CDR
William A. Wildhack III, CHC, USNR*
I. INTRODUCTION:
MINISTERING TOGETHER IN THE WORST OF TIMES
A Jewish rabbi, a Catholic priest, a
Methodist minister, and a Dutch Reformed minister once went on an ocean cruise
together. Rather than the start of a bad
joke, it is instead the beginning of one of history’s most moving stories of
cooperative ministry in the religiously pluralistic environment of the armed
services. The rabbi, priest, and two
ministers were Army chaplains who sailed with nearly 900 other service members
and crew aboard the U. S. Army Transport Dorchester as it traveled across the
North Atlantic toward
Forty years later, on October 23,
1983, a terrorist bomb killed 241 Marines, Sailors, and Soldiers in
[T]he Catholic chaplain, cut a circle out of his cap - a piece of
camouflaged cloth which would become my temporary headcovering. Somehow he wanted those [M]arines to know not
just that we were chaplains, but that he was a Christian and that I was
Jewish. Somehow we both wanted to shout
the message in a land where people were killing each other - at least partially
based on the differences in religion among them - that we, we Americans still
believed that we could be proud of our particular religions and yet work side
by side when the time came to help others, to comfort, and to ease pain.
[We] worked that day as brothers. The words from the prophet Malachi kept
recurring to me—words he’d uttered some 2,500 years ago as he had looked around
at fighting and cruelty and pain. “Have
we not all one Father?” he had asked.
“Has not one God created us all?”
It was painfully obvious, tragically obvious, that our world still could
not show that we had learned to answer, yes.
Still, I thought, perhaps some of us can keep the question alive. Some of us can cry out, as the [M]arines did
that day, that we believe the answer is yes.[10]
In their ministry, the chaplains on
the Dorchester and in
More than twenty years have passed
since that horrible morning in
A. Cooperation Under Fire: Litigating the Line between Cooperation and
Compromise[16]
As alleged in one of the cases, a
senior chaplain of one Christian group declared that a junior chaplain’s style
of worship, which followed the traditions of a different Christian group, was
“hogwash,” and took over the service and recast it in a form more acceptable to
the senior chaplain.[17] In another allegation in the same case, one
can hear an echo from the mid-nineteenth century,[18]
as an Episcopalian chaplain allegedly instructed a Southern Baptist chaplain to
make changes in a weekly service for which the Baptist chaplain was
responsible.[19] Allegedly, making the changes would have
transformed one chaplain’s service from one conducted “according to the manner
and forms of the church of which he is a member”[20]
into one following the manner and forms of another chaplain’s church.[21] Other allegations focus on a senior
chaplain’s alleged criticism of the content of a chaplain’s prayers and
direction that future prayers be altered,[22]
another senior chaplain’s alleged direction of changes in the content of a junior
chaplain’s sermons in worship,[23]
various other alleged violations of the Free Exercise, Establishment, and Free
Speech Clauses of the First Amendment,[24]
and alleged violations of the Equal Protection Clause of the Fifth Amendment.[25]
Related actions involve similar
allegations filed by one Christian faith group on behalf of several of its
chaplains,[26]
a claim of constructive discharge resulting from a hostile environment after a
chaplain refused to change the content of his sermons and other speech,[27]
and alleged religious discrimination in decisions regarding potential
chaplains’ applications to join the Navy.[28] In all of the cases, a central theme is the
allegation that the Navy’s categorization of various faith groups has led to
favoring some groups over others, and that some groups of Christians have
allegedly treated other groups of Christians particularly unfairly.[29]
In 2002, one of the cases became a
class action with a potential class size asserted to be over 1,000 current and
former chaplains.[30] Late in 2003, the District Court for the
B. A Fascinating Intersection,
Or an Accident Waiting to Happen?
While a full treatment of all the
issues raised in these cases is clearly beyond the scope of a single article,
an examination of just one is not.[32] In ruling on several motions in the two cases
already combined for pretrial motions,[33]
Judge Ricardo Urbina observed that “[t]he issue of what restrictions the Navy
may place on the content of its chaplains’ speech is a fascinating one,
standing at the intersection of four major jurisprudential roads—free speech, free
exercise, establishment, and equal protection.”[34] Successful navigation of such an intersection
presents several challenges to the chaplain who seeks to serve both his or her
faith and the Navy, to the faith group he or she represents, to the Navy itself,
and to any who would seek to offer guidance to the parties. Just as drivers accept traffic signals and
lane markers to guide free movement through an intersection, some argue Navy
chaplains may have to accept some restriction on the content of their speech[35]
so that the free exercise rights of all service members can be protected fully.[36] At the same time, one court has suggested the
Navy must recognize that some restrictions on speech are impermissible, and
that whatever permissible restrictions it seeks to apply must be applied evenly
to all or not at all.[37]
In preparing to enter this
fascinating intersection, Part II of this article examines the evolving role of
chaplains in American military history, highlighting a shift in official
responsibility from providing primarily direct ministry to a priority of
protecting free exercise. Moving closer
to the intersection, Part III examines modern recognition of the “Protestant
Problem”[38]
and the challenges it presents. Part IV
enters the intersection, and seeks to offer some traffic signals or lane
markers that fully protect a chaplain’s rights to free speech in worship while
also protecting other service members’ rights to free exercise, avoid further
establishment problems, and treat all chaplains equally.
II. HITTING
THE ROAD: HISTORICAL NOTES ON MILITARY CHAPLAINCY IN THE UNITED STATES
Chaplains have been a part of our
history on this continent since before the Revolutionary War. A chaplain, Francis Fletcher, accompanied Sir
Francis Drake on his famous trip around the world in the late sixteenth
century, and led the first
Interestingly, a former Army
chaplain was a signer of the Constitution and member of the First Congress.[46] It is also important to note that the First
Congress approved employing chaplains “to offer daily prayers in the Congress” the
same week it approved the Religion Clauses of the First Amendment[47]
for submission to the states.[48] Those who approved the Establishment Clause
apparently saw no conflict between the two actions.[49] Nor did they suggest any conflict the day
after voting on the Religion Clauses when they passed a resolution calling on President Washington to declare a day of
Thanksgiving “to be observed by acknowledging with grateful hearts the many and
signal favours of Almighty God.”[50] Finally, just two years later, when Congress
voted in 1794 to formally establish a “United States Navy” in response to raids
by Algerian pirates,[51]
it included a chaplain in the crew of each ship above a certain size.[52]
A. Early Questions about Worship
As in our day, questions about the
manner and forms of worship have also long been a part of the history of the
Chaplain Corps. Early regulations
specified that the duties of chaplains included having to “read” prayers.[53] In 1859, the Speaker of the House of
Representatives asked the Secretary of the Navy whether chaplains were required
to “read” prayers or follow any particular forms or ceremony in leading
worship, and if the Navy had any evidence of a requirement that non-Episcopal
chaplains had to follow the Episcopal liturgy.[54] In replying, the Secretary explained that he
was not aware that the instruction to “read” had ever been construed to require
a literal reading from a particular prayer book, but rather as a requirement
that prayers be offered aloud without specifying they be read from a book,
written down by the chaplain beforehand to be read later, or offered
extemporaneously.[55]
To further reassure the Speaker and
his colleagues in Congress, the Secretary announced a new order officially
interpreting the requirement that prayers be “read” to mean that prayers be
“offered,” thus leaving the chaplain free to follow the dictates of his own
religious tradition.[56] Perhaps in response to such communication
with Congress, new Navy Regulations adopted in 1860 included this addition:
“Every chaplain shall be permitted to conduct public worship according to the
manner and forms of the church of which he may be a member.”[57] No longer merely a regulation, that language
is now in force as part of the United States Code.[58]
B. Free Exercise Then and Now: The Need for
Chaplains
While conducting worship has always
been one of a military chaplain’s duties, protecting the rights of others to
freely exercise their faith also predates the Constitution and Bill of Rights.[59] The earliest chaplains, like their modern-day
counterparts, served a military population representing a variety of faith
groups or no faith at all.[60] One author asserts that the “pattern for
chaplain ministry to soldiers of different religious backgrounds was set in the
seventeenth century, from the time the first militia units drilled at
Jamestown, Plymouth, Boston and New York.”[61]
In the modern day, the
responsibility for protecting free exercise rights in the broadest sense for
all personnel became the chaplains’ explicit duty after the U.S. Court of
Appeals for the Second Circuit announced its decision in Katcoff v. Marsh[62] in 1985. The court observed that the Army chaplaincy
of the time, if viewed in isolation, would likely be found to violate the
Establishment Clause.[63] The court also noted, however, that neither
the Establishment Clause nor the chaplaincy existed in a vacuum.[64]
A history including more than 200 years of military chaplaincy, congressional action
authorizing a chaplaincy before, during, and after its debate on the Religion
Clauses, and Congress’ continuing support all suggest that neither the Framers
nor their successors intended the Establishment Clause to preclude a
government-funded military chaplaincy.[65]
Perhaps most importantly for the
current debate, the court suggested that the Army “could be accused of
violating the Establishment Clause unless
it provided [soldiers] with a chaplaincy since its conduct would amount to
inhibiting religion” if the Army prevented soldiers from worshiping by
deploying troops to places where religious leaders and facilities were not
available.[66] Echoing the second prong of the Supreme
Court’s test in Lemon v. Kurtzman[67]
for Establishment Clause questions,[68]
the Second Circuit observed that if the Army did not provide chaplains, the
Army would “deprive the soldier of his right under the Establishment Clause not
to have religion inhibited and of his right under the Free Exercise Clause to
practice his freely chosen religion.”[69] Noting that Congress had in 1850 recognized
that not providing a chaplaincy would violate soldiers’ free exercise rights,[70]
that the Supreme Court, at least in dicta, seemed to assume the chaplaincy’s
continuation “in order to avoid infringing free exercise guarantees,”[71]
and that Congress had “from time to time . . . rejected proposals for abolition
of the military chaplaincy,”[72]
the Second Circuit also upheld continuation of a federally-funded military
chaplaincy.[73] Finding relevance to national defense and
reasonable necessity as more appropriate standards for reviewing chaplaincy
activities than Lemon’s prongs,[74]
the court went so far as to say that not only did the majority of the
chaplaincy’s activities meet those standards, but that “[a]s a result, the
morale of our soldiers, their willingness to serve, and the efficiency of the
Army as an instrument for the national defense rests in substantial part on the
military chaplaincy, which is vital to our Army’s functioning.”[75] While Katcoff
limited its examination to the Army chaplaincy, it is reasonable to extend its
result to the Navy Chaplain Corps and the Air Force Chaplain Service as well.[76]
C. Free Exercise Today: Modern
Regulations
Since Katcoff, Department of Defense (DoD) policy has emphasized
protection of free exercise rights for all service members -- and others -- as
a chaplain’s duty.[77] The Secretary of the Navy, in implementing
the DoD policy and assigning responsibilities for religious ministry support,
defines “chaplains” first as “professionally qualified clergy of a certifying
faith group who provide for the free
exercise of religion for all military members of the Department of the
Navy, their family members, and other authorized persons, in accordance with
[DoD Directive (DODD) 1304.19].”[78] Accordingly, the Chief of Naval Operations
implements the Secretary’s policy “by providing
for the free exercise of religion for all naval service members, their
families, and all other authorized personnel,”[79]
and declares, “Religious Ministry is the entire spectrum of professional duties
performed by Navy chaplains and Religious Program Specialists[80]
to provide for or facilitate the free
exercise of religion and accommodates [sic] the religious practices of military personnel, their families, and
other authorized personnel.”[81] Doctrine for military operations involving
forces from more than one service states plainly that “[r]eligious support
includes the entire spectrum of professional duties that a chaplain provides
and performs in the dual role of religious leader and staff officer .
. . . Religious support in joint operations is dedicated to . . .
[m]eeting the personal free exercise of religion needs of military and other
authorized members.”[82] Finally, a duty of the Navy’s Chief of Chaplains
is to “[a]dvise the Secretary of the Navy, the Chief of Naval Operations, the
Commandant of the Marine Corps and the Commandant of the Coast Guard on all matters pertaining to the free exercise
of religion.”[83]
While chaplains have always had responsibility
for protecting free exercise for all personnel, prior to Katcoff their focus was mostly on providing ministry according to
the “manner and forms of the church of which he [or she] is a member.”[84] Post-Katcoff,
the directives and instructions appear to focus first on providing for free
exercise by all personnel.[85] This shift began at a time when our nation
was experiencing profound changes in the practice and understanding of religion
due to an explosion of new religious movements along with increasing
fragmentation of traditional denominations as “individual autonomy, greater
mobility, increased self-expression and experimentalism” affected both society
and religion.[86] At the same time, religion-based bias was
emerging as a growing issue in the workplace.[87] With such shifts occurring in military policy
and society at large, it should not be surprising that chaplains themselves are
struggling with their evolving roles.
Chaplains must balance the growing incongruity between those roles and
their own faith beliefs,[88]
along with what the Navy thinks it needs from its chaplains.[89] This seems especially true as commands more
and more expect chaplains to learn about -- and be able to explain -- the
growing multitude of religious traditions, even as commands continue to expect
chaplains to remain faithful to their own beliefs.[90]
III. APPROACHING
THE INTERSECTION: THE “PROTESTANT” PROBLEM [91]
OF
This struggle among expectations, roles, and needs is most
obvious not only between those chaplains the Navy labels as “Protestant” and
chaplains of other faith groups represented in the Chaplain Corps, but also
within the group of chaplains called “Protestant.”[93]
During World War II, the Navy classified religious preference with just three
categories and marked “dog tags” with a one-letter code accordingly: “C” for
Catholic, “J” for Jewish, and “P” for Protestant.[94]
As convenient as that was, it was overly simplistic:
If one was not a J or a C, one was automatically
a P. Chaplains were also classified in this way. Even a Russian Orthodox priest was
categorized as a P. The histories of the
chaplaincies of each branch of the service include in the Protestant category
all faith groups other than Roman Catholic, Jewish, and Orthodox.[95]
Although
the groupings within the modern Navy Chaplain Corps have expanded to include
Buddhist, Hindu, Islamic, and “other faiths,”[96]
the groupings may still be overly broad.
No differentiation is made, for example, between the Sunni and Shia
branches of Islam,[97]
nor does the category “Jewish” take into account the differences between
Orthodox, Reformed, Conservative, Reconstructionist, or other Jewish groups.[98] Of particular interest are all the groups
included under the label “Protestant,” representing perhaps 70% of all
chaplains and military personnel.[99] In common usage today, the Navy Chaplain
Corps appears to distinguish between “liturgical” and “nonliturgical” groups
within the category “Protestant.”[100] Though allegations regarding that apparent
division are at the heart of the current litigation,[101]
even that distinction fails to go far enough.
Of 116 groups currently eligible to
endorse chaplains for service, the Navy considers at least 105 of them
“Protestant.”[102] It is also important to note that several of
the groups listed endorse chaplains from more than one faith group, so the
actual number of faith groups is higher than the number of endorsing agencies.[103]
An earlier analysis of groups the
Navy deemed “Protestant” noted four distinctions:
·
groups
that recognize themselves and are recognized by others as “Protestant” (e.g.,
Presbyterian, Lutheran, Methodist),
·
groups
that do not recognize themselves as “Protestant” but are called that by others
(e.g., Baptist, Episcopalian),
·