It seems there is a distinction between "Divine/Religious Services" and other 
"command functions." I don't suppose Marty is saying that a chaplain may not 
pray in Jesus' name during Divine/Relgious Services. Paragraph 6(c) does not 
require that Divine/Religious Services be non-sectarian but only that religious 
elements in other command functions be non-sectarian. If Divine/Religious 
Services were required to be nonsectarian then they couldn't be divine services 
for the chaplain's particular faith; note that the chaplains are required to 
"provide ministry to those of their own faith" which rules out nonsectarian 
requirements for such ministry whether or not that ministry occurs in a 
Divine/Religious Service. I suppose there could be a serious question whether a 
particular memorial service for a deceased sailor (the context, I believe of 
Chaplain Klingenschmitt's disagreement with the Navy) is a Divine/Religious 
Service or instead a different kind of remembrance of the sailor. Whether 
nonsectarian prayer would be required might depend on how the event was 
classified, I think.
Mark Scarberry


From: [EMAIL PROTECTED] on behalf of W. A. Wildhack III
Sent: Sat 9/30/2006 5:02 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Victory for Military Chaplains Who Pray "In Jesus Name"

Disclaimer:  Any views expressed below are my own and do not necessarily 
reflect the official position of the Department of the Navy or the Navy 
Chaplain Corps.
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operative legal effect --- far more may be rescinded than just the language 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 

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


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