CDR
William A. Wildhack III, CHC, USNR*
I. INTRODUCTION:
MINISTERING TOGETHER IN THE WORST OF TIMES
A Jewish rabbi, a Catholic priest, a
Methodist minister, and a Dutch Reformed minister once went on an ocean cruise
together. Rather than the start of a bad
joke, it is instead the beginning of one of history’s most moving stories of
cooperative ministry in the religiously pluralistic environment of the armed
services. The rabbi, priest, and two
ministers were Army chaplains who sailed with nearly 900 other service members
and crew aboard the U. S. Army Transport Dorchester as it traveled across the
North Atlantic toward
Forty years later, on October 23,
1983, a terrorist bomb killed 241 Marines, Sailors, and Soldiers in
[T]he Catholic chaplain, cut a circle out of his cap - a piece of
camouflaged cloth which would become my temporary headcovering. Somehow he wanted those [M]arines to know not
just that we were chaplains, but that he was a Christian and that I was
Jewish. Somehow we both wanted to shout
the message in a land where people were killing each other - at least partially
based on the differences in religion among them - that we, we Americans still
believed that we could be proud of our particular religions and yet work side
by side when the time came to help others, to comfort, and to ease pain.
[We] worked that day as brothers. The words from the prophet Malachi kept
recurring to me—words he’d uttered some 2,500 years ago as he had looked around
at fighting and cruelty and pain. “Have
we not all one Father?” he had asked.
“Has not one God created us all?”
It was painfully obvious, tragically obvious, that our world still could
not show that we had learned to answer, yes.
Still, I thought, perhaps some of us can keep the question alive. Some of us can cry out, as the [M]arines did
that day, that we believe the answer is yes.[10]
In their ministry, the chaplains on
the Dorchester and in
More than twenty years have passed
since that horrible morning in
A. Cooperation Under Fire: Litigating the Line between Cooperation and
Compromise[16]
As alleged in one of the cases, a
senior chaplain of one Christian group declared that a junior chaplain’s style
of worship, which followed the traditions of a different Christian group, was
“hogwash,” and took over the service and recast it in a form more acceptable to
the senior chaplain.[17] In another allegation in the same case, one
can hear an echo from the mid-nineteenth century,[18]
as an Episcopalian chaplain allegedly instructed a Southern Baptist chaplain to
make changes in a weekly service for which the Baptist chaplain was
responsible.[19] Allegedly, making the changes would have
transformed one chaplain’s service from one conducted “according to the manner
and forms of the church of which he is a member”[20]
into one following the manner and forms of another chaplain’s church.[21] Other allegations focus on a senior
chaplain’s alleged criticism of the content of a chaplain’s prayers and
direction that future prayers be altered,[22]
another senior chaplain’s alleged direction of changes in the content of a junior
chaplain’s sermons in worship,[23]
various other alleged violations of the Free Exercise, Establishment, and Free
Speech Clauses of the First Amendment,[24]
and alleged violations of the Equal Protection Clause of the Fifth Amendment.[25]
Related actions involve similar
allegations filed by one Christian faith group on behalf of several of its
chaplains,[26]
a claim of constructive discharge resulting from a hostile environment after a
chaplain refused to change the content of his sermons and other speech,[27]
and alleged religious discrimination in decisions regarding potential
chaplains’ applications to join the Navy.[28] In all of the cases, a central theme is the
allegation that the Navy’s categorization of various faith groups has led to
favoring some groups over others, and that some groups of Christians have
allegedly treated other groups of Christians particularly unfairly.[29]
In 2002, one of the cases became a
class action with a potential class size asserted to be over 1,000 current and
former chaplains.[30] Late in 2003, the District Court for the
B. A Fascinating Intersection,
Or an Accident Waiting to Happen?
While a full treatment of all the
issues raised in these cases is clearly beyond the scope of a single article,
an examination of just one is not.[32] In ruling on several motions in the two cases
already combined for pretrial motions,[33]
Judge Ricardo Urbina observed that “[t]he issue of what restrictions the Navy
may place on the content of its chaplains’ speech is a fascinating one,
standing at the intersection of four major jurisprudential roads—free speech, free
exercise, establishment, and equal protection.”[34] Successful navigation of such an intersection
presents several challenges to the chaplain who seeks to serve both his or her
faith and the Navy, to the faith group he or she represents, to the Navy itself,
and to any who would seek to offer guidance to the parties. Just as drivers accept traffic signals and
lane markers to guide free movement through an intersection, some argue Navy
chaplains may have to accept some restriction on the content of their speech[35]
so that the free exercise rights of all service members can be protected fully.[36] At the same time, one court has suggested the
Navy must recognize that some restrictions on speech are impermissible, and
that whatever permissible restrictions it seeks to apply must be applied evenly
to all or not at all.[37]
In preparing to enter this
fascinating intersection, Part II of this article examines the evolving role of
chaplains in American military history, highlighting a shift in official
responsibility from providing primarily direct ministry to a priority of
protecting free exercise. Moving closer
to the intersection, Part III examines modern recognition of the “Protestant
Problem”[38]
and the challenges it presents. Part IV
enters the intersection, and seeks to offer some traffic signals or lane
markers that fully protect a chaplain’s rights to free speech in worship while
also protecting other service members’ rights to free exercise, avoid further
establishment problems, and treat all chaplains equally.
II. HITTING
THE ROAD: HISTORICAL NOTES ON MILITARY CHAPLAINCY IN THE UNITED STATES
Chaplains have been a part of our
history on this continent since before the Revolutionary War. A chaplain, Francis Fletcher, accompanied Sir
Francis Drake on his famous trip around the world in the late sixteenth
century, and led the first
Interestingly, a former Army
chaplain was a signer of the Constitution and member of the First Congress.[46] It is also important to note that the First
Congress approved employing chaplains “to offer daily prayers in the Congress” the
same week it approved the Religion Clauses of the First Amendment[47]
for submission to the states.[48] Those who approved the Establishment Clause
apparently saw no conflict between the two actions.[49] Nor did they suggest any conflict the day
after voting on the Religion Clauses when they passed a resolution calling on President Washington to declare a day of
Thanksgiving “to be observed by acknowledging with grateful hearts the many and
signal favours of Almighty God.”[50] Finally, just two years later, when Congress
voted in 1794 to formally establish a “United States Navy” in response to raids
by Algerian pirates,[51]
it included a chaplain in the crew of each ship above a certain size.[52]
A. Early Questions about Worship
As in our day, questions about the
manner and forms of worship have also long been a part of the history of the
Chaplain Corps. Early regulations
specified that the duties of chaplains included having to “read” prayers.[53] In 1859, the Speaker of the House of
Representatives asked the Secretary of the Navy whether chaplains were required
to “read” prayers or follow any particular forms or ceremony in leading
worship, and if the Navy had any evidence of a requirement that non-Episcopal
chaplains had to follow the Episcopal liturgy.[54] In replying, the Secretary explained that he
was not aware that the instruction to “read” had ever been construed to require
a literal reading from a particular prayer book, but rather as a requirement
that prayers be offered aloud without specifying they be read from a book,
written down by the chaplain beforehand to be read later, or offered
extemporaneously.[55]
To further reassure the Speaker and
his colleagues in Congress, the Secretary announced a new order officially
interpreting the requirement that prayers be “read” to mean that prayers be
“offered,” thus leaving the chaplain free to follow the dictates of his own
religious tradition.[56] Perhaps in response to such communication
with Congress, new Navy Regulations adopted in 1860 included this addition:
“Every chaplain shall be permitted to conduct public worship according to the
manner and forms of the church of which he may be a member.”[57] No longer merely a regulation, that language
is now in force as part of the United States Code.[58]
B. Free Exercise Then and Now: The Need for
Chaplains
While conducting worship has always
been one of a military chaplain’s duties, protecting the rights of others to
freely exercise their faith also predates the Constitution and Bill of Rights.[59] The earliest chaplains, like their modern-day
counterparts, served a military population representing a variety of faith
groups or no faith at all.[60] One author asserts that the “pattern for
chaplain ministry to soldiers of different religious backgrounds was set in the
seventeenth century, from the time the first militia units drilled at
Jamestown, Plymouth, Boston and New York.”[61]
In the modern day, the
responsibility for protecting free exercise rights in the broadest sense for
all personnel became the chaplains’ explicit duty after the U.S. Court of
Appeals for the Second Circuit announced its decision in Katcoff v. Marsh[62] in 1985. The court observed that the Army chaplaincy
of the time, if viewed in isolation, would likely be found to violate the
Establishment Clause.[63] The court also noted, however, that neither
the Establishment Clause nor the chaplaincy existed in a vacuum.[64]
A history including more than 200 years of military chaplaincy, congressional action
authorizing a chaplaincy before, during, and after its debate on the Religion
Clauses, and Congress’ continuing support all suggest that neither the Framers
nor their successors intended the Establishment Clause to preclude a
government-funded military chaplaincy.[65]
Perhaps most importantly for the
current debate, the court suggested that the Army “could be accused of
violating the Establishment Clause unless
it provided [soldiers] with a chaplaincy since its conduct would amount to
inhibiting religion” if the Army prevented soldiers from worshiping by
deploying troops to places where religious leaders and facilities were not
available.[66] Echoing the second prong of the Supreme
Court’s test in Lemon v. Kurtzman[67]
for Establishment Clause questions,[68]
the Second Circuit observed that if the Army did not provide chaplains, the
Army would “deprive the soldier of his right under the Establishment Clause not
to have religion inhibited and of his right under the Free Exercise Clause to
practice his freely chosen religion.”[69] Noting that Congress had in 1850 recognized
that not providing a chaplaincy would violate soldiers’ free exercise rights,[70]
that the Supreme Court, at least in dicta, seemed to assume the chaplaincy’s
continuation “in order to avoid infringing free exercise guarantees,”[71]
and that Congress had “from time to time . . . rejected proposals for abolition
of the military chaplaincy,”[72]
the Second Circuit also upheld continuation of a federally-funded military
chaplaincy.[73] Finding relevance to national defense and
reasonable necessity as more appropriate standards for reviewing chaplaincy
activities than Lemon’s prongs,[74]
the court went so far as to say that not only did the majority of the
chaplaincy’s activities meet those standards, but that “[a]s a result, the
morale of our soldiers, their willingness to serve, and the efficiency of the
Army as an instrument for the national defense rests in substantial part on the
military chaplaincy, which is vital to our Army’s functioning.”[75] While Katcoff
limited its examination to the Army chaplaincy, it is reasonable to extend its
result to the Navy Chaplain Corps and the Air Force Chaplain Service as well.[76]
C. Free Exercise Today: Modern
Regulations
Since Katcoff, Department of Defense (DoD) policy has emphasized
protection of free exercise rights for all service members -- and others -- as
a chaplain’s duty.[77] The Secretary of the Navy, in implementing
the DoD policy and assigning responsibilities for religious ministry support,
defines “chaplains” first as “professionally qualified clergy of a certifying
faith group who provide for the free
exercise of religion for all military members of the Department of the
Navy, their family members, and other authorized persons, in accordance with
[DoD Directive (DODD) 1304.19].”[78] Accordingly, the Chief of Naval Operations
implements the Secretary’s policy “by providing
for the free exercise of religion for all naval service members, their
families, and all other authorized personnel,”[79]
and declares, “Religious Ministry is the entire spectrum of professional duties
performed by Navy chaplains and Religious Program Specialists[80]
to provide for or facilitate the free
exercise of religion and accommodates [sic] the religious practices of military personnel, their families, and
other authorized personnel.”[81] Doctrine for military operations involving
forces from more than one service states plainly that “[r]eligious support
includes the entire spectrum of professional duties that a chaplain provides
and performs in the dual role of religious leader and staff officer .
. . . Religious support in joint operations is dedicated to . . .
[m]eeting the personal free exercise of religion needs of military and other
authorized members.”[82] Finally, a duty of the Navy’s Chief of Chaplains
is to “[a]dvise the Secretary of the Navy, the Chief of Naval Operations, the
Commandant of the Marine Corps and the Commandant of the Coast Guard on all matters pertaining to the free exercise
of religion.”[83]
While chaplains have always had responsibility
for protecting free exercise for all personnel, prior to Katcoff their focus was mostly on providing ministry according to
the “manner and forms of the church of which he [or she] is a member.”[84] Post-Katcoff,
the directives and instructions appear to focus first on providing for free
exercise by all personnel.[85] This shift began at a time when our nation
was experiencing profound changes in the practice and understanding of religion
due to an explosion of new religious movements along with increasing
fragmentation of traditional denominations as “individual autonomy, greater
mobility, increased self-expression and experimentalism” affected both society
and religion.[86] At the same time, religion-based bias was
emerging as a growing issue in the workplace.[87] With such shifts occurring in military policy
and society at large, it should not be surprising that chaplains themselves are
struggling with their evolving roles.
Chaplains must balance the growing incongruity between those roles and
their own faith beliefs,[88]
along with what the Navy thinks it needs from its chaplains.[89] This seems especially true as commands more
and more expect chaplains to learn about -- and be able to explain -- the
growing multitude of religious traditions, even as commands continue to expect
chaplains to remain faithful to their own beliefs.[90]
III. APPROACHING
THE INTERSECTION: THE “PROTESTANT” PROBLEM [91]
OF
This struggle among expectations, roles, and needs is most
obvious not only between those chaplains the Navy labels as “Protestant” and
chaplains of other faith groups represented in the Chaplain Corps, but also
within the group of chaplains called “Protestant.”[93]
During World War II, the Navy classified religious preference with just three
categories and marked “dog tags” with a one-letter code accordingly: “C” for
Catholic, “J” for Jewish, and “P” for Protestant.[94]
As convenient as that was, it was overly simplistic:
If one was not a J or a C, one was automatically
a P. Chaplains were also classified in this way. Even a Russian Orthodox priest was
categorized as a P. The histories of the
chaplaincies of each branch of the service include in the Protestant category
all faith groups other than Roman Catholic, Jewish, and Orthodox.[95]
Although
the groupings within the modern Navy Chaplain Corps have expanded to include
Buddhist, Hindu, Islamic, and “other faiths,”[96]
the groupings may still be overly broad.
No differentiation is made, for example, between the Sunni and Shia
branches of Islam,[97]
nor does the category “Jewish” take into account the differences between
Orthodox, Reformed, Conservative, Reconstructionist, or other Jewish groups.[98] Of particular interest are all the groups
included under the label “Protestant,” representing perhaps 70% of all
chaplains and military personnel.[99] In common usage today, the Navy Chaplain
Corps appears to distinguish between “liturgical” and “nonliturgical” groups
within the category “Protestant.”[100] Though allegations regarding that apparent
division are at the heart of the current litigation,[101]
even that distinction fails to go far enough.
Of 116 groups currently eligible to
endorse chaplains for service, the Navy considers at least 105 of them
“Protestant.”[102] It is also important to note that several of
the groups listed endorse chaplains from more than one faith group, so the
actual number of faith groups is higher than the number of endorsing agencies.[103]
An earlier analysis of groups the
Navy deemed “Protestant” noted four distinctions:
·
groups
that recognize themselves and are recognized by others as “Protestant” (e.g.,
Presbyterian, Lutheran, Methodist),
·
groups
that do not recognize themselves as “Protestant” but are called that by others
(e.g., Baptist, Episcopalian),
·
some
groups who accept the term “Protestant” but are not considered such by many
others (e.g., Unitarian, Christian Scientist), and
·
some
groups called “Protestant” by the Navy but who do not consider themselves, nor
do others consider them, to be such (e.g., Latter Day Saints (Mormons)).[104]
To
further exacerbate the Protestant problem, not all of these groups recognize
each other as even being “Christian.”
While some groups share a common set of core beliefs but differ on
certain other beliefs or practices,[105]
some of them also consider at least some of the other groups to be cults.[106]
With such a wide diversity of
beliefs, this challenge of identity leads, not surprisingly, to a challenge in
worship. While Catholic, Jewish, or
Islamic worship may be easy to identify, the plethora of “Protestant”
possibilities is the crux of the current conflict.[107] While it may once have been possible to have
a single “General Protestant”[108]
service that arguably met the religious needs of the perceived majority with little
objection -- and sometimes willing acquiescence -- from smaller groups, that
day may be disappearing into the past.[109] Chaplains today “represent all degrees of
liturgy, non-liturgy, and a-liturgy,”[110]
and “[a]ll extremes of ordered and free worship are present” in today’s Navy
chaplaincy.[111] Yet the alleged insistence of senior
chaplains that “Protestant” chaplains cooperate in leading such a service,[112]
and an alleged resistance to permitting (and sometimes flat out prohibiting)
chaplains to lead faith-group specific worship apart from a general service,
fuels the current litigation.[113] While some faith groups or chaplains consider
leadership and form of worship as incidental and open to great cooperation,
others consider such matters crucial and open to very little compromise.[114]
IV. ENTERING THE INTERSECTION:
REGULATING RELIGIOUS SPEECH
Navigating Judge Urbina’s
“intersection of . . . free speech, free exercise, establishment, and equal
protection”[115]
is difficult while both the chaplains bringing suit and the Navy continue to
insist that each has the right of way and the other must yield.[116] Although the pending cases involve
allegations of discriminatory practices in recruiting, retention, and
promotion, the roads that form this particular intersection come together on
the “fascinating” issue of what restrictions the Navy may place -- if any -- on
the content of a chaplain’s speech.[117]
Several of the allegations focus on the
conduct of worship and the content of chaplains’ sermons and prayers: one
nonliturgical chaplain alleges that a liturgical chaplain reprimanded him for
preaching that those “who call themselves Christians should live as
Christians;”[118]
another alleges that his supervising chaplain criticized him for ending his
prayers with the phrase, “in Jesus [sic] name;”[119]
and a third alleges his supervising chaplain removed him from worship
leadership when he refused to conform his nonliturgical service to his
supervisor’s liturgical preferences.[120] In each case, the chaplains allege they
received poor fitness reports[121]
because they refused to compromise their religious beliefs or change their
speech, leading to reduced opportunities for advancement in the Navy.[122] In general, the plaintiffs allege “that
senior officials in the Chaplain Corps have criticized and berated
non-liturgical chaplains ‘for preaching and teaching on truths of the Christian
faith and their specific religious tradition.’”[123] Noting the overlap between the plaintiffs’
claims, the court has observed that “[t]he overriding theme that runs through
all the claims relating to the plaintiffs’ free exercise of their religion is
that the Navy has adopted and implemented policies and practices that
effectively silence non-liturgical Christian chaplains.”[124]
“Cooperation without compromise” has
long been a motto of the Navy Chaplain Corps.[125] These allegations suggest that chaplains
today view the boundary between the two terms quite differently from many of
their predecessors,[126]
and while cooperation may be a worthy goal, it cannot come at the sacrifice of
religious liberty.[127]
A. Religious Speech in Faith-Group Worship
Although the question of
restrictions on speech in military chapels has not yet reached the Supreme
Court,[128]
it did reach the United States District Court for the
Having found a substantial burden in
Rigdon,[137]
the court examined whether the burden fit the exception and held that “the
compelling interests advanced by the military are outweighed by the military
chaplains’ right to autonomy in determining the religious content of their
sermons . . . .”[138] The government’s asserted interests in Rigdon were potential political
conflicts that might arise in the military ranks should different chaplains
encourage their respective congregations to undertake competing lobbying
activities.[139] In fact, the court observed, the defendants
failed to show how the burden furthered those interests at all, much less in
the least restrictive manner.[140] Stare
decisis suggests the district court’s decision in Rigdon is strongly indicative of how it will rule in the current
litigation, and it would seem that an interest in cooperation between
individual chaplains is even less compelling than an interest in preventing
potential political conflicts in the ranks.[141]
In a particularly interesting
parallel to the differences between various so-called “Protestant” groups in
the current litigation, the court also examined a difference of opinion between
two Roman Catholic chaplains.[142] The military considered one chaplain’s
religious speech to violate the restriction, while the other chaplain’s speech
on the same subject did not.[143] The court reasoned that the military was thus
sanctioning one Catholic view over another on a matter of faith, a form of
viewpoint discrimination that is presumed impermissible in such a forum.[144] Finally, at least with regard to speech in
worship, Rigdon uses very strong
language in concluding that:
[W]hat we have here is the government’s
attempt to override the Constitution and the laws of the land by a directive
that clearly interferes with military chaplains’ free exercise and free speech
rights, as well as those of their congregants.
On its face, this is a drastic act and can be sanctioned only by
compelling circumstances. The government
clearly has not met its burden. The
“speech” that the plaintiffs intend to employ to inform their congregants of
their religious obligations has nothing to do with their role in the military. They are neither being disrespectful to the
Armed Forces nor in any way urging their congregants to defy military
orders. The chaplains in this case seek
to preach only what they would tell their non-military congregants. There is no need for heavy-handed censorship,
and any attempt to impinge on the plaintiffs' constitutional and legal rights
is not acceptable.[145]
The directive referred to here came
from headquarters-level officers, not front-line supervisors.[146] If similar reasoning under the First
Amendment is followed in the pending cases, Rigdon
suggests that the Navy -- or any chaplain, no matter how senior in grade --
cannot tell a chaplain what he or she may or may not say while preaching or
praying when leading faith-group worship.
B. Religious Speech Beyond Faith-Group Worship
But what of chaplains’ activities
and speech outside of worship, having more to do “with their role in the
military”[147]
than with their role as worship leaders?
The mission of the Chaplain Corps extends beyond formal acts of worship
to include responsibilities to: “advise commanders to ensure the free exercise
of religion; provide religious ministry support to authorized personnel;
advocate for and promote the well-being of all personnel; and serve as command
liaison to civilian religious leaders, communities, organizations and agencies.”[148] In carrying out this mission, chaplains find
themselves speaking in forums far removed from faith-group worship.[149] Navy chaplains engage in counseling sessions
one-on-one with Sailors, Marines, other service members, and family members;
attend and participate in staff meetings with other officers; visit workspaces
and dining facilities; travel to far-flung lands; lead workshops on healthy
relationships, planning for deployment, and return and reunion issues; offer
invocations and benedictions at assemblies ranging in size from a handful to
hundreds of attendees; spend weeks or months at sea, interacting daily with the
rest of the crew; accompany forces encountering hostile fire; broadcast an
evening prayer over a ship’s public address system just before “Taps” at the
end of each day; visit patients in sickbays or hospitals; and myriad other
activities.[150] While any or all of these may involve
religious speech, many are certainly not strictly religious activities.[151]
Both courts and military regulations
expressly recognize a distinction between a chaplain’s conduct as an officer
and a chaplain’s conduct as a religious leader.[152] While current Navy instructions seem to
attempt to include “the entire spectrum of professional duties performed by
Navy chaplains” under the term “religious ministry,”[153]
and to subsume nearly anything a chaplain might do under the heading of
“Religious Ministry Tasks,”[154]
earlier documents offer clearly separate instructions regarding “The Chaplain
as a Professional Representative of His Church” and “The Chaplain as a Naval
Officer.”[155] Training materials and conferences have
focused separately on spiritual development issues[156]
and the need for chaplains to understand their leadership role as commissioned
officers in “the command structure, as staff officers, and as supervisors . . .
.”[157] Rules concerning privileged communications
between chaplains and service members extend the privilege to communication
“made either as a formal act of religion or as a matter of conscience” to a chaplain
in his or her “capacity as a spiritual advisor” but not in any other capacity.[158]
Beyond worship, regulations limit a
chaplain’s duties solely to religious service “while assigned to a combat area
during a period of armed conflict.”[159] Outside of combat, prohibited duties include
any that would violate “the religious practices of the chaplain’s religious
organization, undermine privileged communication . . . or involve the
management of funds other than the [Religious Offering Fund].”[160] Although at least one author asserts that
“anything that a chaplain touches must be related to religion and religious
activities,”[161]
nothing in the regulations currently precludes assignment when not in a combat
area as: Division Officer supervising enlisted Religious Program Specialists
running a shipboard library and computer lab; Voting Rights Officer; member of
an Awards Board; Command Liaison to a local chapter of the U.S. Navy League;
member of a Community Relations Board; Project Officer for a
Predeployment/Change of Homeport Workshop; member of a Special Cases Board
reviewing requests to delay or defer mobilization; Zone Inspector of berthing
and workspaces aboard ship; Ombudsman Liaison assisting key family-member
volunteers in helping other family members; member of an Examination Board
proctoring enlisted advancement exams; Enlisting Officer administering an Oath
of Enlistment to a new Sailor; or even Project Officer responsible for
directional signs throughout an aircraft carrier for a “Family Day” cruise.[162] Construing all these activities as religious
ministry would strain credulity, yet chaplains have done all these and more in
their role as Naval officers.
Does the broad protection of
religious speech enjoyed by chaplains leading worship extend to these other
activities? Does the mere presence of a
chaplain make something a “religious” activity?
If so, then the protection may well extend to those other activities. One district court has observed that the
government cannot restrict some forms of speech merely because a person has
other opportunities to speak, and held that the government cannot restrict some
religious exercise just because other religious practices might be available. [163] The court suggested that “[i]t would be
curious to find that RFRA barred challenges to governmental restrictions on
religion as long as the plaintiff could practice, say, two-thirds of his
religion.”[164]
C. Is Religious Speech Absolutely Protected in
Any Military Forum?
Following
that reasoning, a growing number of chaplains have asserted that their
religious speech is protected in all forums, and that their faith and
conscience require them to use every opportunity to promote the teaching of
their respective faith groups.[165] But, while a right to individual
interpretation of the Bible is a closely held tenet of faith for some groups,[166]
that right does not extend to constitutional or statutory construction.[167] Also, military commanders and authorities
enjoy substantial deference from courts regarding certain types of speech and
the threat that speech might pose to various military interests.[168] Judges have recently shown a willingness to
show less deference to military authorities in cases of perceived “outright
abuse,”[169]
and showing any deference at all has its critics in some cases.[170] However, courts continue to appear willing to
treat the military as a separate community,[171]
in which First Amendment principles are applied differently through necessity,
and individual challenges to First Amendment restrictions rarely succeed.[172]
The
case of Veitch v. Danzig,[173]
brought by a former Navy chaplain, presents a recent challenge to such
restrictions. The case focuses on
allegations concerning events that occurred while the plaintiff was on active
duty and stationed in Naples, Italy, and involves perhaps the most publicized[174]
allegations of limitations on a chaplain’s rights to free speech, free
exercise, and equal protection, along with other claims.[175] In ruling on the plaintiff’s request to
enjoin the enforcement of certain regulations concerning the First Amendment,
the court focused on the chaplain’s behavior as a Naval officer, even as it
recognized that his First Amendment claims would be substantial if the case
focused instead on heresy or doctrine.[176] The chaplain asserted that the dispute
centered on religious issues,[177]
but two equal opportunity complaint investigations and an Inspector General’s
(IG) investigation concluded otherwise.[178] In denying the plaintiff’s motion for a
preliminary injunction, the court observed that “the dispute appear[ed] more to
be centered upon [plaintiff’s] military deportment than upon his religious
convictions.” The district court also noted that the IG concluded that “the
disciplinary proceedings against [the plaintiff] were the product of his own
military -- not theological -- misconduct.”[179] In the most recent development in this case,
the district court granted the Navy’s motion to dismiss the case without
reaching the constitutional issues, because the plaintiff failed to show the
Navy’s liability for the alleged claims.[180] Judge Barzilay seemed quite willing to
separate a chaplain’s protected religious speech from other forms of expression
in forums beyond worship.[181]
Beyond
worship, commanders call upon chaplains to engage in religious speech in
situations that are otherwise wholly secular, asking them to pray at the start
and end of change of command ceremonies, retirements, graduations, formal
dinners and celebrations, and other events.[182] While the practice has not yet faced a formal
challenge before the Supreme Court, as have prayers offered at high school
graduations,[183]
it may yet.[184] Although the Navy audience is older than that
in the high school cases,[185]
attendance at many Navy events is quite often mandatory[186]
or arguably coerced.[187] Restrictions on speech that some might
perceive as prejudicial “to good order and discipline in the armed forces”[188]
have not yet extended formally[189]
to the content of chaplains’ prayers in such settings. The growing religious diversity in the
military,[190]
however, may someday require it.[191]
D. Lane Markers in the Intersection: Some Dashed
Lines
The
chaplain’s dual role as a religious ministry professional and a Naval officer
may necessitate tailoring of religious speech in settings beyond faith-group
worship in recognition of the religious diversity in command assemblies. Generally, commanders ask “the chaplain” to
pray, not “the Presbyterian chaplain,” or “the Catholic chaplain,” or “the
Baptist chaplain.”[192] Such settings are very different from
faith-group worship and, absent a demonstrable faith group requirement for a
particular formulaic ending to prayer, would seem to require a cooperative
accommodation.
An
interfaith resource often distributed and recommended to chaplains over the
years offers guidelines for prayer given publicly in a diverse society.[193] Such a document offers lane markers to guide
one through the fascinating four-way intersection. It suggests that “public prayer in a
pluralistic society must be sensitive to a diversity of faiths.”[194] Public prayer that becomes divisive by using
“forms or language [that] exclude persons from faith traditions different from
that of the speaker”[195]
might run afoul of the deference usually given to the military on matters
prejudicial to good order and discipline.[196] Prayer that is “nonsectarian, general and
carefully planned” can be “authentic prayer that also enables people to
recognize the pluralism of American society.”[197] Recognizing such diversity, coupled with the
idea that “prayer in such secular settings can and should bind a group together
in a common concern,”[198]
would reinforce, rather than offend, good order and discipline. This would also support the military
necessity of unit cohesion[199]
over a chaplain’s own interest in furthering a particular religious viewpoint.[200]
Following
such guidelines would also recognize that a chaplain’s right to free exercise
might end at the appearance of establishment, much like the right to free
speech ends at falsely shouting “fire” in a crowded theater.[201] A chaplain praying in faith-group worship --
a purely religious forum -- seems to stand in a very different place from one
praying on a platform in close proximity to military officials and the
trappings of governmental authority.[202] While the one is permitted great freedom even
where the Establishment Clause might ordinarily prohibit such activity,[203]
the other presents an Establishment problem of another magnitude. Just as the Establishment Clause may be
limited in some settings by the Free Exercise Clause,[204]
so the Free Exercise Clause may be limited in this setting by the Establishment
Clause.[205]
V. CONCLUSION:
REACHING THE OTHER SIDE OF THE INTERSECTION
The
Navy and its Chaplain Corps will spend a great deal of time and energy on this
intersection and the nearby interchange of related issues currently before the
United States District Court for the District of Columbia. This cluster of cases presents overlapping
constitutional questions regarding religious ministry in the Navy that go far
beyond those examined by the Second Circuit in Katcoff’s limited challenge.
The plaintiffs in Katcoff
challenged the constitutionality of the chaplaincy itself on Establishment
grounds, and failed at both the district and appellate level.[206] The current litigation goes to broader
questions of the constitutionality of how the Navy operates its chaplaincy, and
will likely impact religious ministry in the other branches as well.[207]
Unlike
the litigants in Katcoff, who
appeared pro se, used their own
resources, and had little personal interest at stake,[208]
the plaintiffs in the current actions have retained counsel, sought the help of
other organizations, and have great personal interests at stake.[209] Like the Army before it, the Navy is likely
to be willing to fight for its position to the utmost.[210] Given the great interests of both sides and
the constitutional questions at issue, Adair,
CFGC, Veitch, Larsen, or a name
not yet at the top of any of the cases, may well achieve landmark status in
Religion Clause jurisprudence.
The
court currently responsible for these cases has stated clearly that “the
Constitution prevents the Navy from regulating the religious speech of
non-liturgical Christian chaplains but not that of liturgical Christian or Catholic
chaplains.”[211] If the court reinforces its holding in Rigdon supporting fully-protected speech
in worship,[212]
the “General Protestant” service may become a rarity, subject to the
willingness of individual chaplains to conduct such a service without regard to
the wishes of chaplains from other faith groups.[213]
But,
just as the Navy cannot regulate the religious speech of one group of chaplains
and not that of another, query whether it can regulate the speech of all chaplains when outside of the protected
forum of faith-group worship. This
appears a more challenging question, for logically, an unlawful restriction
remains unlawful even if applied evenly.
Only time will tell if the Supreme Court’s holding in Lee will extend beyond prayers offered
before high school children to those offered before mature adults.[214] In the meantime, prayers in civic occasions
that at least acknowledge the religious diversity in the audience and limit
efforts to further a chaplain’s own religious viewpoint would seem a reasonable
reconciliation between free exercise and establishment concerns.
One
writer goes so far as to suggest that the decisions in these cases will
determine whether a federally-funded military chaplaincy will survive at all.[215] How well the plaintiffs, the Navy, the
courts, and the hundreds of chaplains ministering 24/7/365 around the world to
the men and women of the Navy, Marine Corps, Coast Guard and Merchant Marine
navigate this intersection will, at the very least, change the face of the Navy
Chaplain Corps for years to come.[216]
This
article’s focus on just some of the challenges facing military chaplaincies may
also foreshadow challenges facing society at large in the new century. If religious diversity becomes to the
twenty-first century what race relations were to the twentieth century, [217]
then there is much more at stake here than the relief sought by plaintiffs and
class members in a few court cases. How the Navy Chaplain Corps -- with or
without help from the courts -- resolves questions of pluralism, diversity, and
cooperative ministry may offer guidance not only to the other branches of the
United States military, but also to our nation and the larger community of
nations.
NOTES
* © Copyright
2005 by CDR William A. Wildhack III, CHC, USNR.
The views expressed in this Article are those of the author and do not
necessarily reflect the views of the Department of the Defense, the Department
of the Navy, or the Navy Chaplain Corps.
Commander Wildhack (B.A., University of Delaware, 1982; M.Div.,
Princeton Theological Seminary, 1985; Th.M., Princeton Theological Seminary,
1986; J.D., Stetson University College of Law, expected 2005) is a Minister of
Word and Sacrament in the Presbyterian Church (U.S.A.), a Navy Reserve
Chaplain, and a student at Stetson University College of Law,
[1] The story of the four
chaplains continues to be widely reported, as a Westlaw search in early 2005
found 37 stories or announcements of services commemorating their actions. Search of Westlaw, ALLNEWS database (Apr. 16,
2005) (search for records including “four chaplains” and “
[2]
[3]
[4]
[5]
[6] As with the story of the four chaplains, this story was also widely reported. See, e.g., Larry Bonko, Rabbi's Camouflage Yarmulke Woven with Tragedy, Heroism, Norfolk Ledger-Star A1 (Jan. 13, 1984), at http://www.resnicoff .net/kippa_story_84.html); 133 Cong. Rec. E1846-02 (daily ed. May 11, 1987) (extension of remarks by Rep. Steven J. Solarz regarding religious apparel and military uniforms). The account here is adapted from a retelling of one chaplain’s first-hand account by President Ronald Reagan in a speech to Baptist Fundamentalists. Ronald W. Reagan, Remarks at the Baptist Fundamentalism Annual Convention, at http://www.reagan.utexas.edu/archives/speeches/1984/41384h.htm (April 13, 1984).
[7] The rabbi was Lieutenant
Commander Arnold Resnicoff; the Roman Catholic priest was Lieutenant Commander
George Pucciarelli.
[8] The third chaplain was
Lieutenant Danny Wheeler.
[9]
[10] Reagan, supra n.6 (quoting from the rabbi’s report; the referenced Bible passage is Malachi 2:10).
[11] The National Conference
for Community and Justice (NCCJ), When
You Are Asked to Give Public Prayer in a Diverse Society, (NCCJ, date
unknown) (available at
http://65.214.34.18/ PublicPrayerBrochure.pdf).
[12] See supra nn.1, 6 (describing media accounts of these actions).
[13] The author first learned
of these events while a student at the
[14] The primary cases are
Adair v.
[15] One article refers to the
litigation as a “barrage of civil lawsuits brought against the Navy by current
and former chaplains” and describes them as alleging “that the system of
religious accommodation intended by the implementation of a military chaplaincy
has now been replaced by a system that perpetuates a denominational hierarchy
dominated by Roman Catholic and [l]iturgical chaplains.” After summarizing the allegations, the author
of that article asserts that “[i]f ultimately proven, these claims threaten to
impact the careers of hundreds of active duty and retired Navy chaplains who
were commissioned since 1977, award millions of dollars in compensation to
litigants and force a massive restructuring of the Navy Chaplain Corps.”
[16] “Cooperation Without Compromise” is an oft-repeated motto of the Chaplain Corps. See infra nn.125-26 (discussing the history of this motto).
[17] Adair v.
[18] See infra, nn.54-56 and accompanying text (relating questions sent from Congress to the Navy in 1859 regarding allegations that “non-Episcopal ministers are required . . . to use the Episcopal liturgy”).
[19] Adair, Pl.’s 3d Amend. Comp. ¶3.q.
[20] 10 U.S.C. § 6031a. The
full text reads, “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.”
[21] Adair, Pl.’s 3d Amend. Comp. ¶ 3.q.
[22] Adair,
[23]
[24]
[25]
[26] Adair,
[27] Veitch v.
[28] Larsen v.
[29] The district court has observed that an overriding theme running through all the free exercise claims is that Navy policies and practices effectively silence one group of chaplains. Adair at 65. This argument asserts that the Navy favors Catholics and so-called “liturgical Protestants” over the groups labeled “non-liturgical Protestants.” These categories will be described and further developed in Part III, infra.
[30] Adair v.
[31] Telephone interview with Arthur A. Schulcz, Sr., Plaintiff’s Counsel in Adair, CFGC, Larsen, Veitch, and Wilkins. (October 16, 2003) (asserting that the plaintiffs favor consolidation but the government opposes it).
[32] For another treatment of
the cases that further develops the plaintiffs’ equal protection claims, see
[33] Adair,
[34]
[35] Such limitations would
join other provisions in the Bill of Rights either expressly inapplicable to
the military or interpreted differently in a military setting.
See, e.g., John A. Carr, Free
Speech in the Military Community: Striking a Balance between Personal Rights
and Military Necessity,
[36] The full scope of religious free exercise rights, and
the challenges in defining them, are beyond the scope of this discussion. The challenges in defining religious belief,
along with the accompanying challenge of recognizing either exercise or
establishment, are many. See John C. Knechtle, If We Don't Know What It Is, How Do We Know
If It's Established?, 41 Brandeis L.J.
521 (2003).
[37] In first describing the four-way jurisprudential intersection, Judge Urbina noted in Adair that the Constitution does not permit the Navy to regulate religious speech of one group of Christian chaplains but not that of other groups of Christian chaplains. 183 F. Supp. 2d at 66. See infra n.100 for a discussion of the terms “liturgical” and “non-liturgical.”
[38] The “Protestant Problem” refers to the wide variety of faith groups labeled “Protestant” by the Navy, and is described more fully in Part III, infra.
[39] Clifford M. Drury, 1 The History of the Chaplain Corps of the United States Navy: 1778-1939, 2 (Bureau of Naval Personnel 1983) [hereinafter Drury]; Frank S. Mead and Samuel S. Hill, Handbook of Denominations in the United States 130 (Craig D. Atwood, rev. 11th ed., Abingdon 1990)[hereinafter Mead & Hill].
[40] Mead & Hill, supra n.39, at 130.
[41] Charles W. Hedrick, The Emergence of the Chaplaincy As a
Professional Army Branch: A Survey and Summary of Selected Issues, Mil. Chaplains’
Review 20-21 (Winter 1990). At the time,
[42] Interestingly, the pay for Army chaplains was set at the same rate as that of judge advocates. Hedrick, supra n.41 at 21 (citing Chauncey Ford, Journals of the Continental Congress 1774-1789 (GPO 1905)).
[43] Drury, supra n.39,
at 3. The regulation stated: “The Commanders of the ships of the thirteen
United Colonies, are to take care that divine service be performed twice a day
on board, and a sermon preached on Sundays, unless bad weather or other
extraordinary accidents prevent.”
[44] The record apparently
begins with Benjamin Balch reporting aboard the
[45] Drury reports that the Journals of the Continental Congress
contain two references to chaplains in 1776.
[46] Abraham Baldwin was a
[47] The Religion Clauses form the first part of the First Amendment, and state, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.
[48] Lynch v. Donnelly, 465 U.S. 668, 674 (noting the First Congress included 17 veterans of the Constitutional Convention “where freedom of speech, press, and religion . . . were subjects of frequent discussion,” and suggesting “[i]t would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers” than in the practice of employing chaplains to offer prayers in Congress each day, and pointing out that the practice has continued ever since).
[49] While James Madison’s
later writings are often referenced by opponents of a federally-funded military
chaplaincy, he voted in favor of it in 1792 and nothing in the record suggests
he had any reservations about doing so or said anything opposing the
action. Paul J. Weber, The First Amendment and the Military
Chaplaincy: The Process of Reform, 22 J. Church
& St. 459, 460 (1980). With the First Amendment just two months old,
and Madison as “a scrupulously careful legislator and president in church-state
matters, his vote can only be interpreted as an endorsement.”
[50] Lynch, 465
[51] Drury, supra n.39, at 6.
[52]
[53] President Jefferson
issued a new set of Navy Regulations in early 1802.
[54]
[55]
[56]
[57]
[58] The current law changes only the language identifying the chaplain, saying, “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.” 10 U.S.C. § 6031(a) (2000). The exclusively male language in the statute will have to be revised to reflect the presence of women in the modern chaplaincy.
[59] See John W. Brinsfield, Our Roots for Ministry: The Continental Army, General Washington, and the Free Exercise of Religion, Mil. Chaplains’ Rev. 23 (Nov. 1987).
[60]
[61]
[62]
[63] Katcoff,
[64]
[65]
[66]
We are not of course presented with and therefore do not pass upon a situation such as military service, where the Government regulates the temporal and geographic environment of individuals to a point that, unless it permits voluntary religious services to be conducted with the use of government facilities, military personnel would be unable to engage in the practice of their faiths.
[67] 403
[68] Lemon, 403
[69] Katcoff,
[70]
[71]
[T]he fact is that while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.
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.
[72] Katcoff,
[73]
[74] Following Supreme Court
reasoning that the test arising from Lemon
was not the only appropriate test for evaluating Establishment Clause
challenges, and recognizing that any interpretation of the Clause must
accommodate other parts of the Constitution (citing Marbury v. Madison, 55 U.S.
137 (1803)), the Second Circuit noted that Katcoff’s
challenge on establishment grounds had to be resolved in tension with what it
called “the War Power Clause” (citing U.S. Const.
art. I, § 8 and including several parts of that section in its description) and
the Free Exercise Clause (U.S. Const.
amend. I). Katcoff,
[75] Katcoff,
[76] In fact, one author (who was both an attorney and Army Reserve chaplain) involved in preparing the Army’s defense in Katcoff later wrote:
Katcoff and Weider [a second plaintiff] set themselves the task of ridding this nation of its military chaplaincy, for had they succeeded in their challenge against the Army, similar suits would soon have doomed an organized chaplaincy in the Navy and Air Force, in federal prisons, and at hospitals run by the Veterans Administration.
[77] The DoD directive on appointing chaplains states:
It is DoD policy that the Chaplaincies of the Military Departments:
4.1. Are 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, to assist commanders in managing Religious Affairs (DoD Directive 5100.73 (reference (e)), and to serve as the principal advisors to commanders for all issues regarding the impact of religion on military operations.
4.2. Shall serve a religiously diverse population. Within the military, commanders are required to provide comprehensive religious support to all authorized individuals within their areas of responsibility. Religious Organizations that choose to participate in the Chaplaincies recognize this command imperative and express willingness for their Religious Ministry Professionals (RMPs) to perform their professional duties as chaplains in cooperation with RMPs from other religious traditions.
Department of Defense Directive (DOD Dir.) 1304.19, Appointment of Chaplains for the Military Departments, ¶ 4 (June 11, 2004) (emphasis added).
[78] Secretary of the Navy
Instruction (SECNAVINST) 1730.7B, Religious
Ministry Support within the Department of the Navy, ¶ 4.a. (Oct. 12, 2000)
(emphasis added). Although this Article
focuses on the role of chaplains, it is important to note that Navy policy
makes commanding officers responsible for providing Command Religious Programs
supporting the religious needs and preferences of all eligible personnel.
[79] Chief of Naval Operations Instruction (OPNAVINST) 1730.1D, Religious Ministry in the Navy, ¶ 1 (May 6, 2003) (emphasis added).
[80] “Religious Program Specialists” are enlisted sailors who are much more than merely chaplain’s assistants. The Navy describes their duties as follows:
Religious
Program Specialists (RP) support chaplains in implementing Command Religious Programs
(CRPs) to accommodate the religious needs and rights of sea service personnel
and their families; facilitate the delivery of ministry by chaplains by
conducting rehearsals, making referrals, and rigging and unrigging for
religious services and CRP events; recruit, train, and supervise CRP volunteers
who assist in worship, religious education, and other programs; publicize CRP
programs and events; organize, coordinate, and support religious education
programs; serve as bookkeepers and custodians of Religious Offering Funds;
provide library services onboard ships; manage and administratively support CRP
program elements; determine, requisition, and manage logistic support for CRPs;
manage, maintain, and assist in designing and determining requirements for
Religious Ministry Facilities afloat and ashore; provide physical security for
chaplains in combat.
Chief of Naval
Personnel, Manual of Navy Enlisted Manpower and Personnel Classifications and Occupational
Standards (NAVPERS
[81] OPNAVINST 1730.1D, ¶ 4.a. (emphasis added).
[82] Joint Chiefs of Staff Publication (Joint Pub) 1-05, Religious Support in Joint Operations I-1 (Jun. 9, 2004) (emphasis added).
[83] OPNAVINST 1730.1D, ¶ 6.a.(1) (emphasis added). Flowing from this duty, the Navy Chaplain Corps also provides chaplains for service in the Marine Corps and the Coast Guard.
[84] See supra nn.53-58 (quoting earlier regulations and the current statute).
[85] See supra nn.77-83 (citing various official policies).
[86] Rebecca French, Shopping for Religion: The Change in
Everyday Religious Practice and Its Importance to the Law, 51 Buff. L. Rev. 127, 127-28, 138 (Winter 2003). Professor French examined over 1000 religion
cases decided between 1963 and 2001, comparing their content and results with
religious trends in society at large.
One finding of note is that the politically-oriented cases she examined
have shifted over the years from “a religious concern about minority and
disadvantaged members of the society to a concern about the power of
conservative Christianity’s influence on the general population.”
[87] Georgette F. Bennett, Religious Diversity in the Workplace . . . An Emerging Issue, 9 The Diversity Factor 15 (Winter 2001).
[88] Olenda E. Johnson, Diverse Views of Religious Pluralism: Implications for the Military Chaplaincy 6 (Defense Equal Opportunity Management Institute 2001).
[89] “The needs of the Navy” is a catchall phrase frequently used by sailors in recognition of the secondary place of many of their personal needs in relation to the Navy’s.
[90] Johnson, supra n.88.
[91] An endorsing agent from one of the Protestant groups discussed this “problem” in a 1983 speech he gave to a meeting of the National Conference on Ministry to the Armed Forces (NCMAF), an interfaith body of organizations that endorse chaplains from their respective faith groups. S. David Chambers, The Protestant Problem, Mil. Chaplains’ Rev. 81, 82 (Nov. 1987).
[92] The author first heard this term applied to the various Presbyterian churches in a conversation otherwise forgotten long ago. It seems even more applicable to all the various “Protestant” groups than to just one family of them.
[93] The term “Protestant”
first arose in
[94] Chambers, supra n.91, at 82. Today, religious preference is spelled out in full on the tags if possible. Navy Military Personnel Manual (MILPERSMAN) 1000-070, ¶ 7.c-7.d. (Aug. 22, 2002) (including a list of suggested abbreviations for faith groups whose names are too long to fit on the tags).
[95] Chambers, supra n.91, at 82. “Orthodox” apparently became a separate category from “Protestant” at some point, but Chambers does not comment on the change.
[96] Chaplain Resource Branch,
United States Navy Chaplain Corps (visited
Apr. 16, 2005), at
http://www.chaplain.navy.mil; select
Faith Groups. The pull-down menu lists: Buddhism, Catholic, Hinduism, Islam,
Judaism, Orthodox, Protestant, and Other Faiths. The category “Other Faiths”
includes Baha’i, Confucianism, Taoism, and Wicca.
[97] See Abingdon Dictionary of Living Religions 351 (Keith Crim, gen. ed., Abingdon 1981) (describing Islam’s development and its various sects).
[98]
[99] Richard G. Hutcheson, Jr., The Churches and the Chaplaincy 88 (rev. ed., GPO 1997).
[100] “Liturgical” refers
generally to churches that have a set order of worship or formal structure for
worship; “nonliturgical” refers generally to churches that do not follow a
formal order. See Adair,
[101] Adair,
[102] Chief of Naval Personnel, 1 Manual of Navy Officer Manpower and Personnel Classifications, NAVPERS 15839I, Major Code Structures (October 2003) (available at https://buperscd.technology.navy.mil/bup_updt/508/Officer Classification/i/officerClassOneMenu. htm) (listing 99 groups); an expanded listing at http://www.chaplain.navy.mil/Attachments/ aqd.pdf adds 17 more groups that do not yet have a separate classification number assigned by DoD. Removing groups other than “Protestant,” as listed supra n.96, leaves at least 105 groups. Faith groups endorse chaplains subject to a DoD instruction listing requirements that a group must meet for DoD to recognize as a “Religious Organization” as well as requirements that a group’s “Religious Ministry Professional” must meet for the services to consider them for accession as chaplains. Department of Defense Instruction (DODI) 1304.28, Guidance for the Appointment of Chaplains for the Military Departments (June 11, 2004).
[103] For example, the Chaplaincy of Full Gospel Churches describes itself as representing members of 120,000 independent/non-denominational churches from 245 Fellowships or Associations. Chaplaincy of Full Gospel Churches, About the CFGC! at http://www.chaplaincyfullgospel.org (visited April 16, 2005).
[104] Chambers, supra n.91, at 83. The Episcopal Church,
[105] Two such groups may be the
Presbyterian Church (U.S.A.) and the Presbyterian Church in
[106] Walter Martin, The Kingdom
of the Cults (Hank Hanegraaff ed., rev. ed., Bethany House, 1997).
The table of contents lists at least three of the Navy’s “Protestant” groups as
cults: Church of Jesus Christ of Latter Day Saints (Mormons), Christian
Scientist, and Unitarian Universalism.
[107] See supra nn.17-29 and accompanying text (outlining the allegations regarding limitations on preaching and styles of worship).
[108] One author suggests that the term “General Protestant Service” may be confusing, but that it is used more for convenience than to suggest any requirement for enforced conformity. He argues the phrase is nothing more than a “more convenient term for use in the plan of the day or on the bulletin board than ‘Service Conducted by a Methodist Chaplain Open to Protestants of All Denominations.’” Hutcheson, supra n.99, at 86.
[109] Chambers, supra n.91, at 85 (asserting that there
was a fair degree of uniformity in the past when 90% of “Protestant” chaplains
came from just six major faith groups, but that today’s diversity greatly reduces
the possibility for uniformity); See also
Clifford M. Drury, 2 The History of the Chaplain Corps of the
United States Navy:
1939-1949, 58-59 (Bureau of Naval Personnel 1992) [hereinafter Drury 2] (describing cooperation among
“Protestant” chaplains at the end of World War II).
[110] Chambers, supra n.91, at 85. The three terms describe a continuum from an externally imposed order of worship to an avoidance of any predictable order.
[111]
[I]t has long been accepted that a chaplain of the Episcopal church has the prerogative not to celebrate communion with chaplains of other faith groups; that Missouri Synod Lutheran chaplains may hold closed communion; that Baptist chaplains shall not baptize infants; that those who choose not to wear ecclesiastical garb are justified in conducting worship in civilian or military attire if they should desire.
[112] Chambers asks two provocative questions beyond the scope of this article regarding continuation of a “General Protestant” worship service:
Chaplains exist in the military first, last, and always to provide opportunity for the military community to exercise its right for worship. The focus must be on the worshippers and their spiritual needs and enrichment; not upon chaplains with their likes and dislikes. The first question is therefore: How can chaplains of diverse traditions provide meaningful worship to the greatest number of parishioners without compromising the essential tenets of their own tradition? . . .
[A] second question is: If a chaplain or a faith group cannot accommodate ministry to the needs of the pluralistic religious community, does the faith group or its clergy belong in the military environment?
[113] See supra nn.17–29 (describing the allegations).
[114] Chambers, supra n.91, at 85. The author once served with two senior chaplains who alternated leadership of the “General Protestant” service; one was from a fairly liturgical tradition, while the other was from a fairly non-liturgical tradition. While always complimentary of each other and the faithfulness with which each led worship according to his respective tradition, both expressed a lack of understanding of the other’s preferences. When asked to substitute in worship for one or the other, the author received clear guidance from each on how that chaplain preferred “his” service to be conducted on a particular day.
[115] Adair,
[116] Judge Urbina has
commented on his frustration at delays in getting the already-consolidated
cases through his court, much less getting through the intersection, saying,
“[o]ver the past two years, the court has issued memorandum opinions on at
least seven dispositive motions filed by the parties. Yet more motions are waiting in the
wings. The court’s patience is beginning
to wear thin.” Chaplaincy of Full Gospel
Churches v. Johnson,
[117] Adair,
[118]
[119]
[120] See supra nn.18–21 and accompanying text (discussing an alleged disagreement over worship styles).
[121] All officers receive a “fitness report” at least once each year which includes both numerical grades on performance in various areas and comments from their reporting seniors, and selection for promotion is based almost entirely on the grades and comments on these official records. Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10, Navy Performance Evaluation and Counseling System (Aug. 2, 1995).
[122] See Adair, 183 F. Supp. 2d at 59-61 (discussing allegations concerning promotion practices).
[123] Adair,
[124]
[125] Chaplain Thomas Knox suggested
this slogan while serving on temporary duty to assist in starting the first
[126] Drury is careful to note that ‘[a]ny categorical
statement to the effect that Navy chaplains of all faiths always worked
together in peace and harmony would be unhistorical.”
Chaplains
of all religious groups lived and worked together in a more intimate manner
than was ever possible in civilian life.
The motto of the
[127] Indeed, as the court
intends to apply a strict-scrutiny standard to the plaintiffs’ free exercise,
establishment, free speech, and equal protection claims in the current
litigation, Adair,
[128] Given the issues in these cases and the determination of both the plaintiffs and the Navy, the author believes that this question may reach the Court as a result of these actions.
[129] Rigdon v. Perry,
[130] For an examination of Rigdon describing the other plaintiffs
and developing the idea of chaplains serving as officers with rank but not with
command, see
[131] 18 U.S.C. § 1913
(2000). The defendants conceded before
trial that the Anti-Lobbying Act was not relevant to the facts in this case
because it only applies if the activity in question involves spending
government funds; because this case involved active duty service members but no
government funds, the defendants relied instead on DOD Directive 1344.10, Political Activities of Members of the Armed
Forces on Active Duty (Jun. 15, 1990).
Rigdon,
[132] Rigdon,
[133]
[134] 42 U.S.C. § 2000bb-1
(2000). While at first blush the Supreme Court’s holding in City of Boerne v.
Flores, 521 U.S. 507, 536 (1997), regarding RFRA’s constitutionality may appear
all-encompassing, later opinions clarify that Boerne’s ruling abrogated RFRA only with regard to state government action.
[135] Rigdon,
[136] 42 U.S.C. §§ 2000bb-1(a), (b) (2000).
[137] Supra n.135.
[138] Rigdon,
[139]
[140]
[141] The district court’s recent ruling on the Navy’s motion to dismiss in Larsen suggests that RFRA itself will apply to few, if any, of the various claims, because the chaplains’ claims attack intentionally discriminatory policies rather than laws or regulations of neutral or general applicability. Larsen, 346 F. Supp. 2d at 137–38. While claims under RFRA may be precluded by this latest ruling, the underlying allegations of violations of First Amendment rights are not. See supra n.135 (describing an earlier ruling by the district court that First Amendment strict scrutiny analysis would apply to the claims).
[142]
[143]
[144] Id. (citing Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995), involving a university’s refusal to pay a religious student group’s printing costs because of the religious content of the publication while paying other nonreligious student groups’ printing costs). Having noted that expressive, religious activity was the underlying purpose for having chapels, the court held that the speech at issue in Rigdon was within the limitations of the proper forum and protected from such viewpoint discrimination Id. at 163, 164.
[145]
[146] Supra n.132.
[147] Supra n.145 and accompanying text.
[148]
[149] The court in Rigdon took note of “the government’s
clear intent that certain facilities on military property (e.g., chapels) and
personnel (e.g., chaplains) be dedicated exclusively to the free exercise
rights of its service people.” Rigdon,
[150] The list is by no means all-inclusive, but reflects the author’s personal experiences as a chaplain or those of others known to him over more than twenty years of reserve and active duty.
[151] While reluctant to
assert that a chaplain uttering religious speech might make any activity
religious, this author is also concerned about courts drawing too fine a
distinction. In ruling against a
defendant’s claim of clergy-penitent privilege for statements made in a
counseling setting, one court has drawn just such a line between secular
marriage counseling performed by a minister and religious counseling performed
by that same minister.
[152] Rigdon,
[153] OPNAVINST 1730.1D, Religious Ministry in the Navy, ¶ 4.a.
[154]
[155] OPNAVINST 1730.1, Chaplains Manual, art. 1202, 1203 (1973) (as amended through Change Transmittal 5, (1980)) (available at http://www.chaplain.navy.mil/CoC/History.asp, select 1973 Chaplain Corps Manual).
[156] Chaplain Corps Professional Development Training Course Fiscal Year 89: Spiritual Development and Pastoral Care (Dept. of the Navy 1988).
[157] Chaplain Corps Professional Development Training Course Fiscal Year 94: Chaplain Leadership (Dept. of the Navy 1993).
[158] Note that while the military rule extends the privilege beyond the “clergyman” to include communications with a “clergyman’s assistant,” and is thus broader than that offered in many civilian courts, it is also limited by the “formal act of religion” and “capacity as a spiritual advisor” requirements. Mil. R. Evid. 503(a), (b). See also supra n.151 (discussing a pending case reexamining this privilege).
[159] Navy Regulations, art. 1063 (1990).
The regulation further explains that this restriction in combat areas
flows from the requirements of the Geneva Conventions to protect the
noncombatant status of medical, dental, and religious personnel.
[160] OPNAVINST 1730.1D ¶ 5.e.(11).
[161]
[162] This list reflects many, but not all, of the collateral duties held by the author of this article over the years. One of these assignments, serving as member of a Special Cases Board reviewing requests to delay or defer mobilization, is in fact suggested by a regulation recommending that “board membership include a chaplain, a line officer, and a JAG Corps officer when available.” Commander, Naval Reserve Forces, Instruction (COMNAVRESFORINST) 3060.5A, Commander, Naval Reserve Force Manpower Mobilization Support Plan, Appendix B, para. 2. (April 3, 2000).
[163] Muslim v. Frame,
[164]
[165] This observation comes generally from the author’s experience in conversations with other chaplains over the last twenty years, and particularly since the start of the present litigation.
[166] See generally Abingdon Dictionary of Living Religions, supra n.97, at 90 (describing beliefs of Baptist churches in general). Some traditions, though, expressly limit private interpretation to matters of faith or worship. See, e.g., General Assembly of the Presbyterian Church (U.S.A.), The Constitution of the Presbyterian Church (U.S.A.), Part II: The Book of Order 2003-2004, sec. G-1.0301(1)(a) (listing as one of that church’s “Historic Principles of Church Order” that “God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it, in matters of faith or worship” (quoting from the Westminster Confession of Faith) (emphasis added)).
[167] That such a right does
not so extend has been clear from the Supreme Court’s earliest days: “It is
emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular
cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each.”
Marbury v. Madison, 5
[168] Carr, supra n.35, at 307 (commenting on an examination of case law involving articles of the Uniform Code of Military Justice (UCMJ), DOD and service regulations, and lawful orders of lower echelon commanders).
[169]
[170]
[171] See generally James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen’s Constitutional Rights, 62 N.C. L. Rev. 177 (1984) (describing development of “separate community” standard for reviewing constitutional claims brought by military members).
[172] Carr, supra n.35, at 313. Rigdon
appears to be one of those rare exceptions.
An earlier review of Free Exercise challenges prior to 1987 found that
most focused on appearance (beards) or dress (religious head coverings), and
none on speech by chaplains. Michael F.
Noone, Jr., Rendering Unto Caesar: Legal
Responses to Religious Noncomformity in the Armed Forces,
[173] Veitch v.
[174] See generally Ward Sanderson, War
in the Chaplain Corps, Stars and Stripes/Stripes Sunday Magazine
(Nov. 23, 2003) (at
http://www.stripesonline.com/article.asp?section=126& article=18884) (introducing
a three-part series on the current litigation and describing testimony in Veitch); Letter from Louis V. Iasiello,
Chief of Chaplains, U.S. Navy, in Letters
to the Editor for Thursday, December 18, 2003, Stars and Stripes
(Dec. 18, 2003) (at http://www.stripesonline.com/article.asp?section=125
&article=19125&archive=true) (responding to Sanderson series); Chaplain's Case Against Navy Can Continue,
Judge Rules, San Jose Mercury
News
[175] As reported by the court:
Plaintiff's complaint charges: (1) violation of the First Amendment's Free Exercise and Establishment Clauses (based on [the supervisor’s] actions toward plaintiff); (2) violation of plaintiff's First Amendment free speech rights and right to seek redress (the Navy's insistence that he preach "pluralism among religions," and the Navy's retaliation for his complaining about religious discrimination); (3) violation of the Equal Protection Clause under the Fifth Amendment (inconsistent application of the Uniform Code of Military Justice); (4) illegal or constructive discharge (hostile working conditions); (5) violation of the Religious Freedom Restoration Act ("RFRA") (censoring what plaintiff could preach); (6) irreparable harm (his precipitous separation from the Navy); (7) violation of plaintiff's civil rights (withholding back pay); and (8) conspiracy to violate plaintiff's civil rights.
Veitch,
[176]
[177]
[178]
[179]
[180] Veitch, 2005 WL 762099 at *9.
[181] Veitch, 2005 WL 762099 at *12 (discussing, as one example, the
charge of “disrespect toward a superior commissioned officer” the plaintiff
faced before he resigned from the Navy).
Similarly, Judge Urbina has indicated he agrees with the District Court
for the Southern District of California’s conclusion in Sturm’s underlying action that the judiciary’s traditional
deference to the military “does not extend to practices that may subvert one’s
inalienable constitutional rights.” Adair,
[182] The author has prayed at innumerable such events during his career. Although occasionally asked to pray for good weather as the chaplain in the movie Patton was asked to do, to date he has successfully demurred.
[183] Lee v. Weisman, 505
[184] Some media reports
suggest the ACLU may file suit to end the practice of student-led prayer at
mealtime at the
[185] Though the Supreme Court
declined to extend its holding in Lee
to “mature adults,” Lee, 505
[186] Change of command ceremonies ordinarily involve all unit members not on watch standing in formation. See, e.g., William P. Mack, The Naval Officer’s Guide 139-40 (9th ed., Naval Inst. Press 1983).
[187] Formal dinners or informal receptions, for example, may not officially be mandatory, but the author’s experience is that attendance at many so-called “optional” events is generally considered not genuinely optional.
[188] Article 134, Uniform Code of Military Justice.
[189] Allegations of attempts by senior chaplains to extend the restriction to the content of public prayers are at issue in the current litigation. See supra nn.17-29 (outlining the allegations).
[190] One example of the
diversity is the growth in the number of personnel who identify themselves as
Islamic, growing five-fold from 2,000 to
[191] While perhaps 98.9% of
service members claiming a religious preference call themselves Christian,
leaving only 1.1% identifying with non-Christian groups, “the religious rights
of Americans have never depended on numbers.”
[192] In commands having more than one chaplain, particularly for retirements, individual retirees or commanding officers sometimes ask for chaplains of their particular faith group to pray. But those attending seldom know about the particular request, understand the relationship between the honoree and the chaplain, or even care, especially if compelled to stand in formation for a long ceremony!
[193] NCCJ, supra n.11. Interestingly, this is an updated version of
the brochure handed out to clergy invited to pray at the graduations in Lee and used as evidence to show an
impermissible establishment violation when used to guide school prayer. Lee,
505
[194]
[195]
[196] See supra n.168 (discussing the usual deference).
[197] NCCJ, supra n.11.
[198]
[199] General Colin Powell, while Chairman of the Joint Chiefs of Staff, and General H. Norman Schwarzkopf have reportedly commented on the singular importance of unit cohesion for success in battle. See Carr, supra n.35, at 347 (citing Congressional testimony of the two generals).
[200] Such conduct would also be consistent with guidelines President Clinton issued on religious exercise and expression in the Federal civilian workplace, which state:
As a matter of law, agencies shall not restrict personal religious expression by employees in the Federal workplace except where the employee's interest in the expression is outweighed by the government's interest in the efficient provision of public services or where the expression intrudes upon the legitimate rights of other employees or creates the appearance, to a reasonable observer, of an official endorsement of religion.
The White House, Office of the Press Secretary, Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, at http://clinton6.nara.gov/1997/08/1997-08-14-guidelines-on-religious-expression-in-the-workplace.html (August 14, 1997).
[201] Justice Holmes first
used this illustration in a case involving charges of “causing and attempting
to cause insubordination . . . in the
military and naval forces of the
But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
[202] A reasonable observer might easily see a chaplain in the latter setting as speaking and acting on behalf of the government, rather than merely representing a particular faith group, thus presenting facts for a compelling state interest that could lead to the Establishment Clause defeating both Free Exercise and Free Speech claims. Michael J. Benjamin, Justice, Justice Shall You Pursue: Legal Analysis of Religions Issues in the Army, 1998 Army Law. 14 (November 1998) (citing Justice Scalia’s statement for the majority in Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 761–62 (1995), that “[t]here is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech”).
[203] Katcoff,
[204]
[205] One might suggest that a closer proximity to the appearance of establishment requires a greater degree of restriction on a chaplain’s free exercise.
[206] The original action was
Katcoff v. Marsh,
[207] Supra n.76 (describing the possible effects on the various services if a suit against one were to succeed).
[208] Joel Katcoff and Allen
Wieder were third-year law students when they first filed suit against the
Army, and do not appear to have sought or accepted outside help at any point in
the litigation. Drazin & Currey,
supra n.76, at 1-2. They based standing only on their status as federal
taxpayers. Katcoff,
[209] Arthur A. Schulcz, Sr.,
[210] See generally Drazin & Currey, supra n.76 (recounting the Army’s determination to see the litigation through to the very end).
[211] Adair,
[212] Supra n.144 (quoting the conclusion of the opinion in Rigdon).
[213] That willingness, of course, would be subject to the “manner and forms of the church of the church of which [the chaplain] is a member.” Supra n.20 (quoting 10 U.S.C. § 6031a).
[214] Supra nn.183–85 (describing Lee).
[215]
[216] One sign of changes to come is an Equal Opportunity Symposium held for five days in May, 2004. The announcement for the symposium said it was “the first of its kind specifically designed for Chaplains.” (Announcement available at http://www.chaplain.navy.mil/training/pdtw.asp) (copy on file with author). The accompanying “information paper” called this workshop “a pro-active approach to avoid future equal opportunity problems within the Chaplain Service,” and observed that “[r]ecent allegations of discrimination within the Chaplain Corps warrants consideration of additional training that may prevent unequal treatment or its perception within the naval chaplaincy.” (Dean Bonura, Information Paper (Defense Equal Opportunity Management Institute - Chaplain, Jan. 27, 2003) (visited Jul. 12, 2005), available at http://www.chaplain .navy.mil/Attachments/Training/EO%20 INFORMATION%20PAPER %20 US%20Navy.pdf (copy on file with author).
[217] Knechtle, supra n.36, at 522-23 (describing the difficulty in even defining “religion” and asserting that religious diversity may be the greatest challenge we face both locally and globally on this side of September 11, 2001).