David Fitzkee (Maj, USA, Retired) is a law professor at the US Air Force Academy.  In the fall of 2011 he had an article published in Parameters (vol. 41, no. 3), (“The US Army’s Senior Professional Journal”) entitled “Religious Speech in the Military: Freedoms and Limitations.”

The 14-page essay is an interesting read, and it opens with a strong premise:

It is crucial that military leaders understand and respect the scope of religious speech rights. Honoring the constitutional rights of subordinates is inherently the “right thing to do” in a society and military governed by the rule of law, particularly when all military leaders take an oath to support the Constitution.

Unfortunately, the very next paragraph of the introduction sets a poor tone for the paper:

Failure to understand the rights and limits concerning religious speech can adversely affect the mission…It can result in internal investigations into allegations of violations or even lawsuits against the military, both of which entail substantial time, effort, and distraction from the mission.

Maj Fitzkee aptly notes that “investigations into allegations of violations” can “distract from the mission” — but he illogically assumes the investigations are the things to be avoided.  He fails to note that investigations are, themselves, neutral instruments:  They are not only caused by failures of military personnel.

Fitzkee fails to make the simple observation that an investigation can be initiated as the result of an abundance of caution or even a frivolous complaint, and that the investigation may, in fact, reveal there was no “failure to understand” the role of religion in the military. Implying the investigation is to be avoided places a heckler’s veto into the hand of a critic, and the power to restrict beyond the regulations into the hands of a commander.

Fitzkee continues:

At its worst, failure to understand the parameters of permissible religious speech can jeopardize the United States’ strategic interests abroad, for example, by providing fodder for our enemies’ claims that we are engaged in a holy war against Islam.

Again, Fitzkee fails to note the simple fact that speech within the bounds of permissible limits can still “provid[e] fodder for our enemies.”  In fact, that is precisely what has happened, not as a result of conduct, but as the result of critics’ incendiary characterizations of permissible conduct.  As has been noted before, the canard that something will “embolden our enemies” cannot be the standard by which liberty is governed.  At its worst, that argument is one that relies on violence (albeit that of others) to achieve a political end.

Fitzkee then makes an illuminating reference:

These lapses, occasioned by religious speech that exceeds permissible limits, can also harm the stature of leaders. Unfortunately, examples of these leadership lapses abound.⁵

His footnote references a compilation by James Parco — a retired USAFA instructor and advocate of Michael Weinstein’s cause against religious freedom in the US military — entitled Attitudes Aren’t Free: Thinking Deeply about Diversity in the US Armed Forces.  The problem with using that reference is it is a collection of commentary, not adjudicated facts.

To be clear, Fitzkee is citing peoples’ opinions of events as factual “lapses.”  The authors of the articles in the compilation, too, are not objective analysts; they are sometimes prejudicial advocates for their chosen cause.  The compilation contains, for example, Chris Rodda’s infamous denigration of US troops’ celebration of Easter in the warzone.

As a source of facts, such a compilation is poor “reference material” to support one’s position, particularly coming from a college professor — and this is still just the introduction of the paper.

That’s not to say everything in the essay is poorly written.  Maj Fitzkee does a reasonable exposition of religious speech in the military, noting something critics like Michael Weinstein and Chris Rodda often forget:

Leaders…should not single out religious speech for special limitation just because it is religious. If some personal conversations are permitted in the workplace…leaders cannot place religion off-limits. The same is true regarding religious displays in the barracks: if personal nonreligious items are permitted to be displayed in rooms, religious items must be permitted to the same extent. Otherwise, the discrimination against religious speech would be content-based and would almost certainly not survive scrutiny by the courts or by military investigators looking into a complaint.

Similarly, he correctly describes “content neutral” restrictions, using the same example previously cited here:  If a regulation prohibits unofficial text in email signature blocks, it is not religious discrimination to tell someone to take a Bible verse out of theirs.

Fitkee later applies the same logic to religious exercise, saying they, too, cannot be singled out due to their religious content:

Leaders should thus avoid targeting religious practices, just as they avoid singling out religious speech for disfavored treatment.

Fitzkee’s premise gets muddied, however, when discussing the Establishment Clause.  Part of the reason may be his reliance on Lemon v Kurtzman, which he calls “the seminal Supreme Court case interpreting the Establishment Clause.”  Like MRFF volunteer Rick Baker, Fitzkee seems to ignore the 40 ensuing years of Supreme Court cases, some of which have modified their use of the Lemon test or ignored it altogether.  (See Note 1, below.)

Fitzkee appears to get the facts correct when he cites military rules and Joint Ethics Regulations.  When he progresses to analysis, however, he digresses:

To avoid the appearance that military leaders in their official capacity are endorsing or coercing religion, they should leave the advertisement and administration of [religious] programs to the chaplains.

Here Fitzkee, like some critics, contradicts himself, as he advocates separate treatment for programs based on their religious content — something he just said would not withstand scrutiny.  In essence, his position is the common one among many today:  When there is tension between the Free Exercise and Establishment Clauses, the Establishment Clause wins.  In other words, targeting speech based on religious content is wrong, but allowing religious speech that might “establish religion” is more wrong.

A major problem with that argument is the US Constitution makes no such distinction.  As applied here, another major problem is that a member of the military informing others of the existence of religious programs does not even approach Establishment.  Finally, Fitzkee’s argument is further undermined by the fact his suggestion is to avoid the appearance of something, not its actual occurrence.  Rather than targeting religious speech in the least restrictive manner only when required by the mission — which is the military’s mantra — his suggestion is to pre-emptively target it in totality.

Despite the lawyer’s opinion seemingly to the contrary, chaplaincy programs are commander’s programs; commanders, not chaplains, are responsible for the spiritual well-being of their troops.  To categorically assert US military commanders cannot “advertise” programs to support their responsibility is asinine.

Even worse, Fitzkee supports his statement with a footnote reference to “U.S. Chief of Staff Memorandum on Maintaining Government Neutrality.”  There’s no such thing as a US Chief of Staff.  What he meant to reference was a memorandum by the US Air Force Chief of Staff, which is an important distinction, since the paper was published in an Army magazine.  In other words, without explicitly saying it, Fitzkee asserts leaders in the Army, Navy, and Marines should follow the Air Force’s command guidance.  (A retired Army Colonel and West Point professor took on Fitzkee on this very point, which will be addressed later.)

In correctly admitting the “line” is blurry, Fitzkee does give some advice that seems to make sense, at least on the surface:

Military leaders should consult with their JAG before taking action against subordinates whose speech crosses the ill-defined Establishment Clause line. JAGs can provide advice on whether the line has been crossed and, if so, what action would be appropriate (often simple informal counseling). Another reason to consult with the JAG is that if the subordinate’s speech has not crossed the line, the leader who tries to limit the subordinate’s religious speech likely is violating that subordinate’s free speech rights.

While he probably didn’t mean it, this paragraph smacks of the self-righteousness of the legal profession.  JAGs are not a panacea to issues in the US military.  In fact, get two JAGs in a room and you’ll probably get at least three opinions.  He correctly states that JAGs can provide advice — but nothing guarantees that advice is any more correct than the commander’s independent conclusion, or even that the advice is correct at all.

Unfortunately, as has been noted here before — and as Fitzkee’s own comments attest — lawyers are people, too, and they can be wrong. A JAG will give his opinion, but it is only that.  The JAG has no authority, and saying “the JAG said…” generally provides no defense.  (Most JAGs recognize this and will intentionally avoid advising or recommending any courses of action. They simply “provide information” after which it is the commander’s responsibility to act.)  The advice of JAGs can be (and has been) flat-out wrong; hopefully, commanders are smart enough to recognize that and take the correct course of action.

Fitzkee then lists some specific “hot topics” on religion in the military, in which his analysis is hit or miss:

On “proselytizing:”

[Military members] must recognize that the First Amendment protects proselytizing and does not require a speaker to stop speaking merely because others do not like the message.

Bravo.  It can become harassment if it continues after requests for it to stop, of course, but then it is harassment irrespective of content.

On prayer during official ceremonies, Fitzkee again references Lemon — and ignores, for example, Marsh v Chambers, 12 years newer, which completely ignored Lemon and upheld legislative prayer for traditional reasons.

On “religious displays,” Fitzkee categorically says

In common areas…truly religious displays are prohibited because they reasonably appear to advance or endorse religion, although some displays that normally have religious meaning (e.g., a crèche) are permissible when interspersed with other secular celebrations of the season.

This is another example of a military lawyer’s “advice” going beyond his bailiwick.  Nothing categorically “prohibits” religious displays in common areas, nor is any individual single-handedly qualified to dictate to the military how something “reasonably appear[s].”  There are certainly situation-dependent considerations, but to assert a universal prohibition — without citation of any regulation as evidence — is inappropriate.

In the end, Maj Fitzkee’s paper was an admirable effort to address a controversial topic; it had both strong positives and strong negatives.  To repeat one takeaway, the military lawyer’s paper provides a strong reminder that one should listen to military lawyers’ opinions on issues of the law — and then make the correct decision based on all factors involved, even if the lawyer is wrong.

Next, we’ll see how a West Point professor took issue with the elevation of the Air Force style of handling this issue.

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Note 1: To be fair, some of Maj Fitzkee’s omissions and evidentiary failures were at least superficially addressed in what appears to be an article upon which he based his Parameters submission.  Fitzkee wrote “Religion in the Military: Navigating the Channel between the Religion Clauses” (co-authored with Captain Linell Letendre) for The Air Force Law Review in 2007.  The much-longer piece contains many (though not all) of the same discussions in more developed form.  It is worth noting, however, that he seems to have updated (or firmed up) a few of his analyses in the intervening years.

Note 2: As an interesting aside, Maj Fitzkee was the moderator for the 2007 debate at USAFA between Michael Weinstein and Jay Sekulow.