Congressmen Call Air Force Religion Rules Unconstitutional

Update: Congressman Lamborn’s potential political rivals reacted, with Republican Bentley Rayburn, a retired Major General and 1975 USAFA graduate, saying Lamborn hasn’t done enough to support religious freedom at USAFA, while Democrat Irv Halter, also a retired Major General and 1977 USAFA graduate, says Lamborn has gone too far.

A few weeks ago congressmen asked the Secretary of the Air Force to document and explain the Air Force religious policy and its application at the US Air Force Academy, following USAFA’s command decision to pull down a Bible verse on a cadet’s whiteboard. As noted then and in a subsequent congressional hearing, the Air Force has relied heavily on AFI 1-1, a Chief of Staff level AFI published in the final days of General Norton Schwartz’s tenure in 2012.

Now, Congressman Doug Lamborn of Colorado (home to the US Air Force Academy) has written a letter signed by 22 other congressmen asking Secretary of the Air Force Deborah Lee James to revise the policy at issue:

The August 2012 Air Force regulations which govern religious freedom and expression (AFI 1-1) are inconsistent with Congressional intent and current law…

The first issue Lamborn cites is the “undefinable” standard the Air Force uses [emphasis added]: 

AFI 1-1 introduces a subjective and unworkable restriction on a leader’s ability to speak about their faith: the leader must avoid the “actual or apparent use of their position” to convey support for religious beliefs. However, “apparent” use is a hypothetical and undefinable standard that in practice allows for silencing of all personal expression. AFI 1-1’s limits on free speech and religion of those in leadership are both unnecessary and unconstitutional.

Left unsaid is the possible interpretation that an Airman may not know he’s violated an “undefinable” standard until after he’s done so.

The second issue Lamborn raises is the interpretation by the Air Force that expression of religion is not a protected exercise or practice. If you recall, that’s precisely what the USAFA JAG told Liberty Institute attorney Mike Berry after the “whiteboard incident.”

Second, the Air Force regulation states that free “exercise” and “practice” of religion should be protected, but apparently has determined elsewhere that free “expression” of religious belief is distinct from exercise and practice. This is clearly an unconstitutional interpretation, and is inconsistent with the law…

Interestingly, this legal interpretation of “expression” presumably fell under the purview of The JAG of the Air Force, LtGen Richard Harding, who was also the JAG under General Schwartz when AFI 1-1 was originally published.  General Harding, who will presumably be part of the upcoming “offsite” review of AFI 1-1, reportedly said last year that AFI 1-1 was a “panacea to all religious issues” in the Air Force.

Finally, Lamborn notes what has been highlighted by only a few rare people to date: Lots of people are citing paragraph 2.11 on “neutrality,” but no one is citing the very next paragraph, 2.12, which famously says [emphasis added]:

“Supporting the right of free exercise of religion relates directly to the Air Force core values and the ability to maintain an effective team. All Airmen are able to choose to practice their particular religion, or subscribe to no religious belief at all. You should confidently practice your own beliefs…”

Lamborn interprets this omission or bias to mean the Air Force is valuing neutrality over free exercise. That’s notable, because as a precept, neutrality isn’t in the US Constitution; free exercise is.

Air Force officials have interpreted AFI 1-1 in a manner where section 2.11 (regarding government neutrality on religion) trumps section 2.12 (regarding the individual free exercise of religion). This interpretation and practice is inconsistent with federal law and the Constitution…

The letter was signed just days after Secretary James said the Air Force would be conducting an offsite for the purpose of reviewing this very regulation.

Momentum is certainly building for the religious aspects of this AFI to be revamped. In fact, the efficiency-seeking General Welsh might simply abandon the entire AFI, as it really does little more more than re-cite other AFIs — with one notable exception being the paragraphs on religion.

Should there be even minor changes, it would represent a particular blow to Michael “Mikey” Weinstein, who essentially claims credit for getting his “ally” — then-Chief of Staff General Norton Schwartz — to publish the very wording causing the controversy today.  If Weinstein loses both his special access to senior military leaders and the policy tailor-made for his vendetta against military religious freedom, he may suffer the greatest defeat yet in his self-declared “war” — a war he’s waged ferociously on Christians in the military.

As reported at the Colorado Springs Gazette and repeated at  Also at The Daily Caller.