Armed Forces

No.

Department of Defense Instruction (DoDI) 1300.17, Accommodation of Religious Practices Within the Military Services, instructs that, “The DoD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions or to observe no religion at all.” DoDI 1300.17(4)(a). To that end, “unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Military Departments will accommodate individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) of Service members.” DoDI 1300.17(4)(b). Exactly what could constitute an “adverse impact” on things like unit cohesion is unclear.

Each of the Services has its own set of regulations implementing DoDI 1300.17. At the time of this writing (December 8, 2016), the pertinent regulations of the individual Services are available here:

Army: AR 600-20, Army Command Policy, § 6-9
Navy and Marine Corps: SECNAVINST 1730.8B CH-1, Accommodation of Religious PRactices, § 11
Air Force: AFI 36-2706, Equal Opportunity Program Military and Civilian, § 3-6
Coast Guard: COMDTINST 1730.4C, Religious Ministries Within the Coast Guard, § 16(c)

If a service member seeks an accommodation through the chain of command but is still ordered to attend a religious ceremony, service, or other event, she may seek assistance from her Service’s Military Equal Opportunity office by following the procedures for either an informal or formal complaint for religious discrimination. The MEO may then investigate the matter and attempt to formulate a solution.

If the intra-military remedies described above fail, a service member may then seek relief in court.¹ Military personnel do not give up their right to be free from religious coercion when they enlist.² The Establishment Clause of the First Amendment to the U.S. Constitution prohibits the government, in all its forms, from favoring one religious position over another, or singling out one religious position for disfavor.³ “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.”⁴

However, attendance at religious events is distinct from attendance at events where a sectarian prayer is offered at the beginning or end of an otherwise-secular event. The courts have not addressed this question in the context of military ceremonies, meetings, or other events, but the decisions handed down by the Supreme Court concerning prayer at legislative meetings may be instructive. In Marsh v. Chambers, decided in 1983, the U.S. Supreme Court upheld the practice of legislative prayer (prayers and invocations and the start of government meetings)⁵ and clarified the standard determining what types of prayers are permissible Town of Greece v. Galloway.⁶ The Supreme Court took the position that, so long as “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or disparage any other, faith or belief,” a governmental body may provide a forum for members of the community to offer prayers and invocations.⁷

The Court pointed out, though, that the governmental body hosting the prayer also has to ensure that participation in the event is voluntary, for both the government officials and the audience observing the event. If the officials “directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” the practice would run afoul of both the Free Exercise and Establishment Clauses of the First Amendment.⁸ This reasoning would suggest that permitting a chaplain to offer a prayer at a military event, where the attendance of service members is required, may violate the Free Exercise and Establishment Clauses, regardless of the form of the prayer.

If you, or a friend or family member, is a service member who has been coerced into attending religious events, please report the incident to the American Atheists Legal Center.

1. Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971).
2. Anderson v. Laird, 466 F.2d 283, 296-97 (D.C. Cir. 1972).
3. U.S. Const. Amend I.; Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
4. Lee v. Weisman, 505 U.S. 577, 587 (1992) (internal quote omitted); see also Zorach v. Clauson, 343 U.S. 306, 314 (1952); Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
5. Marsh v. Chambers, 463 U.S. 783 (1983).
6. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811 (2014).
7. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 1821-22 (2014).
8. Town of Greece v. Galloway, ___ U.S. ___, 134 S.Ct. 1811, 1826 (2014).

Yes.

The U.S. Constitution contains two provisions protecting the religious rights of citizens: the Establishment Clause (“Congress shall make no law respecting the establishment of religion . . .”) and the Free Exercise Clause (“. . . or prohibiting the free exercise thereof.”)¹ While the two Religion Clauses are sometimes at odds with one another, forcing the government and the courts to strike a balance between competing interests,² in the case of the military chaplaincy, the Clauses are complimentary. The Establishment Clause demands that the government be neutral toward religion.³ It cannot favor one religious view over others, nor can it show hostility toward religion generally.⁴ At the same, the Free Exercise Clause demands that the government afford its people the “opportunity to practice their faith at places of their choice.”⁵ If the branches of the military did not provide chaplains for deployed religious service members, it would violate the Free Exercise Clause by depriving them of the opportunity to practice.⁶ In addition, making no provision for the various faiths of service members could be seen as a hostility toward religious belief generally, which the Establishment Clause prohibits.⁷

Moreover, Congress has the constitutional authority to set up and fund the chaplaincy program. While both the Establishment Clause and the Free Exercise Clause demand that members of our armed forces be able to practice their faiths, the War Powers Clause of Article I of the U.S. Constitution grants Congress the authority to, among other things, “provide for the common Defence,” “to raise and support Armies,” and to “make Rules for the Government and Regulation of the land and naval Forces.”⁸ As a result, the federal courts are loathe to involve themselves in military matters.⁹ “Caution dictates that when a matter provided for by Congress in the exercise of its war power and implemented by the [Armed Forces] appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.”¹⁰

1. U.S. Const., Amend 1.
2. Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973).
3. Zorach v. Clauson, 343 U.S. 306, 314 (1952).
4. Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
5. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 297-98 (1963) (Brennan, concurring).
6. Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985).
7. Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985) (citing Everson v. Board of Ed., 330 U.S. 1, 15-16 (1947)).
8. U.S. Const., Art. 1, § 8; see also Katcoff v. Marsh, 755 F.2d 223, 233 (2d Cir. 1985).
9. Orloff v. Willoughby, 345 U.S. 83, 93 (1953).
10. Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985).