SATURDAY, NOVEMBER 23, 2013 SPECIAL COMMENTARY: When You Sign Up for the U.S. Military, Do You Sign Away Your Religious Freedom? IN THE PUBLIC ARENA By Michael Berry, Esq. and David Barton Religious liberty in the U.S. Military is under fire from politically correct government officials and radical legal organizations. Recently, we were asked by members of the U.S. Congress to provide legal and historical analysis in light of the argument that service members must leave their religious rights at the base gate. Our answer was an emphatic, “No, they keep their rights.” This answer is not just important for Congress and courts to hear. It is crucial that men and women in the military—or who are thinking of serving in the military—know the strong legal basis for their right to openly live and express their faith while in uniform. Here is a brief summary of the legal and historical analysis supporting our claim that members of the military do not forfeit their religious liberty: 1. Americans Have More Religious Freedom Than We Think Despite serious attacks on religious expression, the American legal basis for religious liberty is strong and has withstood many challenges. Usually, we lose when we fail to stand up for our rights. When we do stand up, we win. Consider: The U.S. Constitution itself is pro-religious freedom. The First Amendment outlaws government interference with the “free exercise” of religion. In 1789, Congress passed a law providing for the payment of legislative chaplains. 194 years later, in Marsh v. Chambers (1983), the Supreme Court upheld the payment of legislative chaplains, concluding that it “is not . . . an establishment of religion,” but rather “a tolerable acknowledgement of beliefs widely held among the people of this country.” In Zorach v. Clausen (1952), the Supreme Court acknowledged, “we are a religious people whose institutions presuppose a Supreme Being” and that the First Amendment “does not say that in every and all respects there shall be a separation of Church and State. . . . Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly.’” In Corporation of Presiding Bishop v. Amos (1987), the Supreme Court stated “this Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” In Westside Board of Education v. Mergens (1990), the Supreme Court held that the Government “does not endorse or support . . . speech that it merely permits on a nondiscriminatory basis.” In other words, permitting religious speech is not establishing that religion as a state church. In Rosenberger v. Rector (1995), the Supreme Court stated: “private religious expression receives preferential treatment under the Free Exercise Clause,” and warned that “discrimination against speech because of its message is presumed to be unconstitutional.” In other words, don’t suppress private religious expression even in public places like a college! The Rosenberger decision said that unconstitutional “viewpoint discrimination” even includes unreasonable restrictions on “proselytizing . . . or even acts of worship.” In Van Orden v. Perry (2005), the Supreme Court held that a Ten Commandments monument on public grounds did not violate the Establishment Clause, noting that “people may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation.” In Salazar v. Buono (2010), the Supreme Court held that a memorial cross in a public park to honor WWI veterans did not violate the Establishment Clause. 2. Military Law ProtectsFreedom of Religious Expression Many secularists might read Point 1 and exclaim, “But wait! That doesn’t apply to the Military! The Military has its own system of laws, and as an arm of the government has to be sterilized of all religious influence!” This is often pure bluster, aimed at frightening people of faith in the Military into silence. So let’s look at actual Military Law. The History of Military Law Favors Open Religious Expression President Thomas Jefferson—often described as a strong church-state separatist—signed the Articles of War (the precursor to the Uniform Code of Military Justice) which “earnestly recommended to all officers and soldiers, diligently to attend divine services.” In 1791, Congress passed the Military Establishment Act, which included the creation of the U.S. Army chaplaincy. In 1799, Congress required commanders of U.S. Navy ships “to take care that divine service be performed twice a day, and the sermon preached on Sundays.” In 1800, Congress required U.S. Navy ships’ crews “to attend at every performance of the worship of Almighty God.” To this day, the U.S. Navy maintains the tradition of saying a daily prayer aboard each vessel. In 1955, President Dwight Eisenhower signed Executive Order 10631, prescribing the Code of Conduct for Members of the Armed Forces. Article VI concludes:“I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles that made my country free. I will trust in my God and in the United States of America.” Current Federal Law Favors Open Religious Expression in the Military The Free Exercise clause of the First Amendment to the Constitution of the United States applies to members of the military. The 1993 Religious Freedom Restoration Act (RFRA) applies to military service members to the same degree that it does to civilians. In order to be lawful, a statute or regulation that burdens a service member’s religious expression must demonstrate that it: (1) furthers a compelling governmental interest; and (2) uses the least restrictive means to further the interest. Department of Defense Policy Favors Open Religious Expression in the Military Department Instruction 1300.17, Accommodation of Religious Practices Within the Military Services (2009) establishes the “policy, procedures, and responsibilities for the accommodation of religious practices in the Military Services.” This important regulation states that the Department of Defense “places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” It specifies and therefore restricts the circumstances that give a commander the authority to deny religious accommodation DoD Directive 1304.19, Appointment of Chaplains for Military Departments (2004) states that commanders are required to provide comprehensive religious support to service members. Chaplaincies are established to assist commanders in carrying out this responsibility. DoD Directive 1350.2, Department of Defense Military Equal Opportunity Program (2003) prohibits discrimination based on factors which include “religion.” U.S. Air Force Policy Favors Free Religious Expression United States Air Force Instruction 1-1 (August 7, 2012) states that as a government entity, the U.S. Air Force must allow free exercise of religion of its members, with the reasonable caution that superior officers must not appear to seem biased for or against those under their command because of religious beliefs. This regulation also states: “Supporting the right of free exercise of religion relates directly to the Air Force core values and the ability to maintain an effective team. All Airmen are able to choose to practice their particular religion, or subscribe to no religious belief at all. You should confidently practice your own beliefs while respecting others whose viewpoints differ from your own.” U.S. Army Policy Favors Free Religious Expression United States Army Regulation 600-20 (March 18, 2008) states that: “The Army places a high value on the rights of its Soldiers to observe tenets of their respective religious faiths.” The only restrictions are those that reasonably apply to any religious activity that would overtly impair military functions and readiness. U.S. Navy and Marine Policy Favors Free Religious Expression Secretary of the Navy Instruction 1730.8B (October 2, 2008) states: “Department of the Navy policy is to accommodate the doctrinal or traditional observances of the religious faith practiced by individual members . . .” Again, the only restriction allowed is when religious activity to overtly impair necessary military functions. U.S. Coast Guard Policy Favors Free Religious Expression United States Coast Guard Commandant Instruction M1730.4B (August 30, 1994) states: “In keeping with the provisions of Coast Guard policy, unit commanding officers shall provide for the free exercise of religion for Coast Guard personnel, their dependents, and other authorized persons, and seek to accommodate the religious practices and observances of individual members when they will not have an adverse impact on military readiness, unit cohesion, health, safety or discipline.” 3. Federal Case Law Supports Free Exercise of Religion in the Military Some may object that in our “enlightened” age, the courts are striking down such pro-religion policies as violating the First Amendment by breaching the so-called “separation between church and state.” However, much the opposite turns out to be the case. For example: In 2010 a U.S. District Court upheld the right of a civilian employee at the Camp LeJeune, North Carolina Marine Corps base to put decals on his car that included some carrying an overtly religious message. Even though the decals offended some base personnel, the Court ruled that the base commander engaged in “viewpoint discrimination” by permitting non-religious decals but banning those with a religious message, and ruled in favor of the religious rights of the base employee. In 1997, a U.S. District Court ruled that Roman Catholic military chaplains could encourage their military parishioners to contact legislators regarding proposed laws they deemed of utmost spiritual importance. The military sought to prohibit the chaplains from engaging in such activity, but the Court ruled for the chaplains. In 1985, a U.S. Court of Appeals rejected the claim that a government-funded chaplaincy violates the First Amendment’s Establishment Clause. In fact, the Court ruled that the Constitution “obligates Congress, upon creating an Army, to make religion available to soldiers who have been moved by the Army to areas of the world where religion of their own denominations is not available to them. The Bottom Line: Religious Liberty in the Military Here are five basic principles to remember about religious freedom within the U.S. Military: Under most circumstances in the military, religious speech—including evangelism or proselytizing—is protected by the First Amendment. Greater care must be exercised when the speaker is senior in rank to the listener so as to avoid the appearance of coercion or official government endorsement of the superior’s religion. Generally speaking, the military cannot restrict off-duty religious expression. The military can restrict on-duty religious expression if they can demonstrate that it will have an adverse impact on the unit or the mission. The military cannot engage in viewpoint discrimination, and must treat religious expression in the same way it treats similar non-religious speech such as politics or controversial social issues. Amid the bluster of those who take aim at religious freedom in the military, it’s easy to get the misimpression that such freedom doesn’t exist, is vanishing, or can’t be reclaimed. The bluster is wrong. As we’ve seen, we have every reason to confidently assert our constitutional religious rights as applied to the armed services. Religious liberty is a military necessity. If you experience, or know of, potential abuses of religious liberty in the U.S. military, call Liberty Institute’s Military Hotline at 1-800-259-9109. Please donate to Liberty Institute’s defense of religious liberty, including that of active and retired members of the military. The authors: Michael Berry, Esq., is an attorney at Liberty Institute, the nation’s largest legal organization dedicated solely to defending and restoring religious liberty in America. David Barton is the Founder and President of WallBuilders, a national pro-family organization that presents Americas history with an emphasis on our moral, religious and constitutional heritage; he is author of numerous best-selling books, and addresses well over 400 groups each year. About Liberty Institute Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit LibertyInstitute.org.
Posted on: Sat, 23 Nov 2013 19:34:05 +0000
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