KATCOFF v. MARSH AT TWENTY-ONE:
THE MILITARY CHAPLAINCY AND THE SEPARATION OF CHURCH AND STATE
Richard D. Rosen*
“Better also to disarm . . . the precedent of Chaplainships for the army and navy,
than erect them into a political authority in matters of religion.”
“[T]he morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy . . . .”
In the 1986 case of Katcoff v. Marsh, the Court of Appeals for the Second Circuit became the only federal appellate court to address directly the constitutionality the Army chaplaincy under the Constitution’s Establishment Clause. In holding the chaplaincy did not offend the Constitution, the court relied upon countervailing considerations of judicial deference to Congress in matters concerning the military and soldiers’ reliance on the chaplaincy to exercise freely their religions. This article argues that, given subsequent developments in Establishment Clause jurisprudence and changes in the structure and missions of the military itself, the decision remains on firm constitutional footing. Katcoff did not, however, immunize the chaplaincy from judicial oversight under the Establishment Clause. The article also discusses Establishment Clause issues either left open or not addressed by Katcoff, including the constitutionality of the chaplaincy in major metropolitan areas and issues confronting the chaplaincy with regard to compulsory religious observances and denominational preferences.
I. Introduction ...………………………………………………………………………..
II. The Case ………………………………………………………………………….....
III. The Continued Soundness of Katcoff …………………………………….…………..
IV. Unresolved Establishment Clause Issues …………………………………..………….
A. The Chaplaincy in Major Metropolitan Areas …………………………..………...
B. Compulsion ………………………………………………………………...……
1. General ………………………………………………………………..…….
2. Proselytizing ……………………………………………………………...….
3. Sectarian Prayers at Official Functions …………………………………….…
C. Nondiscrimination ………………………………………………………………..
1. General ……………………………………………………………………...
2. Recognizing “Nontraditional” Denominations ...……………………………….
3. Denominational Preferences ………………………………………………….
4. Viewpoint-Based Discrimination ……………………………………………..
V. Conclusion …………………………………………………………………………...
In late 1979, two law students sued the Secretary of the Army seeking a judgment declaring that the Army Chaplaincy Program violated the First Amendment’s Establishment Clause. After nearly 200 years of coexistence between the military chaplaincy and the Establishment Clause, the case finally joined the issue of whether congressional funding of military chaplains violated the principle tenet upon which the Establishment Clause is based: the separation of church and state. Unquestionably, pervasive congressional support of religion in most other contexts would have been deemed inconsistent with the First Amendment, but the military chaplaincy brought with it the competing constitutional demands of deference to Congress in military matters and the First Amendment’s other religion clause – the guarantee of free exercise.
In Katcoff v. Marsh, two lower federal courts found the countervailing constitutional arguments more compelling than strict adherence to the Establishment Clause, and for the most part, placed the military chaplaincy on firm constitutional footing. While Katcoff upheld the existence of the military chaplaincy against an Establishment Clause challenge, it did not foreclose judicial oversight of the military chaplaincy under the Establishment Clause; instead, the ruling left open questions about the chaplaincy that exist to this day. This paper discusses the Katcoff case, its continuing vitality, and some Establishment Clause issues the case did not address or resolve.
II. THE CASE
Two Harvard law students, Joel Katcoff and Allen Weider, brought the Establishment Clause challenge to the Army chaplaincy in the United States District Court for the Eastern District of New York. Neither plaintiff had ever served in the military. While recognizing that some form of chaplaincy is essential to preserve soldiers’ rights to exercise freely their religion, the plaintiffs argued that a voluntary, privately funded program would satisfy the Army’s needs as well as the dictates of the Establishment Clause. After several years of litigation, the district court rejected the plaintiffs’ claim outright, and the Court of Appeals for the Second Circuit affirmed – for the most part – the district court’s dismissal of the lawsuit.
Under traditional Establishment Clause jurisprudence, if the government overtly discriminates in favor of one religion or sect over another, it violates the Establishment Clause. Absent such overt discrimination, the courts generally (but not always) apply a three-part test set forth in Lemon v. Kurtzman, to determine whether a facially neutral governmental program violates the First Amendment. Under such circumstances, the Court will uphold governmental action only if: (1) the law has a secular legislative purpose; (2) the law’s primary effect is neither to advance nor inhibit religion; and (3) the law does not foster an excessive government entanglement with religion. The Court described the “three main evils against which Establishment Clause was intended to afford protection [as]: ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’”
The Second Circuit acknowledged that strict application of the Lemon test in isolation would render the Army chaplaincy unconstitutional:
Although the ultimate objective of the chaplaincy may be secular in the sense that it seeks to maintain the efficiency of the Army by improving the morale of our military personnel, its immediate purpose is to promote religion by making it available, albeit on a voluntary basis, to our armed forces. The effect of the program, moreover, is to advance the practice of religion. Administration of the program, involving arrangements with many church organizations of different denominations, entangles the government with religious accrediting bodies.
The court refused, however, either to consider the chaplaincy in “a sterile vacuum” or to apply the Lemon test as the standard against which to assess its constitutionality. The court held that the “standard to be applied . . . must take into account the deference required to be given to Congress’ exercise of its War Power and the necessity of recognizing the Free Exercise rights of military personnel.” In other words, the presence of two countervailing constitutional considerations – the War Powers clauses and the First Amendment’s Free Exercise Clause – militated against application of the Lemon analysis.
The Second Circuit refused to follow the district court’s approach of wholly deferring to Congress’ judgment about the military’s need for a chaplaincy program. It did hold, however, that – given the judicial deference owed Congress in the exercise of the war power – the court should find Congress’ judgment in the area to be presumptively valid.
The court also emphasized the importance of the First Amendment’s Free Exercise Clause in the constitutional equation. Recognizing the inherent tension between the Establishment and Free Exercise Clauses, the Second Circuit found that if Congress did not establish an Army chaplaincy, it would deny soldiers the right to exercise their religion freely, particularly given the mobile and deployable nature of the nation’s armed forces.
The plaintiffs conceded the essentiality of some form of military chaplaincy to accommodate the Free Exercise rights of soldiers. Their lawsuit was predicated upon the assumption that soldiers’ Free Exercise needs could be met by a privately funded program. To support their contention, the plaintiffs relied entirely upon the affidavit of the president of a single sect – the Wisconsin Evangelical Lutheran Synod – who claimed that the Synod could successfully support a civilian chaplaincy.
The Second Circuit flatly rejected the plaintiffs’ argument, finding the plaintiffs’ proposal “so inherently impractical as to border on the frivolous.” It observed that “even if the affidavit of the President of the Wisconsin Evangelical Lutheran Synod could be accepted at face value, . . . it [could] hardly serve as an indication that the Catholic Church, the Jewish Religion, and the numerous other Protestant denominations would favor, much less financially support, a civilian chaplaincy.” Moreover, apart from the “financial infeasibility” of the plaintiffs’ proposal, the plaintiffs offered no evidence that “civilian chaplains would accept military discipline, which is essential to the efficient operation of our armed forces.” The court concluded that any doubt as to the “feasibility of a civilian chaplaincy must . . . be resolved in favor of judicial deference to Congress’ decision in this area, which is closely tied to the functioning of our armed forces.”
The Second Circuit did not entirely
remove the Army chaplaincy from constitutional doubt. It found that in a few areas “the reasonable
necessity for certain activities of the military chaplaincy is not readily
apparent.” Specifically, the court questioned the need
for the government to support military chaplains, facilities, and activities in
large urban centers, such as
III. THE CONTINUED SOUNDNESS OF KATCOFF
The federal courts have not directly addressed the constitutionality of the military chaplaincy since Katcoff was decided over 21 years ago. Although subject to some criticism, the decision represents well-established law; indeed, based upon subsequent First Amendment jurisprudence, Katcoff is unlikely to be overturned anytime soon.
although never overruled, the Lemon v.
Kurtzman test, under which the military chaplaincy would almost certainly
be deemed unconstitutional,
has been significantly weakened. The Supreme Court applies the test
inconsistently at best,
and some justices have called for its outright rejection. This process began even before Katcoff was decided. For example, the Court in Marsh v. Chambers
rejected a constitutional challenge to the funding of a chaplain for the
The military chaplaincy has a similar pedigree to legislative chaplains. The Continental Congress approved the first Army chaplain in 1775, well before adoption of the Constitution. In 1791, before ratification of the First Amendment, Congress authorized the appointment of an Army chaplain. While the district court in Katcoff placed considerable weight on Marsh, the Second Circuit did not. In any event, as the Supreme Court places less reliance on the Lemon test, it is increasingly unlikely to apply the test in future challenges to the military chaplaincy, particularly given the chaplaincy’s historical foundations together with the nature of modern military service and the demands of the Free Exercise Clause.
Second, the Supreme Court’s contemporary tendency to abandon Lemon or to apply it flexibly has given some justices the opportunity to assert a “more accommodationist view of religion.” Under this approach, courts “recognize, accommodate, and even honor the central role that religion plays in society [as] consistent with historical traditions, national expectations, and most importantly, the Establishment Clause.” In short, government violates the Establishment Clause “only if it literally establishes a church, coerces religious participation, or favors one religion over others.” An example of this accommodationist approach is the Court’s generally increasing willingness to uphold government assistance benefiting parochial schools.
Of course, a trend towards growing judicial accommodation of religion bodes well for the military chaplaincy. Courts will be less inclined to insist upon strict separation of government and religion or absolute government neutrality between religion and non-religion, principles upon which future challenges to the chaplaincy are likely to be predicated.
Third, the Supreme Court has seemingly given the Free Exercise Clause – upon which the military chaplaincy is now largely justified – a “preferred position in our constitutional order,” particularly when it conflicts with the Establishment Clause. This deference to free exercise concerns was evident in Cutter v. Wilkinson, in which the Court, in a unanimous decision, upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000. Under the Act, neither the state nor federal governments may impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the burden furthers a compelling governmental interest and does so by the least restrictive means.
The plaintiffs in Cutter were current and former inmates of the Ohio Department of Rehabilitation and Corrections who were adherents of “non-mainstream” religions. They claimed the state failed to accommodate their religious exercise, including barring access to religious literature, denying the same opportunities for group worship as members of mainstream religions, forbidding adherence to the dress and appearance mandates of their religions, withholding religious ceremonial items, and failing to provide a chaplain trained in their faith.
The Court rejected the state’s contention that the RLUIPA violated the Establishment Clause, finding that the Act constituted a “permissible legislative accommodation of religion . . . .” The Court emphasized that the Act was compatible with the Establishment Clause because it “alleviates exceptional government-created burdens on private religious exercise.” In other words, it “protects institutionalized persons who are unable freely to exercise their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” By so holding, the Court elevated the status of the Free Exercise Clause, by upholding a statute prescribing a “compelling state interest and least restrictive means analysis for religion claims while maintaining the deferential standard [in the prisons context] for all other constitutional rights, including free speech.”
the setting in Cutter is not entirely
analogous to the military, members of the armed forces, like prisoners, are
largely dependent upon the government to accommodate their religions. This dependence is particularly evident in
remote installations in the
in addition to the evolving legal landscape, the military itself has changed
since Katcoff was decided. In 1986, the military was largely a static
Cold War force, which – while stationed widely throughout the world – was
generally located in friendly locales and was rarely employed in combat. Since the end of the Cold War, and
particularly after September 11, 2001, the world has become more unstable,
IV. UNRESOLVED ESTABLISHMENT CLAUSE ISSUES
While the military chaplaincy is on firm constitutional footing, issues concerning the armed forces and the Establishment Clause remain. In this section of the paper, I discuss a some of the more prominent issues.
A. The Chaplaincy in Major Metropolitan Areas
The Second Circuit in Katcoff v. Marsh expressed some doubts about the constitutionality of a military chaplaincy in large metropolitan areas where servicemembers have access to a wide array of civilian religious facilities and activities. The court remanded the case for the district court to consider the issue, but the plaintiff’s dismissed their lawsuit thereby obviating the need for further litigation about the matter. The issue has since seemingly been forgotten.
Certainly the free exercise concerns, which were prominent – even decisive – in Katcoff, are of much less importance in large cities. Unlike remote or deployed environments, the religious needs of servicemembers can often be fully accommodated by the civilian community. Perhaps given the diminishing presence of the military in urban centers since 1986 and the increasingly “accommodationist” approach of the federal courts, future judges may see such a challenge as simply “judicial nitpicking.” The armed forces may also justify the chaplaincy in urban areas as necessary for the rotation base, thereby avoiding a chaplaincy that is assigned strictly in remote or deployed locations – hardly a recipe for retention.
Judge Meskill indicated in Katcoff in
his dissent from remand of the case, many of religious services in
Thus, while the issue remains open, the armed forces are likely to be able to justify the retention of those chaplains who remain in large metropolitan areas.
At its very core, the First Amendment’s Establishment Clause strictly prohibits government from coercing “anyone to support or participate in religion or its exercise . . . .”
The “establishment of religion” clause of the First Amendment means at least this: [Neither a state nor the Federal Government] can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
Indeed, a “state-created orthodoxy” puts the free exercise of religion at risk; “if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect the sphere of inviolable conscience and belief which is the mark of a free people.” Consequently, any attempt by the armed forces to compel participation in particular religious worship, or any worship at all, conflicts with both the Free Exercise and Establishment Clauses of the First Amendment. Stated simply, “military religious activities must be voluntarily ....”
concept was tested in Anderson v. Laird,
a challenge to mandatory chapel attendance at the service academies. Under academy regulations, cadets and
midshipmen were required to attend Protestant, Catholic, or Jewish religious
services on Sundays; those who refused were punished. Although the judges were unable to agree
about a single rationale for their decision, the Court of Appeals for the
Giving little apparent deference to the military, Chief Judge Bazelon found that the regulations violated both the Establishment and Free Exercise Clauses, writing that “[i]n this case, . . . the two Clauses complement each other and dictate the same result. Abolition of the attendance requirements enhances rather than violates the free exercise rights of cadets and midshipmen” by ensuring that they would not be forced to attend church against their will. Judge Leventhal saw no need to reach the Free Exercise issue, and after weighing the military’s claim of necessity, opined that forced chapel attendance violated the Establishment Clause.
More recently, in Mellen v. Bunting, the Court of Appeals for the Fourth Circuit held that a supper prayer delivered to cadets at the Virginia Military Institute (“VMI”) violated the Establishment Clause of the First Amendment. With minor exceptions, all VMI cadets marched into the mess hall for their supper and remained standing during the supper prayer. VMI’s superintendent denied a request by some cadets to “go about their business in the Mess Hall during the supper prayer.” While not being forced to pray, cadets were forced to stand in silence during the prayers.
The Fourth Circuit acknowledged the rulings of other federal courts that distinguished between prayers in public schools and those in colleges and universities. In cases involving invocations at college graduation ceremonies, two courts of appeals, the Sixth and the Seventh Circuits, held that the prayers do not violate the Establishment Clause, in part because the ceremonies were not mandatory, attendees were not forced to participate, and college and university students are more mature and less impressionable than public school students. The Fourth Circuit found that VMI’s supper prayers were different. VMI required cadets to attend and participate, and while VMI cadets are not children, under VMI’s “adversative” method of education they were uniquely susceptible to coercion. Given this coercive atmosphere, the court held that “the Establishment Clause precludes school officials from sponsoring an official prayer, even for mature adults.”
As in Anderson and Mellen, any attempt by commanders to require service members to attend religious services would run afoul of the proscription against forced worship. Outright coercion in the form of orders to attend religious services would entail application of the government’s criminal processes to compel worship and would be so repugnant that even the most accommodationist of justices would not sustain it.
The military services seemingly recognize, at least officially, constitutional prohibitions against forced worship. For example, the Army regulation governing chaplain activities plainly states: “Participation of Army personnel in religious services is strictly voluntary.” The other services similarly emphasize the military’s pluralistic nature and the importance of permitting service members to exercise freely their religions. While overt compulsion is rare, the armed services have had difficulties with more subtle forms of coercive practices, namely, proselytizing and the delivery of sectarian prayers at official ceremonies.
The Air Force has come under attack over the past two years for, among other things, permitting the proselytizing of cadets at the Air Force Academy. For example, during basic cadet training, one Academy chaplain allegedly led a Protestant worship service in which he encouraged attending cadets to return to their tents, proselytize cadets who did not attend the service, and remind them of the consequences of their “apostasy” (i.e., that they would “burn in hell”). In addition, cadets alleged that professors actively recruited them to join evangelical churches, and “[a]t Christmastime, some senior faculty members signed religious ads in the base paper, including . . . : ‘We believe that Jesus Christ is the only real hope for the world. If you would like to discuss Jesus, feel free to contact one of us!’” Cadets also reported receiving pressure to see the movie “The Passion of the Christ.”
One Academy chaplain reported that “[p]eople at the academy were making cadets feel an obligation that they are serving the will of God if they are engaging in evangelical activities, and telling them that this is harmonious and co-extensive with military service.” In a lawsuit filed against the Air Force in the United States District Court for the District of New Mexico, the plaintiffs (all Air Force Academy graduates) alleged that some academy chaplains encouraged cadets “to ‘witness’ to other cadets in an attempt to convert them to evangelical Christianity.” An atheist cadet who sought refuge with the academy’s equal opportunity officer was allegedly discouraged by the equal opportunity officer from filing a complaint and was also told that the officer, as a believer, felt obliged to bring the cadet “back to the flock.” The Air Force’s Deputy Chief of Chaplains was later quoted as stating: “We will not proselytize, but we reserve the right to evangelize the unchurched.”
An investigation into the religious climate at the Air Force Academy led by Air Force Deputy Chief of Staff for Personnel, Lieutenant General Roger A. Brady, concluded that – while there was no overt religious discrimination – there was “a failure to fully accommodate all members’ needs and a lack of awareness over where the line is drawn between permissible and impressible expression of beliefs.” The investigation team found:
Senior faculty and staff members, in efforts that may have been well intentioned, have made public expressions of faith that some faculty, staff and cadets believed to be inappropriately influential or coercive. As a result of this, some military and civilian faculty expressed concern about the impact of religious affiliation on their personal career advancement. Some cadets expressed objections to what they perceived to be mandatory prayers at official functions and in sports locker rooms. Additionally, some faculty members and coaches consider it their duty to profess their faith and discuss this issue in their classrooms in furtherance of developing cadets’ spirituality.
With regard to military chaplains, while commanders may not generally dictate how chaplains conduct their worship services, they may prohibit chaplains from proselytizing service members “outside of church.” In fact, a failure to prevent such activity likely violates the Establishment Clause. In Baz v. Walters, the Court of Appeals for the Seventh Circuit addressed a lawsuit by a Veterans’ Administration (“V.A.”) hospital chaplain whose employment was allegedly terminated in part because he proselytized hospital patients. The chaplain claimed the V.A. had violated his First Amendment rights by limiting and restricting the manner in which he could pray and preach.
Rejecting the chaplain’s arguments, the court found that the V.A. walked a fine line between the Free Exercise rights of its patients and the limits imposed on it by the Establishment Clause, which prohibits favoring one religion over another or no religion at all:
If there were not a [V.A.] chaplaincy program, veterans might have to choose between accepting the medical treatment to which their military service has entitled them and going elsewhere in order to freely exercise their chosen religion. This itself might create a free exercise problem. . . . But, at the same time, the V.A. must ensure that the existence of the chaplaincy does not create establishment clause problems. Unleashing a government-paid chaplain who sees his primary role as proselytizing upon a captive audience of patients could do exactly that. The V.A. has established rules and regulations to ensure that those patients who do not wish to entertain a chaplain’s ministry need not be exposed to it. Far from defining its own institutional theology, the medical and religious staffs . . . are merely attempting to walk a fine constitutional line while safeguarding the health and well-being of the patients.
Military chaplains are similarly situated to V.A. chaplains. Although they are noncombatants and excluded from command, chaplains are officers and, as such, demand a certain degree of respect and deference. Under these circumstances, lower-ranking service members might be reluctant to eschew a chaplain’s efforts to proselytize or evangelize, creating the prospect of mandatory religious indoctrination, the very type of practice the Establishment Clause is intended to prevent. Ultimately, Congress funds a military chaplaincy to ensure the Free Exercise rights of soldiers, regardless of their faith; chaplains are not federally funded missionaries for their respective religions.
When commanders, instructors, or senior officers proselytize or evangelize, Establishment Clause problems are magnified. The military proscribes relationships between officers and enlisted personnel that either “[i]nvolve, or appear to involve, the use of rank or position for personal gain. . . ,” or “[a]re, or appear to be, exploitive or coercive in nature.” Moreover, the Joint Ethics Regulation (“JER”) forbids Department of Defense (“DoD”) personnel from soliciting to persons junior in rank, grade, or position, or from endorsing in their official capacities non-federal entities, events, products, services, or enterprises. These prohibitions protect lower-ranking service members from superiors who might take advantage of their rank or position; without these protections, service members may feel compelled to accommodate the wishes of their senior officers. As evidenced by events at the Air Force Academy, service members may very well perceive that they are required to worship in the appropriate manner as a condition for a successful career. In any event, if a senior Air Force senior officer evangelizes a lower-ranking officer or airman, that officer or airman is quite likely to well believe he or she is obliged to listen, and would thereby be subjected to compulsory religious “indoctrination.”
Although there do not appear to be reported military cases of proselytizing, in the context of cases under Title VII of the Civil Rights Act of 1964, the courts addressing the issue have held that employers or supervisors who proselytize or require prayer on the job violate the Act’s prohibition against religious discrimination. “While both employer and employee have rights to free expression of religious ideas, most courts have found that when those rights conflict, it is the relatively powerless employee who merits protection from the employer using his or her power over the job to force religion on the employee.” The underlying concern is one of potential abuse of power. Although Title VII does not apply to uniformed members of the armed services, the policies behind the prohibition apply with greater force in the military where the hierarchical rank structure and strict demands for obedience and discipline create an environment making service members even more susceptible to undue influence.
The Air Force responded to the perceived religious intolerance at the Air Force Academy by issuing several documents that provided guidance on religion and religious practices. By a message dated August 29, 2005, the Air Force warned that “where senior-subordinate relationships are involved, individuals need to be sensitive to the potential that personal expression may appear to be official expressions . . . , [particularly] when subordinates are present as part of their official duties and obligations.” In this regard, “[t]he more senior the individual, the more likely the personal expressions may be perceived to be official statements.” The message was careful to exclude “peer-to-peer discussions” about religion.
Subsequently issued revised interim guidelines watered down the restrictions on senior-subordinate discussions about religion. In the revised guidelines, the Air Force instructed leaders at every level of their “special responsibility to ensure their words and actions cannot be reasonably construed as either official endorsement or disapproval of the decisions of individuals to hold particular religious beliefs or no religious beliefs.” But while cautioning superior officers to be sensitive about the potential that their personal statements may appear to be official or have an undue influence on their subordinates, the guidelines emphasized that “superiors enjoy the same free exercise rights as all other airmen.” The revised guidance also stated that “voluntary discussions of religion or the exercise of free speech, where it is reasonably clear that the discussions are personal, not official, and they can be reasonably free of the potential for, or appearance of, coercion.”
In September 2006, Congress directed the Air Force to rescind its revised interim guidelines, in part to eliminate references to the delivery of sectarian prayers at official ceremonies and in part to remove the restrictions on proselytizing. Congress’ action was reportedly a compromise measure by which the House of Representatives abandoned proposed statutory language that would have expanded permissible sectarian prayers at official military functions in exchange for the temporary (at least) abrogation of service policies that interfered with both sectarian prayers and with proselytizing by senior officers.
The Air Force’s weakening of its original guidelines governing proselytizing and Congress’ subsequent order to rescind even the diluted guidelines are unfortunate. Commanders are responsible for inculcating in subordinates the value system of their respective military services; however, they are neither charged with prescribing their subordinates’ religious beliefs nor with dictating the church or denomination to which their subordinates ought to belong. If senior officers preach their religious beliefs to subordinates, the subordinates will generally believe they are compelled to listen. Thus, proselytizing by senior officers is a form of forced worship: subordinates are not simply free to walk away. This compulsion is particularly egregious if senior officers use the occasion of official venues (such as staff meetings) to proselytize, because a failure of subordinates to attend and listen courteously could result in punitive measures.
Moreover, limiting discussions about religious beliefs to so-called “unofficial” occasions (as was permitted in the Air Force’s Revised Interim Guidelines) is at best an illusory restriction. In a military society, it is often difficult to discern what is official from what is not. Given the military’s strict hierarchical character and the fact service members are bound by rank distinctions even in social settings, no event is truly unofficial. Even if superior officers assure subordinates they are merely expressing personal religious beliefs, some subordinates may believe they have an obligation to adopt similar beliefs to further or preserve their military careers. At the very least, because virtually all subordinates will almost certainly believe they are required to listen, they become subject to involuntary religious indoctrination.
The Joint Ethics Regulations strictly prohibit solicitations by superiors to subordinates and forbid their endorsement of non-federal entities, in part because these activities have the appearance of coercing subordinates into making purchases or supporting the non-federal entity. The same proscription should apply to discussions about religious beliefs. At the very least, senior officers and noncommissioned officers should be guided by the age-old adage that it is impolite to discuss religion in public.
2. Sectarian Prayers at Official Functions
All service members are expected at times to attend or participate in command-sponsored ceremonial events, such as changes of command; occasionally, the events will include a prayer or invocation. An issue confronting the military services in the past year has been the nature of the prayers appropriate for such occasions. Both the Air Force and the Navy issued guidance delimiting (in the case of the Air Force) the occasions in which a religious element is proper and (in the case of both) the type of prayer that should be delivered.
By its August 2005 message, the Air Force cautioned commanders that public prayers are not usually appropriate in official settings, such as “staff meetings, classes, or officially sanctioned activities such as sports events or practice sessions.” The message acknowledged that, “consistent with long-standing military tradition, a brief nonsectarian prayer may be included in non-routine military ceremonies or events of special importance, such as change of command ceremonies, promotion ceremonies or significant celebrations, where the purpose of the prayer is to add a heightened sense of seriousness or solemnity, not to advance specific religious beliefs.” The message seemingly encouraged “moments of silence for personal reflection” in lieu of prayer because they do not require the “same considerations as public prayer . . . .”
The Air Force’s February 2006 revised interim guidelines indicated that public prayer should not be “a part of routine official business. . . .” They recognized the appropriateness of prayer at “military ceremonies or events of special importance” provided the prayer is “non-denominational” and “inclusive” and “its primary purpose is not the advancement of religious beliefs.”
Also in February 2006, the Secretary of the Navy promulgated an instruction that dealt, in part, with prayer at official ceremonies. The instruction advised commanders that “religious elements for a command function, absent extraordinary circumstances, should be non-sectarian in nature.” If because of faith constraints, chaplains could not participate in such nonsectarian prayers, commanders could excuse them from doing so without adverse consequences.
Although neither the Air Force’s guidelines nor the Navy’s instruction circumscribed the content of a chaplain’s worship services and dealt only with command-sponsored public events, the prayer restrictions at these ceremonies brought a sharp reaction from some religious groups and members of Congress. In particular, these groups and members of Congress were concerned that by dictating that the prayers be nonsectarian, Christian chaplains would not be permitted to pray “in the name of Jesus.” The guidance prompted one Navy chaplain, Gordon James Klingenschmitt, to endure an 18-day hunger strike, and Congressman Walter B. Jones of North Carolina asserted that the demand for “‘no-sectarian’ [sic] prayers is merely a euphemism declaring that prayers will be acceptable only so long as they censor Christian beliefs.” On October 25, 2006, Chaplain Klingenschmitt sued the Navy, challenging, inter alia, restrictions on his “right” to give sectarian prayers at public ceremonies.
Included in the House of Representatives version of the Fiscal Year 2007 DoD Authorization Act was a provision amending statutes governing military chaplains that ensured chaplains “the prerogative to pray according to the dictates of the Chaplain’s conscience, except as must be limited by military necessity, with any such limitation being imposed in the least restrictive manner feasible.” As noted above, while Congress ultimately did not adopt the House provision, it did, through the House and Senate Conference Report, direct that the Air Force and Navy rescind their regulations delimiting the occasions for prayer at official ceremonies and restricting the nature of the prayers delivered.
The demands that chaplains be permitted to offer faith-based prayers at command-sponsored public ceremonies and the proposed legislation attempting to secure that “right” are ill-advised and constitutionally problematic.
The federal courts have sustained government references to God, the government’s use of religious symbols, and even prayers in government-sponsored public settings where the practices are “uniquely suited to serve wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases.” Embodied by the term “cultural deism,” the courts uphold these practices because they “do not convey a message of endorsement of particular religious beliefs.” In other words, such practices are justified, in large part, as either “popular religious references which, by virtue of repetition and acceptance by the masses, have lost their true religious character” or are used by government for secular purposes.
A principle proponent of ceremonial deism, former Justice Sandra Day O’Connor, identified the indicia of acceptable government references to or use of religious symbols or prayer, all of which have a common theme: the “shared understanding” of the practices’ “legitimate nonreligious purposes.” Among the factors deemed important in determining whether the incorporation of religious references into governmental activities is permissible is the absence of worship or prayer, except where the prayer is defensible as ceremonial deism; the absence of a reference to a particular religion; and the relatively minimal nature of the religious content.
The only case in which the Supreme Court has upheld government-sponsored prayer was Marsh v. Chambers, in which the Court upheld the tradition of opening the Nebraska state legislature with a prayer because of the nation’s “unambiguous and unbroken history . . . of opening legislative sessions with prayer[s,] . . .” including the First Congress, which approved the First Amendment. Importantly, the Court took pains to note that the prayer delivered to the Nebraska legislature was nonsectarian, and that the legislature’s chaplain “removed all references to Christ after a 1980 complaint from a Jewish legislator.” The Court also explained that the content of the chaplain’s prayers were not of concern to judges where “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith.”
Later, in County of Allegheny v. American Civil Liberties Union, the Supreme Court described the limited nature of the religious activity permitted in Marsh, stating:
Indeed, in Marsh itself, the Court recognized that not even “the unique history” of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with one specific faith or belief. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had “removed all references to Christ.”
In Hinrichs v. Bosma, the Court of Appeals for the Seventh Circuit recently had the occasion to apply Marsh in the context of sectarian prayers delivered at the beginning of sessions of the Indiana House of Representatives. Most invocations were given by Christian clergy, and the majority of those included supplications to Christ. The court refused to stay a preliminary injunction issued by the district court enjoining the prayers, ruling that Marsh likely prohibited the practice of sectarian legislative prayers. Other federal courts addressing the issue have similarly held that such sectarian prayers violate the Establishment Clause.
Inclusion of sectarian prayers in military ceremonies would suffer from a similar constitutional infirmity. Indeed, because military units generally require their personnel to attend or participate in these events, the Establishment Clause problem is magnified. Unlike legislators, service members may not simply get up and leave if they are offended by the prayers, particularly if they are participants; such behavior could result in disciplinary action. By incorporating sectarian prayers into official functions, the armed services, in essence, employ the full legal authority of the government to compel observance of religious worship by its personnel and thereby violate the First Amendment’s Establishment Clause.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Importantly, the Supreme Court has recognized that the constitutional prohibition against denominational preferences “is inextricably connected with the continuing vitality of the Free Exercise Clause. . . [,]” because [f]ree exercise . . . can be guaranteed only when legislators – and voters – are required to accord to their own religions the very same treatment given to small, new, or potentially unpopular denominations.” While a governmental preference for a particular religious denomination or sect is not per se unconstitutional, it is subject to strict scrutiny; that is, the preference must be justified by a compelling governmental interest and it must be closely tailored to further that interest.
This paper discusses denominational discrimination among military chaplains in the three contexts: (1) the obligation of the armed forces to appoint chaplains from “non-mainstream” and possibly unpopular sects as the religious preferences of military personnel change; (2) favoritism by the armed forces for particular denominations; and (3) the military’s refusal to recognize ecclesiastical endorsing agencies or its punishment of their chaplains based upon religious views inimical to good order and discipline.
2. Nontraditional Denominations
DoD adds chaplains from new denominations when the military services “recognize the need based on their lay constituencies.” Thus, the armed forces will appoint chaplains from religions or sects not previously represented when the number of adherents to the particular faith reach a certain critical mass within the services. The prohibition against denominational preferences means that the armed forces must accommodate all religious groups when the number of lay constituents indicate a need for a chaplain.
A fortiori, to support the free exercise rights of all military personnel, the armed forces may eventually have to recruit chaplains from nontraditional and possibly unpopular religious groups or sects, such as neo-pagan denominations like the Church of Wicca. Once chaplains receive a commission, service regulations seemingly and appropriately treat them alike for purposes of professional career development. Indeed, the Establishment Clause demands nothing less.
The presence of military chaplains from non-traditional denominations will almost certainly present novel challenges, particularly when they are charged with primary responsibility for accommodating the religious needs of all members of their units, particularly in deployed environments. For example, the Army locates its chaplains at every level of command above battalion. Together with their assistants, chaplains form Unit Ministry Teams (“UMTs”) that deploy with their units, providing religious support for all personnel in their commander’s area of responsibility during each stage of the deployment. Religious support during operations is comprised of at least one UMT, which “facilitates and coordinates religious support across the battlespace.” The other services have similar organizational schemes, which are consistent with doctrine governing operations in a joint environment.
Thus, the armed services must be prepared for unit ministry teams led by chaplains representing non-mainstream religions, who alone may be available to minister to troops, particularly during contingency operations. While the military has yet directly to confront the issue, evidence exists of some official intolerance towards these religious sects. Yet, accommodation of all religious denominations is the ultimate price of a military chaplaincy based upon the free exercise rights of service members.
3. Denominational Preferences
Given the still relatively small numbers of service members belonging to non-mainstream denominations, the imminent likelihood of accessing chaplains from such churches is currently remote. Of more immediate concern is the issue of religious preferences involving traditional denominations, an alleged problem that has plagued the Navy for the past several years. The most prominent cases are Adair v. England and Chaplaincy of the Full Gospel Churches v. England, in which the plaintiffs allege the Navy has established and maintained an unconstitutional religious quota system in violation of the First Amendment’s Establishment Clause. The plaintiffs assert the Navy favors Catholics and liturgical Protestants by giving them preferences in accessions, assignments, promotions, and retentions, and that their representation in the Chaplains Corps (notably at its higher echelons) well exceeds the percentage of Naval personnel within their faith groups. For example, the plaintiffs aver that the Navy promotes and retains Catholic and liturgical Protestant chaplains at a disproportionately high rate giving these groups control over the Navy chaplaincy. The plaintiffs’ also assert violations of the Free Exercise Clause through such means as restrictions on non-liturgical worship.
The cases have been consolidated for pre-trial proceedings in the United States District Court for the District of Columbia. Since then, the cases have had a long and “tortuous” procedural history.
Although the Adair and Chaplaincy of the Full Gospel Churches cases do not appear to be near resolution, the district court determined early in the litigation that, with respect to the claim that the Navy’s discriminates against non-liturgical Protestants in violation of the Establishment Clause, if the plaintiffs can show the challenged Navy policies “‘suggest . . . a denominational preference’” for Catholics and Liturgical Protestants, the Navy’s polices are subject to strict judicial scrutiny. Moreover, the court ruled that the plaintiffs’ allegations that the Navy violated their Free Exercise rights (e.g., the asserted refusal of the Navy to permit non-liturgical religious services) are also subject to strict scrutiny.
Whether the plaintiffs can ultimately establish denominational preferences is yet to be seen; however, if they do, the Navy will be hard pressed to establish a compelling reason for favoring some denominations over others, particularly where the favored denominations are overrepresented as compared to the religious population of the Navy. Once accessed, military chaplains should be treated alike with respect to their career development, and the statutes and regulations governing chaplains do not generally differentiate among their religious denominations. While the Adair and Chaplaincy of the Full Gospel Churches cases do not necessarily jeopardize the underlying existence of the military chaplaincy because they do not implicate the underlying foundations of Katcoff, they may well force the Navy to change its chaplain accession, assignment, promotion, and retention policies.
4. Viewpoint-Based Discrimination
Since September 11, 2001, Muslim organizations that endorse military chaplains have come under suspicion because of their assertedly radical ideology. Exacerbating this mistrust was the apprehension of an Army Muslim chaplain, James Yee, for espionage, and the arrest and conviction of Abdurahman Alamoudi, “a key architect of the U.S. military’s chaplain program,” on terrorism-financing charges. As a result, some in Congress and the Administration have advocated chaplaincy-selection procedures that would disqualify some Muslim endorsing agencies.
Targeted for congressional and administrative scrutiny are two Muslim organizations upon which the military relies to certify Islamic chaplains: the Graduate School of Islamic and Social Science and the American Muslim Armed Forces and Veterans Affairs Council, because the organizations allegedly tolerate Wahhabism, a radical form of Islam, and because of their suspected ties to terrorist groups. Decertifying these organizations strictly because of their religious views in favor of more “mainstream” Islamic groups seemingly constitutes sect-based discrimination violating the Establishment Clause; however, the military services must also be capable of maintaining good order and discipline in their ranks and removing activities inimical to the achievement of their missions.
To receive recognition as an ecclesiastical endorsing agency, a religious organization must verify that it will provide chaplains “who shall function in a pluralistic environment, . . . and who shall support directly and indirectly the free exercise of religion by all members of the Military Services, their family members, and other persons authorized to be served by the military chaplaincies.” In addition, the agency must be “organized as an entity functioning primarily to perform religious ministries to a non-military lay constituency and currently hold a Section 501(c)(3) exempt status . . . as a church for Federal tax purposes from the Internal Revenue Service (IRS).” Section 503(c)(3) exempts from federal taxation religious organizations (among others).
Responding to congressional concerns about the commissioning of chaplains endorsed by radical religious groups that are either intolerant of other denominations or that support terrorist causes, the DoD Inspector General recommended that DoD implement procedures to disqualify religious organizations and their endorsing agents for cause to “reassure the public and Congress that DoD is safeguarding the military against [religious organizations] and endorsing agents guilty of violating U.S. laws.” Specifically, the Inspector General urged the use of non-religious criteria to justify the withdrawal of recognition of ecclesiastical endorsing agencies based on such grounds as advocating the violent overthrow of the government, designation as a terrorist organization, and conviction of criminal activity.
DoD objected to the Inspector General’s recommendations on grounds they were “legally problematic,” stating that a military chaplain “‘ordinarily receives sufficient scrutiny for selection, appointment, and merit-based retention – all centering on individual merit . . . . [T]he Treasury’s Internal Revenue Service should remain the focal point for institutional merit.’” DoD argued that the dual requirements of tax-exempt status and providing chaplains who can operate in a pluralistic environment should allay concerns about the possible accession of chaplains from groups espousing intolerant views or supporting terrorist causes.
In November 2003, Congress amended section 503 of the Internal Revenue Code by empowering the IRS to suspend the tax exempt status of religious (and other) groups designated as terrorist organizations or identified supporters of terrorist organizations. The provision permits suspension of tax-exempt status without an opportunity for a prior challenge.
By relying upon the requirements of religious tolerance to promote the free exercise of religion and tax exempt status under the Internal Revenue Code, DoD has adopted facially neutral non-denominational grounds to qualify or disqualify ecclesiastical groups, thereby avoiding an inquiry into the belief system of each ecclesiastical endorsing agency. At the same time, ecclesiastical agencies who are unable to provide chaplains who can function in a religiously pluralistic environment or who cannot qualify for Section 503(c)(3) status because of their support for terrorist organizations may not endorse military chaplains. These conditions for certification as endorsing agencies serve the military interest in fielding a chaplaincy that promotes the free exercise rights of all service members while avoiding the reliance on ecclesiastical agencies that promote or support terrorism.
What if, however, a chaplain preaches deeply held religious beliefs of intolerance of other religions or advocates unlawful activities, such as terrorism? And what if the chaplain confines the expressions of these beliefs to worship services for members of his or her denomination? These questions implicate the Establishment Clause (to the extent they result in discrimination against a particular religious sect that holds such views) and the Free Exercise and Free Speech Clauses (to the extent the government attempts to limit the contents of a chaplain’s speech).
Ultimately, chaplains are commissioned officers whose appointments are “based as much on . . . officership qualities as on their ministerial credentialing.” In addition to receiving the endorsement of a DoD-recognized ecclesiastical organization, chaplains must also satisfy all of the criteria for commissioning in the armed forces. With some exceptions, a military chaplain is like any other commissioned officer and subject to the same laws and regulations that govern their conduct, including the oath of office.
At least one court, however, has given chaplains a degree of “limited immunity” from Defense Department policies with regard to the manner in which they conduct worship services. In Rigdon v. Perry, the District Court for the District of Columbia ruled that military chaplains were not subject in the conduct of their worship services to a DoD directive forbidding service members from using their “‘official authority or influence for soliciting votes on a particular issue” The case involved two Air Force chaplains – one Catholic and the other an Orthodox Jew – who wished to urge their military congregants to write their congressmen to support pending legislation banning partial-birth abortion.
The court deemed the DoD directive inapposite, in part because chaplains “cannot give orders and have no official authority to misuse.” Moreover, the court distinguished chaplains’ official conduct from their worship activities, stating that “when chaplains are conducting worship, when they are surrounded by all the accouterments of religion, they are acting in their religious capacity, not as representatives of the military or . . . ‘under the color of military authority.’” In other words, when chaplains preach, their status as commissioned officers is no longer relevant: a chaplain’s congregants understand that the chaplain’s message is his or her own (even if divinely inspired) and not that of the command, the military department, or DoD.
The court held in Rigdon, that, if the DoD directive were applicable to the plaintiffs, it would violate both the Religious Freedom Restoration Act and the First Amendment’s Free Speech Clause.
Rigdon notwithstanding, some chaplain speech – even when delivered from the pulpit or based upon the sincerely held tenets of the chaplain’s religious group or denomination – is subject to military oversight and sanction. The armed forces have a compelling interest in maintaining good order and discipline in their ranks, and although a chaplain’s religious discourse may be grounded in denomination-specific religious beliefs and delivered in the context of a worship service, the government has the indisputable obligation to control the speech if it undermines good order and military discipline.
Thus, for example, the armed forces may court-martial a chaplain who publicly maligns the senior leadership of the military (e.g., the President, Vice President, Secretary of Defense). In addition, a range of disciplinary actions awaits a chaplain who preaches intolerance of other religious groups or advocates hate based upon race, gender, or ethnicity. And the military may punish chaplains who, even when surrounded by the accouterments of their religious denominations, counsel service members to disobey orders or to desert or to take other actions inconsistent with the dictates of the command.
The Supreme Court has consistently recognized the power of the armed forces to circumscribe the speech of service members (as well as others on military installations) where such restrictions would be inconsistent with the First Amendment outside of the military. The quintessential example is Parker v. Levy, in which an Army officer, Captain Howard Levy, challenged his court-martial conviction for “conduct unbecoming an officer and a gentleman” and for “conduct prejudicial to good order and discipline in the armed forces” based, inter alia, on his public statements encouraging African-American soldiers to refuse service in Vietnam and calling Special Forces personnel (whom he was assigned to train) “liars and thieves and killers of peasants and murderers of women and children.”
In refusing to find that the provisions of the military criminal code for which Levy was convicted violated the First Amendment, the Court held that the demands of military service and the military mission dictated a different construction of the First Amendment rights of service members:
While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.
Thus, the First Amendment rights of service members “must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our Country.” In other words, the government’s interest becomes compelling when service members’ speech adversely affects discipline, morale, esprit de corps, and civilian supremacy. The courts have never wavered from this view.
In the context of speech that adversely affects military discipline, the fact that a chaplain preaches as a minister of a faith and not as a representative of the defense establishment or that his or her congregants recognize the unofficial character of the speech is irrelevant. What matters is that the chaplain is a commissioned officer in the armed forces of the United States. Captain Levy was certainly not espousing official DoD policy, yet his speech was deemed to have a deleterious impact on good order and discipline. The Defense Department recognizes that service members’ advocacy of extremist views can impair the effectiveness of a command, and the fact that the advocacy comes from the pulpit rather than the barracks or the officers’ club or that it is based on religious belief rather than political conviction does not make the message any less damaging.
Preaching intolerance of other service members based upon their race, ethnicity, gender, or religion polarizes a military command, tearing at the fabric of unit cohesion, which is essential for success in battle. Likewise, instigating dissension or advocating violence in connection with worship threatens the instinctive obedience to orders that all service members must display. Therefore, while the military is limited in its power to control worship services, it does have the authority to sanction even religiously based speech that threatens the good order and discipline vital for an effective fighting force and essential for the nation’s defense.
Part of the national landscape since before the Declaration of Independence, the military chaplaincy’s constitutional footing was not judicially sustained until the 1986 landmark case of Katcoff v. Marsh. Congressional appropriations for clergy and churches would unquestionably violate the First Amendment’s Establishment Clause in most other settings; however, because service members depend upon the government to provide for their spiritual needs, the funding of chaplains and chapels in the context of the armed forces is constitutionally sound. Deployed to remote – and often hostile – locations throughout the world, U.S. military personnel rely upon the chaplaincy to accommodate the exercise of their religious beliefs. Nothing has occurred in the 21 years since Katcoff was decided that calls the case into doubt. Indeed, in light of contemporary Establishment Clause jurisprudence and the changing character of the military itself, the decision remains on a firm constitutional foundation.
While Katcoff answered the fundamental question of whether a congressionally funded military chaplaincy is compatible with the Establishment Clause, the case neither resolved all of the Establishment Clause issues implicated by the chaplaincy nor did it remove the chaplaincy and the manner in which the armed forces govern it from constitutional oversight. The decision itself expressly left open the relatively minor issue of the efficacy of the military chaplaincy in major urban areas, and it did not address other potentially more troublesome Establishment Clause questions, such as employing command authority to compel religious observance and using the instruments of control over accessions, assignments, promotions, and retention to discriminate among religious denominations. Ultimately, the price of maintaining a military chaplaincy is strict and abiding adherence to the dictates of the Establishment Clause; specifically
● Military officials must fully accommodate the rights of service members to believe or not to believe in any particular religious doctrine (or even a Deity).
● Military officials must ensure that service members are neither punished for their beliefs nor subjected to unwanted proselytizing or evangelizing from military chaplains or senior officers and noncommissioned officers, even if the proselytizing or evangelizing is intended as a good-faith effort to salvage the spiritual health of the service members.
● Military officials may not subject members of the armed forces to involuntary worship or prayers, particularly when the full power of the government backed by punitive action under the UCMJ is employed to command their presence and participation.
● Except when good order and military discipline are threatened, military officials may not discriminate against any particular religious sect or denomination, especially based upon the belief system of the sect or denomination.
While confirming the constitutional foundation for the existence of the military chaplaincy, the Katcoff decision neither immunized the armed forces from Establishment Clause scrutiny nor did it give the military leadership a blank check to administer the chaplaincy or religious practices in the armed forces without regard to the Establishment Clause. Military officials must always endeavor to ensure that they do not squander public and judicial support for the chaplaincy program by ignoring the constitutional boundaries governing the program’s administration and operations.
 James Madison’s “Detached Memoranda,” published in 3 Wm. & Mary Q. 535, 539 (1946).
 Katcoff v. Marsh, 755 F.2d 223, 237 (2nd Cir. 1985).
Katcoff v. Marsh, 582 F. Supp. 463, 464 (E.D.N.Y. 1984), aff’d in part, 755 F.2d 223 (2nd Cir. 1985). The Establishment Clause commands that
“Congress shall make no law respecting the establishment of religion.”
 The basic statutory authority for the Army chaplaincy is 10 U.S.C. § 3037. The other services similarly have statutory authority for their chaplaincies. See 10 U.S.C. §§ 5142 (Navy), 8067(h) (Air Force).
v. Board of Educ., 330
 See infra notes 12-16, and accompanying text.
 The First Amendment’s Free Exercise Clause states that Congress make no law “prohibiting the free exercise” of religion. U.S. Const. amend I.
 582 F. Supp. 463, 464 (E.D.N.Y. 1984), aff’d in part, 755 F.2d 223 (2nd Cir. 1985).
Before the Supreme
Court carved out the taxpayer-standing doctrine in Flast, the Court of Appeals for the
The Supreme Court
has refused to broaden the scope of taxpayer standing beyond challenges to the
exercise of Congress’ taxing and spending power. See,
 Katcoff, 755 F.2d at 235.
 See, e.g., Larson v. Valente, 456 U.S. 228 (1982) (state regulation of charitable organizations exempting those religious groups receiving more than 50% of their support from members or affiliated groups held to constitute denominational discrimination); Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994) (establishment of school district for single religious sect held to constitute denominational discrimination); see also John E. Nowak & Ronald D. Rotunda, Constitutional Law 1414 (7th ed. 2000).
 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Amos, 483
 Lemon, 403
 Katcoff v. Marsh, 755 F.2d 223, 232 (2nd Cir. 1985).
 Katcoff, 755 F.2d at 235.
 See, e.g., Orloff v.
 Katcoff, 755 F.2d at 234:
[C]aution dictates that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.
There are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment. Provisions for churches and chaplains at military establishments for those in the armed services may afford one such example.
Id .at 296 (Brennan, J., concurring) (footnotes omitted). Similarly, Justice Goldberg stated in a concurring opinion:
Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances the First Amendment may require that it do so. And it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains . . . .
A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some far-away outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. . . .
 Katcoff, 755 F.2d at 235.
 Telephone conversation with Major General (retired) Michael J. Nardotti (Oct. 3, 2006). Then-Major Nardotti was one of the Army’s lead litigators in the case.
 See, e.g., Julie B. Kaplan, Military Mirrors on the Wall: Nonestablishment and the Military Chaplaincy, 95 Yale L.J. 1210 (1986).
 See supra note 16, and accompanying text.
 Compare Van Orden v. Perry, 125 S. Ct. 2854 (2005) (ignoring Lemon test in upholding display of Ten Commandments on Texas State Capitol grounds), with McCreary County v. American Civil Liberties Union, 125 S. Ct. 2722 (2005) (applying Lemon test in declaring unconstitutional a county’s effort to post the Ten Commandments in county buildings). See also Chemerinsky, supra note 13, at 1202; David M. Ackerman & Kimberly D. Jones, The Law of Church & State in the Supreme Court Revisited 18 (2006); Jessica Gavrich, Comment, Van Orden v. Perry, 58 Fla. L. Rev. 437, 444 (2006); Marcia S. Alembik, Note, The Future of the Lemon Test: A Sweeter Alternative for Establishment Clause Analysis, 40 Ga. L. Rev. 1171, 1174 (2006).
 See, e.g., Lamb’s Chapel v. Center Moriches Free School Dist., 508 U.S. 384, 399 (1993) (Scalia, J., concurring), describing the Lemon test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried . . . .”
 See id. at 399, citing Lynch v. Donnelly, 465
 Herrmann, supra note 9, at 24-25.
 Act of March 3, 1791, ch. XXVIII, § 5, 1 Stat. 222.
 Katcoff v. Marsh, 582 F. Supp. 463, 472-473 (E.D.N.Y. 1984), aff’d in part, 755 F.2d 223 (2nd Cir. 1985).
 See generally William T. Cavanaugh, Note, The United States Military Chaplaincy Program: Another Seam in the Fabric of Our Society?, 59 Notre Dame L. Rev. 181, 216-218 (1983) (indicating that Marsh’s historical approach might apply to the military chaplaincy, but also distinguishing the two cases).
 Matthew Gaus, Locke v. Davey: Discretion, Discrimination, and the New Free Exercise, 54 U. Kan. L. Rev. 553, 559 (2006); see also Carolyn A. Deverich, Establishment Clause Jurisprudence and the Free Exercise Dilemma: Structural Unitary-Accommodationist Argument for the Constitutionality of God in the Public Square, 2006 B.Y.U. L. Rev. 211, 225-226; Ackerman & Jones, supra note 41, at 4 (“a substantial portion of the Court’s establishment clause decisions since 1980 can be described as accommodationist in both their reasoning and their results”).
Professor Chemerinsky identifies “three competing
approaches” to the Establishment Clause: (1) “Strict separation,” which
dictates that “to the greatest extent possible government and religion should
be separated . . . [,]” Chemerinsky, supra note 13, at 1192; (2) “Neutrality,” under which “the
government cannot favor religion over secularism or one religion over another .
. . [,]” id. at 1193; and (3) “Accommodation,” by which
“the Court should interpret the establishment clause to recognize the
importance of religion in society and accommodate its presence in government.”
 Christopher B. Harwood, Evaluating the Supreme Court’s Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 Mo. L. Rev. 317, 323 (2006); see also Deverich, supra note 52, at 240.
 Chemerinsky, supra note 13, at 1196.
 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding tuition vouchers used for attendance at parochial schools); Mitchell v. Helms, 530 U.S. 793 (2000) (upholding government provision of instructional equipment to parochial schools, while overruling earlier decisions deeming such support unconstitutional); Agnostini v. Felton, 521 U.S. 203 (1997) (upholding government aid for remedial services to students at both religious and non-religious schools); Mueller v. Allen, 463 U.S. 388 (1983) (upholding state law permitting taxpayers to deduct certain educational expenses, including those expenses incurred at parochial schools); see generally Nowak & Rotunda, supra note 11, at 1430.
 Katcoff v. Marsh, 755 F.2d 223, 234-236 (2nd Cir. 1985); see also U.S. Dep’t of Defense, Dir. 1304.19, Appointment of Chaplains for the Military Departments ¶ 4.1 (June 11, 2004) (“It is DoD policy that the Chaplaincies of the Military Departments . . . [a]re established to advise and assist commanders in the discharge of their responsibilities to provide for the free exercise of religion in the context of military service as guaranteed by the Constitution . . . .”) [hereinafter “DoD Dir. 1304.19”]; U.S. Dep’t of Army, Reg. 165-1, Chaplain Activities in the United States Army ¶ 1-4c (Mar. 25, 2004) (“In striking a balance between the ‘establishment’ and ‘free exercise’ clauses, the Army chaplaincy, in providing religious services and ministries to the command, is an instrument of the U.S. Government to ensure that soldier’s religious ‘free exercise’ rights are protected.”) [hereinafter “AR 165-1”].
The assurance of
soldiers’ free exercise of religion was not always an important component of
the military chaplaincy. Early chaplains
were almost entirely Protestant, and “[r]ecognition of the rights of all
American soldiers . . . to their own chaplains was slow in coming.” Herrmann, supra
note 9, at 26. For example, the Army did
not immediately provide for Roman Catholic chaplains.
 Steven Goldberg, Cutter and the Preferred Position of the Free Exercise Clause, 14 Wm. & Mary Bill Rts. J. 1403, 1416 (2006).
 Laurence H. Tribe, Constitutional Law 1201 (2nd ed. 1988): “[T]he free exercise principle should be dominant when it conflicts with the anti-establishment principle. Such dominance is the natural result of tolerating religion as broadly as possible rather than thwarting at all cost even the faintest appearance of establishment.”
 Pub. L. No. 106-274, 114 Stat. 804 (codified at 42 U.S.C. § 2000cc-1(a)(1)-(2)).
applied to both the states and the federal government; however, the Court in City of Boerne v. Flores, 521 U.S. 507
(1997), held that application of the statute to the states exceeded Congress’
authority under section 5 of the 14th Amendment. A much more narrow statute, RLUIPA
constitutes an exercise of Congress’ spending and commerce powers.
 Cutter, 544
 Goldberg, supra note 57, at 1415.
 Cutter, 544 U.S. at 722; see also McCreary County v. American Civil Liberties Union, 125 S. Ct. 2722, 2742 (2005) (citing Cutter’s endorsement of the military chaplaincy as an example of government support of religious institutions to ensure the free exercise of religion).
 Goldberg, supra note 57, at 1411.
 See Kurt Volker, Deputy Asst. Secretary of State for European and Eurasian Affairs, Remarks at Howard University Model NATO Conference, Washington, D.C. (Feb. 23, 2006) (describing Cold War-era NATO as “static collective defense alliance – that never engaged in a single military operation . . . .”), available at: http://www.state.gov/p/eur/rls/rm/2006/62073.htm; Jaap de Hoop Scheffer, NATO Secretary General, Speech at Norwegian Atlantic Committee, Oslo, Norway (Mar. 3, 2006) (noting “the relatively static security environment of the Cold War . . . .”), available at: http://www.nato.int/docu/speech/2006/s060303a.htm.
 See Alan G. Stolberg, The International System in the 21st Century, in U.S. Army War College, Guide to National Security Policy and Strategy 3, 5-6 (2nd ed. 2006) (describing increased danger from failed states, rogue states, and transnational threats since the end of the Cold War); see also U.S. Dep’t of Army, Field Manual 1, The Army ¶ 2-5 (June 14, 2005) [hereinafter “FM 1”].
 FM 1, supra note 71, ¶ 4-1; U.S. Dep’t of Defense, Quadrennial Defense Review Report 9 (Feb. 6, 2006) (stating that the United States has been continuously at war since 2001), available at: http://www.comw.org/qdr/qdr2006.pdf; U.S. Dep’t of Army, Pam. 100-1, Force XXI Institutional Army Redesign ¶ 2-4 (Mar. 5, 1998) (noting increase in Army missions since the end of the Cold War).
 See Kenneth Lasson, Religious Liberty in the Military: The First Amendment Under “Friendly Fire,” 9 J.L. & Religion 471 (1992)
(describing the antipathy some nations in the
 Katcoff v. Marsh, 755 F.2d 223, 237-238 (2nd Cir. 1986).
For example, through the Base Realignment and Closure (BRAC) process, major
Army installations in or near
 See supra notes 52-55, and accompanying text.
 Katcoff, 755 F.2d at 238-239 (Meskill, J., dissenting in part).
 See, e.g., U.S. Dep’t of Army, Reg. 10-5, Headquarters, Dep’t of the Army ¶ 2-36 (Nov. 30, 2002) (delineating the administrative duties of the Chief of Chaplains office on the Army Staff); U.S. Dep’t of Army, General Order No. 3, Assignment of Functions and Responsibilities Within Headquarters, Department of the Army, ¶ 31 (July 9, 2002) (outlining the headquarters duties of the Chief of Chaplains and his staff).
Lee v. Weisman, 505
v. Board of Educ., 330
 Lee, 505
The government may not, of course, condition entry into the armed forces on
religious belief or any particular religious belief.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
 Major Michael J. Benjamin, Justice, Justice Shall You Pursue: Legal Analysis of Religion Issues in the Army, Army Law., Nov. 1998, at 1, 4; see generally Scott C. Idleman, Religious Premises, Legislative Judgments, and the Establishment Clause, 12 Cornell J.L. & Pub. Pol’y 1, 49 (2002) (“the government may not compel participation in religious programs, much less compel religious profession or observance outright, and it may not impose legal penalties upon persons because they claim adherence to a particular religion or to no religion at all”) (footnotes omitted).
 466 F.2d 283 (D.C. Cir. 1972).
These regulations must be examined through the overlay of their importance in properly effectuating the constitutionally recognized power of the armed services to train the necessary personnel to adequately defend this Nation. It is my view that no violation of the First Amendment results from the conflict between such power, as reflected in the academies curricular requirement to attend chapel services for one hour each week and the necessity of observing religious practices to the moral development of our future military leaders.
F.3d 355 (4th Cir. 2003), cert.
 Since 1962 the Supreme Court has ruled in a variety of settings that prayers in public schools violate the Establishment Clause; see, e.g., Engle v. Vitale, 370 U.S. 421 (1962) (daily recitation of prayer in public schools unconstitutional); Abington School Dist. v. Schempp, 374 U.S. 203, 296 (1963) (beginning school day with Bible reading or prayer unconstitutional); Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence unconstitutional); Lee v. Weisman, 505 U.S. 577 (1992) (nonsectarian prayer at graduation ceremony unconstitutional); Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290 (2000) (student-body approved invocation at football games unconstitutional); however, the Court has the yet to address the issue of whether the Establishment Clause prohibits state-sponsored prayer at a public college or university. Mellen, 327 F.3d at 366.
Chaudhui v. State of
 Mellen, 327 F.3d at 371.
The court noted that “[t]o accomplish its mission, VMI utilizes an adversative
method of training, modeled on an English education philosophy and once
characteristic of military instruction.
The adversative method features physical rigor, mental stress, equality
of treatment, little privacy, minute regulation of personal behavior, and
inculcation of certain values.”
 The failure of military personnel to heed such orders arguably violates the Uniform Code of Military Justice (“UCMJ”). See UCMJ art. 90(2), 10 U.S.C. § 890(2) (disobeying a lawful command of a superior commissioned officer); id. art. 91(2), 10 U.S.C. § 891(2) (disobeying the lawful order of a warrant officer, noncommissioned officer, or petty officer); id. art. 92, 10 U.S.C. § 892 (disobeying a lawful general order or regulation).
 See, e.g., Van Orden v. Perry, 125 S. Ct. 2854, 2865 (2005) (Thomas, J., concurring) (noting that the Establishment Clause prohibits “‘actual legal coercion’”) (citation omitted); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty”) (emphasis in the original).
 AR 165-1, supra note 56, ¶ 3-2a.
 U.S. Dep’t of Navy, Sec’y of Navy, Instr.
1730.7B, Religious Ministry Support Within the Department of the Navy ¶
4.a. (Oct. 12, 2000) (“Navy chaplains . . . provide for the free exercise of
religion for all military members of the Department of the Navy . . . .”)
[hereinafter “SECNAV Instr.
Both the Air Force and Navy had issued stronger policy guidelines regarding the voluntariness of religious worship. See, e.g., Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force (Feb. 9, 2006), available at: http://www.af.mil/shared/media/document/AFD-060209-003.pdf [hereinafter “Revised Interim Guidelines”] (“We will remain officially neutral regarding religious beliefs, neither officially endorsing or disapproving any faith belief or absence of such belief”); U.S. Dep’t of Navy, Sec’y of Navy Instr. 1730.7C, Religious Ministry Within the Department of the Navy ¶5.d.(3) (Feb. 21, 2006) [hereinafter “SECNAV Instr. 1730.7C”] (“In providing religious ministry, chaplains shall strive to avoid the establishment of religion to ensure that free exercise rights are protected for all authorized personnel”). As part of the Conference Report accompanying the Department of Defense Authorization Act for 2007, Congress directed that the policies be rescinded. H.R. Rep. No. 109-702, at 739 (2006) (Conf. Rep.); see infra notes 140-142, and accompanying text. The Secretary of the Navy rescinded the SECNAV Instruction 1730.7C on November 21, 2006, and reinstated, inter alia, SECNAV Instruction 1730.7B. See Message, 212124Z Nov. 06, Sec’y of Navy, subject: Religious Ministries in the Department of the Navy, available at: http://cmsauthor.bupers.navy.mil/NR/rdonlyres/7ED64079-58A6-4D90-917E-05944A441928/0/ALN06081.txt.
 See Headquarters, U. S. Air Force, Report of the Headquarters Review Group Concerning Religious Climate at the U.S. Air Force Academy 46 (June 22, 2005), Attachment E: Memorandum from Captain Melinda Morton to Chaplain (Colonel) Michael Whittington, subject: After Action Report: BCT II Chaplain Practicum Training Program in Pastoral Care, with the resources, supervision and selected students of the Yale Divinity School (July 30, 2004), ¶ 5.4, available at: http://www.af.mil/pdf/HQ_Review_Group_Report.pdf#search=%22Headquarters%20Review%20Group%20Concerning%20Religious%20Climate%20at%20the%20U.S.%20Air%20Force%20Academy%22 [hereinafter “Report on Religious Climate”]; see also id. at 52, Attachment H: Report of Americans United for Separation of Church and State on Religious Coercion and Endorsement of Religion at the United States Air Force Academy, Apr. 25, 2005, ¶ 1.
 David Van Biema, Whose God Is Their Co-Pilot?, Time, June 20, 2005, available at: http://www.time.com/time/magazine/article/0,9171,1074105-2,00.html; see also Report on Religious Climate, supra note 104, at 55, Attachment H.
 Van Biema, supra note 105.
Josh White, Intolerance Found at
 Laurie Goodman, Air Force Chaplain Tells of Academy Proselytizing, N.Y. Times, May 12, 2005, available at: http://www.nytimes.com/2005/05/12/education/12academy.html?ex=1273550400&en=a9418a4a5ef29e1e&ei=5088&partner=rssnyt&emc=rss.
Amended Complaint for Violation of Constitutional Rights at 3, Weinstein v.
United States Air Force, No. Civ-05-1064 JP/LAM (D.N.M., filed Oct. 31,
2005). On October 27, 2006, the district
court dismissed the complaint on several grounds, including the absence of standing,
without ever reaching the merits of the case.
 Van Biema, supra note 105.
 Laurie Goodstein, Evangelicals Are Growing Force in the Military Chaplain Corps, N.Y. Times, July 12, 2005, at A1, available at: 2005 WLNR 10878233. The Air Force General Counsel later disavowed the notion that Air Force policy was to proselytize or evangelize the “unchurched.” Alan Cooperman, Air Force Withdraws Paper for Chaplains, Wash. Post., Oct. 11, 2005, at A3, available at: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/10/AR2005101001582.html.
 Report on Religious Climate, supra note 104, at i.
 See infra notes 248-254, and accompanying text.
 782 F.2d 701 (7th Cir. 1986).
 Id. at 709; see also Moeller v. Bradford County, 444 F. Supp. 2d 316 (M.D. Pa. 2006) (order denying defendant’s motion dismiss) (prison inmates state cause of action for violation of Establishment Clause where county contracted for vocational rehabilitation services from firm that proselytized Christianity); Benjamin, supra note 85, at 17.
 Joint Chiefs of Staff, Joint Pub. 1-05, Religious Support in Joint Operations ¶ 1.b., at II-1 (June 9, 2004) [hereinafter “JP 1-05”]; AR 165-1, supra note 56, ¶ 4-3c; SECNAV Instr. 1730.7B, supra note 103, ¶ 4.a.; U.S. Dep’t of Air Force, Instr. 52-101, Chaplain: Planning & Organizing ¶¶ 2.1.3 to 2.1.5 (May 10, 2005) [hereinafter “AFI 52-101”]; see also Geneva Convention Relative to the Treatment of Prisoners of War art. 33, August 12, 1949, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135 (captured chaplains not considered prisoners of war); Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of International Conflicts art. 43(2), June 8, 1977, 1125 U.N.T.S. 3 (indicating that chaplains are not combatants).
 10 U.S.C. § 3581: “A chaplain has rank without command.”
 Message, 29 Aug. 2005, U.S. Dep’t of Air Force, subject: Interim Guidelines Concerning Free Exercise of Religion in the Air Force ¶ D.(2), available at: http://www.af.mil/library/guidelines2005.pdf [hereinafter “Interim Guidelines”] (chaplains “must remain sensitive to the responsibilities of superior rank . . . .”); see also U.S. Dep’t of Army, Reg. 600-20, Army Command Policy ¶ 2-16c (June 7, 2006) [hereinafter “AR 600-20”] (“Although chaplains may not exercise command, they have authority to exercise functions of operational supervision and control”).
 See supra note 56, and accompanying text.
 Indeed, military chaplains are ultimately responsible for the religious needs of all service members under their charge, including those of other faith groups. Thus, they must be capable of functioning in a “pluralistic environment . . . where diverse traditions exist side-by-side with tolerance and respect[,]” including support of service members of every religious denomination. SECNAV Instr. 1730.7C, supra note 103, ¶ 5.d.(2); see also DoD Dir. 1304.19, supra note 56, ¶ 126.96.36.199; U.S. Dep’t of Defense, Instr. 1304.28, Guidance for the Appointment of Chaplains for the Military Departments ¶¶ 6.1.3, E2.1.5, E3.1.1, E188.8.131.52 (June 11, 2004); U.S. Dep’t of Navy, Ofc of CNO, Instr. 1120.9, Appointment of Officers in the Chaplain Corps of the Navy ¶ 6(a)(5) (Dec. 20, 2005). Military chaplains must not only minister to those of their faith, but also “facilitate ministry to those of other faiths . . . .” SECNAV Instr. 1730.7C, supra note 103, ¶ 5.d.(4); see also U.S. Dep’t of Army, Reg. 135-100, Appointment of Commissioned and Warrant Officers of the Army ¶ 3-6a(2)(c) (Sept. 1, 1994) (“A member of the clergy who is qualified to provide for the free exercise of religion by all members of the Army, their dependents, and other authorized persons”); AR 165-1, supra note 56, ¶ 4-4b (“Each chaplain will minister to the personnel of the unit and facilitate the ‘free-exercise’ rights of all personnel, regardless of religious affiliation of either the chaplain or the unit member”); AFI 52-101, supra note 117, ¶ 2.1 (“chaplains directly (provide) or indirectly (provide for) support the free exercise of religion of all members of the Military Services, their dependents, and other authorized personnel”).
 AR 600-20, supra note 119, ¶¶ 4-14b(4)-(5); see generally Major Paul H. Turney, Relations Among the Ranks: Observations of and Comparisons Among the Service Policies and Fraternization Case Law 1999, Army Law., Apr. 2000, at 97.
 U.S. Dep’t of Defense, Reg. 5500.7-R, Joint Ethics Regulation ¶ 2-205 (Mar. 23, 2006) [hereinafter “DoD 5500.7-R”]. A failure to abide by this provision constitutes a violation of a general order punishable under the UCMJ. U.S. Dep’t of Defense, Dir. 5500.7, Joint Ethics Regulation ¶ 2.2.1 (Aug. 30, 1993); see generally UCMJ art. 92, 10 U.S.C. § 892.
 DoD 5500.7-R, supra note 123, ¶ 3-209.
 See generally
 Report on Religious Climate, supra note 104, at 36.
 I assume, based on over 26 years of active commissioned service, that such a senior officer would take umbrage if the service member suggested – even respectfully – that the senior officer “take a hike.”
 42 U.S.C. §§ 2000e – 2000e-17.
 See, e.g., Equal Opportunity Empl. Comm’n v. Townley Eng’r & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989) (employer violates Title VII by requiring employee attendance at devotional services); Young v. Southwestern S & L Ass’n, 509 F.2d 140 (5th Cir. 1975) (same); cf. Turic v. Holland Hospitality, Inc., 849 F. Supp. 544, 551 (W.D. Mich. 1994), aff’d in part, rev’d in part, 85 F.3d 1211 (6th Cir. 1996) (citing with favor an EEOC decision that a supervisor who discussed his religious convictions on the job violated Title VII’s requirement for a working environment free from religious intimidation); see generally Michael D. Moberly, Bad News for Those Proclaiming the Good News?: The Employer’s Ambiguous Duty to Accommodate Religious Proselytizing, 42 Santa Clara L. Rev. 1, 18-23 (2001); Kent Greenawalt, Title VII and Religious Liberty, 33 Loy. U. Chi. L.J. 1, 36-37 (2001).
 Terry Morehead Dworkin & Ellen R. Pierce, Is Religious Harassment “More Equal”?, 26 Seton Hall L. Rev. 44, 85 (1995).
 Brown v. United States, 227 F.3d 295 (5th Cir. 2000), cert. denied, 531 U.S. 1152 (2001); Hodge v. Dalton, 107 F.3d 705 (9th Cir.), cert. denied, 522 U.S. 815 (1997); Spain v. Ball, 928 F.2d 61 (2nd Cir. 1991); Randall v. United States, 95 F.3d 339 (4th Cir. 1996), cert. denied, 519 U.S. 1150 (1997); Stinson v. Hornsby, 821 F.2d 1537 (11th Cir. 1987), cert. denied, 488 U.S. 959 (1988); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986 (1978).
 See General John P. Jumper, Chief’s Sight Picture: Airmen, Spiritual Strength and Core Values (June 28, 2005), available at: http://www.af.mil/library/airforcepolicy2/2005/july.asp (“sharing personal beliefs in a professional setting, one where leaders are performing their duties in a chain of command or in a superior-subordinate relationship, can easily become improper influence about personal matters”).
 Interim Guidelines, supra note 119, ¶ C.(1).
 Revised Interim Guidelines, supra note 103.
 H.R. Rep. No. 109-702, at 739 (2006) (Conf. Rep.).
 H.R. 5122, 109th Cong., § 590 (2006).
Neela Banerjee, Chaplain Prayer Provision
Stricken from Military Bill, N.Y.
Times, Oct. 1, 2006, at A14; Amy Fagan, Republicans’ Bill to Ease Pressure on Military Chaplains: Stricter Prayer Rules Rolled Back, Wash. Times, Sept. 29, 2006, at
A5; Editorial, Fighting About Praying,
 See, e.g., FM 1, supra note 71, ¶ 1-58; U.S. Dep’t of Army, Field Manual 22-100, Army Leadership Appendix E (Aug. 31, 1999); U.S. Dep’t of Army, Pam. 600-63-12, Spiritual Fitness ¶ 5e (Sept. 1, 1987) (“Every soldier must live the professional Army ethic and practice those individual values which support and sustain the Army way of life.”)
 Cf. AR 600-20, supra note 119, ¶ 4-11 (prohibiting any practice involving or implying compulsion, coercion, influence, or reprisal in joining any private organization); id. ¶ 6-2 (prohibiting discrimination based on religion).
 For example, any failure to attend an official function could be charged as absence without leave or failure to repair. UCMJ art. 86, 10 U.S.C. § 886. If subordinates fail to show proper respect and courtesy to the senior officer, they are subject to punitive action for disrespect. E.g., id. art. 89, 10 U.S.C. § 889.
 See, e.g., AR 600-20, supra note 119, ¶ 4-3a (“Courtesy among members of the Armed Forces is vital to maintain military discipline. Respect to seniors will be extended at all times.”) (emphasis added).
 See Report on Religious Climate, supra note 104, at 36. The old maxim that “there is no such thing as a casual conversation with a general officer” is particularly apropos.
 See supra notes 123-124, and accompanying text.
 See generally Benjamin, supra note 85, at 18.
 See FM 3-21.5, supra note 80, ch. 10.
 Interim Guidelines, supra note 119, ¶ B.(1); see also id ¶ D.(2) (chaplains “should respect professional settings where mandatory participation may make expressions of religious faith inappropriate”).
 Revised Interim Guidelines, supra note 103.
 See SECNAV Instr. 1730.7C, supra note 103.
 SECNAV Instr. 1730.7C, supra note 103, ¶ 6.c.
 At least one court has expressed doubt about whether the military may impose restrictions on the content of voluntary worship services. Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997) (prohibition on chaplains encouraging congregants to contact Congress on pending anti-abortion legislation violated the chaplains’ rights under the First Amendment and RFRA). Moreover, statute seemingly protects the worship services of Naval chaplains. 10 U.S.C. § 6031(a) (“An officer in the Chaplain Corps may conduct public worship according to the manner and forms of the church of which he is a member”). See also Wildhack, supra note 56, at 238-240.
Alan Coopersmith & Ann Scott Tyson, House
Injects Prayer into Defense
 Alan Coopersmith, Fasting Chaplain Declares Victory, Wash. Post, Jan. 10, 2006, at A13, available at: http://www.washingtonpost.com/wp-dyn/content/article/2006/01/09/AR2006010901812.html; Alan Coopersmith, Military Wrestles with Disharmony Among Chaplains, Wash. Post, Aug. 30, 2005, at A1, available at: http://www.washingtonpost.com/wp-dyn/content/article/2005/08/29/AR2005082902036.html.
Letter from Walter B. Jones, Congressman,
 Plaintiff’s Complaint, ¶¶ 23-34, 48-50, 65-67, 118-131, Klingenschmitt v. Winter, No. 1:06-cv-01832-HHK (D.D.C., filed Oct. 25, 2006); see generally Alan Cooperman, Military Pressed Over Expressions of Faith, Wash. Post, Nov. 3, 2006, at A3.
 H.R. 5122, 109th Cong., § 590 (2006).
 H.R. Rep. No. 109-702, at 739 (2006) (Conf. Rep.).
For a general discussion of the issue, see
Wildhack, supra note 56, at
245-246. See generally Mellen v. Bunting, 327 F.3d 355 (4th Cir.
2003), cert. denied, 541
v. Donnelly, 465
 “Ceremonial deism . . . generally refers to a category of practices deeply rooted in our cultural history that possess discernable religious content yet are nevertheless immune from Establishment Clause challenges because they are ‘a class of public activity which . . . [c]ould be accepted as so conventional and uncontroversial as to be constitutional.’” Charles Gregory Warren, Comment, No Need to Stand on Ceremony: The Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court’s Establishment Clause Jurisprudence, 54 Mercer L. Rev. 1669, 1685 (2003) (citation omitted).
 Lisa Shaw Roy, The Establishment Clause and the Concept of Inclusion, 83 Or. L. Rev. 1, 22 (2004); see also Van Orden v. Perry, 125 S. Ct. 2854, 2869-2870 (2005) (Breyer, J. concurring) (emphasizing the predominantly secular moral message about proper standards of social conduct in the display of the Ten Commandments on the grounds of the Texas Capitol).
 Marsh, 463
 440 F.3d 393 (7th Cir. 2006).
 See, e.g., Wynne v. Town of
 For example, military personnel serve as members of color guards, ceremonial units, bands, ushers, and the like. For changes of command, affected units are on “display” during the ceremonies, often undergoing inspection and passing in review. See FM 3-21.5, supra note 80, chapters 10-16; FM 7-21.13, supra note 80, Appendix C.
 See, e.g., supra notes 100, 145.
Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003), cert. denied, 541
 Larson v. Valente, 456 U.S. 228, 244 (1982); see also Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 703) (1994) (“a principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion”); Lee v. Weisman, 505 U.S. 577, 610 (1992) (“we have consistently held the [Establishment] Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others”); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 604 (1989) (“Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion . . . ), it certainly means, at the very least, that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)”). See also Chemerinsky, supra note 13, at 1201; Idleman, supra note 85, at 52.
 Larson, 456
 U.S. Dep’t of Defense, Inspector General, Evaluation Report on the DoD Chaplain Program 12-13 (Nov. 10, 2004) [hereinafter “DoD IG Report”]; see generally AR 165-1, supra note 56, ¶ 6-2a (“The Chief of Chaplains (CCH) will—Determine faith, gender, and ethnic group missions for the chaplaincy”).
 The Armed Forces Chaplain Board decides whether to accept the religious organization seeking DoD recognition to provide chaplains for the military, and the individual or individuals endorsed by the religious organization must meet the requirements for a commission. DoD IG Report, supra note 192, at 13; see generally DoD Dir. 1304.19, supra note 56; DoD Instr. 1304.28, supra note 121.
Although still relatively small in numbers, a 2001
American Religious Identification Survey found the number of Wiccans in the
 Except for faith-group considerations in assignments, service regulations do not appear distinguish among religious denominations. See, e.g., U.S. Dep’t of Army, Pam. 165-17, Chaplain Personnel Management (May 11, 1998); U.S. Dep’t of Navy, Ofc of CNO, Instr. 1730.1D, Religious Ministry Report Format (May 6, 2003) [hereinafter “OPNAV Instr. 1730.1D”]; U.S. Dep’t of Air Force, Instr. 52-102, Chaplain Professional Development (Jan. 7, 2004).
v. Valente, 456
 FM 1-05, supra note 197, ¶ 4-23 (referring to the brigade UMT). Evolving Army doctrine envisions growing brigade-level operational independence, FM 1, supra note 71, ¶ 4-22, meaning brigade chaplains will have even greater autonomy during operations.
 OPNAV Instr. 1730.1D, supra note 195; AFPD 52-1, supra note 103.
 JP 1-05, supra note 117, Chapter II. Joint operations are those conducted by forces from more than one military department. See Joint Chiefs of Staff, Joint Pub. 0-2, Unified Action Armed Forces (UNAAF) GL-8 (July 10, 2001).
 See, e.g., Laurie Goodstein, Pagans Sue on Emblem for Graves, N.Y. Times, Sept. 30, 2006, at A8 (detailing refusal of Department of Veterans Affairs to recognize Wiccan pentacle on headstones of military veterans); Lacey Nadeau, Misconceptions Follow Wiccans Wherever They Go, San Diego Union-Trib., May 11, 2006, at E1 (noting the difficulty Wiccan soldiers had in securing right to pray at Fort Hood, and quoting then-Texas Governor George W. Bush, who said that “I don’t think witchcraft is a religion” and urged military officials to reconsider their decision to permit Wiccans to worship on-post); Andrew Stuttaford, Strange Brew, Nat’l Review, July 12, 1999, at 32 (noting opposition of Congressman Bob Barr to decision of Fort Hood officials to permit Wiccan worship on post).
 For example, in 2005, the Air Force reported a total of 3,500 enlistees who are Hindu, Buddhists, Muslims, pagans, druids, or shamans. Laurie Goodstein, Evangelicals Are a Growing Force in the Military Chaplain Corps, N.Y. Times, July 12, 2005, at A1.
For a detailed academic treatment of the cases, see Steven H. Aden, The
Navy’s Perfect Storm: Has the
Military Chaplaincy Forfeited its Constitutional Legitimacy by Establishing
Denominational Preferences?, 31 W.
 No. 00-0566 (D.D.C., filed Mar. 17, 2000).
 No. 99-2945 (D.D.C., filed Nov. 5, 1999).
In the original Adair case, seventeen
current and former non-liturgical Christian chaplains sued on their own behalf
and as a proposed class. Adair, 183 F. Supp. 2d at 36-37.
In August 2002, the district court certified the class, Adair v.
 Adair, 183 F. Supp. at 36-37.
“The term ‘liturgical Protestant’ refers to those Christian Protestant
denominations whose services include a set liturgy or order of worship.”
 See, e.g., Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002) (denial in part of motion to dismiss); Adair v. England, 193 F. Supp. 2d 196 (D.D.C. 2002) (denying motion for preliminary injunction to prevent government from censoring or compelling plaintiffs’ speech by requiring them to recruit new members to the Navy Chaplain’s Corps); Adair v. England, 209 F.R.D. 5 (D.D.C. 2002) (granting motion for class certification); Adair v. England, 217 F. Supp. 2d 1 (D.D.C. 2002) (denying motion for preliminary injunction to delay Navy promotion boards until after court considered plaintiff’s motion for partial summary judgment); Adair v. England, 209 F.R.D. 1 (D.D.C. 2002) (denying plaintiffs’ motion for relief from judgment); Adair v. England, 217 F. Supp. 2d 7 (D.D.C. 2002) (denial of motion for summary judgment); Chaplaincy of Full Gospel Churches v. England, 276 F. Supp. 2d 79 (D.D.C. 2003) (denial of motion for declaratory or partial summary judgment); In re England, 375 F.3d 1169 (D.C. Cir. 2004) (reversing order to compel testimony of members of Navy promotion boards); Adair v. England, 417 F. Supp. 2d 1 (D.D.C. 2006) (denying motion to declare 10 U.S.C. § 618(f) unconstitutional and motion for summary judgment to retain a plaintiff on active duty); Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (D.D.C.) (magistrate’s ruling), aff’d, 2006 WL 2587577 (D.D.C. Sept. 11, 2006) (permitting discovery of members of Selective Early Retirement Board (“SERB”)); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) (reversing denial of for preliminary injunction to (in part) require separation of Catholic chaplains retained on active duty beyond age 60); Adair v. Winter, 2006 WL 2587580 (D.D.C. Sept. 11, 2006) (denial of motion for judgment declaring 10 U.S.C. § 618(f) unconstitutional).
 Adair, 183 F. Supp. 2d at 52. The plaintiffs’ Free Exercise claims are
bolstered by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb; see supra
note 61. The district court rejected
a more relaxed test because the Navy failed to show a relationship between the
alleged violations of the plaintiffs’ Free Exercise rights and important
military operational, strategic, or tactical purposes.
 Adair and Chaplaincy of the Full Gospel Churches are not the only challenges
to Naval chaplaincy personnel practices.
See, e.g., Vietch v.
 See supra note 195. For certain denominations where chaplains are in short supply, such as Catholic priests, the Navy might argue that – to meet the Free Exercise needs of Catholic sailors and Marines – it must retain such chaplains for longer periods than chaplains from other denominations where no shortages exist. Thus, the compelling governmental interest would be the need to accommodate the free exercise rights of Catholic naval personnel. Under Katcoff, this should be sufficient to justify preferences in retention.
Emilie Kraft Bindon, Entangled Choices: Selecting Chaplains for the
 Terrorism: Radical Islamic Influence of Chaplaincy of the
 Radical Islamic Influence of Chaplaincy, supra note 221, at 2 (Statement of Senator Kyl).
 Press Release, Department of Justice, Abdurahman Alamoudi Sentenced to Jail in Terrorism Financing Case (Oct. 15, 2004), available at: http://www.usdoj.gov/opa/pr/2004/October/04_crm_698.htm.
 Bindon, supra note 220, at 255; DoD IG Report, supra note 192, at 17.
 Terrorism: Growing Wahhabi Influence in the
 Radical Islamic Influence of Chaplaincy, supra note 221, at 2 (Statement of Senator Kyl); id. at 3 (Statement of Senator Feinstein, Member of the Senate Comm. on the Judiciary); id. at 4-5 (Statement of Senator Schumer); id. at 29-30 (Statement of Michael Waller).
 See supra note 188-191, and accompanying text. By predicating certification of endorsing agencies on the basis of their beliefs also results in “excessive entanglement with the benefited religious organizations.” Bindon, supra note 219, at 279.
 10 U.S.C. § 654(a)(6).
 DoD Instr.1304.28, supra note 121, ¶ E184.108.40.206; see also id. ¶ 6.1.3; DoD Dir. 1304.19, supra note 56, ¶ 220.127.116.11.
 DoD Instr. 1304.28, supra note 121, ¶ E18.104.22.168.
 Internal Revenue Code (IRC) § 501(c)(3), 26 U.S.C. § 501(c)(3).
 DoD IG Report, supra note 192, at 18.
 IRC § 501(p)(1), 26 U.S.C. § 501(p)(1); see generally, Nina J. Crimm, Post-September 11 Fortified Anti-Terrorism Measures Compel Heightened Due Diligence, 25 Pace L. Rev. 203, 214 (2005).
 IRC § 501(p)(5), 26 U.S.C. § 501(p)(5); Nina J. Crimm, High Alert: The Government’s War on the Financing of Terrorism and Its Implications for Donors, Domestic Chartable Organizations, and Global Philanthropy, 45 Wm. & Mary. L. Rev. 1341, 1425 (2004)
 See supra notes 121, 197-201, 229, and accompanying text.
 See United States v. Rahman, 189 F.3d 88, 135 (2nd Cir. 1999), cert. denied, 528 U.S. 1094 (2000) (following dictates of one’s religious faith does not constitute a defense to terrorism); cf. Borzyck v. Frank, 439 F.3d 388, 391 (7th Cir. 2006) (prison has compelling interest under RLUIPA to ban religious books that “promote violence to exalt status of whites and demean other races”).
 See Chemerinsky, supra note 13, at 1199-1201; supra notes 188-191, and accompanying text.
 See Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys”); Widmar v. Vincent, 454 U.S. 263, 269-276 (1981); Rigdon v. Perry, 962 F. Supp. 150, 162-165 (D.D.C. 1997); Wildhack, supra note 56, at 238-240.
 Radical Islamic Influence of Chaplaincy, supra note 221, at 10 (Statement of Charles S. Abell, Principal Deputy Under Secretary of Defense for Personnel, & Readiness, Department of Defense).
 DoD Instr. 1304.28, supra note 121, ¶ 6.1; DoD Dir. 1304.19, supra note 56, ¶ 5.1
 These criteria include meeting the military’s commissioning standards, DoD Instr. 1304.28, supra note 121, ¶ 6.4.1, and the ability to obtain a security clearance. Radical Islamic Influence of Chaplaincy, supra note 221, at 10 (Statement of Charles S. Abell, Principal Deputy Under Secretary of Defense for Personnel, & Readiness, DoD).
 Such as their status as noncombatants. See supra note 117, and accompanying text.
 DoD Dir. 1304.19, supra note 56, at ¶ 6.4.2.
 Commissioned officers
pledge to “support and defend the Constitution of the
 962 F. Supp. 150 (D.D.C. 1997).
 42 U.S.C. § 2000bb. RFRA forbids the government from burdening the exercise of religion absent a compelling governmental interest and the least restrictive means of furthering that interest. See supra note 61.
UCMJ art. 88, 10 U.S.C. § 888. In part,
this article ensures the maintenance of civilian supremacy over the
 U.S. Dep’t of Defense, Dir. 1325.6, Guidelines for Handling Dissent and Protest Activities Among Members of the Armed Forces ¶ 3.5.8 (Oct. 1, 1996) [hereinafter “DoD Dir. 1325.6”]; see also AR 600-20, supra note 119, ¶ 4-12. The Army has determined that the expression of such extremist views has a deleterious effect on commands. U.S. Dep’t of Army, Pam. 600-15, Extremist Activities ¶ 3-1b (June 1, 2000) [hereinafter “DA Pam. 600-15”].
 See, e.g., UCMJ arts. 133, 134, 10 U.S.C. §§ 933-934.
 UCMJ art. 133, 10 U.S.C. § 933.
 Parker, 417
In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. . . . In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.
 Priest, 21 U.C.M.A. at 570, 45 C.M.R. at 344.
 See, e.g., In re Grimley, 137
 DoD Dir. 1325.6, supra note 256, ¶ 3.5.8.:
Military personnel must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights. Active participation, such as publicly demonstrating or rallying, fund raising, recruiting and training members, organizing or leading such organizations, or otherwise engaging in activities in relation to such organizations or in furtherance of the objectives of such organizations that are viewed by command to be detrimental to the good order, discipline, or mission accomplishment of the unit, is incompatible with Military Service, and is, therefore, prohibited. Commanders have authority to employ the full range of administrative procedures, including separation or appropriate disciplinary action, against military personnel who actively participate in such groups.
See also AR 600-20, supra note 119, ¶ 4-12; FM 7-21.13, supra note 80, ¶ 3-169; Southern Poverty Law Center, Intelligence Report, Extremists in the Military (Fall 2006), available at: http://www.splcenter.org/intel/intelreport/article.jsp?aid=664&printable=1.
For example, several observers have noted the growing problem of radicalization
of parts of the
 Unit cohesion is “the bonding together of unit members to enhance and sustain their commitment to each other, the unit and the mission.” Major Richard D. Hooker, Jr., Building Unbreakable Units, Mil. Rev., July-Aug. 1995, at 25
 DA Pam. 600-15, supra note 256, ¶ 3-1b; see generally 10 U.S.C. § 654(a)(7) (“One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members”); FM 7-21.13, supra note 80, ¶ 4-57 (“Unit esprit de corps and unit cohesion are essential characteristics of an effective fighting organization”), ¶ 5-97 (unit cohesion is “the binding force that keeps soldiers together and performing the mission in spite of danger and death”); Lieutenant Colonel Larry H. Ingraham and Major Frederick J. Manning, Cohesion: Who Needs It, What It and How Do We Get It to Them?, Mil. Rev. June 1981, at 1, 3-4.
 In re Grimley, 137 U.S. 147, 153 (1890); AR 600-20, supra note 119, ¶ 4-2 (“All persons in the military service are required to strictly obey and promptly execute the legal orders of their lawful seniors”); see also U.S. Dep’t of Army, Pam. 600-2, The Armed Forces Officer ¶¶ 17-1, 17-3 (Feb. 1, 1998).