Chaplains and Congress: The Defense Authorization Act of 2007

Congress has passed the 2007 Defense Authorization Act and forwarded it to the President, who signed it on 17 October 2006. Generally only controversial as the battleground for district military pet-projects, the 2007 Act has become the unlikely forum for the continuation of the debate of religion in the military. In response to the recent changes in military policy regarding religion, the Republican-controlled House Armed Services Committee included language in the bill specific to the prayers of chaplains. From H.R. 1522 section 590,

Each chaplain shall have the prerogative to pray according to the dictates of the chaplain’s own conscience, except as must be limited by military necessity, with any such limitation being imposed in the least restrictive manner feasible. (p183, 1-5)

In response, Congressman Steve Israel (D-NY), attempted to add the following to the proposed wording:

Military chaplains shall demonstrate sensitivity, respect and tolerance for all faiths present on each occasion at which prayers are offered.

Ultimately, the Congressional Conference Committee removed all aspects of the controversial wording. However, they also directed the Air Force and Navy to rescind their current religious guidelines and revert to the previous standard until Congress could conduct hearings.

This has been viewed as a victory and defeat on both sides of the issue. Some conservatives who had perceived a “tightening” of military religious freedoms viewed the loss of the language as a step back but lauded the removal of the current Air Force and Navy policies. Rep. Israel, among others, was glad to see the “offensive language” stricken, but viewed the removal of the military guidelines as a loss. While both sides have cried “victory” and “foul” it is unclear if either has gained or lost.

While those opposed to language “protecting Chaplains’ speech” have typically been classified as liberal Democrats, there have been undercurrents that some typically conservative groups also didn’t want the wording included in the legislation. The primary reason that religious groups would like to see the issue resolved outside of Congress is the potential for misapplication. For example, while Rep. Israel insisted that no one could justifiably disagree with mandating “sensitivity,” in a narrow interpretation his amendment could have had a chilling effect on a Chaplain’s public prayer. For example, if an atheist was offended by the Chaplain’s use of “God” in a prayer at a mandatory event, he could assert that the Chaplain had violated policy by not being “sensitive” to his “faith.”

Even the Republican measure has its potential shortcomings, primarily in its exception. What defines “military necessity?” Since it would be subjective, it, too, could be interpreted in a variety of ways in a variety of scenarios. If someone viewed a sectarian prayer as “divisive,” they might assert that military necessity—and thus government policy—dictated the need for a generic prayer—or even for none at all. (It is worth noting that the Republican wording is a near verbatim copy of the Air Force’s definition of religious accommodation, as listed in AFPD 52-1.)

For those reasons, some conservative groups would rather that the issue not be “legislated.” In large part, that was the reason that Christian groups were so opposed to the original Air Force guidelines but subsequently supported the “revised” ones. The revised guidelines were generalized and avoided most opportunities for misapplication. (The brevity and lack of specificity made the new guidelines unacceptable to many who claimed to fight “proselytizing” in the Air Force.)

Those who contend that the “noble intention” of a military regulation would prevail over the potential incorrect applications are most likely inexperienced in military life or naive. The more specific a law, rule, or policy is, the more likely it can be applied in a way that it was never intended. Indeed, an overly specific policy can actually result in “prohibition by omission:” if a policy doesn’t address it, it’s not permitted. The military religious climate should be debated, but Christians should be wary of those who would legislate or regulate religious expression.

Like many other issues that involve government and religion, this case has already been boiled down to an “all or none” thesis by the Washington Post (as quoted here). That is, the government should either approve all faiths or allow none. Since it will be impossible to be “sensitive” to all faiths all the time, the paper suggested that prayers simply be removed from official events. The “none” assertion seems constitutionally valid because it prevents the government from favoring one religion over another, but it misses a vital point. By allowing prayer at military events the government does not “establish” religion, which is the only active Constitutional restriction on government actions regarding religion. By prohibiting prayer, though, the government could be interpreted as preventing free exercise, which the Constitution expressly prohibits. While allowing prayer may be potentially “offensive,” it is constitutionally permissible, while restricting it—while potentially less offensive—is not.

The “scandal” and “controversy” regarding religion in the Air Force and Navy has much greater legs in the media than it does in the military itself. This is due in large part to the fact that, in the Air Force at least, religious policies have been generally accommodating. Situations quoted by the media are often isolated, sensationalized, or simply misunderstood. As an example, when the Air Force began investigating “religious intolerance” at the Air Force Academy, some cadets reported first hearing of the scandal in the news (p31, para 1, HQ report).  While there may have been issues that needed resolved, they felt that the “scandal” was generated by the media.  Even the religious guidelines issued by the Air Force as a result of the Academy investigation had little noticeable impact on the daily life of a religious military member. 

The unquantifiable damage done by the hype surrounding religious issues—whether or not they are subsequently substantiated—could be significant.  Cadets at the Air Force Academy expressed hesitation at mentioning religion at all for fear they would spark a congressional investigation (p31, para 1, HQ report).  Likewise, active duty military members in all branches have seen the impact of a simple religious word or expression on the part of certain individuals.  Promotions have been delayed and jobs lost over what may, in the end, have been only a news story.  Such dramatic repercussions put officers in the uncomfortable position of “self-restricting” their religious expression in order to avoid any controversy.  While the “religious guidelines” may not prevent free exercise, self-restricting to avoid the impulsive court of public opinion may cause the same effect. 

In large part this controversy has been fed by misunderstanding and misinformation.  For example, while news organizations have used the controversy surrounding this year’s Defense Authorization Act to revisit last year’s Air Force “scandal,” Chaplains’ public prayers have primarily been a Navy concern.  The Air Force controversy—and the subject of its current lawsuit—is that of a superior officer’s permissible religious expression, which was not at all affected by the legislation’s proposed language. 

In another example, Rep. Israel has repeatedly used the story of an Air Force Academy Chaplain telling cadets that their unsaved friends would “burn in the fires of hell” as an example of the blatant proselytizing that should be prohibited.  On the floor of the House he recently said 

For those of you who believe in the right of the military chaplain who told cadets willing to die for their country that they would burn in the eternal flames of hell unless they abandoned their religious beliefs, we have a profound and irreconcilable difference. 

First, the Chaplain in question denied making the alleged quote, which means the Congressman is quoting unsubstantiated allegations as fact.  Second, a Protestant cadet in a Protestant Chapel service would expect to hear such language from a Protestant Chaplain, as was the case.  In fact, the Air Force’s official review of the Academy religious climate noted that the Chaplain was expressly permitted to use such “offensive” language: 

While these comments, if they were made, may be considered offensive or unnecessarily strident by some, they are not uncommon expressions of [the Chaplain’s denominational] doctrine. It should be noted that the freedom to express one’s religious views in a voluntary worship service designated for a particular faith group is a condition of endorsement by a chaplain’s sponsoring organization.  (page 10, para 2, HQ report

If Congressman Israel’s “sensitivity” amendment restricted the content of a Protestant Chaplain’s sermon in a Protestant chapel service—as it appears he wants it to—he could potentially prevent the free exercise of the Protestant military members who would attend that service, as well as that of the Protestant Chaplain himself. 

As indicated by the Conference Committee’s report, this issue will likely see public debate again beginning in January’s congressional session.  It is unclear what, if any, direction the congressional action will take—particularly given the intervening election in November.  Rep. Israel has said that Congress will need to create “a new set of guidelines that reflect America’s mainstream values and ensure good order and discipline on our military bases.”  The direction those guidelines would take is uncertain. 

The good news?  The debate isn’t over.  The bad news?  The debate isn’t over…

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