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.

Professor Guinn has called attention to something I've been wondering about since I first saw this particular line of argument made in Chaplain Klingenschmitt's "War Against Christians" presentation (available on his website at http://www.persuade.tv/frenzy2/WACspeech.ppt ).  In the quoted passage from my paper, I reported on questions asked of the Secretary of the Navy by the Speaker of the House in 1859 regarding whether there were any requirements for chaplains to literally *read* prayers, follow any partcular liturgy, or whether "non-Episcopal chaplains had to follow the Episcopal liturgy."  I did not describe, nor do I recall finding, any evidence that official Navy policy at the time actually included such requirements. 
As quoted below, I did report that the Secretary explained in his reply to the Speaker that "he was not aware that the instruction to 'read' had ever been construed to require a literal reading from a particular prayer book . . . ."  In other words, even if there had been a policy requiring "non-Episcopal chaplains . . . to follow the Episcopal liturgy," much less a mandatory requirement that prayers be read from the Episcopal Book of Common Prayer, the Secretary didn't know about it.  Just to make sure there would be no misunderstanding in the future, he issued orders clarifying that there was no such policy and a chaplain could "conduct public worship according to the manner and forms of the church of which he may be a member." 
Even so, my article is cited in apparent support of the proposition that use of the Episcopal Book of Common Prayer "was once seen as 'mandatory' for all chaplains."  I do not, however, think what I wrote supports that conclusion, and I do not recall finding support for it in any of the materials I reviewed or cited.  Of course, other historical sources may have more information on this particular point, but I don't.
By the way, while the quoted passage from page 226 of my paper is reproduced accurately enough below, in context it is followed immediately by these words beginning at the bottom of that page:
While conducting worship has always been one of a military chaplain's duties, protecting the rights of others to freely exercise their faith also predates the Constitution and Bill of Rights. [FN59] The earliest chaplains, like their modern-day counterparts, served a military population representing a variety of faith groups or no faith at all. [FN60] One author asserts that the "pattern for chaplain ministry to soldiers of different religious backgrounds was set in the seventeenth century, from the time the first militia units drilled at Jamestown, Plymouth, Boston and New York." [FN61]
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

P.S.  For those who might be interested in seeing more of my paper for the larger context of the quoted section and the content of the footnotes, the rest of the cite is: Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection, 51 Naval L. Rev. 217 (2005). 

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn
Sent: Sunday, October 01, 2006 11:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"

I am appalled by the selfishness of this line of argument -- that the only point of concern is to "protect the chaplain" -- as opposed to serve the religious needs and interest of our armed forces.
Not only are these interpretations of history and law enormously biased and inaccurate, they are offensive.  If the chaplaincy's purpose is solely to promote Chaplain Klingenschmitt's sectarian faith than perhaps Madison was correct in arguing that Congress' decision to hire chaplains was wrong and should now be recended.

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gordon James Klingenschmitt
Sent: Saturday, September 30, 2006 9:16 PM
To: Law & Religion issues for Law Academics
Subject: RE: Victory for Military Chaplains Who Pray "In Jesus Name"

Excellent comment Professor Scarberry,
But now that the policy is rescinded, so is any distinction between "public worship at divine services" and "public worship at command ceremonies" and so the law (once again) protects the chaplain at all events whenever he prays...prayer itself is restored as an act of "public worship" the same way it always had been since 1860.
The origins of the 1860 law were described recently by our new friend CDR Wildhack, who wrote in the Naval Law Review Vol 51 (2003): 
"As in our day, questions about the manner and forms of worship have also long been a part of the history of the Chaplain Corps. Early regulations specified that the duties of chaplains included having to 'read' prayers (53). In 1859, the Speaker of the House of Representatives asked the Secretary of the Navy whether chaplains were required to 'read' prayers or follow any particular forms or ceremony in leading worship, and if the Navy had any evidence of a requirement that non-Episcopal chaplains had to follow the Episcopal liturgy (54).  In replying, the Secretary explained that he was not aware that the instruction to 'read' had ever been construed to require a literal reading from a particular prayer book, but rather as a requirement that prayers be offered aloud without specifying they be read from a book, written down by the chaplain beforehand to be read later, or offered extemporaneously (55). To further reassure the Speaker and his colleagues in Congress, the Secretary announced a new order officially interpreting the requirement that prayers be 'read' to mean that prayers be 'offered,' thus leaving the chaplain free to follow the dictates of his own religious tradition.(56) Perhaps in response to such communication with Congress, new Navy Regulations adopted in 1860 included this addition: "Every chaplain shall be permitted to conduct public worship according to the manner and forms of the church of which he may be a member."(57) No longer merely a regulation, that language is now in force as part of the United States Code.(58)" 
Thanks to CDR Wildhack for this insight....But it reveals today's tragic irony....the Episcopal Book of Common Prayer was once seen as 'mandatory' for all chaplains...but Congress (wisely) overcame that, to allow non-Christian chaplains (i.e. first 3 Jewish chaplains appointed by Abe Lincoln in 1860) total freedom to NOT the use Christian prayer book...and now in 2006, the policy actually PROHIBITED using the Christian prayer book in public....the pendulum swung too far...so now Congress has (wisely) righted itself, to restore religious diversity, allowing any variety of prayers to be said, instead of punishing Christian prayers while forcing Christian chaplains to pray Jewish prayers (i.e. theologically sensitive prayers). 
Chaplain Klingenschmitt

"Scarberry, Mark" <[EMAIL PROTECTED]> wrote:
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

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