Religion in the military: navigating the channel between the religion clauses

Air Force Law Review, Spring, 2007 by David E. Fitzkee, Linell A. Letendre

  I. INTRODUCTION
 II. OVERVIEW OF THE ESTABLISHMENT, FREE EXERCISE, AND FREE
     SPEECH CLAUSES
     A. The Establishment Clause
     B. The Free Exercise Clause
        1. Laws Aimed at Religion
        2. Religion-Neutral Laws
           a. Employment Division v. Smith
           b. The Religious Freedom Restoration Act of 1993
              and Challenges
        3. Free Exercise Clause Summary
     C. Tension between the Establishment Clause and the Free
         Exercise Clause
     D. The Free Speech Clause, Religious Speech, and Interplay
        with the Establishment Clause
III. RELIGIOUS SPEECH IN THE MILITARY
     A. Religious Speech and the Free Speech Clause
     B. Religious Speech and the Establishment Clause
 IV. PRAYER IN THE MILITARY
     A. Prayer at Solemn Military Events
        1. Deeply Embedded in History Exception
        2. Remaining Establishment Clause Analysis
     B. Prayer at Routine Military Events
     C. Prayer or Invocation Guidance if Allowable
  V. RELIGIOUS DISPLAYS IN THE MILITARY
     A. Common Areas
     B. Private Areas
     C. Personal Governmental Work Areas
 VI. ACCOMMODATION OF RELIGION IN THE MILITARY
     A. The Free Exercise Standard
     B. Statutory and Regulatory Guidance
VII. CONCLUSION

I. INTRODUCTION

Religion in the military (1) has reached headline proportions: Air Force Sued Over Religion, (2) Air Force Academy Staff Found Promoting Religion, (3) Evangelicals Protest New Air Force Religion Policy, (4) and Naval Academy Urged to Drop Prayer. (5) Behind all the headlines, commanders and military attorneys wrestle with a complex array of constitutional tests in an attempt to navigate the narrow channel between the free exercise of religion (6) by military members and establishment of religion by the military--a feat compared to navigating the narrow channel between the Scylla and Charybdis in Greek mythology. (7)

The narrowness of this channel is striking given the simplicity of the text of the First Amendment's Religion Clauses, which provide that "Congress shall make no law ... respecting an establishment of religion, or prohibiting the free exercise thereof." (8) The simplicity of the language quickly erodes, however, when one considers that in the past ten years (9) the U.S. Supreme Court has decided no fewer than thirteen cases under the Establishment and Free Exercise Clauses. (10) This number of cases is hardly surprising given the profound importance of religion to many people in the United States. (11)

The importance of religion to Americans and the influence that religion can have on people's behavior and attitudes concerning important social issues may explain why the U.S. Supreme Court's cases on religion in the past decade have addressed socially significant or controversial issues. These issues include religious displays (Ten Commandments and a cross) on governmental property; (12) the recital of the Pledge of Allegiance (containing the words "one nation under God") in public elementary schools; (13) governmental provision of "school vouchers" or tuition assistance for children's use at private schools (including religious schools); (14) private organizations' use of governmental property for religious purposes (such as Bible study or worship) when other private organizations are permitted to use the property for non-religious purposes; (15) student-led invocations before football games at public high schools; (16) governmental provision of equipment or other funding to private elementary and secondary schools, including religious schools; (17) federal authority to require accommodation of prisoners' religious practices; (18) and state authority to exempt scholarship money to public university students pursuing studies to become a pastor. (19) In addition to dealing with governmental action that directly or indirectly aids, endorses, or encourages religion, these cases illustrate the four other general contexts in which most religion issues arise: (1) governmental regulation of religious speech, (2) government-sponsored prayer, (3) religious displays on governmental property, and (4) governmental limitation or accommodation of religious practices.

Religious issues in the military also arise in these same four contexts. As difficult as these issues are in American society as a whole, they may be even more difficult in the military. One important reason for this increased difficulty is that the military must not only honor its members' First Amendment religious rights, it must do so in a way that does not materially denigrate its profound first obligation to the nation: "defend[ing] our national interests by preparing for, and when necessary, waging war." (20) Sometimes the military's desire to honor a soldier's request to freely exercise religious rights (e.g., attending a worship service) may conflict with the military's need to accomplish a mission (e.g., participating in an important combat operation).

Ironically, however, the military's real or perceived failure to properly respect its members' religious rights may also detract from the military unit's ability to carry out its mission by marginalizing some members of the unit. (21) A unit is a team with each member having an important role. Top-performing units rely on all their members, but members of the unit who feel marginalized, perhaps due to their perception of their leaders' or fellow soldiers' views toward their religion, will not feel fully a part of the team, and the team's ability to accomplish its mission can suffer. (22) In addition, the military's real or perceived failure to honor its members' rights can result in unfavorable national media attention and even litigation. (23)