, “Intrepidity . . . and Character Development,” 2 (“The soldier’s heart, the soldier’s spirit, the soldier’s soul are everything. Unless the soldier’s soul sustains him, he cannot be relied on and he will fail himself, his commander, and his country in the end. It is not enough to fight. It is the spirit that wins the victory,” quoting Gen George Marshall).
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