Michael Weinstein, of his self-founded Military Religious Freedom Foundation, has threatened to “file a federal lawsuit” if the US Military Academy at West Point doesn’t stop using a survey that “violates…constitutional protections.”

West Point is currently in direct violation of Clause 3, Article 6 of the United States Constitution’s absolute prohibition against the utilization of any “religious test”…

West Point has grievously transgressed against and is in clear violation of the Constitution of the United States of America, period.

You know its serious when he spells out “period.”  Further, Weinstein asserted that his “clients” were anonymous because they “gravely” feared reprisal:

Our 42 MRFF clients at West Point gravely fear the distinct possibility that they could be the target of nontrivial direct or indirect reprisals and/or retribution if they were to voice their concerns and demands to their superiors at the Academy…

Weinstein’s main points — West Point violated the Constitution and its cadets and faculty are cowering in fear — are fairly easy to debunk:

“West Point Violated the Constitution”

Most honest Constitutional historians would likely admit Weinstein is misusing the “no religious test” clause.  (Even Weinstein’s own research assistant, Chris Rodda, would probably acknowledge he is stretching it.)  At the time of the writing of the Constitution, some states had “test oaths” which required public office seekers to swear they believed in any number of religious doctrines.  The effect was that a person could not be a legislator in some states unless he swore that he believed, for example, in the “Holy Trinity.”

To prevent that restriction from applying to the federal government (since the Constitution at that time did not restrict the states) some drafts of the Constitution specifically used the phrase “test oath” in Article 6 as the government action to be prohibited.  The version that passed ultimately said simply “test.”  Since then, the Supreme Court has upheld the clause — as it applies to persons seeking public office who run into a law requiring them to state a specific religious belief. 

That is a far cry from asking volunteers to anonymously rate the statement “My faith makes me who I am” from “Very much unlike me” to “Very much like me.”  No public office is offered or prevented; no specific religion — or even religion in general — is promoted, endorsed, or required by the presence of questions on a voluntary, anonymous test.  Anyone offended by the questions has a simple, risk free path: Don’t take the survey, as apparently 75% of the West Point class has “chosen” to do.  (The faculty who are included in Weinstein’s complaint weren’t even offered the survey.) 

Further, the 89-question survey has a half-dozen questions making some reference to religion or faith.  All of the content — even the headers — is standard, verbatim text from behavioral science personality assessment banks.  For example, every single question with which Weinstein took issue has been found — word for word — in the VIA Strengths Scale from the VIA Institute on Character.  Notably, VIA says of its own work:

As a scientific institute, VIA offers well-validated psychological assessments and develops new strengths assessments related to the science of character development.

It seems they’re fairly confident in their scientific method of data collection.  As to how the questions ended up in the West Point survey:

Its questions were compiled by a computer program from a broader pool of questions, the official said.

In other words, these weren’t West Point’s questions, and they weren’t “government speech.”

Weinstein, a former Air Force JAG, fails to explain how non-governmental questions on an anonymous survey no one has to take can be a “test” of any sort, never mind a Constitution-violating religious one.

“The Complainants Fear Reprisal”

Michael Weinstein has lost court cases (actually, he’s never won in his anti-religious freedom crusade) simply because his “clients” failed to use the military’s internal grievance systems.  His answer to that has not been to encourage his “clients” to use those systems — it has been to have his clients write letters that say “I can’t go to anyone because I’m afraid.”  He’s trying to create the perception that his “clients” — and oddly, only the people that contact him — are too scared to use the military’s internal systems.  If it works, it would enable him to file a court case that survived the first motion to dismiss — something he has yet to do.

At this point, Weinstein’s assertion he was contacted by West Point cadets or faculty who fear official reprisal seems to fall flat.

Earlier last week, West Point Cadet Blake Page posted a screen capture of the survey to Facebook, saying:

I think you guys might like this. A study being done at the United States Military Academy to assess the development of the future leaders of our Army. I wonder if I’m religious enough to be a good leader….

That comment is snarky — not scared.  It would seem this is one cadet who doesn’t “fear” his leadership on this topic.

Cadet Page, who will be Lieutenant Page in a few months, “shunned anonymity” in May of this year when he criticized West Point for having crusader imagery on a cadet shield, saying

[West Point] has a legal and ethical obligation to modify the shield and motto to comply with constitutional law and Army policy, and an ethical obligation to support an environment which does not endorse religious and Christian exceptionalism.

His “story” was featured by atheist Jason Torpy on the MAAF site in May, and he was also a speaker at the Secular Student Alliance this summer.

That doesn’t sound like a cadet living in fear of reprisal, especially when he posts another religiously-themed Facebook image a few months later.  Of course, he might not be one of the 42 scared West Pointers Michael Weinstein claims.  Then again…

Page’s post was on August 22nd at 4:22PM.  The next day, at 11:42AM MDT, Michael Weinstein received an email from an “anonymous” cadet — an email that was obviously the latter part of an ongoing conversation.  The email had obviously been coached — a practice to which a prior MRFF “client” has confessed.  The cadet also forwarded an email from 21 August, which was only the day before Page’s original Facebook post, despite the fact the survey has been ongoing for some time.

Only hours after the “anonymous” email, Weinstein had already mailed his demand letter to West Point.  In other words, he had probably already been working on that demand letter based on prior correspondence; the cadet’s email was just the version intended for the press release.

In short, if 42 people at West Point feared reprisal, they could all watch what happens as a result of Cadet Page’s Facebook post.  Instead, they probably want anonymity for another reason.  Weinstein’s motivation for their anonymity is obvious: He knows he can increase his numbers if he promises anonymity, and bigger numbers sound more significant.

Heads Weinstein Wins, Tails West Point Loses

Incidentally, Weinstein also created a sure-fire win for himself, no matter what happens:  The survey is scheduled to end on 31 August, and the subject class will be graduating, which will end the four-year study.  In other words, if West Point ends the survey as it always planned to, Weinstein will claim victory.

There are indications West Point may have ended the survey already.  If true, a Weinstein victory dance is already in the making, and no matter how West Point paints it, it will be seen as a validation of his accusations.  The fact it changes nothing — the survey was still used, the data has still been collected — will likely be ignored.  West Point has two far better options: Ignore Weinstein (a method USAFA learned works surprisingly well, as Weinstein craves attention — stop giving it to him, and he sulks away); or forcefully rebut him (another method USAFA used with surprising effectiveness).  Come to think of it, the USMA could probably do well just to call USAFA up and ask for its Weinstein Reaction Checklist (WRC).

Michael Weinstein loses nothing in this endeavor.  He’s already viewed as a self-aggrandizing opportunist by those who oppose him, and as a meta-hero who can do no wrong to those who support him.  The only people affected by this are the 42 “clients.” Weinstein’s pawns, as usual, will suffer the indignities while he milks the publicity for his own advantage.  The “clients,” were they to be known, would be seen as petty grumblers who are offended by voluntary, anonymous questions like “I am a spiritual person.”  That is why they may want to be anonymous, not because they fear official retribution from their chain of command.

The situation is not as Michael Weinstein so assertively claimed it was.  But then, that should surprise no one.