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
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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