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The Religious Rights of Those in Uniform - Endnotes 1 thru 50
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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
Endnotes 1 thru 50
Endnotes 51 thru 110
Endnotes 111 thru 170
All Pages



1. Representative among individuals advocating strict church-state separation are the following: Rev. Barry W. Lynn—see his Piety & Politics: The Right-Wing Assault on Religious Freedom (New York: Random House, 2007), advocating the importance of the strict-separationist viewpoint and decrying challenges to that philosophy by the “religious right”; Michael “Mikey” Weinstein, see Michael L. Weinstein and Davin Seay, With God on Our Side: One Man’s War Against an Evangelical Coup in America’s Military (New York: Thomas Dunne Books, 2006), detailing Weinstein’s legal fight against a perceived Evangelical Christian takeover of the military, generally, and the US Air Force Academy, specifically; Christopher Hitchens, “GI Jesus: The Real Problem with Military Chaplains,” Slate, 2 October 2006,, criticizing the National Defense Authorization Act of 2007 due to “lawmakers arguing seriously over how much religious instruction and rhetoric should be permitted in the [military] ranks and how explicitly monotheistic that instruction and rhetoric ought to be.” Representative among groups advocating strict separation of church and state are the following: Americans United for Separation of Church and State, Freedom from Religion Foundation, American Civil Liberties Union, and Military Religious Freedom Foundation.
2. See, for example, Chalker v. Gates, No. 08-CV-2467-KHV-JPO (D. Kan. filed 25 September 2008).


3. See, for example, letter demanding the cessation of the Naval Academy’s traditional noonmeal prayer from Deborah A. Jeon, legal director, ACLU of Maryland, to Vice Adm Jeffrey Fowler, superintendent, US Naval Academy, 2 May 2008, on file with author.

4. US Constitution, Amendment I (“Congress shall make no law respecting an establishment of religion”). 5. Thomas Jefferson, president of the United States, to Danbury Baptist Association of Connecticut, letter, 1 January 1802, in The American Republic: Primary Sources, ed. Bruce Frohnen, 2002, 72, 75.

6. Most agree that, at a minimum, the establishment clause was intended to prohibit the creation of a national church for the United States, such as existed in England. Nevertheless, one must keep in mind that the First Amendment did not preclude individual states from adopting a state church or a state religion. See Carl Zollman, American Church Law (St. Paul, MN: West Publishing Co., 1933) (first edition in 1917), 2–4. In fact, Massachusetts was the last state to disestablish its state church, and it did so of its own accord in 1833, more than 40 years after the ratification of the First Amendment. Kelly Olds, “Privatizing the Church: Disestablishment in Connecticut and Massachusetts,” Journal of Political Economy 102, no. 2 (1994): 277, 281–82.

7. Marsh v. Chambers, 463 U.S. 783, 787-88 (1983).

8. Ibid., 788.

9. Ibid. (citation omitted). The First Amendment is part of the Bill of Rights.

10. Ibid. See also ibid., 790 (“It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause to forbid what they had just declared acceptable.”).

11. Ibid., 792.

12. See Newdow v. Bush, 355 F. Supp. 2d 265, 270 n.5, 286–87 (D.D.C. 2005).

13. For example, Catherine Millard, The Rewriting of America’s History (Camp Hill, PA: Horizon Books, 1991): 61–62.

14. Proclamation of President John Adams (6 March 1799), in A Compilation of the Messages and Papers of the Presidents 1789–1897, vol. 1, James D. Richardson, ed., 1899, 284–86.

15. See Daniel L. Dreisbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment (Westchester, IL: Crossway Books, 1987): 127, noting that the 1803 treaty with the Kaskaskia Indians included federal funds to pay a Catholic missionary priest; noting further treaties made with the Wyandotte and Cherokee tribes involving state-supported missionary activity.

16. John W. Whitehead, The Second American Revolution (Charlottesville, VA: The Rutherford Institute, 1982), 100, citing J. O. Wilson, Public School of Washington, vol. 1 (Washington, DC: Columbia Historical Society, 1897): 5.

17. Charles E. Rice, The Supreme Court and Public Prayer: The Need for Restraint (New York: Fordham University Press, 1964): 63–64.

18. Act of March 2, 1799, ch. XXIV, 1 Stat. 709, requiring commanders of ships with chaplains on board “to take care that divine service be performed twice a day, and the sermon preached on Sundays”; and Act of March 23, 1800, ch. XXXIII, 2 Stat. 45, directing commanders of ships to require the ship’s crew “to attend at every performance of the worship of Almighty God.”

19. Marsh v. Chambers, 463 U.S. at 790 (citation omitted); see also United States v. Curtiss- Wright Export Corporation, 299 U.S. 304, 328 (1936), noting that understanding “placed upon the Constitution . . . by the men who were contemporary with its formation” is “almost conclusive” (citation omitted).

20. Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987).

21. Ibid., 335, quoting Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 144–45 (1987).

22. Ibid., 338.

23. Zorach v. Clauson, 343 U.S. 306 (1952).

24. Ibid., 312–13; See also ibid., 314, noting “no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

25. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

26. Ibid.

27. Zorach v. Clauson, 343 U.S. at 313.

28. Ibid.

29. Lee v. Weisman, 505 U.S. 577, 589 (1992).

30. Locke v. Davey, 540 U.S. 712 (2004).

31. Ibid., 718.

32. Ibid., quoting Walz v. Tax Commission of New York, 397 U.S. 664, 669 (1970).

33. See, for example, Abington School District. v. Schempp, 374 U.S. 203, 299 (1963) (Justice Brennan, concurring), noting that the state may “neither favor nor inhibit religion.”

34. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995).

35. Ibid., 839.

36. Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 767 (1995).

37. Rosenberger v. Rector and Visitors of University of Virginia 515 U.S. at 828, citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641–43 (1994).

38. Capitol Square Review & Advisory Board v. Pinette, 515 U.S. at 760 (citations omitted).

39. Good News Club v. Milford Central School, 533 U.S. 98, 106–07 (2001) (internal citations omitted).

40. Board of Education v. Mergens, 496 U.S. 226, 250 (1990).

41. Ibid.

42. Loving v. United States, 517 U.S. 748, 778 (1996) (Justice Thomas, concurring), quoting United States ex rel. Toth v. Quarles 350 U.S. 11, 17 (1955).

43. Brown v. Glines, 444 U.S. 348, 360 (1980).

44. 10 U.S.C. § 654 (a)(8)(A) & (B) (2006).

45. Ibid.

46. DOD Instruction 1300.17, Accommodation of Religious Practices Within the Military Services, 2009, para. 4.

47. Air Force Policy Directive (AFPD) 52-1, Chaplain Service, 2006, introduction.

48. Ibid., attachment 1.

49. Secretary of the Navy Instruction (SONI) 1730.8B, Accommodation of Religious Practices, 2008, paras. 1 & 5.

50. Army Regulation (AR) 600-20, Army Command Policy, 2009, para. 3-3.b.(4).

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