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Recently there have been several disputes over religion's role in the military. Can you give us some background on these controversies?

There is a very long relationship between religion and the military in the United States, going back to the early days of the Army, which had chaplains funded by the Continental Congress. But over the last 30 years, the military, like many other parts of our society, has become much more religiously diverse. This diversity has produced some of the recent controversies.

For example, a few years ago there were complaints that some Air Force Academy faculty members and more-senior cadets were pressuring cadets to participate in religious activities. Those who investigated the complaints expressed concerns about a culture of proselytizing at the academy. There also have been a number of stories of service men and women in various branches of the military being pressured to participate in prayers.

When thinking about these controversies, it's important to distinguish between mandatory and voluntary religious activities. All service academies used to require everyone to attend religious services. Although the U.S. Court of Appeals for the District of Columbia Circuit found this requirement unconstitutional in Anderson v. Laird (1972), the Naval Academy still holds pre-meal prayers, and attendance at these meals is required. This has recently stirred up some controversy, leading some students at the Naval Academy to seek legal help from the American Civil Liberties Union. A similar practice of mealtime prayer at the Virginia Military Institute was held unconstitutional by the 4th U.S. Circuit Court of Appeals in Mellen v. Bunting (2003).

Most of the recent controversies over this issue, however, have involved social pressure rather than official requirements. These disputes are about whether a person in authority has been too aggressive in urging others within the military to participate in some religious activity. In the past, this might not have caused a dispute, but now there are serious controversies over this issue because people are much more willing to object to the pressure.

The military chaplaincy seems to present a constitutional paradox in that the First Amendment's Establishment Clause restricts the government's authority to fund and endorse religion, but the military funds chaplains who promote religious messages. Can you explain why, despite these constitutional restrictions, the chaplaincy exists?

The chaplaincy does present something of a paradox. The government pays the chaplains' salaries. The government also pays for the places of worship and even for the worship materials themselves. So the chaplaincy does appear to be an oddity under the Establishment Clause.

The reason that the chaplaincy is likely constitutional, despite the Establishment Clause restrictions you mentioned, has to do with the principle of religious accommodation. While the Establishment Clause generally prohibits the government from funding and sponsoring religious activities, there is one important 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, because of government action, no longer have access to religious resources. Thus, when the military has isolated service members from their normal worship opportunities, the government may then facilitate worship by providing the necessary religious resources, like chaplains. In such situations, the government is merely responding to a religious need and is therefore not promoting religion.

Have courts upheld the constitutionality of the military chaplaincy on the basis of this accommodation principle?

The U.S. Supreme Court has never heard a case directly involving the military chaplaincy. But in Abington School District v. Schempp (1963), a landmark decision that prohibited public schools from leading Bible reading, several justices argued that the military chaplaincy is a valid accommodation of religion under the Establishment Clause. The court in Schempp rejected the argument that school-sponsored Bible reading is a permissible way of accommodating students with religious needs. The court said that since students have plenty of opportunities to read the Bible outside of school, whether before or after the school day, school-led Bible reading doesn't accommodate religious students but rather promotes religion.

In their written opinions on the case, some of the justices contrasted the religious needs of students with those of service members. Because military duties might take service members into isolated and hostile environments, service members might not be able to participate in civilian worship communities or receive spiritual counsel from civilian clergy. Given this inability of service members to worship outside the military base, some of the justices concluded that the military may provide chaplains to accommodate the religious needs of service members. These comments about the chaplaincy, though, don't have any direct legal effect because the Schempp case dealt only with the constitutional question of Bible reading in public schools.

The only federal court decision directly dealing with the military chaplaincy's constitutionality is Katcoff v. Marsh (1985), a case decided by the 2nd U.S. Circuit Court of Appeals. In Katcoff, the 2nd Circuit upheld the U.S. Army's chaplaincy on the ground that service members have a constitutional right under the First Amendment's Free Exercise Clause to engage in religious worship, a right that the Army would unduly burden if it did not provide chaplains.  

Today, it is very unlikely that a court would follow the reasoning in Katcoff because courts have interpreted the Free Exercise Clause much more narrowly over the last 20 years. (For more information on how courts have narrowed the religious liberty guaranteed by the Free Exercise Clause, see A Delicate Balance: The Free Exercise Clause and the Supreme Court.) Nevertheless, courts today would probably reach the same outcome - upholding the chaplaincy's constitutionality - but for different reasons. Instead of finding that the Free Exercise Clause requires the military to establish a chaplaincy, as the Katcoff court did, most courts today would likely find that the Establishment Clause permits the military to provide chaplains so long as it does so in response to the religious needs of service members.

But what if the government responded to these religious needs by providing chaplains in a way that favored some religions over others?

That precise question has been raised in a series of cases, going back a decade, over the way that the U.S. Navy selects chaplains. These lawsuits allege that the Navy has hired chaplains using a "thirds policy." According to the people bringing the suits, the Navy used a formula dividing its chaplains into thirds: one-third consisting of liturgical Protestant denominations (such as such as Methodists, Lutherans, Episcopalians and Presbyterians); another third consisting of Catholics; and a last third consisting of non-liturgical Protestant denominations (such as Baptists, evangelicals, Bible churches, Pentecostals and charismatics) and other faiths. The lawsuits claim that the Navy's criteria are unconstitutional because they disfavor non-liturgical Protestants, who make up a great deal more than one-third of the Navy, while Catholics and liturgical Protestants each make up less than one-third.

In April 2007, a U.S. District Court in Washington, D.C., rejected one of these challenges to the Navy's chaplain selection criteria. The court held that the Navy had abandoned the thirds policy and said that its current criteria were constitutional because the Navy has broad discretion to determine how to accommodate the religious needs of its service members. This decision was affirmed in 2008 by the U.S. Court of Appeals for the District of Columbia Circuit.  

What if the military asked a chaplain to pray at an official event and the chaplain offered a prayer specific to his faith tradition - for example, by praying in Jesus' name? Would that be constitutional?

Your question touches on what has become, over the past couple of years, the most public and heated controversy within the military chaplaincy. To understand this issue, it's important to distinguish between what is and isn't involved here. We're not talking about a faith group's private worship. Rather, this controversy is about public events, such as a ceremony for a change of command, at which the military might ask a chaplain to give an invocation. In addition, the controversy isn't about whether the Constitution allows chaplains to provide an invocation at these public events. Instead, this controversy is about whether the chaplains may provide faith-specific prayers. 

Some argue that chaplains violate the Establishment Clause by offering faith-specific prayers at public events because such prayers represent the government's official endorsement of that particular faith and also impose religious experience on those who are required to attend the event. But others say that the military must permit these faith-specific prayers because the chaplains have a constitutional right to pray as their specific faith requires; they argue that this right is guaranteed by either the Free Exercise Clause, which protects religious liberty, or the Free Speech Clause, which limits the government's ability to restrict the content of private speech. So one side is arguing that the Constitution prohibits faith-specific prayers and another side is arguing that the Constitution guarantees chaplains a right to offer faith-specific prayers.

While no court has yet had to address this question, I think that if this issue were presented, a court would likely disagree with both sides. On the one hand, the Constitution probably permits faith-specific references in prayers at official events, even if service members are required to attend those events, as long as chaplains don't use the prayers to proselytize. But there would of course be stronger arguments against such faith-specific prayers if they were offered on a regular basis. On the other hand, the Constitution probably permits the military to prohibit chaplains from making any faith-specific references during a public invocation because the government has broad authority to control what public officials say. And I think a court would find that chaplains act as public officials when they speak at official events. Thus, courts are likely to hold that the military has the discretion to decide whether chaplains may offer faith-specific prayers at public events.

How does the "war on terror," a conflict with obvious religious overtones, relate to this notion of accommodating religious needs? What if, for example, the military wanted to build mosques and fund imams to serve the many devout Muslims in Iraq and Afghanistan, who, due to the war, might be deprived of adequate religious resources? Would that be constitutionally appropriate?

That's an interesting and very relevant question, but it's hard to answer because it raises the unresolved issue of whether the Establishment Clause applies to action taken by the U.S. government outside its territory. Although the 2nd U.S. Circuit Court of Appeals in Lamont v. Woods (1991) ruled that the clause does apply overseas, the Supreme Court has never addressed this issue, and there are good arguments on both sides. Some say that the clause should not apply abroad because the two primary purposes of the clause - protecting religious liberty and avoiding religious conflict in America - deal only with actions either occurring within the United States or affecting U.S citizens. Others say that the clause should apply to the government's overseas conduct because the government's overseas expenditures on religion can burden American taxpayers in the same way that domestic expenditures do.

Do you anticipate an increasing or decreasing amount of litigation over religion's role in the military?

I think that the litigation is likely to increase. Service members feel increasingly entitled to have their beliefs respected by those in positions of authority. At the same time, supervisors feel that they are entitled to express their religious beliefs to peers and subordinates. This conflicting sense of entitlement often produces litigation.

Do you expect any of these cases to go to the Supreme Court?

I would be very surprised if the Supreme Court heard any of these cases. I say this for two reasons. One, I think that the military has been working very hard to follow this accommodation principle we've been discussing. The military has instructed its chaplains and commanding officers to respect the rights of non-believers and to facilitate the religious needs of all service members. Two, the court has generally deferred to military authorities and hesitated to intervene in issues involving the military. For these two reasons, I think it's unlikely that the court would agree to hear any of these cases.

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This transcript has been edited for clarity, spelling and grammar.