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

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

The Court's failure to provide clear guidance on when each of the three tests--Lemon, endorsement, and coercion--should be used makes Establishment Clause cases particularly difficult for practitioners and courts. (72) Because Lemon is still valid precedent (at least as guiding "the general nature of the inquiry in this area" (73)), thorough analysis of Establishment Clause issues should start with applying the Lemon test and then considering the other two tests as necessary. (74)

B. The Free Exercise Clause

The Free Exercise Clause becomes an issue whenever governmental action burdens the free exercise of religion, (75) even if the action falls short of completely "prohibiting the free exercise" of religion. (76) The clause protects both religious beliefs and religious practices (77) ("acts prompted by religious beliefs"). (78) The right to hold religious beliefs is absolute, but the right to engage in religious practices is not. (79)

When determining whether the Free Exercise Clause protects a particular religious practice, a threshold question is whether the governmental action has imposed a "burden" on "religion." If not, no issue exists under the Free Exercise Clause. The Court has suggested, however, that both terms should be construed broadly. (80) A law clearly burdens religion if it imposes criminal or civil sanctions on a religious practice. (81) A law also burdens religion when it forces people "to choose between [practicing] their religious beliefs and receiving a government benefit." (82)

Religious beliefs are "'based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent." (83) They must be sincere, but need not be traditional as long they "occup[y] in the life of its possessor a place parallel to that filled by the God" of traditional religions. (84) A person claiming the protections of the Free Exercise Clause need not be a member of an organized religious denomination or "be responding to the commands of a particular organization." (85) In view of these broad parameters, it may be very difficult to determine whether a particular claim is based on a religious or secular belief and whether the claim is sincere. (86)

If there is doubt about the threshold question of whether a particular governmental action burdens the free exercise of religion, the conservative approach is to give the person claiming the free exercise protection the benefit of the doubt and to proceed with the free exercise analysis. The Court has developed two different tests for evaluating governmental action burdening the free exercise of religion, depending on whether the burdening action targets religion or is neutral toward religion. (87)

1. Laws Aimed at Religion

Governmental action targeting religion is generally prohibited. (88) Governmental action targets religion if its purpose is to suppress religion or religious practice. (89) An example would be a statute prohibiting "the casting of statues that are to be used for worship purposes." (90) To determine whether a law targets religion, courts look first to the language of the statute to ensure that it is neutral on its face with regard to religion. (91) A statute referring to a religious practice, for example, would lack facial neutrality unless the statute also had a clear secular meaning. (92) In determining a governmental intent to discriminate against religion, courts might also look to "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body." (93) In addition, governmental intent to suppress religion or religious practice might be inferred from the actual operation of the statute: a law that does not specifically refer to a religion or religious practice, but in effect serves to regulate that practice exclusively, would evidence such prohibited intent. (94) Courts would view such a law as an improper "religious gerrymander." (95)