October 23, 2008

A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches

Government Provision of Religious Services

Although as a general rule the government may not provide religious resources, such as houses of worship or clergy, there is an exception to this rule: The government may fund or sponsor a religious activity if the government does so to accommodate the religious needs of people who, due to government action, no longer have access to religious resources. The military chaplaincy is the primary example of this sort of government-supported religious experience.

While the Supreme Court has never addressed the constitutionality of the military chaplaincy, the 2nd U.S. Circuit Court of Appeals rejected an Establishment Clause challenge against the chaplaincy in Katcoff v. Marsh (1982). In its opinion, the 2nd Circuit noted that the chaplaincy has a lengthy historical record, going back to the Continental Congress. The 2nd Circuit also declared that members of the armed forces have a right under the Free Exercise Clause to a government-provided opportunity to worship.

Later Supreme Court decisions, such as Smith, have cast doubt on the 2nd Circuit’s conclusion in Katcoff that the Free Exercise Clause requires the chaplaincy’s existence. Nevertheless, it appears likely that the Supreme Court would agree with the 2nd Circuit’s reasoning that, given the government’s absolute control over the armed forces, the Establishment Clause permits the chaplaincy as a means of accommodating religious members of the military.

This rationale for the military chaplaincy would appear to apply in other contexts as well. For example, both the federal government and many state governments provide chaplains for institutionalized persons, such as prisoners. Given that institutionalized persons are similarly under the government’s absolute control, it seems likely that a court would uphold such a provision of religious services. Some states and localities, however, go further and sponsor chaplaincies for employees, such as police officers and firefighters, who are subject to some but not absolute government control. Because these employees can worship or seek religious counseling away from the workplace, the argument for a government-subsidized chaplaincy in these contexts appears weaker than the arguments for military and prison chaplaincies.

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