If the agreement to remove the "Military Chaplains
Prayer Law" from the National Defense Authorization Act resulted somehow in
language being inserted that would have the effect of rescinding the cited
instructions and reinstating earlier directives --- and I did see the note asserting that the action
has no operative legal effect --- far more may be rescinded than just the
language described as limiting prayer. I am not familiar with Air
Force Instructions, but rescinding the Navy's 19-page instruction and reinstating the earlier, 4-page instruction ---
in addition to rescinding the section apparently at issue --- may
also throw the following other
provisions of the newer
instruction into
question:
-
the position of Deputy Chief of Chaplains for Reserve
Affairs
-
express language requiring chaplains to "strive to
avoid the establishment of religion to ensure that free exercise rights are
protected for all authorized personnel" and to "provide ministry to those of
their own faith, facilitate ministry to those of other faiths, and care for
all service members."
-
a requirement for chaplains to "respect the rights of
others to their own religious beliefs, including the right to hold no
beliefs."
-
a prohibition against chaplains obtaining and wearing
weapons or warfare qualifications
-
an express prohibition against compelling chaplains
"to participate in religious activities inconsistent with their beliefls"
(suggesting, perhaps, that they can be so compelled?)
-
a 3 1/2 page Department of the Navy policy on
confidentiality of communications made to chaplains and religious program
specialists, including broad new protections for servicemembers and chaplains
that exceed even the rules on privileged communications in the
UCMJ
-
a 6 1/2 page Department of the Navy policy on
accommodation of religious practices within the Navy apparently designed to
protect the rights of both chaplains and other
servicemembers.
For your convenience and some context, since my guess
is that few have had the time to review the text of SECNAVINST 1730.7C, the key
provisions at issue in all this appear to be in paragraphs 5.d. and
6. of the instruction. Paragraph 5.d. includes the following
provisions (among others):
(2) As a condition of appointment, every [Religious
Ministry Professional (RMP)] must be willing to function in a pluralistic
environment in the military, where diverse religious traditions exist
side-by-side with tolerance and respect. Every RMP must be willing to support
directly and indirectly the free exercise of religion by all military members
of the DON, their family members, and other, persons authorized to be served,
in cooperation with other chaplains and RMPs. Chaplains are trained to
minister within the specialized demands of the military environment without
compromising the tenets of their own religious tradition.
(3) In providing religious ministry, chaplains shall
strive to avoid the establishment of religion to ensure that free exercise
rights are protected for all authorized personnel.
(4) Chaplains will provide ministry to those of their
own faith, facilitate ministry to those of other faiths, and care for all
service members, including those who claim no religious faith. Chaplains shall
respect the rights of others to their own religious beliefs, including the
right to hold no beliefs.
Paragraph 6 includes the following provisions among
others:
b. Chaplains will not be compelled to participate in
religious activities inconsistent with their beliefs.
c. Commanders retain the responsibility to provide
guidance for all command functions. In planning command functions, commanders
shall determine whether a religious element is appropriate. In considering the
appropriateness for including a religious element, commanders, with
appropriate advice from a chaplain, should assess the setting and context of
the function, the diversity of faith that may be represented among the
participants; and whether the function is mandatory for all hands. Other than
Divine/Religious Services, religious elements for a command function, absent
extraordinary circumstances, should be non-sectarian in nature. Neither the
participation of a chaplain, nor the inclusion of a religious element, in and
of themselves, renders a command function a Divine Service or, public worship.
Once a commander determines a religious element is appropriate, the chaplain
may choose to participate based on his or her faith constraints. If the
chaplain chooses not to participate, he or she may do so with no adverse
consequences. Anyone accepting a commander's invitation to provide religious
elements at a command function is accountable for following the commander's
guidance.
I hope you will pardon this intrusion by a non-academic
on this list "for Law Academics." I also hope this contribution adds some
more context to your discussion of the issues raised by earlier
postings.
Very respectfully,
Bill
Wildhack
Member, Florida Bar and bar of the U.S. District Court
for the Middle District of Florida
Minister of Word and Sacrament, Presbyterian Church
(U.S.A.)
Commander, Chaplain Corps, U.S. Navy
Reserve
