Chaplain (LTC) Herbert B. Strange, USA

Chaplain/Instructor

U. S. Army Logistics Management College

Fort Lee, VA 23801

(804) 765-4720/DSN 539-4720

"The Military as a Role Model for Religious Pluralism

and First Amendment Practice"[1]

It should come as no surprise to anyone – assuming you haven't been doing a Rip Van Winkle impersonation over the last couple of decades – that modern American society is characterized by pluralism. To a certain extent it has always been so. As soon as the first European explorers set foot on this continent, a pluralistic environment was established. We are, after all, a "nation of immigrants." The pluralistic environment that is the United States obviously exists in many areas of culture (art, music, food, and language, for example), but my purpose here is to focus on only one – religion.

The quest for religious freedom is by no means a modern undertaking. From biblical times onward, efforts toward toleration of varieties of religious experience have been part of the fabric of the religious and political life in western society.[2] Nevertheless, until the 16^th century the predominant, if not universal, assumption was that a stable, safe, and unified state required similar solidarity in religious practice. Indeed, failure to adhere to the appropriate Church-State orthodoxy resulted in the imposition of severe penalties – from excommunication and exile to incarceration and death (frequently by unpleasant means). The beginning of the Protestant Reformation brought with it discussion among religious leaders not merely about toleration, but about the equal right of all to unfettered practice of their religious faith.

The European colonization of North America brought about a new situation. For the first time in memory there was a large colonial empire without a clear western boundary and without a majority of the people invested in a single church. Indeed, the religious background of many of the early settlers was, to say the least, diverse – from those on the left-wing radical end of the Reformation (Separatists, Puritans, Baptists, Congregationalists, Scottish Presbyterians, Quakers) to Anglicans, Roman Catholics, Dutch Reformed, Swedish Lutherans, Moravians, and Jews. They brought with them not only different cultures and theological traditions, but different paradigms of Church-State interaction.

These early colonists incorporated into their laws and charters the essential difference between the toleration granted to a minority by the majority and the equal right to religious practice by all religious groups. They knew full well that toleration could be withdrawn just as easily as it could be granted. What they desired was a "free exercise of religion" that was the right to practice (or not to practice) any faith without penalty so long as public order was maintained.

Unfortunately, theory and practice did not always merge. For example, Massachusetts was settled by Puritans seeking freedom to practice their faith in their own way without the restrictions of the Church of England. Yet, these same folk, once "in charge" themselves, erected their own restrictions on free exercise, most obviously through establishment of the Congregational Church in the colony. Roger Williams, among others, saw the new Puritan establishment as no better than the Anglican establishment he had left back in England. Banished from Massachusetts in 1635, Williams settled what became Rhode Island, a colony whose civil code affirmed what Williams called "Soul Liberty." When Charles II issued a colonial charter to Rhode Island in 1663, it included the provision for "the free exercise of all their civil and religious rights."[3]

In the national political arena the chief proponent of religious freedom was James Madison of Virginia, often called the "Father of the U. S. Constitution." A member of the Anglican establishment, educated at Princeton by Presbyterian clergy, friend of a number of "dissenting" clergy, from the time of his graduation from Princeton in 1771, Madison was the central figure in the advocacy of religious liberty. Though others were actively involved as well,[4] it was in large measure Madison's persistence that, both for his native state and for the new nation, resulted in constitutional guarantees of freedom of religious conscience.

Despite the success of Madison et al. in establishing the religious safeguards of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."), there has nonetheless existed a persistent myth that the United States was founded as a "Christian nation." Too often the phrases of the First Amendment have in practice been set aside in favor of other more popular axioms – "majority rules," "might makes right," or the only partially tongue-in-cheek version of the Golden Rule, "He who has the gold gets to make the rules." Jewish citizens have long been familiar with life as a religious minority, and with the both covert and overt hostility that such a status often involves. Even a quite large minority may be required to deal with issues of prejudice and discrimination. As recently as 40 years ago there were many public and private expressions of concern as to whether the nation could survive if a Roman Catholic might actually be elected President. He was, and it did!

Perhaps even more interesting are instances in which the Constitution is used to challenge the Constitution. Such was the case in 1981 when two Harvard Law School students filed a suit challenging the constitutionality of the Army chaplaincy (and, by extension, those of the other services as well). Both sides in the case looked to the First Amendment as constitutional justification for their positions. The plaintiffs essentially charged that the use of tax dollars to support the chaplaincy was a violation of the "establishment clause" (Congress shall make no law respecting an establishment of religion), while the chaplaincy's defense was based of the "free exercise clause" (or prohibiting the free exercise thereof . . .). In the end the courts upheld the validity of the military chaplaincy based on its historical support for free exercise of religion for soldiers and the unique military interest in providing such religious support for them.[5]

The "free exercise" issue has more recently come to public attention as a result of the religious accommodation provided to Wiccans at Fort Hood, Texas, a case that stirred considerable controversy in religious (particularly conservative Christian) and political circles. Although the group had been meeting on the post for almost two years, its presence became general knowledge in March 1999 when photographs of their gathering were published in an Austin newspaper. It did not take long for the protests – both in-person demonstrations and letter writing – to begin. In a classic understatement, Chaplain (LTC) Don Troyer, a Seventh-Day Adventist chaplain who was assigned to supervise the Wiccan group, observed in an interview with the Dallas Morning News (29 May 1999), "It's such a volatile subject. It just sparks a fury." Even a member of Congress (Bob Barr of Georgia) was reported to have written to LTG Leon LaPorte, Commanding General of III Corps and Fort Hood, asking him to "stop this nonsense."

In a quote appearing in the same newspaper account, Chaplain (COL) Jerry Haberek, III Corps and Fort Hood Chaplain at the time, attempted to put the entire matter in proper perspective: "You know, I raised my right hand when I came in the Army to support and defend the Constitution, and that's what I'm doing, defending the constitutional right of soldiers and family members." If one compares the comments attributed to Chaplain Haberek with those attributed to Congressman Barr, it would seem to confirm the contention that military leaders have in general done a much better job of ensuring free exercise for their soldiers/sailors/airmen/marines than have many outside the uniformed services.

Department of Defense (DoD) Directive 1300.17 (3 February 1988) affirms that the Department of Defense "places a high value on the rights of members of the Armed Forces to observe the tenets of their respective religions," and establishes the policy "that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline." In Army Regulation (AR) 600-20, Army Command Policy, the Army provides specific instructions for implementing the DoD policy.[6] In particular, there are two individuals for whom this matter is of primary concern – the commander and the chaplain.[7]

The commander is essential because the religious program – just like every other program – in a unit belongs to, and is therefore the ultimate responsibility of, the commander. Indeed, included among the six specific religious program responsibilities assigned to commanders under paragraph 1-16, AR 165-1, is:

c. Support the free exercise of religion for all Army personnel.

The commander, thus, has a direct and vital role in relation to the issue of religious pluralism and accommodation within the unit.

The chaplain is, of course, the principal staff advisor to the commander on religious issues. As such, the chaplain is responsible for assisting the commander in making decisions relating to religious accommodation issues. On a more personal basis, in terms of specifically professional clerical responsibilities, AR 165-1 (paragraph 4-4 b) instructs that

Each chaplain will minister to the personnel of the unit and

facilitate the "free-exercise" rights of all personnel, regard-

less of the religious affiliation of either the chaplain or the

unit member.

This means that the unit chaplain must "perform or provide" religious ministries for the members of the unit – perform those which can legitimately be accomplished within the canonical restriction of the chaplain's own denomination or faith group, or coordinate with representatives of the soldier's denomination/faith group to provide appropriate religious services for the soldier.

Accommodation of religious practice in a unit normally falls into at least one of five categories – worship practices, dietary practices, medical practices, wear and appearance of the uniform, and personal grooming. It is relatively easy to deal with some of the issues that arise. For example, requests for accommodation concerning the uniform must meet the standards of AR 670-1, Wear and Appearance of Army Uniforms and Insignia. A request for accommodation in the area of medical practices, on the other hand, may be rather more complicated.[8] Decision-making responsibilities in the religious accommodation arena are clearly a function of command. The commander who takes those responsibilities seriously will work closely with the chaplain (as well as other members of the staff) to ensure that both the needs of the soldier and the needs of the Army are met to the maximum extent possible.[9]

Together, then, the commander and the chaplain are the guardians of First Amendment practice within the unit. This is not some "new-fangled" concept that has just arisen in the last couple of decades, however. From General Washington's Continental Army, through the armies clad in both blue and gray, through two world wars, Korea, Vietnam, Desert Shield/Storm, and assorted other engagements, in peacetime and in conflict, chaplains and the commanders for whom they work have provided service men and women opportunities for religious practice in accordance with their own traditions.

It is not an easy task, for it is human nature (especially human religious nature) to resist supporting those who do not conform to our concept of the truth. We need to be reminded of the words attributed to François-Marie Arouet, a.k.a. Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it." Perhaps an even more powerful reminder of the importance of the task is found in the words of Martin Niemöller, a German pastor reflecting on the way things were in his country under the Nazi regime:

In Germany they came first for the communists, and I didn't

speak up because I wasn't a communist. Then they came for

the Jews, and I didn't speak up because I wasn't a Jew. Then

they came for the trade unionists, and I didn't speak up because

I wasn't a trade unionist. Then they came for the Catholics, and

I didn't speak up because I was a Protestant. Then they came for

me, and by that time no one was left to speak up.

Even if we do not agree personally with the religious beliefs and practices of another soldier, it remains our responsibility as leaders to ensure that that soldier's rights are protected. If we do not, Voltaire and Niemöller remind us, we may one day find that our own are at risk and there will be no one to speak in our behalf.

The intertwined issues of pluralism, free exercise, and accommodation of religious practice are important, not just for those who serve within the United States military establishment. The guarantees of the First Amendment must be upheld at all costs for all citizens. Those of us who serve our nation in uniform have pledged to "support and defend the Constitution" – including the First Amendment – a task we have undertaken with pride for over two centuries. As we begin a new century, a new millennium, we need to recommit ourselves to that ideal.

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[1] The comments that follow are based on three assumptions:

1. Historically, from colonial days onward, the attempt to maintain religious freedom on these shores has been somewhat problematic.

2. Although the First Amendment to the Constitution of the United States ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .") makes the ability of citizens of this nation to engage freely in the practice of their religious faith a right/constitutionally guaranteed activity, the religious reality has often been somewhat less than the constitutional standard.

3. The Department of Defense has taken a proactive approach to ensuring that the religious freedom guarantees of the First Amendment are provided to all service members.

[2] While such efforts may also be found in other areas, my focus here is on "western society" since that is the principal derivation of our national institutions.

[3] Rhode Island – along with Delaware, New Jersey, and Pennsylvania – had no established church. The other colonies had established state churches – three Congregationalist and six Anglican – although three (Maryland, New York, and Georgia) included "Free Exercise" in their early charters or laws.

[4] This group included both politicians (George Mason, Thomas Jefferson, and Patrick Henry, among others) and clergy (such as John Leland of Virginia, William Tennent of New Jersey, and Richard Furman of South Carolina).

[5] Katcoff v. Marsh (755 F.2d 223, 2d Cir. 1985)

[6] Because my experience and expertise are within the Army context, I will comment only on the Army approach to the issue.

[7] Cf. AR 165-1, Chaplain Activities in the United States Army, 27 February 1998.

[8] Paragraph 5-6, AR 600-20, and Department of the Army Pamphlet (DA Pam) 600-75, Accommodating Religious Practices, provide ample guidance for dealing with requests for accommodation in all five areas.

[9] "Accommodation of a soldier's religious practices must be examined against military necessity and cannot be guaranteed at all times." (Paragraph 5-6a, AR 600-20)