Hi, Chaplain Klingenschmitt. I introduced myself in a post a while back but
have not posted since. I have followed this thread closely and am delighted
that you have joined in. I am a former Coast Guard officer and helicopter
pilot. Perhaps you might consider whether my being compelled to pay taxes
to support the military chaplaincy violates my religious freedom.
In their book, For God and Country: The History of a Constitutional
Challenge to the Army Chaplaincy, Israel Drazin and Cecil B. Curry tell the
story of the seven-year legal battle of Katcoff v. Marsh. Both Drazin and
Currey are retired Army Chaplains, and Drazin himself played an important
role in the Army's defense, as he was recalled from reserve status for the
sole purpose of aiding in that defense. At the time of his recall he had is
own law practice in Maryland.
The book tells the entire story of the seven years of litigation, and is
quite well written, yet it in many ways comes across as an angry,
fist-pounding, axe-grinding monument to hard-line church-state
accommodationism. Thomas Jefferson is mentioned only once, his Act for
Establishing Religious Freedom is not mentioned at all, and James Madison is
portrayed as being fickle. After all, Mr. Jeffersons Act stated, that to
compel a man to furnish contributions of money for the propagation of
opinions which he disbelieves, is sinful and tyrannical, and Mr. Madison
warned that it might be Better also to disarm in the same way, the
precedent of Chaplainships for the army and navy, than erect them into a
political authority in matters of religion. The object of this establishment
is seducing; the motive to it is laudable. But is it not safer to adhere to
a right principle, and trust to its consequences, than confide in the
reasoning however specious in favor of a wrong one. Look thro' the armies &
navies of the world, and say whether in the appointment of their ministers
of religion, the spiritual interest of the flocks or the temporal interest
of the Shepherds, be most in view." Yet the book focuses on history and
tradition to justify the chaplaincy, beginning, of all places, in the Old
Testament of the Holy Bible. The authors waste little time before they
quote Deuteronomy 20: 1-4:
"When thou goest out to battle against thine enemies, and seest horses, and
chariots, and a people more than thou, be not afraid of them: for the LORD
thy God is with thee, which brought thee up out of the land of Egypt. And
it shall be, when ye are come nigh unto the battle, that the priest shall
approach and speak unto the people, And shall say unto them, Hear, O Israel,
ye approach this day unto battle against your enemies: let not your hearts
faint, fear not, and do not tremble, neither be ye terrified because of
them; For the LORD your God is he that goeth with you, to fight for you
against your enemies, to save you."
From there the authors give a detailed historical background of military
chaplaincies beginning in fourth century Rome and carry it all the way
through the American colonial period, the new nation and then on into the
modern U.S. Army.
Throughout the proceedings the Army steadfastly claimed that the chaplaincy
was necessary to ensure the free exercise of religion rights of military
personnel, while the plaintiffs contended that a private chaplaincy funded
through voluntary donations could serve the Army's needs.
The book begins with the following paragraphs:
"The weather along most of the upper east coast was threatening, warning of
future winter winds. While many Americans were looking forward to a time of
thanksgiving, retailers across the land continued their hectic preparations
for still another secular Christmas and an expected buying splurge by
frantic consumers. Yet it was only 23 November 1979, still several days
before the Thanksgiving holiday.
On that day, two of the nation's citizens, Joel Katcoff and Allen M. Wieder,
young men then aged twenty-four and twenty-five, seniors at Harvard Law
School, began a monumental task. It had first occurred to them sometime
earlier during a class on constitutional law. Their cause would bring them
praise from some, condemnation from others. And the final outcome, more
than six years later, would be uncertain.
On that day in 1979, the two young men filed a civil law suit in the United
States District Court for the Eastern District of New York in Brooklyn.
They complained that the Army chaplaincy violated the establishment clause
of the First Amendment to the Constitution: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof." Acting as their own counsel, they listed the address of their
"attorney" as Apartment 33, 269 Harvard Street, in Cambridge,
Massachusetts--the residence of Allen Wieder."
And the book ends with the following paragraphs:
"What were the results of the years of effort on the part of so many people
to defend the constitutionality of the Army chaplaincy? The lengthy
litigation provided an opportunity to improve the chaplaincy, an impetus to
rethink and redirect goals, allowing a more careful understanding and
awareness of the possibilities for service inherent in the position. It
also caused the chaplaincy to focus as never before on its responsibilities
to provide for and to defend the rights of soldiers to free exercise of
their faith (or lack thereof). By the end of the twentieth century, no
matter what form the Army chaplaincy may have taken earlier or what
practices it may have engaged in, its purpose became simple and narrowly
defined: to secure free exercise rights for military personnel. The
chaplaincy has no other legal purpose. This is the ultimate legacy of the
challenge by Joel Katcoff and Allen Wieder.
It was unfortunate, however, that no clear constitutional mandate emerged
from the litigation. Judge McLaughlin's decision that the chaplaincy was
constitutional was only that of a district court. Neither it nor the
appellate decision that followed was decisive, for only the Supreme Court
can ultimately determine constitutional legality, and the case never reached
that level. While the outcome of the case indicated that the expenditure of
public funds to support the chaplaincy does not violate the establishment
clause, any future court could decide a similar case differently. Any
appellate court could decide a similar case differently. New suits, based
either on the establishment or the free exercise clause of the Constitution,
may one day be filed.
Current chaplains--active duty and reserve component--need to consider these
things. Their faithfulness to this high calling will help determine the
shape of the future."
Drazin and Currey make a formidable pair in presenting the accommodationist
side of the argument. Presenting the history and this side of the argument
is what the book is all about. But even though they address Anderson v.
Laird several times they never give their own opinion on the issue of
coercion. Furthermore they leave the reader somewhat confused when they
write:
"In only one case had the establishment clause been considered within a
military context. Even then, Anderson v. Laird (1972) did not focus on the
chaplaincy as such. The remarkable differences in the reasoning of the four
judges who analyzed the issues of Anderson v. Laird highlighted the
complexity involved in understanding First Amendment issues.
In that case, against the better judgment of each of the three armed
services' Office of the Chief of Chaplains, the government claimed that
military necessity allowed it to compel cadets at the United States Military
Academy to attend chapel services."
What was the better judgment of these three offices? The authors never say.
Were they for coercion but for a different reason than the government or
were they against coercion? In giving their summary of the Anderson v.
Laird suit, the authors never mention that one of the circuit judges ruled
that both the Establishment Clause and the Free Exercise Clause were
violated by coercion. Is there a reason for this? After all, the Army's
primary defense was that the chaplaincy was necessary to ensure the free
exercise rights of its own people.
Throughout the book the issue of standing-to-sue is a major theme, as it was
a major challenge by the government during the litigation. The authors seem
to scratch their heads as much as did the government during the litigation
on the question of how these two non-veteran citizens could challenge the
constitutionalty of the chaplaincy. The precedent Supreme Court ruling that
allowed them to do so was Flast v. Cohen (1968) and both district judges
involved and all three circuit judges ruled that the plaintiffs did indeed
have standing to sue. Unsatisfied with that, the authors can do no more
that to write in TWO places in the book only five pages apart:
"As the plaintiffs contended, the judge ruled, the current standing test was
set forth in Flast v. Cohen (1968), and although many legal commentators had
criticized that test, it was still the prevailing rule by which standing was
determined."
and
"The Army legal staff also called attention to the fact that the rule of
standing derived from Flast v. Cohen, upon which Judge Mishler relied so
heavily, had been the subject of much criticism within the legal
profession."
So as formidable as these two authors are in documenting the history of the
case and in presenting their accommodationist ideology, all they can do is
"criticize" when it comes down to the brass tacks.
A much, much more formidable pair in the history of church-state litigation
is the pair who argued before the Supreme Court for the plaintiff in Flast
v. Cohen, and that is Senator Sam Ervin and Dr. Leo Pfeffer who is
considered to be the greatest church-state scholar of the twentieth century.
Here in his book, "God, Caesar and the Constitution" he summarizes the
background and court ruling in Anderson v Laird.
http://www.angelfire.com/journal/forcedaa/avsl.html
So the bottom line here, Chaplain, is that the Katcoff case never reached
the Supreme Court. The two Harvard law students just got worn down and
dropped the suit. However, as long as the Navy is violating the rights of
its members by compelling them to attend religious exercises and the
chaplaincy does not step up to the plate for religious liberty, then the
Navy chaplaincy is walking on thin ice. Perhaps it is time for someone to
sue again and point out to the Supreme Court that the military chaplaincy is
not keeping its vow as a guardian of religious liberty.
http://tinylink.com/?Dw4jSfGhyf
Sincerely,
Tommy Perkins
Founder, 12-Step Coercion Watch
http://groups.yahoo.com/group/12-Step_Coercion_Watch/
Site owner, Forced AA in the US Military is Unconstitutional
http://www.angelfire.com/journal/forcedaa/
More on Katcoff:
http://tinylink.com/?eggGtdLANV
http://www.preciousheart.net/chaplaincy/Army_Constit_Defense.htm
P.S. Norfolk is only a short drive from where I live in Elizabeth City, NC.
I would be glad to meet you and discuss religious liberty in the U.S.
military. Best wishes. Your web site is very interesting.
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