By K. Hollyn Hollman, BJC General Counsel
In deliberations over the reauthorization of the National Defense Authorization Act (NDAA), religious liberty has become a point of contention. For the second year in a row, Congress is considering reforms designed to protect military members’ religious freedom. Last year, Congress added a new provision to the defense authorization bill designed to protect the rights of conscience of armed service members and military chaplains. That provision requires the military to accommodate members’ religious beliefs and to avoid using those beliefs, to the extent practicable, as a basis for discrimination or other adverse actions. In addition, it provides that military chaplains cannot be required to perform any rite or ceremony against their conscience, and they must not be punished for such refusal. This change came largely in response to disputed assertions about the effect of the repeal of the military’s “don’t ask, don’t tell” policy on service members and chaplains with dissenting religious views.
This year, both the House of Representatives and the Senate have proposed various religious freedom amendments, including ones that would alter the current conscience provision. The House version would increase the military’s duty to accommodate religious beliefs of service members “except in cases of military necessity.” It also would permit adverse personnel action only where a service member’s actions or expression cause “actual harm” to military order.
The Senate amendments provide for accommodation of expressions of belief “unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline.” Recognizing that at times certain military interests may conflict with religious accommodation needs, this language echoes that found in current Department of Defense policy regarding requests for accommodation of religious practices.
While it is uncertain how Congress will resolve these matters, the debate offers an opportunity to think critically about the constitutional protection of religious freedom in the military. Surely respect for the military demands accurate information and a commitment to the foundational principles that must govern religious liberty in this unique, government-controlled context. Otherwise, it is impossible to determine if a change in law is needed or is likely to achieve its asserted goal.
One view of religious liberty in the military encourages government promotion of religion — often Christianity in particular — as a natural and ancillary aspect of military life. According to this view, reflected in a recent report by the Family Research Council, service to God and country are hardly distinguishable and little concern is given to the coercive nature of the military in matters of religion. The physical and mental rigors of military life, the thinking goes, require reliance on God and justify a “strong religious presence in the United States military” that fosters among service members “a commitment to each other, to the United States, and to God.” The Family Research Council asserts a “growing hostility to religion” in the military at the hands of “anti-Christian activists.”
Another view — one to which the BJC subscribes —is that government involvement with religion in the military must comply with constitutional safeguards appropriate for the context, with the military chaplaincy serving as the primary vehicle for accommodating the various religious needs of military personnel. George Washington University law professors Ira C. Lupu and Robert W. Tuttle explain this approach in a law review article entitled “Instruments of Accommodation: The Military Chaplaincy and the Constitution.” In it, they analyze a 1985 case, Katcoff v. Marsh, in which the 2nd U.S. Circuit Court of Appeals upheld the military chaplaincy against a constitutional challenge. The Katcoff decision held that while the military chaplaincy, in isolation, may fail under the prevailing Establishment Clause test, it does not exist in a vacuum and must be examined in context against other important government interests pursuant to Congress’ war powers and the Free Exercise Clause. Service members, like civilians, have free exercise rights to engage in religious activity, and the military avoids infringing upon those rights by providing access to military chaplains. The military chaplaincy, the court concluded, is necessary due to “circumstances where the practice of religion would otherwise be denied as a practical matter to all or a substantial number.”
This view recognizes that an important corollary of the military’s duty to accommodate service members’ rights to exercise religion is its obligation to protect members from religious coercion. The Establishment Clause commands that government avoid promoting one religion over others or religion generally, and this principle is equally true in the military context. In general, it is the role of military chaplains to help facilitate individual religious liberty needs without harming the rights of other service members.
Isolated, sensationalist anecdotes and claims that Christian service members are under attack can distort the debate, ignoring the many ways that service members can and do engage in religious practice every day. As Congress continues to grapple with issues of religious liberty in the military, we would all do well to remember and carefully guard the constitutional principles that protect service members of every (or no) faith as they protect our country.
From the July/August 2013 Report from the Capital. Click here for the next article.
