Congressional Research Service Report on Religion in the Military

The Congressional Research Service is a statutory office that provides research services at the request of members of Congress.  The CRS says its work is “authoritative,” “accurate,” “objective and nonpartisan.”

The CRS recently published a report entitled “Military Personnel and Freedom of Religious Expression: Selected Legal Issues,” by attorneys R. Chuck Mason and Cynthia Brougher.

The 20-page report 

provides a framework for how Congress and the courts might consider future issues that arise related to servicemembers’ religious exercise. Specifically, the report examines the limitations placed on servicemembers in uniform in the exercise of their religious beliefs. It also examines the role of military chaplains and the legal challenges associated with publicly funding religious personnel. The report analyzes efforts by Congress and the Department of Defense to address the constitutional concerns that are raised by these issues.

The report is generally accurate and reasonably thorough, with consideration of the fact it may be written for Congressional staffs with a short attention span for details.

However, it does bring up two interesting perspectives not normally associated with the subject of religion in the military:

  • The potential that religious activities could fall under the restrictions of DoDI 1325.06 (dissident and protest activities), and
  • The potential that the Attorney General might designate a religious organization as “totalitarian, fascist, communist, or subversive,” thus prohibiting servicemembers from wearing their uniforms at those religious events (DoDI 1334.01).

From the discussion on 1325.06:

Servicemembers “must not actively advocate supremacist doctrine, ideology, or causes, including those that advance, encourage, or advocate illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin….” While the prohibition does not explicitly prohibit the exercise of any specific religion, it may be argued that a religion advocating a supremacist doctrine, ideology, or cause, or the use of force, violence, or criminal activity would be prohibited under this Instruction.

With regard to 1334.01:

Arguably, this instruction, much like the DOD policy with respect to dissident activities discussed above, could be applicable to a religious organization. If a religious organization were designated by the Attorney General as “totalitarian, fascist, communist, or subversive,” a servicemember would be prohibited from wearing a uniform at a meeting or demonstration of, or sponsored by, the organization.

The report has a fairly lengthy discussion on the Chaplaincy, and notes both the proven Constitutionality (Katcoff v Marsh, 1985) as well as challenges to its faith hiring practices (Larsen v US Navy, 2007).  It does communicate one thought poorly, first saying:

Chaplains are required to hold worship services, but the military does not dictate the content of such services.

and then saying

the chaplaincy requires that religious services take a pluralistic approach to some extent, so that any servicemember may be assisted by an available chaplain, regardless of denomination.

which isn’t entirely true.  There is no “requirement” that a military Chaplain conduct pluralistic religious services.  In fact, the footnote references Veitch v England, which specifically stated the court did not have to answer the question of required pluralism in military sermons.