Those following this thread may be interested in a story from today's
Washington Post, headlined:
Air Force Withdraws Paper for
Chaplains
Document Permitted Proselytizing
http://www.washingtonpost.com/wp-
dyn/content/article/2005/10/10/AR2005101001582_pf.html
As for Chaplain K's response: The chaplain has a rather extreme
sense of the scope of his rights (he believes himself free to incite
anything short of "treason, violence, or rebellion" -- civilians don't
have rights to incite that are quite this broad, do they?), and a rather
impoverished sense of the scope of his and the government's duties
(under the Establishment Clause and in regard to the maintenance
of morale and good order in the Armed Forces). I don't think I can
say anything more than that about the self-serving, one-sidedness
of his views.
With respect to the reference to Title 10, Section 6031: "An officer
in the chaplain corps may conduct public worship according to the
manner and forms of the church of which he is a member." This
can only be understood as limited by the Constitution (here, the
Establishment Clause) and by overarching responsibilities for
maintaining military cohesion. If the Air Force can, without violating
the Free Exercise Clause, order Captain Goldman to remove his
yarmulke while he is indoors (are you familiar with Goldman v.
Weinberger, Chaplain K?), it seems obvious that it can constrain
chaplains from conducting a public memorial service in ways that
undermine that cohesion. (Apropos of the Post story above,
perhaps the armed services must do a better job in communicating
that lesson to its chaplains.)
I do think that soldier to soldier, cadet to cadet religious proselytizing
presents a much more difficult question. These conversations do
not involve government agents speaking in some official capacity.
(Alan and I may part company on this one.) In that regard, won't
conventional anti-harassment rules about a pervasively hostile
environment do the trick? Or do we have no confidence that such
rules will be sensitively enforced (that is, neither under- nor over-
enforced) by military commanders?
Chip
On 10 Oct 2005 at 19:57, Gordon James Klingenschmitt wrote:
>
> Thanks Chip, you're right, I wasn'tthorough in my answers to Alan,
> soI'll try again here....
>
> Alan asked:
>
> > * If a Chaplain's comments placed the physical security of
> > militarypersonnel of other faiths
> atrisk, would such comments justify intervention? That, of course,is
> the extreme case and it is difficult to imagine anything likethat
> happening today. My answer is, yes, inciting TREASON, VIOLENCE, OR
> REBELLION would justify a government investigation of a Chaplain's
> speech, with appropriate disciplinary action IFcausation is
> provedbeyond reasonable doubt.
>
> > * If a Chaplain's comments incited the harassment of military
> > personnel of other faiths,
> wouldsuch comments justify some response from the authorities? If
> suchharassment in fact occurred and could fairly be understood to
> havebeen caused by a Chaplain's comments, would some kind
> ofintervention be warranted? My answer is,NO, the chaplain cannot be
> held accountable for others' choice to harass, when the chaplainisn't
> the one harassing. The term "fairly understood to have beencaused"
> isn't a high enough legal standard for proof of actual causation. I
> may buy it if you'd said "proven beyond reasonable doubt to have been
> caused" but that causation is hard to prove, when the harasser made
> his own free will choice to harass. And it'd be especially hard to
> prove, since even the most zealous and aggressivechaplains I know
> generally encourage (at least publicly)polite evangelism, and never
> rude evangelism.(Personally I only speak after "invitation-acceptance"
> and therefore can never harass.) Even at the Air Force Academy, the
> chaplain who encouraged students to evangelize theirfellow students
> (perhaps even mentioninghell) was cleared of any wrongdoing, since he
> did it in the chapel, quoting the Bible,encouraging peer discussion,
> not coersionbyrank.
>
> > * If a Chaplain's comments caused distrust among military
> > personnelof various faiths
> andundermined moral, that may be a harder case in part because ofthe
> indeterminacy of the harm alleged (distrust and loss ofmorale) and in
> part because of the difficulty in demonstratingcausation. Should we
> trust the judgment of military authorities insuch situations?
>
> Absolutely not. Perhaps inciting TREASON, VIOLENCE, OR REBELLION would
> justify a government investigation of a Chaplain's sermons,with
> appropriate disciplinary action. But morale? Clearly the government's
> burden, before invading the chapel, is higher than just alleging "he
> hurt my feelingsby speaking the truth." > * If a Chaplain's comments
> during a memorial service for a soldieror sailor would beexperienced
> by military personnel of others faiths as disparagingor hurtfulto such
> an extent that they would feel unwelcome atthe service... Would
> holding dual services be an acceptablesolution to this last situation?
> Absolutely! Our deceased Sailor had FOUR memorials. -One candlelight,
> open microphone, open to all faithssession on the ship, -One 21 gun
> salute the next day from the back of the ship -My service in the
> chapel, advertised as a "Christian memorial service" -A formal
> Catholic funeral for the family in California. -And I suppose a few
> Sailors toasted him over drinks too...that makes five.
>
> People remember their friends in many ways. But MYDUTY to best honor
> his memory, was to honor his personal religion, and I did so by
> preaching THE SAME SERMON SCRIPTURESthat he personally embraced before
> he died. For the government to punish me for that sermon
> literallydishonors the personal religion of the deceased, a veteran
> who fought in Operation Iraqi Freedom, who deserved a proper Christian
> memorial. Shame on them for dishonoring his memory, and his faith.
>
> And to answer Chip's(excellently stated) points...
>
> 1) You're right, I'm not prepared toacknowledge ANY establishment
> clause limits on a chaplain's religious speech from the pulpit in the
> chapel, unless he incites treason, violence, or rebellion.All military
> chapel services (even regular Sunday morning services) are "government
> sponsored" in the sense they're advertised, funded, housed in
> government facilities.
>
> But the content of the worship must be free from regulation, as Title
> 10 Section 6031 clearly allows: "An officer in the chaplain corps may
> conduct public worship according to the manner and forms of the church
> of which he is a member." I've yet to hear Chip, Sandy, Alan, Steve,
> or Paulpeople acknowledge the legitimacy of this law. Were you a
> judge, would you uphold this law as written? I'm asking.
>
> 2) Morale and divisiveness are toolow a legal standard, the government
> must have a higher burden than just "he hurt my feelings" before
> invading the chapel.
>
> 3)I'll concede Mr. Weinstein's righteous disappointment with many of
> the abuses at the Air Force Academy (where I graduated in 1991, by the
> way, after leading many student evangelism outreaches), but I won't
> concede hisallegations involving the chaplain.
>
> Yale Divinity complained a chaplain (in the chapel, quoting the Bible)
> dared to encourage students to evangelize their peers. The Air Force
> investigation completely cleared the chaplain, verified he was doing
> his job properly, and still Mr. Weinstein's lawsuit apparently
> INCLUDES complaints that chaplains should be gagged in the chapel. So
> yes, he isdirectly coming after me. (And my commanding officers really
> do fear offending people like Mr. Weinstein,so they feel pressure to
> silence me.) But he's the one who's wrong, and I think if he were
> really pressed aboutthat subject, he'd drop his complaint about the
> chaplain. (Or at least he'll watch while the judgethrows itout, prima
> facie.)
>
> 4) Do youthink my zeal causes tension? I didn't notice.
>
> Smile.
> Chaplain K.
>
>
> Lupu <[EMAIL PROTECTED]> wrote:
> Alan's questions and thoughts below are excellent, and I don't
> think Chaplain Klingenschmitt has made any real effort to answer
> them. The Chaplain's response focused on Rigdon v. Perry, a
> decision that is no doubt important and seems to me to be correct.
> But the Chaplain does not seem prepared to acknowledge 1)
> Establishment Clause limits on what a government-employed
> clergyman may do in advancing his faith (or in casting doubt on
> others) in a government- sponsored setting (the memorial service)
> likely to include those who are there simply to pay respects; or
> 2) the military's overarching concerns with morale and religious
> divisiveness. No theory of the military chaplaincy (this is a
> subject begging for a good law review article) can be complete
> without attending to these questions.
>
> And why is the Chaplain characterizing the Weinstein s! uit vs.
> Air Force Academy as one against him (Klingenschmitt) personally,
> rather than (as it seems to be) against officers of a government
> institution who allegedly have permitted officers under their
> control to foster an environment that is religiously hostile to
> some cadets?
>
> I must add that the Chaplain's posts, his website, and his sermon
> at the memorial service (taken together) suggest a degree and kind
> of zeal that (however appropriate for a member of the private
> clergy) will inevitably produce tension with the sort of
> ecumenical spirit that seems to me essential to the military
> chaplain's role.
>
> Chip
>
>
> Yahoo! Music Unlimited - Access over 1 million songs. Try it free.
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
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