the past few years, there have been several controversies over
religion's role in the military. Most recently, students and staff at
the U.S. Naval Academy and West Point have complained
of pressure from their supervisors to engage in religious activities.
Three years earlier, there were similar allegations at the U.S. Air
Force Academy. Other controversies have arisen over whether military
chaplains may offer faith-specific prayers at official military events.
With cadets, military officers and chaplains asserting competing
constitutional rights, these disputes have raised multifaceted and
complicated questions. To clarify these issues, the Pew Forum turns to
church-state scholar Robert W. Tuttle.
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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.
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
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
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
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
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
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
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
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
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
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This transcript has been edited for clarity, spelling and grammar.