KATCOFF v. MARSH AT
TWENTY-ONE:
THE MILITARY CHAPLAINCY AND THE SEPARATION OF CHURCH AND STATE
Richard D. Rosen*
“Better also to disarm . . . the precedent of Chaplainships for the army
and navy,
than erect them into a political authority in matters of religion.”[1]
“[T]he morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy . . . .”[2]
In the 1986 case of Katcoff
v. Marsh, the Court of Appeals for the
Second Circuit became the only federal appellate court to address directly the
constitutionality the Army chaplaincy under the Constitution’s Establishment
Clause. In holding the chaplaincy did
not offend the Constitution, the court relied upon countervailing
considerations of judicial deference to Congress in matters concerning the
military and soldiers’ reliance on the chaplaincy to exercise freely their
religions. This article argues that,
given subsequent developments in Establishment Clause jurisprudence and changes
in the structure and missions of the military itself, the decision remains on
firm constitutional footing. Katcoff
did not, however, immunize the chaplaincy
from judicial oversight under the Establishment Clause. The article also
discusses Establishment Clause issues either left open or not addressed by Katcoff, including the constitutionality of the
chaplaincy in major metropolitan areas and issues confronting the chaplaincy
with regard to compulsory religious observances and denominational preferences.
I. Introduction ...………………………………………………………………………..
II. The Case ………………………………………………………………………….....
III. The Continued Soundness of Katcoff …………………………………….…………..
IV. Unresolved Establishment Clause Issues …………………………………..………….
A. The Chaplaincy in Major Metropolitan Areas …………………………..………...
B. Compulsion ………………………………………………………………...……
1. General ………………………………………………………………..…….
2. Proselytizing ……………………………………………………………...….
3. Sectarian Prayers at Official Functions …………………………………….…
C. Nondiscrimination ………………………………………………………………..
1. General ……………………………………………………………………...
2. Recognizing “Nontraditional” Denominations ...……………………………….
3. Denominational Preferences ………………………………………………….
4. Viewpoint-Based Discrimination ……………………………………………..
V. Conclusion …………………………………………………………………………...
I. INTRODUCTION
In late 1979, two law students sued the Secretary of the Army seeking a judgment declaring that the Army Chaplaincy Program violated the First Amendment’s Establishment Clause.[3] After nearly 200 years of coexistence between the military chaplaincy[4] and the Establishment Clause, the case finally joined the issue of whether congressional funding of military chaplains violated the principle tenet upon which the Establishment Clause is based: the separation of church and state.[5] Unquestionably, pervasive congressional support of religion in most other contexts would have been deemed inconsistent with the First Amendment,[6] but the military chaplaincy brought with it the competing constitutional demands of deference to Congress in military matters and the First Amendment’s other religion clause – the guarantee of free exercise.[7]
In Katcoff v. Marsh,[8] two lower federal courts found the countervailing constitutional arguments more compelling than strict adherence to the Establishment Clause, and for the most part, placed the military chaplaincy on firm constitutional footing. While Katcoff upheld the existence of the military chaplaincy against an Establishment Clause challenge, it did not foreclose judicial oversight of the military chaplaincy under the Establishment Clause; instead, the ruling left open questions about the chaplaincy that exist to this day. This paper discusses the Katcoff case, its continuing vitality, and some Establishment Clause issues the case did not address or resolve.
II. THE CASE
Two Harvard law students, Joel Katcoff and Allen Weider, brought the Establishment Clause challenge to the Army chaplaincy in the United States District Court for the Eastern District of New York. Neither plaintiff had ever served in the military.[9] While recognizing that some form of chaplaincy is essential to preserve soldiers’ rights to exercise freely their religion, the plaintiffs argued that a voluntary, privately funded program would satisfy the Army’s needs as well as the dictates of the Establishment Clause.[10] After several years of litigation, the district court rejected the plaintiffs’ claim outright, and the Court of Appeals for the Second Circuit affirmed – for the most part – the district court’s dismissal of the lawsuit.
Under
traditional Establishment Clause jurisprudence, if the government overtly
discriminates in favor of one religion or sect over another, it violates the
Establishment Clause.[11] Absent such overt discrimination, the courts
generally (but not always) apply a three-part test set forth in Lemon v. Kurtzman,[12] to determine whether a facially neutral
governmental program violates the First Amendment.[13] Under such circumstances, the Court will
uphold governmental action only if: (1) the law has a
secular legislative purpose; (2) the law’s primary effect is neither to advance
nor inhibit religion; and (3) the law does not foster an excessive government
entanglement with religion.[14] The Court described the “three main evils
against which Establishment Clause was intended to afford protection [as]:
‘sponsorship, financial support, and active involvement of the sovereign in
religious activity.’”[15]
The Second Circuit acknowledged that
strict application of the Lemon test
in isolation would render the Army chaplaincy unconstitutional:
Although the ultimate objective of the chaplaincy may be secular
in the sense that it seeks to maintain the efficiency of the Army by improving
the morale of our military personnel, its immediate purpose is to promote
religion by making it available, albeit on a voluntary basis, to our armed
forces. The effect of the program, moreover, is to advance the practice of
religion. Administration of the program, involving arrangements with many
church organizations of different denominations, entangles the government with
religious accrediting bodies.[16]
The court refused, however, either to consider the chaplaincy in “a sterile vacuum” or to apply the Lemon test as the standard against which to assess its constitutionality.[17] The court held that the “standard to be applied . . . must take into account the deference required to be given to Congress’ exercise of its War Power and the necessity of recognizing the Free Exercise rights of military personnel.”[18] In other words, the presence of two countervailing constitutional considerations – the War Powers clauses[19] and the First Amendment’s Free Exercise Clause[20] – militated against application of the Lemon analysis.[21]
The Second Circuit refused to follow the district court’s approach of wholly deferring to Congress’ judgment about the military’s need for a chaplaincy program.[22] It did hold, however, that – given the judicial deference owed Congress in the exercise of the war power[23] – the court should find Congress’ judgment in the area to be presumptively valid.[24]
The court also emphasized the importance of the First Amendment’s Free Exercise Clause in the constitutional equation. Recognizing the inherent tension between the Establishment and Free Exercise Clauses,[25] the Second Circuit found that if Congress did not establish an Army chaplaincy, it would deny soldiers the right to exercise their religion freely, particularly given the mobile and deployable nature of the nation’s armed forces.[26]
The plaintiffs conceded the essentiality of some form of military chaplaincy to accommodate the Free Exercise rights of soldiers.[27] Their lawsuit was predicated upon the assumption that soldiers’ Free Exercise needs could be met by a privately funded program.[28] To support their contention, the plaintiffs relied entirely upon the affidavit of the president of a single sect – the Wisconsin Evangelical Lutheran Synod – who claimed that the Synod could successfully support a civilian chaplaincy.[29]
The
Second Circuit flatly rejected the plaintiffs’ argument, finding the plaintiffs’ proposal “so inherently impractical as to
border on the frivolous.”[30] It observed that “even if the affidavit of
the President of the Wisconsin Evangelical Lutheran Synod could be accepted at
face value, . . . it [could] hardly serve as an indication that the Catholic
Church, the Jewish Religion, and the numerous other Protestant denominations
would favor, much less financially support, a civilian chaplaincy.”[31] Moreover, apart from the “financial
infeasibility” of the plaintiffs’ proposal, the plaintiffs offered no evidence
that “civilian chaplains would accept military discipline, which is essential
to the efficient operation of our armed forces.”[32] The court concluded that any doubt as to the
“feasibility of a civilian chaplaincy must . . . be resolved in favor of
judicial deference to Congress’ decision in this area, which is closely tied to
the functioning of our armed forces.”[33]
The Second Circuit did not entirely
remove the Army chaplaincy from constitutional doubt. It found that in a few areas “the reasonable
necessity for certain activities of the military chaplaincy is not readily
apparent.”[34] Specifically, the court questioned the need
for the government to support military chaplains, facilities, and activities in
large urban centers, such as
III. THE CONTINUED SOUNDNESS OF KATCOFF
The federal courts have not directly addressed the constitutionality of the military chaplaincy since Katcoff was decided over 21 years ago. Although subject to some criticism,[39] the decision represents well-established law; indeed, based upon subsequent First Amendment jurisprudence, Katcoff is unlikely to be overturned anytime soon.
First,
although never overruled, the Lemon v.
Kurtzman test, under which the military chaplaincy would almost certainly
be deemed unconstitutional,[40]
has been significantly weakened. The Supreme Court applies the test
inconsistently at best,[41]
and some justices have called for its outright rejection.[42] This process began even before Katcoff was decided.[43] For example, the Court in Marsh v. Chambers[44]
rejected a constitutional challenge to the funding of a chaplain for the
The
military chaplaincy has a similar pedigree to legislative chaplains. The Continental Congress approved the first
Army chaplain in 1775, well before adoption of the Constitution.[48] In 1791, before ratification of the First
Amendment, Congress authorized the appointment of an Army chaplain.[49] While the district court in Katcoff placed considerable weight on Marsh,[50] the Second
Circuit did not.[51] In any event, as the Supreme Court places
less reliance on the Lemon test, it is increasingly unlikely to apply
the test in future challenges to the military chaplaincy, particularly given
the chaplaincy’s historical foundations together with the nature of modern
military service and the demands of the Free Exercise Clause.
Second, the Supreme Court’s contemporary tendency to abandon Lemon or to apply it flexibly has given some justices the opportunity to assert a “more accommodationist view of religion.”[52] Under this approach, courts “recognize, accommodate, and even honor the central role that religion plays in society [as] consistent with historical traditions, national expectations, and most importantly, the Establishment Clause.”[53] In short, government violates the Establishment Clause “only if it literally establishes a church, coerces religious participation, or favors one religion over others.”[54] An example of this accommodationist approach is the Court’s generally increasing willingness to uphold government assistance benefiting parochial schools.[55]
Of course, a trend towards growing judicial accommodation of religion bodes well for the military chaplaincy. Courts will be less inclined to insist upon strict separation of government and religion or absolute government neutrality between religion and non-religion, principles upon which future challenges to the chaplaincy are likely to be predicated.
Third, the Supreme Court has seemingly given the Free Exercise Clause – upon which the military chaplaincy is now largely justified[56] – a “preferred position in our constitutional order,”[57] particularly when it conflicts with the Establishment Clause.[58] This deference to free exercise concerns was evident in Cutter v. Wilkinson,[59] in which the Court, in a unanimous decision, upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000.[60] Under the Act, neither the state nor federal governments may impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the burden furthers a compelling governmental interest and does so by the least restrictive means.[61]
The plaintiffs in Cutter were current and former inmates of the Ohio Department of Rehabilitation and Corrections who were adherents of “non-mainstream” religions.[62] They claimed the state failed to accommodate their religious exercise, including barring access to religious literature, denying the same opportunities for group worship as members of mainstream religions, forbidding adherence to the dress and appearance mandates of their religions, withholding religious ceremonial items, and failing to provide a chaplain trained in their faith.[63]
The Court rejected the state’s contention that the RLUIPA violated the Establishment Clause, finding that the Act constituted a “permissible legislative accommodation of religion . . . .”[64] The Court emphasized that the Act was compatible with the Establishment Clause because it “alleviates exceptional government-created burdens on private religious exercise.”[65] In other words, it “protects institutionalized persons who are unable freely to exercise their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.”[66] By so holding, the Court elevated the status of the Free Exercise Clause, by upholding a statute prescribing a “compelling state interest and least restrictive means analysis for religion claims while maintaining the deferential standard [in the prisons context] for all other constitutional rights, including free speech.”[67]
Although
the setting in Cutter is not entirely
analogous to the military, members of the armed forces, like prisoners, are
largely dependent upon the government to accommodate their religions. This dependence is particularly evident in
remote installations in the
Finally,
in addition to the evolving legal landscape, the military itself has changed
since Katcoff was decided. In 1986, the military was largely a static
Cold War force, which – while stationed widely throughout the world – was
generally located in friendly locales and was rarely employed in combat.[70] Since the end of the Cold War, and
particularly after September 11, 2001, the world has become more unstable,[71]
and the
IV. UNRESOLVED ESTABLISHMENT CLAUSE ISSUES
While the military chaplaincy is on firm constitutional footing, issues concerning the armed forces and the Establishment Clause remain. In this section of the paper, I discuss a some of the more prominent issues.
A. The
Chaplaincy in Major Metropolitan Areas
The Second Circuit in Katcoff v. Marsh expressed some doubts about the constitutionality of a military chaplaincy in large metropolitan areas where servicemembers have access to a wide array of civilian religious facilities and activities.[74] The court remanded the case for the district court to consider the issue, but the plaintiff’s dismissed their lawsuit thereby obviating the need for further litigation about the matter. The issue has since seemingly been forgotten.
Certainly the free exercise concerns, which were prominent – even decisive – in Katcoff, are of much less importance in large cities. Unlike remote or deployed environments, the religious needs of servicemembers can often be fully accommodated by the civilian community.[75] Perhaps given the diminishing presence of the military in urban centers since 1986[76] and the increasingly “accommodationist” approach of the federal courts,[77] future judges may see such a challenge as simply “judicial nitpicking.” The armed forces may also justify the chaplaincy in urban areas as necessary for the rotation base, thereby avoiding a chaplaincy that is assigned strictly in remote or deployed locations – hardly a recipe for retention.
Moreover,
Judge Meskill indicated in Katcoff in
his dissent from remand of the case, many of religious services in
Thus, while the issue remains open, the armed forces are likely to be able to justify the retention of those chaplains who remain in large metropolitan areas.
B. Compulsion
1. General
At its very core, the First Amendment’s Establishment Clause strictly prohibits government from coercing “anyone to support or participate in religion or its exercise . . . .”[81]
The “establishment of religion” clause of the First Amendment
means at least this: [Neither a state nor the Federal Government] can force nor
influence a person to go to or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church
attendance or non-attendance.[82]
Indeed, a “state-created orthodoxy” puts the free exercise of religion at risk; “if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect the sphere of inviolable conscience and belief which is the mark of a free people.”[83] Consequently, any attempt by the armed forces to compel participation in particular religious worship, or any worship at all, conflicts with both the Free Exercise and Establishment Clauses of the First Amendment.[84] Stated simply, “military religious activities must be voluntarily ....”[85]
This
concept was tested in Anderson v. Laird,[86]
a challenge to mandatory chapel attendance at the service academies. Under academy regulations, cadets and
midshipmen were required to attend Protestant, Catholic, or Jewish religious
services on Sundays; those who refused were punished.[87] Although the judges were unable to agree
about a single rationale for their decision, the Court of Appeals for the
Giving little apparent deference to the military, Chief Judge Bazelon found that the regulations violated both the Establishment and Free Exercise Clauses, writing that “[i]n this case, . . . the two Clauses complement each other and dictate the same result. Abolition of the attendance requirements enhances rather than violates the free exercise rights of cadets and midshipmen” by ensuring that they would not be forced to attend church against their will.[88] Judge Leventhal saw no need to reach the Free Exercise issue, and after weighing the military’s claim of necessity, opined that forced chapel attendance violated the Establishment Clause.[89]
More recently, in Mellen v. Bunting,[90] the Court of Appeals for the Fourth Circuit held that a supper prayer delivered to cadets at the Virginia Military Institute (“VMI”) violated the Establishment Clause of the First Amendment. With minor exceptions, all VMI cadets marched into the mess hall for their supper and remained standing during the supper prayer.[91] VMI’s superintendent denied a request by some cadets to “go about their business in the Mess Hall during the supper prayer.”[92] While not being forced to pray, cadets were forced to stand in silence during the prayers.[93]
The Fourth Circuit acknowledged the rulings of other federal courts that distinguished between prayers in public schools and those in colleges and universities.[94] In cases involving invocations at college graduation ceremonies, two courts of appeals, the Sixth and the Seventh Circuits, held that the prayers do not violate the Establishment Clause, in part because the ceremonies were not mandatory, attendees were not forced to participate, and college and university students are more mature and less impressionable than public school students.[95] The Fourth Circuit found that VMI’s supper prayers were different. VMI required cadets to attend and participate,[96] and while VMI cadets are not children, under VMI’s “adversative” method of education[97] they were uniquely susceptible to coercion.[98] Given this coercive atmosphere, the court held that “the Establishment Clause precludes school officials from sponsoring an official prayer, even for mature adults.”[99]
As in Anderson and Mellen, any attempt by commanders to require service members to attend religious services would run afoul of the proscription against forced worship. Outright coercion in the form of orders to attend religious services would entail application of the government’s criminal processes to compel worship[100] and would be so repugnant that even the most accommodationist of justices would not sustain it.[101]
The military services seemingly recognize, at least officially, constitutional prohibitions against forced worship. For example, the Army regulation governing chaplain activities plainly states: “Participation of Army personnel in religious services is strictly voluntary.”[102] The other services similarly emphasize the military’s pluralistic nature and the importance of permitting service members to exercise freely their religions.[103] While overt compulsion is rare, the armed services have had difficulties with more subtle forms of coercive practices, namely, proselytizing and the delivery of sectarian prayers at official ceremonies.
2. Proselytizing
The Air Force has come under attack over the past two years for, among other things, permitting the proselytizing of cadets at the Air Force Academy. For example, during basic cadet training, one Academy chaplain allegedly led a Protestant worship service in which he encouraged attending cadets to return to their tents, proselytize cadets who did not attend the service, and remind them of the consequences of their “apostasy” (i.e., that they would “burn in hell”).[104] In addition, cadets alleged that professors actively recruited them to join evangelical churches,[105] and “[a]t Christmastime, some senior faculty members signed religious ads in the base paper, including . . . : ‘We believe that Jesus Christ is the only real hope for the world. If you would like to discuss Jesus, feel free to contact one of us!’”[106] Cadets also reported receiving pressure to see the movie “The Passion of the Christ.”[107]
One Academy chaplain reported that “[p]eople at the academy were making cadets feel an obligation that they are serving the will of God if they are engaging in evangelical activities, and telling them that this is harmonious and co-extensive with military service.”[108] In a lawsuit filed against the Air Force in the United States District Court for the District of New Mexico, the plaintiffs (all Air Force Academy graduates) alleged that some academy chaplains encouraged cadets “to ‘witness’ to other cadets in an attempt to convert them to evangelical Christianity.”[109] An atheist cadet who sought refuge with the academy’s equal opportunity officer was allegedly discouraged by the equal opportunity officer from filing a complaint and was also told that the officer, as a believer, felt obliged to bring the cadet “back to the flock.”[110] The Air Force’s Deputy Chief of Chaplains was later quoted as stating: “We will not proselytize, but we reserve the right to evangelize the unchurched.”[111]
An investigation into the religious climate at the Air Force Academy led by Air Force Deputy Chief of Staff for Personnel, Lieutenant General Roger A. Brady, concluded that – while there was no overt religious discrimination – there was “a failure to fully accommodate all members’ needs and a lack of awareness over where the line is drawn between permissible and impressible expression of beliefs.”[112] The investigation team found:
Senior faculty and staff members, in
efforts that may have been well intentioned, have made public expressions of faith
that some faculty, staff and cadets believed to be inappropriately influential
or coercive. As a result of this, some
military and civilian faculty expressed concern about the impact of religious
affiliation on their personal career advancement. Some cadets expressed objections to what they
perceived to be mandatory prayers at official functions and in sports locker
rooms. Additionally, some faculty
members and coaches consider it their duty to profess their faith and discuss
this issue in their classrooms in furtherance of developing cadets’
spirituality.[113]
With regard to military chaplains, while commanders may not generally dictate how chaplains conduct their worship services,[114] they may prohibit chaplains from proselytizing service members “outside of church.” In fact, a failure to prevent such activity likely violates the Establishment Clause. In Baz v. Walters,[115] the Court of Appeals for the Seventh Circuit addressed a lawsuit by a Veterans’ Administration (“V.A.”) hospital chaplain whose employment was allegedly terminated in part because he proselytized hospital patients. The chaplain claimed the V.A. had violated his First Amendment rights by limiting and restricting the manner in which he could pray and preach.
Rejecting the chaplain’s arguments, the court found that the V.A. walked a fine line between the Free Exercise rights of its patients and the limits imposed on it by the Establishment Clause, which prohibits favoring one religion over another or no religion at all:
If there
were not a [V.A.] chaplaincy program, veterans might have to choose between
accepting the medical treatment to which their military service has entitled
them and going elsewhere in order to freely exercise their chosen religion.
This itself might create a free exercise problem. . . . But, at the same time, the V.A. must ensure
that the existence of the chaplaincy does not create establishment clause problems. Unleashing a government-paid chaplain who
sees his primary role as proselytizing upon a captive audience of patients
could do exactly that. The V.A. has
established rules and regulations to ensure that those patients who do not wish
to entertain a chaplain’s ministry need not be exposed to it. Far from defining its own institutional
theology, the medical and religious staffs . . . are merely attempting to walk
a fine constitutional line while safeguarding the health and well-being of the
patients.[116]
Military chaplains are similarly situated to V.A. chaplains. Although they are noncombatants[117] and excluded from command,[118] chaplains are officers and, as such, demand a certain degree of respect and deference.[119] Under these circumstances, lower-ranking service members might be reluctant to eschew a chaplain’s efforts to proselytize or evangelize, creating the prospect of mandatory religious indoctrination, the very type of practice the Establishment Clause is intended to prevent. Ultimately, Congress funds a military chaplaincy to ensure the Free Exercise rights of soldiers, regardless of their faith;[120] chaplains are not federally funded missionaries for their respective religions.[121]
When commanders, instructors, or senior officers proselytize or evangelize, Establishment Clause problems are magnified. The military proscribes relationships between officers and enlisted personnel that either “[i]nvolve, or appear to involve, the use of rank or position for personal gain. . . ,” or “[a]re, or appear to be, exploitive or coercive in nature.”[122] Moreover, the Joint Ethics Regulation (“JER”) forbids Department of Defense (“DoD”) personnel from soliciting to persons junior in rank, grade, or position,[123] or from endorsing in their official capacities non-federal entities, events, products, services, or enterprises.[124] These prohibitions protect lower-ranking service members from superiors who might take advantage of their rank or position;