The following is a very long but outstanding article from Senior Counsel at the American Center for Law and Justice (ACLJ) Robert W. “Skip” Ash.  Ash, a retired US Army officer, delivers a point-by-point response to retired US Army BGen John Compere, a retired JAG who purports to defend the need to restrict military religious freedom.  Compere is an ally and vocal advocate of Michael “Mikey” Weinstein, and he has occasionally commented on this site.

Within the analysis you’ll note some themes common among Compere, Weinstein, and his allies, from straw man arguments to misquoting the Constitution. Their position is impassioned but inconsistent with either basic religious liberty or the US Constitution.

Our thanks to Skip Ash for his tireless work in defense of military religious freedom. You can also read his article at its original ACLJ site.

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Why the Angry Atheists are Wrong: A Reply to “Our Constitution, Any Religion & the Military”

By Skip Ash

Every so often, I visit the Military Religious Freedom Foundation (MRFF) website to see what Mr. Weinstein and his fellow travelers have been up to. When I visited the website on October 31, 2016, I came across a short article entitled, “Our Constitution, Any Religion & the Military,” written by MRFF Advisory Board Member, retired Brigadier General John M. Compere, whose listed credentials read, “Brigadier General, Judge Advocate General’s Corps, US Army (Retired); former Chief Judge, US Army Court of Military Review; disabled American veteran (Vietnam era); Military Religious Freedom Foundation Advisory Board Member; and Texas rancher.” As a partially disabled veteran myself, I appreciate and salute General Compere’s service to our Nation.

I began to read General Compere’s article with considerable interest. As a Constitutional law attorney, however, I was quickly disappointed in both what the General said and what he left unsaid vis-à-vis religious exercise in uniform. In my view, many of his views do not comport with the Constitution and laws of the United States. He advocates an extremely expansive view of the Establishment Clause that, if applied, would severely and unnecessarily restrict both free exercise of religion and free expression of religious sentiments. In the remainder of this reply, I explain what I mean by those comments and on what authority I rely to draw my conclusions. In order to ensure that I don’t misquote General Compere, I reproduce his words in bold print. Where I believe a comment is called for, I will do so in regular print following the word, “COMMENT.” Hopefully, that will become clear as you read on.

The General’s article begins as follows:

“The military mission is to defend our diverse nation against its enemies – not promote a religion.”

COMMENT: That is doubtless a true statement. Yet, right off the bat, it appears to be a straw man argument. I am aware of no persons or groups advocating that the “military mission” of the Armed Forces of the United States is to “promote a religion,” and General Compere mentions none. If the General has specific persons or groups in mind advocating such a policy, it would have been helpful for such persons or groups to be identified. As it is, he appears to be refuting an argument that no one is making. That is the essence of a straw man argument. If the General has certain persons or groups in mind, I would be interested in knowing who they are and in obtaining copies of what they are actually saying and/or writing.

“The sworn military oath is to ‘support and defend the Constitution of the United States . . . and bear true faith and allegiance to the same’ – not to a religion or its writings.”

COMMENT: That is also true. Once again, though, I am aware of no one who is arguing or advocating that the “sworn military oath” be interpreted to mean “support and defend” “a religion or its writings.” Having said that, one must nonetheless recognize that the rights to free exercise of religion and free expression of religious sentiments are, in fact, integral rights expressly found in the Constitution that service members swear “to support and defend” and to which they are to “bear true faith and allegiance.”

General Compere seems to be suggesting that one cannot take an oath to support and defend the Constitution and simultaneously fulfill a religious obligation (a similar argument was made by MRFF Member, Ambassador Joseph C. Wilson, at the Air Force Academy a few years ago). In my 22-year experience as an Army combat arms officer, I never found keeping both the obligations of my military oath and the requirements of my religious faith to be a problem, given the fact that our Constitution recognizes, respects, and protects my rights to free exercise of religion and free expression of religious sentiments. I would agree that reasonable “time, place and manner” restrictions may apply, but that is true of First Amendment rights both in and out of uniform. So, once again, I wonder what the exact problem is that General Compere is trying to correct, especially since no known persons or groups are advocating what he’s apparently concerned about.

As a final note on this point, the Constitution which the service member swears to “support and defend” and to which he is to “bear true faith and allegiance” includes a clear Christian religious reference. The basic document ends as follows: “done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven . . . .” (emphasis added). The word “Lord” in that phrase is commonly understood to refer to Jesus Christ. Thus, the service member is asked to bear true faith and allegiance to the most important governing document in our Nation, a document that itself enshrines an historical recognition of the Lordship of Jesus Christ.

“The Constitution 1st Amendment prohibits our government or its representatives (which includes the military) from publicly ‘respecting’ a religion.”

COMMENT: This is simply not true on multiple levels. The First Amendment actually prohibits the federal Government from making “any law” “respecting an establishment of religion” (italics added). The word “respecting” in that phrase means “with respect to,” since the object to which “respecting” refers is “establishment,” not “religion.” The word “respecting” in this context has nothing to do with how one generally values or treats religion, publicly or otherwise (although, if General Compere’s interpretation is true, the U.S. Government would be wrong to require that our service members “respect” Islam and its customs when serving in Islamic countries, as that would violate General Compere’s claim that the First Amendment “prohibits our government or its representatives . . . from publicly ‘respecting’ a religion”).

Instead, I suggest that our Government is actually called upon to respect all religions equally. In Zorach v. Clausen, the Supreme Court noted that “[w]e are a religious people whose institutions presuppose a Supreme Being. . . .” See 343 U.S. 306, 313 (1952). Accordingly, “[the Government] sponsor[s] an attitude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” Id. It is only an “establishment” of religion that is prohibited.

Further, the phrases “respecting an establishment of religion” (the actual Constitutional phrase) and “respecting a religion” (General Compere’s phrase) mean very different things. Establishment connotes government favoritism and sponsorship of one religion over all others (like government financial and other support of the Church of England in the United Kingdom), whereas the Supreme Court of the United States has interpreted the Constitution to require Government neutrality in dealing with various religions and letting each thrive according to the desirability of its doctrines and the fervor of its adherents. See Zorach, 343 U.S. at 313 (noting the Government “shows no partiality to any one group” and “lets each flourish according to the zeal of its adherents and the appeal of its dogma.”). Note also that the First Amendment only proscribed establishment of a national religion. At the time of the adoption of the First Amendment, some states still had established churches, and those churches were unaffected by the Establishment Clause. In fact, the last state to disestablish its church was Massachusetts, which did so some 40+ years after the First Amendment had been adopted. See, e.g., Kelly Olds, “Privatizing the Church: Disestablishment in Connecticut and Massachusetts,” 102 J. Pol. Econ. 277, 281-82 (1994).

General Compere’s statement is also untrue with respect to the military chaplaincy. Unlike legislative chaplains, military chaplains are selected precisely because they represent a specific denominational view. The Government hires them precisely because they belong to a specific faith group, and they are hired to propagate the specific teachings of their faith group within the military. They are even paid out of the U.S. treasury to propagate specific religious teachings. Although chaplains also perform other duties, a chaplain’s denominational identity is a key factor in his service as a military chaplain, and, should a chaplain lose his denominational endorsement, he would be separated from the service. Hence, in some circumstances, the Government does indeed “respect” a religion (in the sense that General Compere used the term). See also Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) (recognizing “that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause” (emphasis added)).

There are countless other instances where the Supreme Court has respected religious expression on public grounds, including the erection of an unattended cross on the Ohio Capitol grounds, the erection of religious holiday displays on public property throughout the Nation, and the placement of Ten Commandments monuments on various courthouse lawns, to name but three. The Supreme Court has also upheld solemnizing prayer before city council meetings, the creation of religious student clubs in secondary schools, placement of the national motto on U.S. currency, and so on. This listing of permitted activities and expression apply with equal vigor to the next portion of General Compere’s article.

“Religion is private, military service and pay are public.”

COMMENT. The first phrase is simply a misrepresentation of reality. Religion does have a private component, but many religions also have very public components. Visit a Roman Catholic or Orthodox region in almost any country, and one will inevitably encounter a religious procession or festival of some kind. That is quite public. Visit a busy thoroughfare in almost any town in the United States, and one will inevitably run into a street preacher or an officer of the Salvation Army urging passers-by “to be saved.” That is quite public. Visit almost any beach on the Gulf Coast over college Spring break, and one will inevitably encounter college students sharing Four Spiritual Laws pamphlets with vacationers. That is quite public. Visit a predominantly Muslim area, and one will inevitably run into adherents answering the muezzin’s call to prayer by laying prayer rugs on the street and bowing towards Mecca. That is quite public. And, who hasn’t had an occasional encounter with a Jehovah’s Witness or a Mormon missionary? Hence, the assertion that religion is (essentially) private is easily disproven. Moreover, it is not the role of anyone from the Government (including a retired judge and JAG officer) to define the essence of religion and its practice for anyone. See, e.g., Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”).

It is also conceivable that the General meant to say that religion is in the “private sector” as opposed to the public sector. Yet, if that is what was meant, it certainly was not clearly communicated. Further, since MRFF has in the past formally advocated limiting religious activity on military bases to chapels and “the curtilage of” chapels, I should be forgiven if I have misinterpreted the General’s meaning.

While I agree that military service is “public” in the sense that service members are employed by the federal Government and that all service members are part of the Executive Branch, I do not and cannot agree with any implied or express assertion that such a relationship means that virtually everything that such persons say and do is ipso facto attributable to the federal Government, thereby requiring such persons to severely curtail their ability to enjoy their Constitutional rights to free exercise of religion and free expression of religious sentiments. Sure, when such persons are clearly carrying out their Government role, they must act as Government agents should and limit some First Amendment activities, but the notion that simply because they are Government employees they cannot exercise their Constitutional rights when not “on duty,” so to speak, is Constitutionally defective. I do wholeheartedly agree that persons in positions of authority should not use such authority to create captive audiences to propagate their beliefs—whether religious, philosophic or otherwise—but I believe that the General’s implication was that, by virtue of the service members’ status as public (i.e., Government) employees, their views are automatically “public” and thus attributable to the Government. Such a view is simply not correct, and the Supreme Court has noted that determining whether an individual has violated the Establishment Clause must be judged based on the reasonable observer standard. Justice O’Connor aptly noted the following regarding a “reasonable observer”:

There is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion. A State has not made religion relevant to standing . . . simply because a particular viewer of a display [or hearer of remarks] might feel uncomfortable. It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious [activity] appears.

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 779–80 (1995) (emphasis added). Service members are deemed to be “reasonable observers.” As such, they are deemed to know that many different faith groups are represented in the military, that adherents of different faith groups express themselves in different ways, that it is common to encounter the expression of religious sentiments, and that the military does not endorse one religious sentiment over another merely because it permits such sentiments to be expressed.

MRFF and its allies want to remove all semblance of religious expression from the public sphere in the military—even passive, symbolic expression, like a Bible as part of the reading material made available to patients in a medical clinic waiting room. Such a policy singles out religion and its adherents for special detriment, thereby violating the very Establishment Clause MRFF and its allies claim to be protecting. The Armed Forces have an obligation to protect the free exercise and free speech rights of all service members—believers and non-believers alike. Restricting religious expression to avoid offending the non-religious would require military officials to determine which religious expression to allow and which to disallow, in effect, preferring certain types of religious expression over others, in itself something Government officials are precluded from doing by our Constitution.

Further, the General’s description that military pay is “public” is somewhat troubling in its implications. I do not contest that service members are paid out of the U.S. treasury. Hence, in that sense, their pay can be described as “public.” But, as a soldier, even though I received “public” pay, I had every right to spend it as I individually saw fit—to include by contributing it to my church and to other causes of my choosing, both religious and otherwise. Once I had received my pay, it was no longer “public.” It had become “private.” Hence, I fail to grasp why the General thinks it necessary to state that military pay—like military service— is “public,” unless he somehow would limit my freedom to exercise my First Amendment rights simply because the Government pays my salary, thereby elevating the Establishment Clause above the Free Exercise and Free Speech Clauses. I wonder where such authority comes from.

“Military personnel may privately practice a religion or no religion of their choice, but they may not lawfully use their public service, office or position to promote private religious beliefs or impose them on fellow Americans.”

COMMENT. Once again, practicing one’s religion does not have to be “private,” as the General asserts. It must be clearly understood that free exercise of religion means what it says—free exercise. Free exercise may not be legitimately limited to what some Government official or civilian advocacy group or attorney may think it should mean—or is willing to tolerate. Further, the right to free exercise of religion applies to all members of the Armed Services—including general or flag officers, commanders, and chaplains—because the First Amendment guarantees the right to free exercise to every American, irrespective of that person’s station in life.

Having said that, I do not in any way discount the need for good order and discipline in the ranks (I was an Army combat arms officer for 22 years—I believe I know both what good order and discipline entails and how important it is for mission accomplishment). When attempting to maintain good order and discipline, however, commanders and leaders at all levels must ensure that religious service members are not singled out for special detriment, especially if those complaining about a religious activity or expression of a religious sentiment are persons especially sensitive—or even hostile—to religion or a religious message. See, e.g., Americans United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1553 (6th Cir. 1992) (noting the existence of persons who see religious endorsement, “even though a reasonable person, and any minimally informed person, knows that no endorsement is intended”). Permitting “private” practice of religion may be the General’s preference, but that is not required by the Constitution and laws of the United States.

As I stated before, no person in authority may create a captive audience to advocate his personal religious or non-religious beliefs. Yet, General Compere’s statement is much broader than that. He, in effect, says, “Military personnel…may not lawfully [use their positions] to promote private religious beliefs or impose them on fellow Americans.” Once again, I see a major problem with this assertion as it concerns chaplains. Chaplains are brought into the service specifically and intentionally to promote their faith group’s religious beliefs. They are expected to use their positions to do exactly what General Compere says is prohibited. Bottom line is that chaplains were hired to do precisely what General Compere has labeled unlawful. Hence, as a general statement, the General’s assertion is incorrect.

Further, other members of the military (including leaders at all levels) “publicly” practice their faith when they attend chapels and other religious activities, like religious services or a periodic prayer breakfast. Some strict church-state separationists have advocated the mistaken view that, when a commander attends a religious service or other religious event, he is implicitly “pressuring” his subordinates to do so, too, thereby “imposing” his beliefs on them. Such advocates fail to recognize that, if their argument is even remotely true, there is no principled reason why its opposite would not be equally true, to wit, that a commander’s failure to attend such events might be perceived as “pressure” to avoid attending, thereby “imposing” his beliefs (which would also be unlawful). It’s a Catch 22. Constitutional rights cannot be predicated on such questionable suppositions or logic.

It would also be helpful if the General were to explain what he means by “imposing” religious beliefs on others. If he holds the same position advocated by MRFF, his view is much more restrictive than the Constitution actually permits. MRFF’s view is outside the mainstream Constitutional view. MRFF believes that the mere presence of a Bible in a POW remembrance display or among non-religious reading materials in a medical waiting room unlawfully “imposes” religion. MRFF believes that a sign on a military installation saying “God bless our troops” unlawfully “imposes” religion. MRFF believes that a crèche display and a menorah display on the main road of a military base during the Christmas/Hanukkah holiday season unlawfully “imposes” religion. MRFF believes that including questions tangentially related to religious beliefs on a confidential survey “imposes” religion. None of the above examples violates the Constitution. Hence, they cannot constitute “imposing” religion.

“Those who disrespect, disregard or deny our Constitution and their sworn service oath subject themselves to disciplinary action.”

COMMENT. That statement is true. Yet, in my view, based on the cases I have cited so far, it appears that implications drawn from the General’s statements are the ones running afoul of the Constitution. He is advocating what MRFF routinely advocates. Yet, to my knowledge, MRFF has yet to win a First Amendment case on the substantive issues it advocates regarding the exercise of religious rights in uniform.

“It needs to also include a USA Constitution 101 class and briefing on the legal significance of their sworn oath.”

COMMENT. I was a bit disappointed by this snarky comment. In effect, the General is saying, if someone does not agree with him and his interpretations of the Constitution and the military oath, that someone is simply stupid and should take a remedial course in Constitutional law. In light of the foregoing, I believe that General Compere (and MRFF attorneys) should review thoroughly the cases I have cited above and will cite below. His (and MRFF’s) views on the relationship between the three religion clauses (Establishment Clause, Free Exercise Clause, and the Free Speech Clause) do not line up with current case law or Supreme Court jurisprudence.

“Those who choose not to support and defend our Constitution or honor their sworn oath have the right to seek a career in the civilian sector for private pay. When military leadership demonstrates intelligence, integrity and loyalty to the mission as well as their oath, this problem does not arise.”

“The United States Constitution 1st Amendment provides 3 basic religious liberties for all Americans:

“Freedom from religion – our government is prevented from “respecting ” an establishment of religion (supporting, favoring, endorsing or promoting a religion). It is the right of all Americans to be free from religion imposed by the government or its representatives.”

COMMENT. The above statement, that “Freedom from religion” is a basic liberty for all Americans, is incorrect as stated. If the General had begun with, “Freedom from state-imposed religion,” I could buy it, but he implies by his initial phrase that individuals have a Constitutional right to be insulated from religion, in general, not just from Government-imposed religion (his subsequent statement regarding freedom from government-imposed religion is appreciated, but I believe that his initial phrasing most likely reflects his true belief in this regard).

When one considers the Bill of Rights to the U.S. Constitution, one must keep in mind that the Bill of Rights was enacted to protect the American citizen from actions by his own (federal) Government, not from actions by his neighbors. In fact, the Free Speech, the Free Exercise, and the Establishment Clauses of the First Amendment all aim at protecting individual liberty. The Free Speech and Free Exercise Clauses permit individuals the liberty to practice their faith and express themselves as they wish and restrict the Government from interfering with such liberty. The Establishment Clause restricts the Government’s ability to establish a religious entity that interferes with one’s individual liberty by imposing on the individual religious duties and responsibilities that the individual does not freely choose for himself.

For many of those who use the phrase “freedom from religion,” a phrase not found in the Constitution, they imply a Government duty to limit their exposure to religion and its adherents, to rid the public square of all religious symbols and expression. Yet, that is not what the Establishment Clause does or was meant to do. If that had been the intent, the Government would have to continually interfere with the parallel rights of other individuals to free exercise and free speech.

Moreover, mere offense at what one hears or sees is not sufficient in and of itself to require Governmental intervention. No Americans have the right not to be offended by what others say. All Americans have the right for the Government to deal with all religions on a neutral basis—meaning that the Government may neither favor nor disfavor a religion. There have been a number of high-profile cases over the years seeking to remove religious references and symbols from the public sphere, such as the case to remove “under God” from the Pledge of Allegiance, the case to halt prayers before city council meetings, and the case to declare the Army chaplaincy as unconstitutional, to name but a few. Some have succeeded, and some have not. Accordingly, what the ultimate limits of the Establishment Clause may be is still to be determined. Hence, this will doubtless be an active area of legal practice into the foreseeable future.

“Freedom of religion – our government is prevented from “prohibiting” free exercise of religion. It is the right of all Americans to privately practice a religion or no religion provided it does not violate the rights of other Americans. It does not include the right of the government or its representatives to impose religion on Americans.”

COMMENT. Once again, General Compere adds a limiting factor to the individual right to free exercise of religion that is found nowhere in the Constitution. Nowhere are Americans limited to “privately” practicing religion. This is a view often expressed by those who seek to remove all vestiges of our religious heritage from the market place and who wish to be freed from having any interaction with religion. For example, Mr. Weinstein and MRFF sent a demand letter to an Air Force base commander demanding that the commander remove two religious displays erected by the base chapel (in a group of over 15 displays) and place them “in the curtilage of the chapel.” While the General (and MRFF) may prefer that religion be practiced privately, that is not the Constitutional standard. U.S. Courts have imposed certain limits such as reasonable time, place and manner restrictions with respect to use of parks and other public venues, but that is not to restrict individual free exercise. Rather, it is to allow each group a fair opportunity to be able to use certain public locales to hold their events and to proclaim their message. In this way, the Government is actually neutrally respecting all religions.

U.S. Courts have also found to be Constitutional state-sponsored religious activities such as legislative prayers, solemnizing prayers at key events, use of mottos invoking Deity and so on, all of which are public (i.e., state) proclamations that have been deemed acceptable under the Constitution and laws of the United States and thus do not constitute imposing religion on Americans. Hence, the General has it wrong that religious exercise must be private.

It would also be helpful to know what specific religious practices the General believes would “violate the rights of other Americans” and how such practices would do so.

The question of what it means to “impose” religion remains unanswered, although the General’s association with MRFF strongly suggests that he holds a far broader view of what that means than has historically been the case.

“Freedom to speak about religion – our government is prevented from “abridging” freedom of speech. It is the right of all Americans to speak publicly for or against religion provided it does not violate the rights of other Americans. It does not include the right of the government or its representatives to impose religion (which includes religious speech) on Americans.”

COMMENT. Once again, I would like to know what specific speech the General believes would “violate the rights of other Americans” and what the General means by “imposing” religion on one’s fellow Americans. Examples of both would be very enlightening.

“There should be no misunderstanding about the operative words of these first 3 clauses of the 1st Amendment. All one has to do is read them and then look up the definition of ‘respecting’, ‘prohibiting’ or ‘abridging’ in any American dictionary.”

COMMENT. I generally agree with the General’s statement, with one exception. Earlier in his paper, the General spoke of a prohibition on “respecting” a religion. He omitted a key phrase from that discussion, to wit, the phrase “an establishment of,” before religion. In the above paragraph, one must keep in mind that the word “respecting” refers to “establishment,” not “religion.” Accordingly, it must be kept in mind that the Constitutional prohibition in the Establishment Clause is much narrower than the General initially intimated.

“Historic separation of church and state is a fundamental liberty of free people that keeps private religion out of public government and public government out of private religion.”

COMMENT. The general concept of “separation of church and state” is well-ingrained into our political culture. Since that phrase is an extra-constitutional phrase, one must recognize that it is actually the Establishment Clause that primarily represents that concept in the Constitution and that it is Establishment Clause jurisprudence that explains its lawful limits. Yet, what that concept means in reality is still the subject of considerable debate. MRFF takes a strict view of separation of church and state, whereas the Supreme Court and our legal history have not taken such a strict view (once again I would refer you to the Court’s permitting religious monuments on courthouse grounds, solemnizing prayers at public events, legislative chaplains, the national motto, the placement of religious holiday displays on the grounds of public buildings, the erection of an unattended cross on state Capitol grounds, students in public secondary schools to establish student-led religious clubs, religious groups access to public facilities to present religious viewpoints on topics previously allowed to secular groups, and so on). As the Court in Board of Education v. Mergens aptly noted, it is not a difficult concept to understand that the Government “does not endorse or support . . . speech that it merely permits on a nondiscriminatory basis.” See 496 U.S. 226, 250 (1990).

Once again, I take issue with the continued use of the phrase “private religion,” since nowhere in the Constitution is one required to keep one’s religion “private.” Instead, each American has the right to free exercise of religion, and religious practices vary as widely as the religious beliefs of the American people. Indeed, some religions appear to be more private than others. The Amish immediately spring to mind as a community of Christian believers that generally keeps to itself and practices its faith “privately” (by which I mean, less publicly). Yet, groups like the Amish are the exceptions, and even the Amish have a vibrant outreach within their own community.

“It is clearly the intent of our Founders as confirmed by the Constitution and its 1st Amendment, indisputably documented by countless historic public records, publicly acknowledged by every American President since Thomas Jefferson, continuously confirmed by our US Supreme Court, and permanently embedded in the established law of our land.”

COMMENT. The contours of the Establishment Clause are frequently debated, but jurisprudence concerning that Clause sets the standard for church-state separation in the United States. Yet, regarding “separation of church and state,” the Supreme Court has adopted a methodology that is widely criticized by those advocating strict church-state separation. One of the methods used by the Supreme Court for interpreting the meaning and legal reach of the First Amendment is to examine how those who drafted and ratified the Amendment acted in light of its express terms.

One can begin to understand what the Establishment Clause allows (and disallows) by examining what transpired in the earliest years of our Nation during the period when the First Amendment was being drafted and subsequently ratified. For example, “the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer,” see Marsh v. Chambers, 463 U.S. 783, 787-88 (1983), and a “statute providing for the payment of these chaplains was enacted into law on September 22, 1789.” Id. at 788. Moreover, within days of legislating to pay Congressional chaplains from the federal treasury, “final agreement was reached on the language of the Bill of Rights.” Id. From these facts, the Supreme Court concluded that, whatever the Establishment Clause means, it does not mean that paid, legislative chaplains and their daily, public prayers violate the Establishment Clause. Id.; see also id. at 790 (“It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause to forbid what they had just declared acceptable.”). The Marsh Court concluded that chaplain-led prayer opening each day’s session in both Houses of Congress “is not . . . an ‘establishment’ of religion,” but rather “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id. at 792.

Early national leaders also acted in ways that strict separationists today argue expressly violate the Establishment Clause. For example, President Washington issued proclamations of thanksgiving to Almighty God during his presidency, and President Adams called for a national day of fasting and prayer. President Thomas Jefferson—a man often described as a strong defender of strict church-state separation—signed multiple Congressional acts to support paid Christian missionary activity among the Indians. See Daniel L. Driesbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment 127 (1987) (noting that the 1803 treaty with the Kaskaskia Indians included federal funds to pay a Catholic missionary priest; noting further treaties made with the Wyandotte and Cherokee tribes involving state-supported missionary activity). Further, during his presidency, President Jefferson also approved a curriculum for schools in the District of Columbia which used the Bible and a Christian hymnal as the primary texts to teach reading, seeJohn W. Whitehead, The Second American Revolution 100 (1982) (citing 1 J. O. Wilson, Public School of Washington 5 (1897)), and he signed the Articles of War which “[e]arnestly recommended to all officers and soldiers, diligently to attend divine services.” See Charles E. Rice, The Supreme Court and Public Prayer: The Need for Restraint 63-64 (1964). Hence, as one honestly examines Governmental acts contemporaneous to the adoption of the First Amendment, it is difficult to deny that, in the early days of our Republic, church and state existed relatively comfortably (and closely) together, with contemporaries of the drafters of the First Amendment showing little concern that such acts violated the Establishment Clause. As the Marsh Court aptly recognized, actions of the First Congress are “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” See Marsh, 463 U.S. at 790 (citation omitted).

More recent court decisions have confirmed that strict separation between church and state is not required by the Constitution. In fact, the Government must often yield what it might otherwise be able to do to ensure that free exercise rights are protected. In Corporation of Presiding Bishop, the Supreme Court noted that “‘[t]his Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.’” See 483 U.S. 327, 335 (1987). The Supreme Court has also noted that strict separation could lead to absurd results. In Zorach, the Court stated that the First Amendment

does not say that in every and all respects there shall be a separation of Church and State. . . . Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly. . . . Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution…. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: “God save the United States and this Honorable Court.”

See 343 U.S. at 312-13; see also id. at 314 (noting “no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence”).

Hence, rather than a bright line rule, the so-called “wall” separating church and state “is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship,” see Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), and the location of the line separating church and state must be determined on a case-by-case basis, id. Accordingly, strict church-state separation has never been required in the United States and is not required now.

“The Constitution expressly provides “no religious test” shall ever be required as a qualification to any public office or public trust (Article VI). These are inconvenient truths history deniers and religious revisionists intentionally ignore and dishonestly dispute.”

COMMENT. Although it is true that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” I wonder what the genesis of the foregoing paragraph was. Nowhere in his article has General Compere identified any persons or groups that he suggests are advocating that the U.S. military exists to promote a religion or that the military oath is meant to support and defend religious teachings. Now, out of the blue, he raises the No Religious Test Clause—once again without identifying any specific persons or groups advocating any such thing. Moreover, since there is considerable disagreement concerning the contours of permissible church-state relations, all sides must closely review case law to determine when one has crossed the proverbial line. I must admit that the reference to the No Religious Test Clause is quite baffling since no context was provided.

As a former history professor, I must hasten to add, however, that the No Religious Test Clause was intended to prohibit, at the federal level, specific tests that some states required to be met before one could stand for office. Most often, the test required that the person acknowledge in some form or fashion that he believed in Jesus Christ before he could run for office. I am aware of no federal or state agency that requires any such thing today, so I was surprised when it was raised in the foregoing paragraph of General Compere’s paper.

“Simply stated, we Americans have the right to our private religious beliefs, but we must respect the right of others to determine and enjoy their beliefs (the same right we demand for ourselves). This is also commonly known as the ageless “Golden Rule” and even taught by Jesus in the New Testament (Matthew 7:12; Luke 6:31). Those who do not respect and extend to fellow Americans this human right are guilty of the height of hypocrisy and irrationally rejecting basic moral teaching.”

COMMENT. This is essentially a conclusory policy statement that acknowledges that, for a Nation like ours to function as it should, citizens have to be tolerant of their fellow citizens and their freedoms to make different choices than the ones we might make. I must admit my surprise and pleasure that an MRFF member is actually citing Jesus and New Testament Scripture in a non-mocking fashion. I appreciate that. I would note, however, that the General is picking and choosing verses he likes and undoubtedly disregarding verses he probably would like to avoid, like the verses commanding all Christians to share the Gospel with all the world (i.e., evangelism) or to warn everyone of coming judgment for sin.

General Compere apparently found that parts of Matthew and Luke are authoritative and could serve as a useful tool to encourage his audience to be tolerant. I’m not sure that he recognized the irony that he was in fact “preaching a Bible-based message to his audience.” Would it be impertinent of me to inquire of the General why it is okay for him to make his point by appealing to Biblical passages while simultaneously advocating that others would be wrong to do so? Or, perhaps, to inquire why his interpretation of what is permitted is better than someone else’s interpretation?

Then, in grand Old Testament fashion, he ends by pronouncing stern judgment on those who fail to toe the line concerning his views. He elevates tolerance to a “human right,” pronounces extreme moral guilt (“height of hypocrisy”), and diagnoses cognitive deficiency (“irrationally rejecting”), even as sets himself up as the judge of what constitutes “basic moral teaching.”

To me, the whole paragraph reeks of irony, coming as it does from a person associated with MRFF and Mr. Weinstein, the same Mr. Weinstein who propagates the despicable lie that Evangelical and Fundamentalist Christians “would willingly, even eagerly, condemn, ostracize and even put to death their fellow citizens for praying to the wrong god.” See Michael L. Weinstein & Davin Seay, No Snowflake in an Avalanche 119 (2012) (emphasis added). Mr. Weinstein goes even further: “I know that they will stop at literally nothing to achieve their ends. That includes mass murder.” Id. at 178 (emphasis added). Mr. Weinstein claims that “fundamentalist dominionist Christians are willing to kill to achieve their twisted agenda.” Id. at 179. Such assertions are not only outrageous—they are delusional. So much for tolerance. Perhaps MRFF should get its own house in order before it goes after others in the pursuit of “tolerance.” I seem to recall a Biblical story about removing the log from one’s own eye before dealing with a speck in someone else’s.

“The late Republican President Ronald Reagan acknowledged, accepted and applauded this critical Constitutional liberty in a public speech – “We establish no religion in this country, we command no worship, we mandate no belief, nor will we ever. Church and state are, and must remain, separate.” (Valley Stream, New York, October 26, 1984).”

COMMENT. I agree with President Reagan’s comments. Yet, establishing no religion does not mean that we don’t “respect” a religion or all religions or even religion in general. It simply means that we let the American people choose what to believe, and the Government respects their choices. Commanding no worship and mandating no belief do not mean that we excise all religious expression and symbolism from the public square. President Reagan once even publicly said a prayer for the outgoing Commandant of the Marine Corps. Hence, he understood that solemnizing prayers and similar public religious acts neither “established” religion nor “imposed” religion on anyone. Church-state separation is also important. I believe President Reagan meant it in the way that Thomas Jefferson meant it when he wrote his famous letter to the Danbury Baptists—the wall of separation was to keep the state out of the churches’ affairs, not to excise religious influence and belief from the state’s business.

“Unfortunately, the wisdom of the late American humorist Will Rogers applies too often these days – ‘There is no argument in the world that carries the hatred that a religious belief one does.’”

COMMENT. At the very end, I believe the General reveals his true colors. His position on which of the three religion clauses should dominate stems from his underlying mistrust of religion and what it can bring with it—which, admittedly, is not always good. One has only to look at the Middle East today, with its beheadings, its crucifixions, its burning people alive, its drowning people in cages, and so on. Yet, in my view, we in the United States have achieved a degree of peace among religions that is the envy of the civilized world. The Supreme Court has expressed the guiding principle nicely in Zorach: “We are a religious people whose institutions presuppose a Supreme Being. . . . [ ] [and whose Government] sponsor[s] an attitude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” See 343 U.S. at 313.

I believe that we have achieved such tolerance in this Nation because individuals are free to practice their religion as they see fit and are free to engage others in an attempt to convince those others of the correctness of their beliefs and doctrines, yet respectfully, without violence or strife. We are not Northern Ireland in the “time of troubles.” We are not the current Middle East with Sunnis fighting Shiites. We are not Sri Lanka where Buddhists fought Hindu Tamils for decades. We are blessed with a Constitutional order that allows people to worship God as they see fit and to be able to vent any anger and frustration they have verbally, to compete for influence by the sharing of their views in the market place of ideas. Clamping down on such expressive outlets because we don’t want to hear or be bothered by the message is simply unwise. True, history does confirm Will Rogers’ statement in many instances, but not so much here in the United States. So, let’s keep it that way.

Before we start tinkering with the Constitutional order that has served us so well for so long, that has led to peaceful and respectful coexistence among diverse religions, we should think long and hard about the unintended—repeat, unintended—consequences that likely would occur—especially since there usually are unintended consequences with any major decision. In the final analysis, the grass isn’t always greener on the other side of the road. One cannot over-emphasize the Establishment Clause without weakening the Free Exercise and Free Speech Clauses and without making the federal Government more powerful vis-à-vis the citizens of the United States.

* * * * *

The rights contained in the Bill of Rights of our Constitution are aimed at protecting the individual from his own Government. In my view, groups like MRFF—whether by design or default—are advocating upsetting that order to empower the federal Government to take action against the individual citizen who advocates an unpopular idea or practices an unpopular religion. Yet, it is only the unpopular speech or religion or idea that needs protection. If an idea or religion is widely accepted and respected, it will face few challenges and need little protection. Only controversial beliefs and sentiments need protection.

In effect, MRFF seems committed to a primarily secular society, but U.S. Courts have spoken to that as well. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (“[T]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789”); ACLU of Ohio v. Capitol Square Review & Advisory Board, 243 F.3d 289, 299-300 (6th Cir. 2001) (en banc) (‘“[T]he people of the United States did not adopt the Bill of Rights in order to strip the public square of every last shred of public piety.’ The notion that the First Amendment commands ‘a brooding and pervasive devotion to the secular’ . . . is a notion that simply perverts our history.”).

The ACLJ stands as a staunch defender of individual liberty. We stand against establishment of religion by the State and for free exercise of religion and free expression of religious (and non-religious) sentiments. We stand for the little guy against the State. I am extremely proud and blessed to be a part of the ACLJ, and I thank God for how He has directed our path in defending the rights of Believers both in the United States and abroad.

Soli Deo Gloria!

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