Thanks Marty, this is good to know. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
>>> [EMAIL PROTECTED] 09/30/06 7:39 PM >>>
I decided to take a quick look over at section 6031.  Subsection (a),
which Chaplain Klingenschmitt quotes, does not provide that chaplains
may "pray in Jesus's name" as part of their public services.  It's much
more modest, and not very objectionable.  Subsections (b) and (c), on
the other hand, are unconstitutional relics:
  (b) The commanders of vessels and naval activities to which chaplains
are attached shall cause divine service to be performed on Sunday,
whenever the weather and other circumstances allow it to be done; and it
is earnestly recommended to all officers, seamen, and others in the
naval service diligently to attend at every performance of the worship
of Almighty God.

  (c) All persons in the Navy and in the Marine Corps are enjoined to
behave themselves in a reverent and becoming manner during divine
service.
So I doubt the government will be invoking the authority of section 6031
anytime soon.

Oh, and by the way, 6031 isn't much help to Chaplain Klingenschmitt for
another reason, too:  It's limited to the Navy and Marines.  The
analogous Air Force statute, 10 USC 8547, much more "appropriately"
provides that "[e]ach chaplain shall, when practicable, hold appropriate
religious services at least once on each Sunday for the command to which
he is assigned, and shall perform appropriate religious burial services
for members of the Air Force who die while in that command."

  ----- Original Message ----- 
  From: Marty Lederman 
  To: [EMAIL PROTECTED] ; Law & Religion issues for Law Academics 
  Sent: Saturday, September 30, 2006 5:50 PM
  Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"


  Chaplain Klingenschmitt:

  With all due respect, this is simple nonsense.

  1.  Section 6031 does not say that military chaplains may pray "in
Jesus's name," and if it did authorize such prayers in the chaplains'
official capacities, it would almost certainly violate the Establishment
Clause in that respect.

  2.  For reasons we've discussed at great length before, chaplains have
no Free Exercise rights to pray in the manner of their choosing when
they are acting in their official capacities.

  3.  Citing Lee v. Weisman, and only Lee v. Weisman, for the
proposition that the state must permit a state employee to give a
sectarian prayer in a public capacity, is just about the most absurd
"reading" of a case that I've ever seen.   
    ----- Original Message ----- 
    From: Gordon James Klingenschmitt 
    To: Law & Religion issues for Law Academics 
    Sent: Saturday, September 30, 2006 5:25 PM
    Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"


    Ah yes, Marty, the House receded, but so did these (novel, invasive)
Feb 2006 policies recede into oblivion, allowing the real power of the
old law (enshrined since 1860) to be fully restored:  

    THE LAW, GENTLEMEN:  US CODE 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."

    And the U.S. Supreme Court disagrees with your interpretation, that
allowing "freedom" in prayer content would somehow violate the
establishment clause, in fact they ruled the opposite:

    1991 Lee vs. Weisman (Majority Decision):

    "The government may not establish an official or civic religion as a
means of avoiding the establishment of a religion with more specific
creeds...The State's role did not end with the decision to include a
prayer and with the choice of clergyman. Principal Lee provided Rabbi
Gutterman with a copy of the "Guidelines for Civic Occasions" and
advised him that his prayers should be nonsectarian. Through these
means, the principal directed and controlled the content of the prayers.
Even if the only sanction for ignoring the instructions were that the
rabbi would not be invited back, we think no religious representative
who valued his or her continued reputation and effectiveness in the
community would incur the State's displeasure in
    this regard. It is a cornerstone principle of our Establishment
Clause jurisprudence that it is no part of the business of government to
compose official prayers for any group of the American people to recite
as a part of a religious program carried on by government, Engel v.
Vitale, (1962), and that is what the school officials attempted to do."

    So Marty is technically wrong on both counts:
    1) There is a long-standing law to let military chaplains pray in
Jesus name, and
    2) Government censorship of anyone's prayer content violates the
First Amendment (unless you disagree with the U.S. Supreme Court).

    Smile guys...liberty is prevailing here!  
    You still believe in freedom of speech, don't you?  

    Chaplain Klingenschmitt


    Marty Lederman <[EMAIL PROTECTED]> wrote:
      That's actually rather amusing.  The House -- which passed a bill
that would have prescribed that chaplains would have the "prerogative"
to pray "according to the dictates of their conscience" -- actually
receded in conference.  That is to say, the Senate conferees prevailed,
and therefore the law contains no such prescription.  

      But then the conferees purport to "driect" the Secretary of the
Air Force to rescind the recent policy.  This is not a "direction" of
Congress, let alone a duly enacted law, and it has no operative legal
effect.

      Besides which, for the chaplains in their official capacities to
engage in public prayer "in Jesus's name" would violate the
Establishment Clause, and thus could not be "prescribed," even by
statute.




----------------------------------------------------------------------------
    Do you Yahoo!?
    Get on board. You're invited to try the new Yahoo! Mail. 


----------------------------------------------------------------------------


    _______________________________________________
    To post, send message to Religionlaw@lists.ucla.edu
    To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

    Please note that messages sent to this large list cannot be viewed
as private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.


------------------------------------------------------------------------------


  _______________________________________________
  To post, send message to Religionlaw@lists.ucla.edu
  To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

  Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Reply via email to