I think Mark's point is an important one. From the newspaper accounts I have read regarding the statutory language that was recently proposed to permit military chaplains to express sectarian prayer, the criticial issue was whether such prayers could be expressed at military functions that troops were compelled to attend. It is hard for me to see how anyone could doubt that such a requirement is unconstitutional. Compulsory attendance at religious services was one of the recognized abuses of established religions. If the framers intended the Establishment Clause to have any substantive meaning, it clearly prohibited such coercion. (See e.g. Michael Paulsen's article on Lee v, Weisman in which he recognized that this was a compelling justification for the Court's holding in that case). Certainly, if Chaplain Klingenschmitt's is suggesting that Lee v. Weisman permits such coercion he has misinterpreted that case. I assume that the military carefully distinguishes between various command functions and Divine/Religious Services because it would be unconstitutional to compel attendance at the latter. It is important to distinguish the specifics of Chaplain Klingenschmitt's case (which the Chaplain discribed in a much earlier post as a voluntary service) and the recent attempt to change military regulations regarding chaplains. The latter, according to all the newspaper accounts I have read, attempted to permit chaplains, at their discretion, to offer sectarian prayers (which I believe to be indistinguishable from Divine/Religious Services) at functions that troops were compelled to attend. I have a hard time understanding how anyone committed to religious liberty could support such a regulation. Alan Brownstein UC Davis
________________________________ From: [EMAIL PROTECTED] on behalf of Scarberry, Mark Sent: Sat 9/30/2006 5:21 PM To: Law & Religion issues for Law Academics Subject: RE: Victory for Military Chaplains Who Pray "In Jesus Name" 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 Pepperdine ________________________________ 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. Professors, 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
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