The Constitution in the Foxhole:
A Constitutional
Review of the Chaplaincy of the
Cadet Adam T. Shaw
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment to the Constitution of
the United States1
Introduction
The United States
Armed Forces, the Chaplaincy of the Armed Forces, and the Constitution of the
Questions Presented
To adequately answer the question of the constitutionality of the military chaplaincy, one must answer the following questions: Should the right to free exercise of religion be included in those rights that are sacrificed upon entering into military service? Could a civilian chaplaincy adequately address the needs of the members of the military? Does the chaplaincy violate the Establishment Clause as defined by the Lemon Test?
Assaults on the Chaplaincy: To
Obey Orders and Forgo Freedoms
A recent assault
on the existence of the Chaplaincy is based on the notion that the right to
free exercise of religion of the members of the Armed Forces, which the
Chaplaincy works to preserve, should be among the rights which are sacrificed
upon entering the Armed Forces. The Free
Exercise Clause of the First Amendment to the Constitution of the
This right to free exercise of religion is granted to all citizens, including those who are serving in the Armed Forces. However, through relocation from their home to either a military installation or a combat area of operation, the military often separates the service member from contact with the religious community of their choosing. This could be viewed as a violation of the service member’s right to free exercise of religion which is guaranteed by the Free Exercise Clause of the First Amendment.
It has been argued that the freedom of religion should be among the rights that are sacrificed upon entry into the profession of arms and the government should simply disband the chaplaincy and remove itself from any involvement in the religious practices of the military. Judicially, it has been accepted that certain constitutional rights and freedoms of service members are limited by virtue of the members service in the armed forces.4 Among these are the freedom of expression, the freedom of free speech, the freedom of movement, the freedom of assembly, and the freedom of association. The Second Circuit of the United States Court of Appeals, in the case of Katcoff v. Marsh, confirmed what it referred to as: “the duty of the Soldier to obey military orders and forgo many of the freedoms that he would otherwise enjoy as a civilian…”.5
In Sherbert v. Verner, the Supreme Court applied a so called “compelling interest standard” when questioning governmental restriction of religious rights.6 The “compelling interest standard” requires that the government have a compelling interest in limiting a citizens first amendment rights in order to do so.7 The government must restrict several first amendment rights in order to accomplish the mission and functionality required of the Armed Forces. For example, the freedom of movement must be denied to enable relocation of its members to certain parts of the country or the world where their services are needed. The freedom of speech is limited in order to preserve the functionality of the chain of command by restricting seditious speech. The freedom of expression is restricted by regulating dress and appearance in order to help preserve the morale and appearance of the Armed Forces. The freedom of association is forgone by ordering its members to the units and commands in which their service is needed regardless of personal associations or ties.
The freedom of
religion, however, does not pose a significant level of interference with the
mission of the Armed Forces. Since the
free exercise of religion does not directly affect the ability of the Armed
Forces to carry out its duties, there are no grounds for claiming a compelling
interest in limiting this constitutionally protected right. The right cannot be limited as it does not
meet the Compelling Interest test, therefore the government must take action to
protect it. Since the creation of the
United States Army and the
Possibilities of Civilian Chaplaincy
It may be asked:
Since a chaplaincy is indeed necessary, must it be part of the military and
funded by the
The Second Circuit of the United States Court of Appeals evaluated the possible solutions that Marsh and Wieder suggested and ultimately determined that it was unfeasible.15 In their examination, the court found that very few churches would be capable of taking over funding of their representation within the Armed Forces.16 The smaller of the churches that are currently represented in the military’s chaplaincy would be unable to provide adequate funds in the program suggested by Marsh and Wider. However, the larger and more affluent congregations would be capable of providing sufficient private funds in such a situation, which would create a significant imbalance in representation of denominations within the chaplaincy.
Along with the problematic funding of a civilian chaplaincy, there exist situations that a civilian chaplaincy simply cannot address. In order to be effective in their mission, chaplains must be capable of understanding the manner in which the military operates, the complex relationships which allow the military to function, as well as the unique stresses that soldiers must face. In essence, the person who will best work with soldiers will be a fellow soldier. By commissioning members of the Chaplaincy as officers, requiring their completion of the Chaplain Officer Basic Course, placing them under the jurisdiction of the Uniform Code of Military Justice, and holding chaplains to the same code of conduct as every other officer in the Armed Forces, the military ensures that its chaplains will be better prepared to fulfill the unique mission for which they are responsible.17
This added understanding of the workings of the military also enables chaplains to address matters of a purely military nature such as tensions between soldiers and their commanders, ethical leadership in combat situations, and the morale of the command as a whole. A civilian chaplaincy, because of their status as civilians, could not be held to the same expectations as military personnel to uphold the code of ethics, nor could they be subject to the same punishments for failure to do so. As the Katcoff v. Marsh decision reads: “because of their civilian status, [civilian chaplains] could not adequately tend to the unique spiritual needs of the [the members of the military].”18
As the court ultimately ruled in the case of Katcoff v. Marsh, the possibility of a privately funded civilian chaplaincy was ruled to be an inadequate solution.19 In a statement issued by General Edward C. Meyer, while serving as Chief of Staff of the Army from 1979-1983, he stated, “Because of the sheer size of the military population and the unique conditions under which our Army’s military force must function, a military chaplaincy is essential and the services provided by it to soldiers could not effectively be furnished by civilian sources, particularly on the battlefield or in other situations.”20
A
civilian chaplaincy serving the members of the Armed Forces would be ill
equipped to meet the needs of the members of the military. Private funding of a civilian chaplaincy would
lead to a chaplaincy that would be representative of wealth distribution rather
than the actual religious demographics of
Constitutionality: The Lemon Test
The existence of a military chaplaincy has, and will continue to, raise questions concerning its constitutionality in light of the Establishment Clause. In 1971, 180 years after the ratification of the Bill of Rights, the Supreme Court reviewed the Establishment Clause in the case of Lemon v. Kurtzman.21 Out of this case, a test was created by the Supreme Court to act as a guideline in interpreting the Establishment Clause in the application to government actions.22 This test, known as the Lemon Test, demands three things of any government action; it must have a secular legislative purpose, it must have a primary effect that neither advances nor inhibits religion, and it must not create an excessive entanglement between the government and religion.23 Since 1971, the Supreme Court has continued to use the Lemon Test as its guide in making judgments on matters of the Establishment Clause.
A Secular Purpose
It will undoubtedly be argued that the Chaplaincy’s main purpose is of a religious nature and that this fact alone would lead to its failure of the secular purpose requirement. However, in the case of Lynch v. Donnelly, the Supreme Court ruled that the mere presence of a religious purpose “would not doom a law or practice, as long as there was also a secular purpose.”24 In Lynch v. Donnelly, the Supreme Court stated, “The Court has invalidated legislation or governmental action on the grounds that a secular purpose was lacking, but only when it has concluded there was no question that the stature or activity was motivated wholly by religious considerations. Even where the benefits to religion were substantial…we saw a secular purpose and no conflict with the Establishment Clause.”25 Taking into consideration this ruling, one must ask whether or not the chaplaincy of the Armed Forces serves a secular purpose along with the obvious religious purposes. To answer this question adequately, one must examine the nature of both the military chaplaincy as well as the nature of military service.
It was recently confirmed in the May 2006 Army Mental Health Advisory Study, that there are significant stresses encountered by members of the military due to the nature of military service.26 The study found these stresses to be caused by combat dangers and the pressures of regimented life. It was found by the Second Circuit of the United States Court of Appeals in the case of Katcoff v. Marsh, through examination of the testimony of experts on the functioning of the United States military, that the absence of the chaplaincy would considerably deteriorate the “motivation, morale, and willingness of soldiers to face combat” and that this would cause great harm to our national defense.27 Since the Chaplaincy also promotes the morale of the Armed Forces and their ability to function to their full ability, which has a direct impact on the ability of the Armed Forces to function in its national defense role, the Chaplaincy has a direct secular purpose of aiding in the preservation of national security.
Neither Promote nor Inhibit Religion
It is also widely argued that the primary purpose of the chaplaincy is to advance religion. Several court ruling have addressed the constitutionality of the similar chaplain programs of hospitals and police departments. In Carter v. Broadlawns, the Eighth Circuit of the United States Court of Appeals held that a hospital’s chaplaincy met the requirements of the second prong of the Lemon Test, in that it neither promoted nor inhibited religion.28
The court in Carter v. Broadlawns first focused on the chaplaincy’s proscription of any activity that is directed toward, “[p]roselytizing or any effort to impact religion or religious beliefs upon individuals who do not already have such beliefs...”29 The military chaplaincy also has such regulations (Army Regulation 165-1) on the activities of its chaplains, which are in keeping with the principles found in Carter v. Broadlawns to support an argument of non-promotion of religions.30 The Second Circuit also stated that the nature of the hospital’s chaplaincy allowed “all patients of all persuasions [to] take advantage of counseling on their own terms”.31 This mirrors the manner in which military chaplains function in allowing service members to approach chaplains on their own terms, never being ordered or otherwise required to speak to anyone about religious matters.32
In Carter v. Broadlawns Medical Center, the court determined that a chaplaincy that did not proselytize and was prepared to aid those of all religious convictions did not violate the Lemon Test.33 In Army Regulation 165-1, paragraph 4-4, chaplains are specifically instructed to respect the right of all to freely exercise their chosen religion.34 This regulation effectively prohibits proselytizing on the part of the Chaplaincy. In the same regulation, chaplains are ordered to aid those of any religion, regardless of his personal beliefs.35 The military furthers its attempts to fulfill the needs of all of its personnel by continually reviewing the need for representation of smaller religious sects and hiring new chaplains when the need arises.36 The military also equips each of its chaplains with the knowledge and materials necessary to assist those of any religion.37 These restrictions and actions on the part of the Armed Forces are in keeping with the principles of non-promotion of religion as defined in Carter v. Broadlawns.
Many
of the framers of the Constitution of the
The Excessive Entanglement of Church and
State
The third requirement of the Lemon Test requires that any governmental action may not create an excessive entanglement between church and state.39 In an interesting decision on the part of the Eighth Circuit of the United States Court of Appeals, the court ruled that the chaplaincy program under review in Carter v. Broadlawns, actually worked to lessen the entanglement between Church and the State funded hospital.40 The court went on to say that: “The evidence indicates that hiring a person trained to facilitate the patient’s resolution of religious dilemmas should lessen, not increase, the hospital’s entanglement in them.”41
Likewise, the Armed Forces’ chaplaincy may also work to lessen the entanglement of the government in the resolution of religious issues of the members of the military. Very similarly to the situations faced by the chaplaincy of the hospital, many military chaplains must assist soldiers in questions regarding their mortality in the face of the danger related to serving in the Armed Forces. Also very similar to the situations which the hospital chaplains must address, these conversations with servicemen and women will undoubtedly carry with them religious concerns. By providing a trained counselor, with the ability to provide answers to the religious questions of the service members, soldiers can be provided a valuable resource to whom all personnel of any rank can speak. Through the establishment of the Chaplaincy, the government has prevented religious concerns from being addressed within the chain of command. Through removal of religious matters from discussion within the command structure, the existence of the Chaplaincy works to lessen the amount of entanglement between the military and matters of religion.
Historical Argument
There have been noteworthy cases in which the Supreme Court has chosen not to apply the Lemon Test in favor of utilizing historical evidence of approval by the framers of our Constitution as the constitutional standard.42 Therefore, another important precedent applicable to the question of the Army’s Chaplaincy’s relationship to the Establishment Clause of the First Amendment is the case of Marsh v. Chambers.43 In Marsh v. Chambers, the Supreme Court ruled that the fact that the legislative chaplaincy was created contemporaneously with the adoption of the Establishment Clause is “weighty evidence that [the Constitution] does not intend that Clause to apply to such a chaplaincy.”44
Also, as the Supreme Court explained in Wisconsin v. Pelican Ins. Co., the fact a legislative chaplaincy was created “contemporaneous with the adoption of the Establishment Clause,” demonstrates that the founding fathers did not see such chaplaincies as a violation of the Clause and therefore cannot be held today to be a violation of the Constitution.45 The military Chaplaincy is in the same situation, having been created by many of the same men that created our Constitution and Bill of Rights, including the Establishment Clause. It is reasonable to believe that they did not intend the Chaplaincy to ever be viewed as a violation of the Constitution.
The creation of the chaplaincy within the United States Army dates back to the adoption of our constitution; it is rooted in the colonial militias and pre-dates the Revolutionary War.46 Upon the outbreak of the American War for Independence, the Second Continental Congress, on July 29, 1775, passed legislation for the adoption of the colonial militia chaplaincy into the newly formed Continental Army and their inclusion on the Army payroll. This took place only a little longer than a month after the creation of the Continental Army.47
Following the
Revolutionary War, subsequent to the adoption and ratification of the
constitution by the original states, the First Congress of the
The Chaplaincy was created by the same body that adopted the Bill of Rights and the Establishment Clause, and it was created contemporaneously with the adoption of the Establishment Clause. It has continued to carry out the same mission, without interruption, for more that 200 years. These facts lead to the conclusion that the Chaplaincy of the United States military must also be included in the standards created by the Supreme Court in both Marsh v. Chambers and Wisconsin v. Pelican Ins. Co.50 A review of the early history of our nation will reveal that the founders of our nation did not intend for the Establishment Clause of the First Amendment to bar the existence of the military Chaplaincy.
Conclusion
The Chaplaincy of our nation’s Armed Forces is among the most time-honored establishments of our military. Although some have argued that the Chaplaincy conflicts with the Constitution, close examination reveals that the existence of the Chaplaincy within the Armed Forces is consistent with the principles of the Constitution and the intentions of our Founding Fathers.
The existence of our military’s chaplaincy helps preserve the constitutional rights of our service members as guaranteed by the Free Exercise Clause of the United States Constitution, and helps preserve the morale of our Armed Forces. The proposal that the needs of the service members and the military could be addressed by a civilian chaplaincy is ultimately unfeasible. Under the Lemon Test, the military chaplaincy does in fact meet constitutional muster by having a secular purpose, neither promoting nor inhibiting religion, and preventing an excessive entanglement of church and state. The same legislative body that adopted the United States Constitution and the Bill of Rights created the military Chaplaincy, proving that the Founding Fathers supported the existence of the Chaplaincy and saw that it posed no threat to the Constitution. The military chaplaincy is both necessary and constitutional.
Bibliography
Army Chaplain Corps. 2006. The
<http://www.goarmy.com/chaplain/>.
Carter v.
“Chapter 1: The Origins of the Chaplaincy”. A Brief History of the U.S. Army Chaplain Corps.3
Mar. 2004. Army Medical Department, Surgeon General. 14 Nov. 2006 <http://www.usachcs.army.mil/history/brief/chapter_1.htm>.
The Constitution of the
The
Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985)
Kelleher, Elizabeth. "
Lemon v. Kurtzman,
403
Locke, John. “A Letter Concerning Toleration”. 1689.
Lynch v. Donnelly, 465
Marsh v. Chambers, 463
Mental Health Advisory Team III. 29 May 2006. Army Medical Department, Surgeon General. 8
Dec. 2006 <http://www.armymedicine.army.mil/news/mhat/mhat_iii/mhat-iii.cfm>.
Sherbert v. Verner,
374
Notes
1)
The First Amendment to the Constitution of the
2)
The Establishment
3)
The Free Exercise
4) see Barker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1971); The First Amendment rights of officers may be restricted: Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); The right to counsel in summary court-martial proceedings may be denied to all members of the military: Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976)
5, 9-16, 18-20, 27) Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985)
6&7) Sherbert v. Verner, 374
17) see Army Chaplain Corps, http://www.goarmy.com/chaplain/
21-23, 39) Lemon v. Kurtzman, 403
24&25) Lynch v. Donnelly 465
24, 28, 29, 31, 33, 40, 41) Carter
v.
Cir. 1988)
26) see the report of Mental Health Advisory Team III, Army Medical Department,
Office of the Surgeon General, on the mental health of Army personnel serving in Operation Iraqi Freedom: http://www.armymedicine.army.mil/news/mhat/mhat_iii/mhat-iii.cfm
30, 32, 34, 35) refer to AR 165-1, particularly par. 4
36&37) see article “U.S. Military Chaplains Support More than 100 Faiths at
usinfo.state.gov
38) refer to “A Letter Concerning Toleration”, John Locke
42, 43, 44, 50) Marsh v. Chambers, 463
42, 45, 50) The
Great State of
265 (1888)
46-49) see “A Brief History of the U.S. Army Chaplin Corps, http://www.usachcs.army.mil/
history/brief/chapter_1.htm