Following the revelation that Shaw Air Force Base had removed a Nativity scene immediately following Michael “Mikey” Weinstein’s request, public outcry has left the Air Force “mulling” how to respond to the other side of the issue — those who view such a move as both unconstitutional and a questionably inappropriate relationship with Weinstein.

Though Weinstein was able to get action from the Air Force in “two hours and 15 minutes,” other normal Americans and a few reporters had trouble even getting a statement — which inspired Fox News columnist Todd Starnes to publish the (publicly available) phone numbers and emails of Shaw Public Affairs to see if others would have more success (they didn’t). This may be because most people did try to go through Public Affairs — while Weinstein had managed to get connected through the Base Command Post. (In what is unlikely a coincidence, Shaw AFB removed their Command Post phone number from their website yesterday.)

Shaw has subsequently clarified the situation, noting that a Shaw AFB chapel congregation put the Nativity up next to the Base Christmas tree, which had a lighting ceremony that same evening. Contrary to some insinuations, this is common practice at other locations around the military.

Lt Keavy Rake, Shaw PA officer, had an interesting explanation:

Rake says Air Force officials want a holiday display that reflects more than a single group, so the Nativity scene was taken down…

However, Lt Rake earlier said [emphasis added]

Volunteers from Shaw Chapel erected the Nativity scene near Memorial Lake after first sending out emails asking others about putting up different religious representations. After receiving no offers on erecting other displays, the volunteers proceeded with putting up the Nativity scene.

So a Nativity can’t go up unless another display is also up; and if no one else wants to put up a display, the Nativity can’t go up either?  That’s a bit like saying you can’t have a birthday party for yourself without finding someone else to throw one for, too.

One source indicated the chapel group took the initiative to remove the display on its own, to avoid controversy. But Rake issued a different statement, and somewhat muddied the waters concerning the chain of command:

Rake said…the base was informed by their headquarters in Washington, D.C., that they had to take it down.

“The base’s legal team received a call, and they basically said we couldn’t have a sole religious display and we had to take it down…”

That indicates Weinstein called The JAG of the Air Force’s office, which is the only office where his phone calls are still officially welcome. The TJAG’s office called directly to the Shaw AFB legal office, and either agreed with Weinstein or simply advised a course of action to mitigate the accusation.  Either way, it seems the local JAGs were told the display was impermissible.

But why no mention of the chain of command?

As has been noted here before, Air Force lawyers don’t make policy. Their job is to advise the commander — their advise is not binding, and can, in fact, simply be wrong.  In an example noted here once before,

A [JAG] advised a [commander] that [he] should not allow Bible studies either before or during duty hours in an unoccupied conference room.  Fortunately, the commander was wise enough to know the correct decision and allowed the Christian group to meet — a decision that, contrary to the lawyer’s advice, was consistent with governing US military regulations.  The lawyer, who was at his first assignment in the military, presumably received remedial training on the law as it applies to the military environment — including the religious freedom enjoyed even by military members.

Notably, the legal position of the Air Force is also not necessarily the same thing as a JAG’s advice. Just like everyone else, there are lawyers on both sides of this issue.  Yes, there are actually Air Force JAGs who disagree with the Shaw AFB course of action. Debate among JAGs is not uncommon; it is up to the Air Force leadership to actually make the decision based upon the JAG’s advice.

So why is Shaw blaming the lawyers?

The discussions about “a better place to put it” almost seem theatric. The Nativity will almost certainly eventually be erected where it has in years past — in front of one of the base chapels. That “compromise” can’t undo the fact it was banned from being present during the base Christmas tree lighting ceremony, which is why it was being put up in the first place.

Commenters at one site actually argued that the decision to remove the Nativity violated AFI 1-1 — the same regulation that Weinstein cited as requiring it to be removed. Why?

AFI 1-1 says

[Commanders] must avoid the actual or apparent use of their position…to extend preferential treatment for any religion. Commanders…who engage in such behavior may cause members to doubt their impartiality and objectivity. The potential result is a degradation of the unit’s morale, good order, and discipline.

The assertion is Shaw showed “preferential treatment” for atheism/secularism because they banned a display for no other reason than their offense, even when the chapel group had acted in good faith.  As a result, the claim says, morale and good order was potentially degraded in the process.  An MRFF supporter seemed to provide evidence to support the assertion that morale has been affected:

^^ I’m AT shaw, eeeveryone Christian here is flipping out. Which is funny bc you know if it was a Muslim display or a Hindu display the place would be in an uproar.

It’s an interesting position, and it demonstrates that there are two sides to the issue.

In the past, the military has occasionally demurred on the “other” side of these issues simply because Weinstein was the only critic.  If they could make him happy, they’d avoid negative press. With the advent of military religious freedom organizations, however, the military is now faced with well-organized voices on the other side of the debate — meaning they could just as easily get bad press for trying to appease Weinstein.  That seems to be ultimately what happened.

This happened once before, of course, and the decision was ultimately reversed.  It would seem accuracy is to be more valued than speed in some of these situations.

In the end, the presence of a Nativity at a base tree lighting ceremony is not Congress passing a law “respecting an Establishment of religion,” no matter how one interprets the First Amendment. The Liberty Institute, however, has taken the position that when the government takes action to restrict conduct solely because of religious content, it does violate the Constitution.

Will religious liberty in the US military prevail over Weinstein’s attacks?  Time will tell.

With video at WLTX, a local news station. Also at the Stars and Stripes.

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