I'm grateful for Professor Friedman's blogging, and for Marty Lederman's thoughtful views on "speaking as a government employee."
But just to remind everybody, US Code and Case Law both clearly define speech by military chaplains as NOT government speech, rather RELIGIOUS speech representing our "civilian bishop endorser" and the church, not the commanding officer or the state.
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 case law Rigdon v. Perry, argued by Roman Storzer, who told us last year...
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Roman P. Storzer roman.storzer at gmail.com
Tue Jul 12 09:19:31 PDT 2005
Tue Jul 12 09:19:31 PDT 2005
An concrete example of this conflict was found in Rigdon
v. Perry, 962 F. Supp. 150 (DDC 1997), where Catholic chaplains were ordered not to participate in a pro-life postcard campaign. We argued that worship services were a designated public forum and that the prohibition was viewpoint discrimination. Judge Sporkin held that "the government has, by statute and regulation, institutionalized the provision of religious services in the Armed Services by creating the office of the chaplaincy and by dedicating facilities and personnel . . . . The religious nature of these military facilities, therefore, is wholly compatible with expressive activity; indeed, the very purpose underlying these facilities is expressive, religious activity." One could certainly argue that priests speaking during such services are acting in their "official capacity." The case wasn't appealed. Roman Storzer
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The Navy already lost this lawsuit in 1997. The facts are essentially
the same: optionally-attended sermon in chapel, punished by the government because of the content of the speech.
Why would the Navy now want me to sue them again? The only reason I can conclude, is they're afraid to police themselves and fire a Commanding Officer, so they band together to protect the institution, not the Constitution.
Chaplain Klingenschmitt
719-360-5132
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