Defense Department Issues New Rules on Religious Liberty in the Military

New Rules Greeted With Cautious Optimism

Tuesday, January 28, 2014

The Department of Defense recently released an Instruction (Number 1300.17) to implement a defense bill "conscience clause" to protect religious liberty in the military.  The January 22 directive referenced Section 533 of the National Defense Authorization Act (NDAA) for 2013, which reaffirmed the constitutional rights of chaplains and people of faith to act in accordance with their beliefs on issues affecting morality and religious beliefs.  

The Center for Military Readiness and many groups affiliated with the Military Culture Coalition supported the legislation, which was passed in 2012:

Congress Takes First Steps to Accommodate Religious Liberty in the Military

If carried out as Congress intended, the law and Instruction will be helpful in pushing back against violations of religious liberty that have become increasingly apparent since 2010.  In late December of that year, Congress voted to repeal the law regarding gays in the military, known as "Don't Ask, Don't Tell." 

Under the new policy, which should be called LGBT Law, lesbian, gay, bisexual, and transgender rights activists keep insisting that any disagreement with their agenda, even on religious grounds, should not be permitted in the military outside of worship services.  Shortly after the new policy went into effect, incidents of discrimination, hostility, and a "chilling effect" discouraging religious expression started to occur. 

The law restores balance because military chaplains who support LGBT law already have the freedom to express their views.  Now the law protects other chaplains and people of faith who want to express their religious beliefs and act in accordance with them on issues involving morality, including homosexual conduct and natural marriage. 

As stated in the law, the Armed Forces must "accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member."  The law also states that the armed forces "may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment."  

In the absence of Defense Department regulations to enforce the new law, violations of religious liberty continued during 2013.  Some of the more egregious examples were summarized in a full-page Military Times advertisement sponsored by the Restore Military Religious Freedom Coalition (RMRF) Coalition.

Congress responded by strengthening the conscience clause.  Sen. Mike Lee (R-UT) sponsored an amendment to the annual defense bill that was similar to a House-passed amendment sponsored by Rep. John Fleming (R-LA).  The Lee amendment was agreed to in conference and was signed into law as part of the NDAA for 2014. 

The expanded statute states that as far as practicable, the "expression" of "sincerely held" conscience, moral principles, or religious beliefs of the member may not be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training or assignment.

Although it is not yet reflected in the new DoD Instruction, the strengthened religious liberty clause also mandates that the Department of Defense "consult with official military faith-group representatives who endorse military chaplains" in the process of writing implementing regulations affecting chaplains who represent various faith communities. 

Balancing Religious Liberty and Military Necessity

In compliance with legislative intent, the new Instruction requires that the Defense Department justify any policy that "substantially burdens a Service member's exercise of religion."  This echoes elements of the Religious Freedom Restoration Act as well as protections for religious liberty that have been in the U. S. Constitution since our nation's founding.  Rights of religious liberty are especially important to troops deployed overseas.  

This does not mean that anything goes.  As stated in the directive, "Because the military is a specialized community within the U.S., governed by a discipline separate from that of the rest of society, the importance of uniformity and adhering to standards, of putting unit before self, is more significant and needs to be carefully evaluated when considering each request for accommodation of religious practices.  It is particularly important to consider the effect on unit cohesion."  (p. 4, emphasis added)

Rights of free speech and personal freedom, as well as religious liberty, sometimes are circumscribed by the needs of the military.  Individuals in uniform are not free to dress as they please, openly criticize the president and other public officials, or walk away from their assigned duties without authorization.  In particular, the new Instruction does not change previous prohibitions against religious apparel that

"a. Impairs the safe and effective operation of weapons, military equipment, or machinery;

" b. Poses a health or safety hazard to the Service member wearing the religious apparel and/or others;

"c. Interferes with the wear or proper function of special or protective clothing or equipment (e.g., helmets, flak jackets, flight suits, camouflaged uniforms, protective masks, wet suits, and crash and rescue equipment); or

"d. Otherwise impairs the accomplishment of the military mission." (p. 8)

Religious items or articles that are not visible or otherwise apparent may be worn with the uniform, but a complete ban on such items may be appropriate "in circumstances in which the Service member's duties, the military mission, or the maintenance of discipline require absolute uniformity."  (p. 8)

The law and Instruction will help to restore balance in accommodating constitutional rights.  Chaplains who express sincerely-held religious beliefs will be protected from adverse personnel actions if they decline to participate in activities contrary to their conscience.  This is a positive development for chaplains and men and women of faith in the military. 

Beards and Turbans Not the Main Issue

The Pentagon's announcement of the new Instruction did not mention the need for religious liberty protections that became increasingly apparent after repeal of the policy called "Don't Ask, Don't Tell" in 2010.  Instead, early headlines focused on speculation that the new rules might encourage inappropriate dress and grooming in the military. 

NBC News, for example, showed one of the three Sikh soldiers who currently serve in the Army, primarily in medical fields, wearing distinctive but modest garb.  This accommodation of religious beliefs and practices was granted five years ago.  According to the New York Times, American Sikh leaders, who wanted looser restrictions on turbans, head scarves, and beards in the military, are disappointed with the new rules.

Relaxed standards of dress and grooming are not likely to happen because the Instruction stipulates that religious accommodations will be allowed only on a "Neat and Conservative," case-by-case basis.  (p. 2)  No one can guarantee the future, but if the Instruction is implemented properly, it will not interfere with military missions and unit cohesion. 

Nor will protections for religious liberty preclude disciplinary or administrative action for conduct that is proscribed by the Uniform Code of Military Justice (UCMJ).  As intended, the Instruction states that the military is an institution set apart from the civilian world, and the UCMJ applies at all times.

The new directive does impose some paperwork to apply and re-apply for religious accommodation at a new station.  One commander may approve while another might not.  The requirement seems reasonable, however, because conditions in combat zones may be quite different from normal workplace environments in the continental United States. 

In many military occupations, headgear required for safety and mission accomplishment precludes religious garb that could create a hazard.  The new Instruction may allow the wearing of a small crucifix or Star of David on a discreet chain or a yarmulke under one's helmet, but if those items could get tangled in weapons or operational gear, a commander should and will be able to say no.  The commander is responsible to decide such matters, and there are options to appeal to higher levels if accommodation is denied. 

Cautious Optimism

Even though this is a positive development, caution is in order until we see how the new Instruction plays out.  Problems likely will remain, especially if personnel and field commanders do not receive adequate training on the new law and DoD Instruction.  Chaplains, individuals, and families should report problems of discrimination while exercising their rights of religious liberty.  Caution and vigilance are in order, but the new law is a step in the right direction. 

* * * * * * *

More veteran chaplains express grave religious liberty concerns over homosexual agenda in military

Concerns rise with pending Senate vote, disparaging comment by top Army personnel official

Friday, September 17, 2010

WASHINGTON — The number of highly distinguished veteran chaplains expressing religious liberty concerns over any dismantling of the military’s policy against openly practiced homosexual behavior has increased with the addition of numerous signatures to a letter to President Barack Obama and Secretary of Defense Robert M. Gates. The 66 signers, up from 41 in April, have given a combined total of nearly 1,700 years of U.S. military service.

The updated letter comes in the wake of a startling statement reportedly made by a top Army official calling service members who oppose the normalization of homosexual conduct “racists and bigoted.” The comment came to public notice just as Senate Majority Leader Harry Reid scheduled the National Defense Authorization Bill for a critical Tuesday vote. Tacked on to the military spending bill are politically motivated provisions to tear down the “Don’t Ask, Don’t Tell” policy, authorize amnesty for some illegal immigrants, and allow military facilities to provide abortions.

“The First Amendment rights of troops who defend those rights for the rest of us should be non-negotiable. They do not deserve to be treated as bigots and racists for their moral beliefs,” said ADF Litigation Counsel Daniel Blomberg.  “Advocates of homosexual behavior have filed numerous lawsuits to demand special rights in the civilian world. Changing the current military policy will open the armed forces up to a flood of lawsuits at a time it is fighting two wars. Active-duty chaplains do not feel free to speak out about this. Thus, the signers of this letter are their voice.”

The comment bolstering the chaplains’ concerns was recently made, according to The Washington Times, by Lt. Gen. Thomas P. Bostick, the Army’s deputy chief of staff over personnel matters. Regarding supporters of the existing military policy, Bostick reportedly said, “Unfortunately, we have a minority of service members who are still racists and bigoted and you will never be able to get rid of all of them.  But these people opposing this new policy will need to get with the program, and if they can’t, they need to get out.  No matter how much training and education of those in opposition, you’re always going to have those that oppose this on moral and religious grounds just like you still have racists today.”

“If this is the military’s new zero-tolerance standard, then not one of these decorated, heroic, and honorable chaplains would be able to serve today,” Blomberg said. “The ability of field commanders to operate will be severely constrained if Christian service members are marginalized or even discharged.”

The new signers to the letter, which was originally released in April, include numerous distinguished and decorated chaplains, including one who counseled both the victims of 9/11 and the Columbine shooting, and who also dealt with post-traumatic stress disorder for Iraq War bomb diffusers; one who was serving in the Pentagon on 9/11; one who originally served as a counterintelligence special agent; one who went on to become a state legislator; one who served in World War II and the Korean War; and multiple recipients of the Bronze Star and Purple Heart.

The letter states, “By raising homosexual behavior to the same protected class as innate, innocuous characteristics like race and gender, the armed forces will cast the sincerely held religious beliefs of many chaplains and Service members as rank bigotry comparable to racism.” The letter also outlines numerous critical ways that normalizing homosexual behavior in the military would necessarily harm religious liberty for both chaplains and service members. ADF sent its own letters to Obama, Gates, and Congress earlier this year expressing similar concerns about any changes to the law. 
  • Additional resources (including video presentations) on "Don't Ask, Don't Tell" and religious liberty
  • Pronunciation guide: Blomberg (Blahm-burg)
ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.
Read the original release here.
Chaplains in No-Win Situation on ‘Don’t Ask’

By Alexander F.C. Webster

Published: August 24, 2010

President Barack Obama’s initiative to rescind the “don’t ask, don’t tell” statute of 1993 will, if Congress yields to him later this year, shred the social and moral fabric of our armed forces. The experiment will also test the mettle of the chaplain corps in each of the military services — Army, Air Force and Navy (including the Marine Corps and Coast Guard). Fortunately for the nation and its military defense, many chaplains and their civilian faith group leaders are beginning, at last, to push back on the issue.

Having taken numerous showers in open bays during 12-month-long deployments to Afghanistan and Iraq while serving on active duty as a U.S. Army chaplain since August 2005, I know firsthand how expendable the personal privacy of heterosexual males (and females, I presume) would be in a new homosexual-affirming military. It’s quite obvious to most Americans why we do not permit male and female soldiers to shower together or to sleep in co-ed pairs in close quarters. That same principle applies to the homosexual parallel. It’s not a matter of “gay rights,” as if a willed sexual behavior has the same moral and legal standing as race, ethnicity or chromosomal sexual identity. What’s at stake instead is the moral imperative to honor the dignity, privacy preferences and needs of the vast majority of servicemembers.

If the president ultimately has his way, “don’t ask, don’t tell” should be renamed “don’t ask, don’t tell — or don’t shower!” Perhaps the co-ed military shower scene in the campy 1997 sci-fi film “Starship Troopers” was more prescient than preposterous. A universal vulgarity and coarsening of military decency may soon await our sons and daughters, husbands and wives, and brothers and sisters in uniform.

The pragmatic arguments against the president’s proposal concerning unit morale, cohesion and readiness are well-known. Not so the following slippery slope. A “nondiscrimination” policy would surely mutate into approval and celebration of the “gay” lifestyle, followed by “affirmative action” recruitment of homosexuals, politically correct ideological indoctrination throughout the armed forces including family members, and, finally, active discrimination against — and persecution of — those who dare to express a dissenting opinion.

The latter scenario figures prominently in a remarkable open letter to Obama and Secretary of Defense Robert Gates co-signed on April 28 by 41 retired U.S. military chaplains including two brigadier generals (James Hutchens and Douglas Lee). Those Protestant former chaplains (soon to be joined by additional Roman Catholic and Orthodox signatories, including me) argue that the normalization of homosexual behavior in the U.S. armed forces would pose a profound dilemma to chaplains similar to that which the earliest Christians faced in the pagan Roman Empire: whether to obey God or men.

Specifically, chaplains from the morally conservative faith groups and denominations — significantly, the vast majority at present — might be cowed into silence on the issue to preserve their chosen vocations or to avoid clashing with official policies or the commander in chief himself. Their preaching, teaching, counseling, worship leadership and pastoral care — so vital to the free exercise of religion by our troops, especially in wartime — would suffer immeasurably, and their particular contributions to a genuinely pluralistic religious mix would be needlessly lost. Chaplains who balk at performing homosexual “weddings,” sharing pulpits with openly homosexual clergy, including homosexual pairs in married couple retreats, or hiring “gay” civilian workers to engage in youth ministry might be subject routinely to the potentially career-ending consequences of a discrimination complaint. Anyone who has served as a senior military officer knows how easy it is to punish chaplains or other subordinate officers who are deemed inadequate as “team players” through a negative or even lukewarm efficiency report, or by undesirable assignments designed to thwart their career progression.

Confronted with such a dim future, many chaplains might retire early, resign their commissions in protest, or decline to serve in the first place. More drastically, the bishops, boards or other religious judicatories whose approval is indispensable for clergy to be commissioned as officers might withdraw their official endorsements and pull their chaplains from military service.

In a recent letter to the Armed Forces Chaplains Board, my own bishop, Metropolitan Jonah (Paffhausen) of the Orthodox Church in America, has promised to do precisely that, if any of the two dozen priests under his care “were in any way forced to minister the sacraments” to active, unrepentant homosexuals, or “forced to teach that such behavior is good or acceptable, or prohibited from denouncing such behavior as sinful and self-destructive,” or regarded as purveyors of “prejudice” or “hate language.” It’s at once inspiring and reassuring as a retired chaplain to know that Metropolitan Jonah has, in the peculiar parlance of troops in combat, “got our back.”

Nor is Metropolitan Jonah alone on this issue. The Southern Baptist Convention passed a resounding resolution of support for “don’t ask, don’t tell” in June. Meanwhile the 800-member Rabbinical Alliance of America has called for a filibuster by U.S. senators opposed to change in the law. And Archbishop Timothy Broglio of the Roman Catholic Military Archdiocese issued a pro-“don’t ask, don’t tell” statement in June that urges the U.S. military to “develop strong prohibitions against any immoral activity that would jeopardize morale, good morals, unit cohesion and every other factor that weakens the mission.”

The battle lines over active homosexuality in the U.S. armed forces are clearly drawn. Supporters of traditional sexual morality have now begun to field an army against the advocates of radical social engineering. Many Americans may not recall that “don’t ask, don’t tell” was a compromise between full acceptance of homosexuality in the military and perpetuation of the traditional strictures against even the mere presence of homosexuals in uniform, whether sexually active or celibate.

This time, however, there can be no compromise. Despite the widely reported insistence of Gates and Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, the issue is not already settled. Now is the time for citizens to impress upon our representatives and senators in Congress — the final legislative arbiters — the dire consequences of the elimination of “don’t ask, don’t tell” for our military and our nation.

Father Alexander F.C. Webster, Ph.D., an archpriest in the Orthodox Church in America, retired in June as an Army Reserve chaplain at the rank of colonel after more than 24 years of military service. He is a traveling professor with University of Maryland University College (Asia Division) and the author or co-author of four books on topics of social ethics, including “The Virtue of War: Reclaiming the Classic Christian Traditions East and West” (2004). Reprinted with permission.

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At the Military Culture Coalition news conference on February 18, 2010, Jordan Lorence, Senior Counsel of the Alliance Defense Fund, announced that his widely respected legal group has sent a formal letter to President Obama and congressional leaders expressing concern about the effects of the proposed LGBT law on the religious freedom of chaplains:

Change in military policy on homosexual behavior could affect chaplains

ADF Letter
 
Chaplains Keep Wary Eye on “Don’t Ask” Repeal

In this article published by the Daily Caller on August 6, 2010, Daniel Blomberg of the Alliance Defense Fund has highlighted new information about the threat to religious liberty in the military that could result in the voluntary and involuntary losses of thousands of people of faith, starting with chaplains who oppose homosexuality on moral grounds:

Mounting Religious Liberty Concerns in “Don’t Ask, Don’t Tell” Attack Grow With New Revelations from Active-Duty Chaplain

Excerpt:

“The harm to military religious liberty posed by the possible dismantling of the so-called “Don’t Ask, Don’t Tell” policy is only recently starting to get the kind of attention it needs. If the military is forced to normalize homosexual conduct, service members’ religious beliefs that such conduct is immoral and harmful will likely be a casualty of the political push to radically alter military personnel policy. This likelihood is demonstrated by the nationwide assaults on religious beliefs in the civilian world and by new evidence from an active-duty chaplain that is being revealed for the first time here.

“And now new evidence has come to light that these concerns are true."

“Since the beginning of the most recent round of this debate, the militaries of foreign countries that have allowed homosexual behavior to be practiced openly have been touted as proof that the U.S. military can adopt their practices and still be an effective fighting force. But a recent account from an active-duty U.S. chaplain working with one of those militaries shows religious liberty will not fare well in the face of normalized homosexual conduct."

“The U.S. military operates what might best be called an “exchange program” that allows chaplains to become functioning members of foreign military chaplaincies. One such U.S. chaplain—whose name and the distinctive aspects of his service must be withheld to avoid censure—recently discovered when his faith contradicts the military’s endorsement of homosexuality."

“…Since homosexual behavior is not a morally or religiously neutral subject (unlike, for instance, race), forcing the military to normalize that behavior will have significant effects on the morality and religion of our service members. If anything, given the military’s unique demands for strict discipline and low threshold for dissent, the assault on service members’ religious liberty will be even worse. That was certainly the experience of the active-duty U.S. chaplain discussed here."

“Like a point man on patrol, our Chaplaincy Corps will likely be the first to draw fire if the current military policy is dismantled. And thus, like a point man on patrol who wants to protect himself and the men relying on him, chaplains are the ones sounding the alarm of the danger ahead. Hopefully, politicians will listen. Hopefully, the rights of our soldiers, sailors, airmen, and marines—the same rights they fight and die to protect for us—will not be sacrificed to accomplish a political agenda.”

Daniel Blomberg serves as litigation counsel for the Alliance Defense Fund, (www.telladf.org), a legal alliance employing a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

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On April 28, the Alliance Defense Fund (ADF) and Family Research Council (FRC) conducted a news conference featuring legal experts and former military chaplains who discussed the dilemmas military chaplains would face if they are ordered to accept the LGBT agenda in the military and teach it to others in counseling and education programs if the LGBT Law is passed. They also released a persuasive letter signed by 41 distinguished retired chaplains:

Repeal of 1993 Law Threatens Religious Liberty in the Military

Writing in Town Hall, Daniel Blomberg highlighted reasons why members should seriously consider the moral dilemmas that chaplains would face if the 1993 law is repealed:

Chaplains Get It Right About Dangers of Normalizing Homosexual Behavior in the Military

FRC President Tony Perkins on religious liberty:

My Take: Ending DADT Would Undermine Religious Liberty

The issue of religious freedom in the military is emerging as another major reason why the 1993 law must not be repealed. This article quotes Richard Thompson, President of the Michigan-based Thomas More Law Center and attorney Arthur Schulz who represents the International Evangelical Chaplain Endorsers─both of whom have been working with CMR and the Military Culture Coalition (MCC). They commented on the statement from Catholic Archbishop Timothy Broglio, who heads the Archdiocese for the Military Services USA:

National Catholic Register: DADT: Archbishop for the Military Voices Opposition

Archbishop Broglio’s Statement on Proposed Legislation

This article posts video testimony from several former military chaplains who are concerned about this issue:

Speak Up: Faith Under Fire: “Don’t Ask, Don’t Tell” and Religious Liberty

Daniel Blomberg, USA Today: If Gays Serve, Will Chaplains Suffer? Yes, Religious Liberty is in Real Jeopardy
Pentagon: Gay Soldier Survey Won’t Lead to Segregation