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The Religious Rights of Those in Uniform - Endnotes 51 thru 110
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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
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51. Ibid., para. 5-6.a.

52. Commandant of the Coast Guard Instruction M1730.4B, Religious Ministries within the Coast Guard, 1994, para. 5.a.

53. Carlo D’Este, Patton: A Genius for War (New York: HarperCollins, 1996); 221 (citation omitted); see also John Paul Jones, personal journal entry (1787), in Augustus C. Buell, Paul Jones: Founder of the American Navy, vol. 1 (London: K. Paul, Trench, Trubner & Co., 1900): 286–87 (“Men mean more than guns in the rating of a ship.”).

54. See Mats Alvesson, Understanding Organizational Culture (London: Sage Publications, 2002): 1–2; see also Army Field Manual (FM) 6-22, Army Leadership, 2006, § 4-46.

55. Don Snider, “U.S. Civil-Military Relations and Operations Other Than War,” in Civil- Military Relations and the Not-Quite Wars of the Present and Future, ed. Vincent Davis (Carlisle Barracks, PA: Strategic Studies Institute, Army War College, 1996): 1, 3.

56. Christopher Coker, The Warrior Ethos: Military Culture and the War on Terror (New York: Routledge, 2007): 141, comparing the warrior cultures of the ancient Chinese, Greek, Roman, and Japanese societies; and Army FM 6 - 22, Army Leadership, § 4-47, § 4-51.

57. Jamison Yi, “MCMAP and the Marine Warrior Ethos,” Military Review, November–December 2004, 17, illustrating a “synergy of disciplines” via Venn diagram; see also Air Force Recruiting Service, Air Force Warrior Facts: Expand Your Training 2 (n.d.) (“It takes a strong mind, body, and spirit to become an Air Force warrior” [emphasis added]); Army FM 6-22, Army Leadership, § 4-47 to § 4-52; and H. Michael Gelfand, Sea Change at Annapolis: The United States Naval Academy, 1949–2000 (Chapel Hil : The University of North Carolina Press, 2006): 9, listing part of the US Naval Academy’s mission as “develop[ing] [midshipmen] moral y, mentally, and physically” (citation omitted).

58. Humfrey Michell, Sparta (Cambridge: Cambridge University Press, 1964): 165.

59. Yi, “MCMAP and the Marine Warrior Ethos,” 21 (“Physical discipline consists of armed and unarmed combat techniques combined as part of the USMC Physical Fitness Program . . . [which] develops a Marine’s ability . . . [to] overcom[e] physical hardship and obstacles under any climatic condition.”).

60. Ibid., 23.

61. Army FM 6-22, Army Leadership, § 4-49.

62. Ibid., § 4-52.

63. Ibid.

64. Ibid., § 4-48.

65. For example, ibid., § 4-53 (“The Warrior Ethos is crucial but also perishable. Consequently, the Army must continually affirm, develop, and sustain it.”).

66. Shannon E. French, The Code of the Warrior: Exploring Warrior Values Past and Present (Lanham, MD: Rowman & Littlefield, 2005): 1–3.

67. Ibid., 3–4, 9–10.

68. David R. Segal and Mady Wechsler Segal, “America’s Military Population,” Population Bulletin, December 2004, 25, table 5, reporting the combined percentage of Protestants, Catholics, and “Other Christians” alone at 68 percent as of 2001; Hindus, Muslims, Buddhists, and Jews were also reported but comprised less than 0.5 percent each of the total number; see also Barry S. Fagin and James E. Parco, “A Question of Faith: Religious Bias and Coercion Undermine Military Leadership and Trust,” Armed Forces Journal, January 2008, 40, 42, recognizing that “for many, if not most, in the military, religion is part and parcel of their original decision to serve, their loyalty to country and family, and their source of strength in times of great stress.”

69. Army FM 6-22, Army Leadership, § 4-57 (“Beliefs matter because they help people understand their experiences. Those experiences provide a start point for what to do in everyday situations. Beliefs are convictions people hold as true. Values are deep-seated personal beliefs that shape a person’s behavior. Values and beliefs are central to character.”); see also ibid., § 4-59 (“Beliefs derive from upbringing, culture, religious backgrounds, and traditions. As a result, different moral beliefs have, and will, continue to be shaped by diverse religious and philosophical traditions” [emphasis added].); and French, The Code of the Warrior, 3.

70. See ibid., § 4–59; see also note 68, noting that over two-thirds of US service members claim religious affiliation.

71. Army FM 6-22, Army Leadership, § 4–58 (“Army leaders should recognize the role beliefs play in preparing Soldiers for battle.”).

72. Coker, The Warrior Ethos, 132–33; and Yi, “MCMAP and the Marine Warrior Ethos,” 17.

73. Even those otherwise opposed to overt religious expression in the military recognize the importance of religious faith and values to members of the armed forces:

Members of the military live with the fact that they could be asked to surrender their lives at any moment. Those who see combat face life-and-death issues on a regular basis and are forced to grapple with fundamental questions of existence in a way those they protect likely will never face. This means that for many, if not most, in the military, religion is part and parcel of their original decision to serve, their loyalty to country and family, and their source of strength in times of great stress. . . . [I]t’s unrealistic to expect the spiritual beliefs of soldiers to vanish once they put on a uniform.

In Fagin and Parco, “A Question of Faith,” 42.

74. For example, 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; Army FM 1-05, Religious Support, 2003, § 1-16.

75. The use of “he” and “his” throughout this chapter is simply for convenience and is not intended to demean or denigrate women in uniform or their military service. Women serve with distinction throughout the US armed services in virtually every job category, including as commanders and chaplains.

76. For example, Combined Arms Center, Center for Army Leadership, Army Leader Transitions Handbook, 2008, 20. (“You are the role model. . . . Your example speaks for what is acceptable and what is not.”) The handbook “contains best practices and proven techniques from military and civilian sources” (emphasis added), 1.

77. Ibid., 14 (“Leave plenty of time for visits to see Soldiers at their duty stations or in training”), 15, 18, 20 (“Meet your troops at ranges, on guard duty and during squad and crew training. Do physical training with different groups regularly.”).

78. Ibid.

79. Ibid., 14, 20 (“Never pass up an opportunity to talk with your Soldiers.”), 25.

80. Ibid., 19, 26.

81. See Order No. 50 of George Washington to the Continental Army at Valley Forge, 2 May 1778, in Revolutionary Orders of General Washington, ed. Henry Whiting (New York: Wiley and Putnam, 1844), 74–75 (“While we are duly performing the duty of good soldiers, we certainly ought not to be inattentive to the higher duties of religion. To the distinguished character of a Patriot, it should be our highest glory to add the more distinguished character of a Christian.”); see also “The Christmas Message and Prayer Sent the Third Army, 1944,” in Brenton Greene Wallace, Patton & His Third Army, (1946; repr., Mechanicsburg, PA: Stackpole Books, 2000): app. 7, 231, detailing the prayer sent by Gen George Patton to the Third Army.

82. Don M. Snider, “Intrepidity. . . . and Character Development within the Army Profession,” Strategic Studies Institute, January 2008, 2, PUB847.pdf (“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); see also Army Leader Transitions Handbook, 20, noting that the commander/ leader is “the role model for the ethical and moral climate of the unit” and that the commander’s/ leader’s “example speaks for what is acceptable and what is not” in the unit.

83. See 10 U.S.C. § 3581 (2006).

84. Army FM 1-05, Religious Support, § 3-106.

85. See, for example, Department of the Navy (DON), United States Navy Regulations: 1990, ch. 8, § 1, art. 0817(2) (“Chaplains shall be permitted to conduct public worship according to the manner and forms of the church of which they are members” [emphasis added].). Legislative chaplains are not so. Legislative chaplains exist, first and foremost, to seek divine blessings on, and to solemnize the proceedings of, legislators in enacting the statutes that govern us all, not to ensure free exercise of religion by legislators. In the legislative milieu, the chaplain is not hired to represent a specific denomination and, in fact, is not expected to do so. See Andy G. Olree, “James Madison and Legislative Chaplains,” Northwestern University Law Review 102 (2008): 151.

86. For information concerning the prevalence of Christianity in the United States as a whole, see US Census Bureau, Religious Composition of U.S. Population: 2007, 2008, table 74, http://www, reporting the combined percentage of Protestants and Catholics in the United States at 75.2 percent as of 2007. For information about the military, see Segal and Segal, “America’s Military Population, ” note 68.

87. See Religion Facts, Comparison Chart of Christian Denominations’ Beliefs, (accessed 5 May 2009). 88. Whatever else it was understood to mean when drafted and adopted, the establishment clause meant that none of the religious groups present at the founding of our nation would be elevated to become the established, national church of the United States. It is also important to recognize that military commanders have a responsibility to support the free exercise needs of the men and women in uniform. Merely because most of those serving in uniform happen to practice some variant of the Christian faith does not mean that DOD is favoring Christianity over other religious faith groups. As noted above, sheer numbers dictate most chaplains and resources are used to meet the needs of Christian service members and their families.

89. Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985).

90. See, for example, Wooley v. Maynard, 430 U.S. 705, 714 (1977), recognizing that freedom of expression includes the right to refrain from such expression; and Air Force Instruction (AFI) 52-101, Chaplain Planning and Organizing, 13 August 2005, § 2.1 (“Chaplains do not perform duties that are incompatible with their faith group tenets.”).

91. For example, Secretary of the Navy Instruction 1730.7D, Religious Ministry within the Department of the Navy, 8 August 2008, para. 5(e)(3) (“Chaplains care for all Service members, including those who claim no religious faith, [and] facilitate the religious requirements of personnel of all faiths.”).

92. DOD Directive 1304.19, Appointment of Chaplains for the Military Departments, 11 June 2004, para. 4.1.

93. Israel Drazin and Cecil B. Currey, For God and Country: The History of a Constitutional Challenge to the Army Chaplaincy (Hoboken, NJ: KTAV Publishing House, 1995): 35, 41.

94. Ibid., 32. DOD can, and does, set neutral criteria that all chaplains—irrespective of faith group—must meet, such as education, health, age, and experience requirements. DOD Instruction 1304.28, Guidance for the Appointment of Chaplains for the Military Departments, 11 June 2004, paras. 6.1–6.4. However, aside from such neutral criteria, DOD relies on the endorsement by the respective faith group that a chaplain nominee fully meets the religious requirements of his respective faith group.

95. Drazin & Currey, For God and Country, 32; and DOD Instruction 1304.28, Guidance for the Appointment of Chaplains for the Military Departments, para. 6.5.

96. Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997).

97. Ibid., 159.

98. Ibid., 165.

99. See, for example, Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 714 (1981) (“Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”)

100. The US armed forces operate 24 hours per day, every day of the year. As such, men and women will be assigned to duties at odd hours and times throughout the year. When those times conflict with regularly scheduled chapel worship times or other religious activities, those on duty will be required to forgo attending such religious activities in order to carry out their military duties. Affected service members may, of course, request an accommodation, but the granting of such an accommodation will ultimately depend on mission requirements. See, for example, AFPD 52-1, Chaplain Service, attachment 1; AR 600-20, Army Command Policy, para. 5-6.a; and SECNAV Instruction 1730.8B, Accommodation of Religious Practices, para. 5.

101. Good order and discipline are essential components of an effective military unit. William A. Cohen, Secrets of Special Ops Leadership: Dare the Impossible, Achieve the Extraordinary (New York: AMACOM, 2005): 98, quoting George Washington as saying, “Nothing is more harmful to the service than the neglect of discipline; for that discipline, more than numbers, gives one army superiority over another.” Yet, admittedly, the phrase is somewhat vague. When attempting to maintain good order and discipline, commanders and leaders at all levels must ensure that religious service members are not singled out for special detriment, especially if those complaining about a religious activity or expression of a religious sentiment are persons especially sensitive—or even hostile—to religion or a religious message. See, for example, Americans United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1553 (6th Cir. 1992), noting the existence of persons who see religious endorsement, “even though a reasonable person, and any minimally informed person, knows that no endorsement is intended.”

102. See Lee v. Weisman, 505 U.S. at 597, noting that people “may take offense at all manner of religious as well as non-religious messages”; and 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.”

103. Lee, 505 U.S. at 597, noting that people “may take offense at all manner of religious as well as non-religious messages.”

104. See for example, Chalker v. Gates, Case No. 08-2467-KHV-JPO (D. Kan. filed 25 Sep 2008), where plaintiff complains, inter alia, about hearing “sectarian Christian prayers” being delivered at mandatory events. As an aside, one wonders what a “nonsectarian” Christian prayer would sound like and whether the plaintiff would have been satisfied had that kind of prayer been offered at the mandatory events. See also Ezra W. Reese, counsel to the Military Religious Freedom Foundation, to Thomas F. Kimble, acting inspector general, DOD, letter, 11 December 2006,, complaining about the promulgation of a Christian video that featured several Pentagon officials extolling, inter alia, the virtues of prayer.

105. Technically, George Washington’s inauguration as president under our current Constitution, being the first, was an assumption of command ceremony, not a change of command ceremony, but the principle is exactly the same.

106. Military Establishment Act of 1791, ch. XXVIII, § 5, 1 Stat. 222.

107. See 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”; 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.”

108. 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).

109. Marsh v. Chambers, 463 U.S. at 792.

110. Lee v. Weisman, 505 U.S. at 597.


Last Updated on Thursday, 14 July 2011 19:13