2014 NDAA Strengthens Religious Liberty, Raises Mikey Weinstein Concerns

The 2014 National Defense Authorization Act that came out of the congressional conference committee last week strengthens language protecting religious liberty in the US military — and implicitly scolds the Department of Defense for not implementing such guidance already.

The House has already passed the new bill.  In short, if the Senate passes the bill and President Obama signs it, which seems to be expected (excepting the new controversy over retiree benefits), the Department of Defense will be required to accommodate not merely belief, but also expressions of belief, to the extent that it does not adversely affect the mission. The Act amends Section 533 of the last NDAA to read [changes emphasized]:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

This resembles the original House language.

The 2014 NDAA (PDF) also requires the Inspector General to report to Congress on the DOD’s promulgation of that guidance. That appears to be a direct response to the fact the DOD has been accused of failing to produce regulations for last year’s version of this religious language — which President Obama had objected to in a signing statement.

The House version of the NDAA explicitly protected military chaplains who pray in accordance with the dictates of their faith in a public setting. The conference committee instead decided to require the DoD to survey military chaplains to determine

whether restrictions placed on prayers offered in public or non-religious settings have prevented them from exercising the tenets of their faith as prescribed by their endorsing faith group, and whether those restrictions have had an adverse impact on their ability to fulfill their duties

Finally, the committee declined to include the requirement the DOD report to Congress in advance when it meets with outside groups on religious liberty policy (previously discussed).  However, the committee report (PDF) said [emphasis added]:

We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.

So while the US House was concerned enough to try to write a Weinstein-filter into law, representatives of the entire US Congress scolded the DOD for the appearance of giving preferential treatment to Michael “Mikey” Weinstein.

Oddly, Tobin Grant of the Religion News Service tried to frame the NDAA as a “loss” for “social conservatives”, saying, at one point,

The new language should also make it easier for military leaders to protect the rights of gays and lesbians in the military.

Where he got that from the bill is unclear, but he generally cited months-old articles to support his position about last week’s legislation. He seemed to base his conclusion that conservatives “lost” upon the fact President Obama did not oppose this language, as he had the last.  Grant also focused on the absence of the House language regarding “actual” harm and protections for “actions and speech.”  He apparently fails to realize that “actions and speech” are “expression,” which is in the bill, and would likely be considered a “victory” for “social conservatives.”

There is room for discussion about the military’s ability to restrict religious expression as it pertains to unit cohesion and good order and discipline, as indicated in the first line of the section.  To date, it does not appear any Islamic servicemembers have been court-martialed for expressing their belief that non-Muslims are “infidels,” nor does it appear an Air Force commander who allegedly called a fellow Airman a “bigot” because of his religious beliefs has been prosecuted. It would seem the standards for impact to discipline that would permit the restriction of religious expression would presumably be very high.

As an aside, the Military Times made a point of highlighting the fact the NDAA decriminalizes sodomy.

The text of the bill and committee report can be seen here.

Also noted at the Religion Clause.


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