The US Army War College Quarterly: Parameters The US Army War College Quarterly: Parameters
Volume 41
Number 3
Parameters Autumn 2011
Article 7
8-1-2011
Religious Speech in the Military: Freedoms and Limitations Religious Speech in the Military: Freedoms and Limitations
David E. Fitzkee
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Parameters
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Autumn 2011 59
Religious Speech in the
Military: Freedoms and
Limitations
DaviD E. FitzkEE
Introduction
T
he freedom to speak and to freely exercise one’s religion are two central
guarantees of the First Amendment of the US Constitution. Military
members retain these foundational rights,
1
which the courts broadly protect.
But there are characteristics of the military—including its rank structure and
the need for good order and discipline essential to accomplishing the military’s
crucial mission—that justify constraints on the religious speech of all mili-
tary members beyond what would be constitutionally tolerable in the civilian
context. Moreover, additional constraints are imposed on military leaders’ reli-
gious speech by virtue of their rank and position. This article addresses what
military leaders
2
need to know about rights and limitations on religious speech,
3
both their subordinates’ and their own. After examining the freedom of religious
speech and three constitutional limitations, the article highlights three selected
religious speech issues: proselytizing, ofcial prayer, and religious displays.
It concludes by providing leaders ten guiding principles on religious speech.
4
It is crucial that military leaders understand and respect the scope of
religious speech rights. Honoring the constitutional rights of subordinates is
inherently the “right thing to do” in a society and military governed by the
rule of law, particularly when all military leaders take an oath to support the
Constitution. Infringing subordinates’ rights—for example, by the leader’s
own improper religious speech or by failing to allow subordinates to exercise
their religious rights—may adversely affect the unit’s ability to execute its
mission. Ours is a military characterized by many kinds of diversity, including
religious beliefs. Effective leaders leverage that diversity by bringing together
the backgrounds, skills, perspectives, and talents of the members in a way that
maximizes the unit’s ability to perform. Members whose religious rights and
beliefs are not honored may feel alienated and marginalized. If a superior’s
David E. Fitzkee, MAJ (USA Retired) is an associate professor in the Department
of Law at the US Air Force Academy. He is active in developing and teaching classes
on freedom of religion to cadets and faculty and has published and presented on this
important topic. His degrees include a J.D. from Dickinson School of Law and an LL.M.
from The Judge Advocate General’s School--Army.
David E. Fitzkee
60 Parameters
religious speech has created a climate of perceived favoritism toward subordi-
nates who share the superior’s beliefs, subordinates with different beliefs might
reasonably question whether they will get a fair shake when it comes time for
performance reports and other opportunities. All of this can affect their morale
and contribution to the team effort.
Failure to understand the rights and limits concerning religious speech
can adversely affect the mission in other important ways. It can result in internal
investigations into allegations of violations or even lawsuits against the military,
both of which entail substantial time, effort, and distraction from the mission.
These investigations and lawsuits also may result in adverse media attention,
which can undermine public condence and support of the military. At its worst,
failure to understand the parameters of permissible religious speech can jeop-
ardize the United States’ strategic interests abroad, for example, by providing
fodder for our enemies’ claims that we are engaged in a holy war against Islam.
These lapses, occasioned by religious speech that exceeds permissible limits,
can also harm the stature of leaders. Unfortunately, examples of these leader-
ship lapses abound.
5
This article aspires to help reduce the number of future
examples.
Religious Speech and the Free Speech Clause
The Free Speech Clause of the First Amendment prohibits the govern-
ment,
6
including the military, from “abridging the freedom of speech.” Speech
is construed broadly and includes both oral and written speech, as well as
expressive conduct and displays when intended to convey a message that is
likely to be understood.
7
Religious speech is certainly included.
As a bedrock constitutional right, freedom of speech has enjoyed
great protection from the courts, particularly when the government suppresses
speech because it does not like its content. Courts subject such “content-based”
regulation of speech to “strict scrutiny,” the most rigorous standard of judicial
review. Under this scrutiny, the content-based governmental action is presump-
tively invalid unless the government can prove both a compelling interest in
limiting that speech and that the means of suppression is necessary to achieve
that interest.
8
What this means for leaders is that they should not single out religious
speech for special limitation just because it is religious. If some personal con-
versations are permitted in the workplace during duty hours (e.g., pertaining
to sports or social events), leaders cannot place religion off-limits. The same is
true regarding religious displays in the barracks: if personal nonreligious items
are permitted to be displayed in rooms, religious items must be permitted to the
same extent. Otherwise, the discrimination against religious speech would be
content-based and would almost certainly not survive scrutiny by the courts or
by military investigators looking into a complaint.
9
The government has much more latitude in constraining speech when
the limitations are “content-neutral.” These are incidental limitations on speech
which may arise when the government regulates for some other legitimate
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 61
purpose. For example, all branches of the military have uniform and groom-
ing or appearance regulations furthering legitimate interests in uniformity,
cohesion, and esprit-de-corps. These regulations may have the ancillary effect
of limiting religious speech (broadly construed): military members may not
wear nonconforming religiously-motivated clothing, headgear, facial hair, or
jewelry while in uniform. Similarly, if the military prohibits use of extraneous
quotes or materials in e-mails, that prohibition would apply also to religious
quotes in e-mails. In these examples, military members’ religious speech has
been limited, but permissibly so. In “nonpublic forums” such as military bases,
courts have upheld such incidental limitations on speech as long as there is a
valid reason for the regulation.
10
Courts will give great deference to the mili-
tary’s determination that the underlying regulation has a legitimate purpose.
11
Thus, content-neutral regulations are one limitation on all military members’
religious speech rights.
The second limitation on religious speech is grounded in the judicially-
created concept of “unprotected speech.” The Supreme Court has recognized
several narrow categories of speech that serve no First Amendment purpose
and which the government can therefore limit, prohibit, or punish, even on
the basis of content. The most signicant category of unprotected speech for
military members, recognized by the Supreme Court in the 1974 leading case
of Parker v. Levy, is speech that may “undermine the effectiveness of response
to command.”
12
The United States Court of Appeals for the Armed Forces, the
highest military appellate court, has interpreted that phrase to mean speech
that “interferes with or prevents the orderly accomplishment of the mission or
presents a clear danger to loyalty, discipline, mission, or morale of the troops.”
13
Again, courts are likely to give some deference to the military’s determina-
tion that speech adversely affects the military. Thus, if military members are
prosecuted for their speech under the Uniform Code of Military Justice—for
example, under Article 133 (conduct unbecoming an ofcer) or Article 134
(conduct prejudicial to good order and discipline or of a nature to bring discredit
upon the armed forces)—the First Amendment’s freedom of speech will not
provide them a shield for their speech if it meets the denition of unprotected
speech.
This category of unprotected speech applies to religious speech that falls
within its scope. Much religious speech will be protected, however, because it
will not endanger the mission, loyalty, discipline, or morale so as to become
“unprotected speech.” But when religious speech crosses that line, leaders can
take action against the speaker; consultation with their judge advocate general
(JAG) is recommended. For example, an exhortation by a religiously motivated
pacist military member to refuse to ght would be actionable.
Religious Speech and the Free Exercise Clause
The Free Exercise Clause prohibits the government from impermissibly
burdening the free exercise of religion. In contrast to the Free Speech Clause,
which protects primarily speech, the Free Exercise Clause protects primarily
David E. Fitzkee
62 Parameters
religiously motivated conduct,
14
such as worship, dietary restrictions, ceremo-
nies, and other practices. The clauses can become blurred because courts have
expanded “speech” to include conduct (when intended and likely to convey a
message) and have said that the free exercise of religion includes the right to
profess religious beliefs.
15
The Supreme Court has reviewed free exercise challenges using sub-
stantially the same analysis as when reviewing content-neutral restrictions on
free speech in a nonpublic forum: laws limiting the free exercise of religion are
permissible as long as they are “religion-neutral” and are otherwise valid (i.e.,
they rationally relate to some permissible governmental purpose).
16
Religion-
based laws—those specically targeting religious conduct—would be subject
to the same strict scrutiny that content-based laws—those aimed to suppress a
particular message—are.
17
Leaders should thus avoid targeting religious prac-
tices, just as they avoid singling out religious speech for disfavored treatment.
The leading example of the constitutional approach the Supreme Court
has taken regarding military religion-neutral limitations on the free exercise of
religion is Goldman v. Weinberger,
18
decided in 1986. Captain Goldman—an
Air Force doctor, Orthodox Jew, and ordained rabbi—regularly wore a yar-
mulke in uniform indoors, which violated an Air Force uniform regulation.
When his commander ordered him to comply with the regulation under threat
of court-martial, Goldman sued the Secretary of Defense. He claimed that his
First Amendment free exercise rights entitled him to wear the yarmulke, despite
the regulation. The Supreme Court disagreed and upheld the religion-neutral
regulation as it applied to Captain Goldman. The Court held that the regulation,
which essentially permitted wearing religious items in uniform only when they
were not visible, was reasonably related to the military’s legitimate interest in
uniformity.
19
This relaxed standard of judicial review gave great deference to
the military’s determination of the importance of uniformity.
Four years after Goldman, the Supreme Court applied this relaxed stan-
dard of judicial review of religion-neutral laws that impact the free exercise
of religion in the civilian context.
20
Congress, however, was dissatised with
the relatively little protection the Supreme Court gave to the free exercise of
religion in this later civilian case. It, therefore, enacted the Religious Freedom
Restoration Act of 1993,
21
supplanting Goldman and the later civilian case.
22
This statute requires courts to use strict scrutiny—the same, most-demanding
standard courts use to review laws that target particular protected speech or
religious practices—even for neutral laws that only incidentally burden the free
exercise of religion. Thus, when a religion-neutral federal law,
23
which includes
military regulations and orders, substantially burdens the exercise of religion, the
government must demonstrate that the law furthers a compelling governmental
interest and is the least restrictive way of furthering that interest. Essentially,
the government must prove that it has a compelling reason why it cannot grant
a religious exception to the generally applicable law.
24
This is a much higher
standard of review than for content-neutral restrictions on speech, so it becomes
very important to distinguish speech from exercise, even when the Supreme
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 63
Court has sometimes blurred the distinction. The difculty and importance of
the distinction underscores the need for leaders to consult with the JAG before
taking action that limits a subordinate’s religious speech or exercise.
Religious Speech and the Establishment Clause
The First Amendment’s Establishment Clause provides additional indi-
vidual protection for religious speech and exercise by prohibiting the government
from making any “law respecting an establishment of religion.” This clause
complements individuals’ religious speech and practice rights by limiting what
the government, including military members acting in an ofcial capacity, can
do to promote religion. The Establishment Clause thus is the third limitation on
religious speech. For military leaders, who in many circumstances are acting as
representatives of the government, this is the most important limitation on their
own right of religious speech. For this reason, we will examine in some detail
the Supreme Court’s interpretation of the Establishment Clause.
The overriding principle of the Establishment Clause is government
neutrality toward religion: government must take no action that either favors
one religion over another or favors religion generally over nonreligion.
25
The
seminal Supreme Court case interpreting the Establishment Clause is Lemon
v. Kurtzman,
26
in which the Court articulated three requirements that the chal-
lenged governmental action must meet in order to satisfy the Establishment
Clause. First, the governmental action at issue must have a nonreligious
purpose. Second, the primary effect of the governmental action cannot advance
(or inhibit) religion. Third, the governmental action cannot result in excessive
government entanglement with religion.
27
In the religious speech context, the
“effect” and (to a lesser extent) “purpose” prongs are the most important.
In deciding whether governmental action (especially prayer) violates
Lemon’s “effect” prong, courts sometimes look to whether the government
is coercing people “to support or participate in religion or its exercise.”
28
For
example, an appellate court struck down Virginia Military Institute’s evening
meal prayer due to its coercive nature in the military context.
29
Military leaders
must be extremely cautious that they do not use their rank and position to
coerce subordinates.
Short of coercion, religious speech can also violate Lemon’s “effect”
prong if it appears to the reasonable and informed observer that the govern-
ment is endorsing religion by “conveying or attempting to convey a message
that religion or a particular religious belief is favored or preferred.”
30
Religious
speech by a military leader can thus violate the Establishment Clause when it
reasonably appears that the leader, acting in an ofcial capacity for the military,
is promoting religion. A similar but broader prohibition appears in the Joint
Ethics Regulation, which prohibits governmental personnel from using their
position, title, or authority in a way that reasonably could imply that the govern-
ment endorses the employee’s personal activities.
31
Military installations have chaplains’ programs to enable military
members to freely exercise their religion. Those programs may include worship,
David E. Fitzkee
64 Parameters
religious studies, invited speakers, spiritual retreats, concerts, plays, prayer
meetings, and prayer breakfasts. To avoid the appearance that military leaders
in their ofcial capacity are endorsing or coercing religion, they should leave
the advertisement and administration of these programs to the chaplains.
32
The
chaplains’ role and their position outside the normal chain of command allow
them to even-handedly advertise these opportunities without the potential for
perceptions of selective endorsement or coercion that may exist if military leaders
advertise the programs. Of course, leaders maintain the right to freely exercise
their religion and therefore may attend and participate in these programs, just as
other military members may. As they do so, however, leaders should avoid roles
in these functions that create the impression of ofcial endorsement or coercion
of religion. Thus, leaders should not accept an invitation for a role that appears
to have been offered primarily because of their rank or position.
The Establishment Clause limits governmental action, but not private
religious speech. There is often no clear line of demarcation. In deciding whether
a military member’s speech is private or is as a representative of the govern-
ment, broad factors such as the status of the speaker, the status of the listener,
and the context and characteristics of the speech itself should be considered.
In the context of religious speech, many of the same factors that indicate the
speech is ofcial also indicate that the speech is coercive, thereby violating the
Establishment Clause. There is no single litmus test, so it is important to look
to all the circumstances. Relevant questions include the following:
• What is the rank and position of the speaker? The higher the rank and
the greater the position, the more likely it is that the speaker will be seen to
be speaking for the military rather than personally. (Think commanders and
general ofcers.)
• What is the rank, position, age, and experience of the listener? Lower
rank and position and youth and inexperience make the listener more likely to
view the speaker as speaking ofcially and make the listener more susceptible
to coercion.
• Is the speaker in a position of authority over the listener? The more inu-
ence the speaker has over the listener, the more likely the speech is seen to be
ofcial and coercive.
• Did the speech occur in uniform? If so, this is one factor suggesting the
speech is ofcial.
• Did the speech occur during duty time? If so, this again is a factor sug-
gesting the speech is ofcial. But religious speech that occurs during a break
may be seen as personal.
• Were listeners voluntarily present? If listeners are summoned to a meeting,
the ensuing religious speech is likely to be seen as ofcial.
• Who initiated the religious speech? If a subordinate asks a superior about
the superior’s personal faith, the subordinate likely understands that the supe-
rior is speaking personally.
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 65
• Was the speech planned and formal or extemporaneous and casual? If
planned, and the speaker is introduced by his rank and position, this may rea-
sonably indicate ofcial speech.
• How extensive (length and religious content) or repeated is the religious
speech? The greater the extent and frequency of the speaker’s religious message,
the more likely the speech is to be perceived as ofcial.
• What is the rest of the context for the religious speech? If other matters
being discussed by the leader are all ofcial, the religious speech may be more
likely viewed as ofcial too.
• Did the speaker indicate during the speech that the religious speech is
personal? Use of the rst-person “I” favors private speech.
• Do the circumstances otherwise indicate that the religious speech is per-
sonal? For example, a comment to a subordinate facing a personal adversity
that “I’ll keep you and your family in my prayers” is likely to be seen as the
speaker’s personal comment.
• Is the speech being made by military members in the course of their
ofcial duties? If so, the speech is likely to be viewed as ofcial. Thus, pro-
viders of various services that military members are entitled to receive (e.g.,
medical, dental, legal, recreational) should not initiate religious speech with
their customers.
Again, military leaders should consult with their JAG before taking
action against subordinates whose speech crosses the ill-dened Establishment
Clause line. JAGs can provide advice on whether the line has been crossed
and, if so, what action would be appropriate (often simple informal counseling).
Another reason to consult with the JAG is that if the subordinate’s speech has not
crossed the line, the leader who tries to limit the subordinate’s religious speech
likely is violating that subordinate’s free speech rights. This is an example of
the inherent tension existing between the Establishment Clause and the Free
Exercise Clause (and, for religious speech, the Free Speech Clause), which
are framed broadly and are complementary in their purpose of guaranteeing
freedom of religion: by attempting to respect one clause, the government may
offend the other.
Military leaders deciding whether to engage in their own religious
speech, particularly in the workplace, are well advised to err on the side of
caution. The Establishment Clause line can be blurry, particularly as it pertains
to religious speech. Little is to be gained by leaders getting as close to that line
as they can. In fact, leaders who want to get as close to that line as possible
ought to ask themselves why they want to do so. Recall that one of the prongs of
the Lemon test is that the governmental action at issue must have a nonreligious
purpose. Leaders acting in an ofcial capacity who have the purpose of promot-
ing their religious faith in others are acting for a constitutionally impermissible
purpose. Moreover, will such “pushing of the envelope” be in the best interest
of the unit?
Staying well away from the Establishment Clause line amounts to
leaders voluntarily giving up some religious speech rights they would otherwise
David E. Fitzkee
66 Parameters
have. Military members accept diminished constitutional rights—as part of
the “service before self” ethos—in other contexts as well. Examples include
the right to free speech (where military members’ speech may be unprotected
when the same speech by a civilian would be protected) and the right against
unreasonable search and seizure (where military members are subject to more
intrusions on their privacy, such as inspections and urinalyses, than would be
permissible in the civilian context, due to the decreased expectation of privacy
that military members have). If all military leaders voluntarily stayed well away
from the Establishment Clause line, the military would have fewer problems
with being accused of promoting religion.
Two important points bear emphasis here. First, leaders should not
suggest to subordinates that they “voluntarily” relinquish some of their religious
speech rights. Such a suggestion by a superior may impermissibly infringe on
the subordinates’ free speech and free exercise rights and ironically may violate
the Establishment Clause by the superior not being ofcially neutral toward
religion. Second, this is not to suggest that leaders abandon religious speech in
their private capacity. Religion is a tremendous source of strength, inspiration,
wisdom, peace, and purpose for many people, and religious speech is a vital
component of the practice of religion. The admonition here is for leaders to keep
their personal religious speech and practice separate from their ofcial positions,
and to nd a way to reconcile their religion with their responsibilities as leaders.
Selected Religious Speech Issues for Leaders
This section provides an overview of potentially thorny issues concern-
ing three forms of religious speech leaders may encounter in the workplace:
proselytizing, prayer, and religious displays. It does so by applying to these
issues the principles previously discussed. We start with the understanding that
each of the forms of speech is constitutionally protected unless it (1) violates
a content- or religion-neutral law, (2) is unprotected speech under the circum-
stances due to its adverse effect on the mission, or (3) violates the Establishment
Clause by being reasonably viewed as the government advancing, favoring,
endorsing, or coercing a specic religion or religion generally.
Proselytizing in the Workplace
Proselytizing
33
in the workplace can become a sensitive issue for leaders
for two related reasons. First, some major world religions—notably Christianity,
the largest religion in the United States and the military
34
—encourage their
members to convert nonbelievers to their faith.
35
Second, others who do not wish
to be proselytized may complain to superiors about other military members
doing so.
How should leaders respond to such complaints? First, leaders (and
those complaining) must recognize that the First Amendment protects prosely-
tizing and does not require a speaker to stop speaking merely because others do
not like the message. Of the three possible bases upon which to limit religious
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 67
speech, the two most likely to apply to proselytizing are limitations based
on unprotected speech or the Establishment Clause. The proselytizing might
occur in peer-to-peer discussions where the listener does not want to hear the
religious speech and realistically cannot avoid it because of working or living
conditions. The listener rst should be advised to make clear to the speaker
his or her desire not to hear more proselytizing and if necessary to avoid vol-
untary association with the speaker. If disassociation is not possible because
of working or living conditions, and the speaker does not respect the listener’s
desire not to hear more, leaders can take appropriate action if the proselytiz-
ing is affecting mission accomplishment or morale, as the proselytizing has
become unprotected speech.
Proselytizing violates the Establishment Clause if military members are
misusing their ofcial position to advance, favor, endorse, or coerce religion.
This might apply to members of the chain of command proselytizing subordi-
nates on duty or to service providers proselytizing customers while providing
a service. Leaders acting in an ofcial capacity must be very sensitive to this
limitation. Consistent with staying well away from the Establishment Clause
line, they should refrain from proselytizing to subordinates in any arguably
duty-related situation unless the subordinate has specically requested it.
Prayer in the Workplace
Prayer is protected speech, so leaders should allow their subordinates
to exercise their free speech and free exercise rights to pray, even in the work-
place, unless there is a constitutionally permissible reason not to. Leaders retain
the right to pray as well, but once again the Establishment Clause limits that
right when it reasonably appears that the leader is acting in an ofcial capacity.
The issue arises most commonly in the context of public prayer at of-
cial military functions or ceremonies, such as dining-ins or graduations. Both
the “purpose” and “effect” prongs of the Lemon test are problematic here. The
purpose prong requires a nonreligious purpose for the governmental action.
Can there be such a purpose for having a prayer at an ofcial military func-
tion?
36
Leaders considering having a prayer at an ofcial function ought to
scrutinize their reason for wanting to do so. If the purpose is to respect the
free exercise rights of those who wish to pray (for example, before a meal at
a dining in), that purpose is equally served by allowing a constitutionally safe
“moment of silence.”
37
The “effect” prong is also likely to be problematic for
prayer at ofcial functions (particularly those where attendance is mandatory
or “encouraged”), as the prayer reasonably may be viewed as the government
advancing, favoring, endorsing, or even coercing religion.
Despite these concerns,
38
the military has not banned government-led
prayer at ofcial functions. If leaders insist on having prayer (vice a moment of
silence) at these ofcial functions, leaders should not lead the prayer themselves
but should leave this to the chaplains. Their education, training, and experience
praying nonsectarian prayers at such functions, as well as their position outside
David E. Fitzkee
68 Parameters
the chain of command, reduce the chance of Establishment Clause violations.
At routine events—such as meetings, staff calls, and meals—leaders should not
invite prayer, even if led by chaplains. Such prayers are almost certain to violate
the Establishment Clause.
39
Retirement ceremonies are often a hybrid of ofcial and private func-
tions. If there is a clear time cut-off between the two portions of the ceremony,
the prayer should be in the private time. If the two portions are intertwined, the
master of ceremonies might announce before the prayer that it is at the request
of the retiree.
40
Religious Displays in the Workplace
We have already touched on subordinates’ private religious displays
in their barracks rooms: these displays are likely to be protected. On the other
hand, in common areas (such as in common ofce space or on the common
grounds of a military installation), truly religious displays are prohibited
because they reasonably appear to advance or endorse religion, although some
displays that normally have religious meaning (e.g., a crèche) are permissible
when interspersed with other secular celebrations of the season.
41
The JAG can
provide advice concerning these displays in common areas.
Religious displays such as religious art, symbols, or books in an individ-
ual’s work area (e.g., the ofce) present a tougher issue, because that “personal”
workspace likely is visited for ofcial purposes by other military members such
as coworkers or customers. Thus, the individual’s free speech and free exercise
rights will be tempered by Establishment Clause considerations. Displays must
not be so prominent as to make it reasonably appear that their purpose or effect
is governmental promotion of religion. Military members should place their
religious displays such that they are visible to themselves, but are not promi-
nently “in the face” of others who come into that workspace. Leaders must be
particularly sensitive to this issue, given that subordinates may often be present
in their workspace.
Conclusion
Leaders must understand and respect the free speech (and related free
exercise) rights that military members enjoy. They must also understand the
limitations on those rights. Those limitations may be grounded in the Free
Speech Clause itself (content neutral laws and “unprotected” speech) or in the
Establishment Clause. By virtue of their rank and position, leaders need to be
particularly sensitive to how the Establishment Clause limits their speech. By
way of summary, here are principles that should guide all military leaders.
Principles Concerning Subordinates’ Religious Speech
• Respect subordinates’ religious speech rights protected by the First
Amendment.
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 69
• Take appropriate action regarding subordinates’ religious speech when
that speech is adversely affecting mission accomplishment, loyalty, discipline,
or morale (i.e., is “unprotected”), when it is contrary to content- and religion-
neutral laws, or when subordinates violate the Establishment Clause by acting
in their ofcial capacity to advance, favor, or endorse a particular religion or
religion generally.
• Consult with JAG before taking action against subordinates based on their
religious speech.
Principles Concerning Leaders’ Own Religious Speech
• Recognize that as leaders their religious speech rights are particularly
limited by the Establishment Clause.
• Be neutral toward religion. Do not make statements favoring (or disfa-
voring) or endorsing one religion over another, or religion generally over the
absence of religion.
• Ask themselves the purpose of their religious speech or display. If its
purpose is to advance a religion (or religion generally), leaders should stop
themselves.
• Ask themselves the likely effect of their religious speech or display. If it is
likely to be fairly viewed as the government advancing, favoring, endorsing, or
coercing religion, leaders should stop themselves.
• Consider substituting moments of silence for prayer at ofcial military
functions. If leaders elect to go with the prayer at special functions, entrust it
to chaplains. Avoid prayer at routine meetings.
• Not try to push the envelope in this area. If in doubt, refrain from speaking.
• Consult with the JAG as necessary.
Adherence to these principles will help leaders avoid violating the
Constitution and can prevent adverse consequences—including a negative
effect on the unit, its mission, and possibly even US strategic interests—that
may result from such violations. Military members, the unit, and the nation will
be better for it.
Notes
1. U.S. Department of Defense, Handling Dissident and Protest Activities Among Members of
the Armed Forces, Department of Defense Instruction 1325.06 (Washington, DC: U.S. Department
of Defense, November 27, 2009, paragraph 3b; U.S. Chief of Staff of the Air Force General Norton
A. Schwartz, “Maintaining Government Neutrality Regarding Religion,” memorandum for All Major
Command, Field Operating Agency, and Direct Reporting Unit Commanders, Washington, DC,
September 1, 2011, http://www.militaryreligiousfreedom.org/docs/gen_schwartz_letter_religion_
neutralilty.pdf (accessed November 1, 2011); U.S. Secretary of the Air Force Michael W. Wynne
and U. S. Chief of Staff of the Air Force General T. Michael Moseley, “Revised Interim Guidelines
Concerning Free Exercise of Religion in the Air Force,” Memorandum for All Major Commands,
Field Operating Agency, and Direct Reporting Unit Commanders, Washington, DC, February 9,
2006, http://pcamna.org/chaplainministries/RevisedInterimGuidelines.pdf (accessed November 1,
2011); Air Force Judge Advocate General (JAG) School, The Military Commander and the Law, 10th
David E. Fitzkee
70 Parameters
ed. (Maxwell Air Force Base, AL: Air University Press, 2010), 220-226. http://www.afjag.af.mil/
shared/media/document/AFD-101025-032.pdf (accessed November 1, 2011).
2. This article anticipates that most readers will be military leaders, but most of the article
applies equally to civilian leaders and supervisors of military personnel and Department of Defense
civilians. Although the coercive aspects of military rank do not apply to civilian leaders, the position
of authority civilian leaders hold over subordinates could result in impermissible religious coercion.
3. Religious speech is broadly dened, to include religious expression, discussion, proselytiz-
ing, prayer, and religious displays. Thus, this article addresses many, but not all, religion-related
issues leaders may face. For example, this article does not address requests for religious accom-
modation. Guidance on accommodation issues is in U.S. Department of Defense, Accommodation
of Religious Practices Within the Military Services, Department of Defense Instruction 1300.17
(Washington, D.C.: U.S. Department of Defense, February 10, 2009), which is currently being con-
sidered for revision.
4. “Consult with JAG” is listed twice as a guiding principle—once regarding leaders vis-à-vis
their subordinates and again concerning leaders’ own religious speech—because it is that important.
This is due to the complexity of this area of the law and because these issues are often very fact-
specic. Consultation with chaplains also may be important, particularly in matters pertaining to the
free exercise of religion.
5. See, for example, James E. Parco and David A. Levy, eds., “Religious Expression,” in
Attitudes Aren’t Free: Thinking Deeply About Diversity Issues in the US Armed Forces (Maxwell
Air Force Base, AL: Air University Press, 2010), http://aupress.au.af.mil/digital/pdf/book/Parco_
Attitudes_Arent_Free.pdf (accessed November 1, 2011).
6. The First Amendment literally limits only Congress, but the Supreme Court has expanded
the limitation to apply to all government (state and federal) including the military. The same is true
regarding the Free Exercise and Establishment Clauses of the First Amendment.
7. See, for example, Texas v. Johnson, 491 U.S. 397, 404 (1989). The Supreme Court deter-
mined that burning a United States ag during a political demonstration was expressive conduct pro-
tected by the freedom of speech. This case illustrates the broad protection given to freedom of speech
and that the government may not suppress a message merely because many people nd it odious.
8. See, for example, Widmar v. Vincent, 454 U.S. 263, 270 (1981).
9. An important caveat to this entire paragraph is that the Establishment Clause (discussed
below) imposes a separate limitation on religious speech, including displays. Thus, in circumstances
where it applies, the Establishment Clause may justify military leaders treating subordinates’ reli-
gious speech differently from other speech, even on the basis of its religious nature. See, for example,
Good News Club v. Milford, 533 U.S 98, 112 (2001) (recognizing that avoiding an Establishment
Clause violation may be a compelling interest justifying content-based governmental discrimination
against certain speech). Similarly, if religious speech constitutes “unprotected speech” (discussed
below) under the circumstances, leaders may take action even on the basis of its content.
10. See, for example, Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 806
(1985) (content-neutral limitation in a non-public forum). The government has a somewhat higher
burden of justifying content-neutral regulations in “public forums,” which are public places such as
public parks and sidewalks where public assembly and speech have traditionally occurred. Clark v.
Community for Creative Non-Violence, 468 U.S. 288 (1984).
11. One example of this deference in the context of religion in the military is found in Goldman
v. Weinberger, 475 U.S. 503 (1986).
12. Parker v. Levy, 417 U.S. 733, 759 (1974) (quoting United States v. Gray, 42. C.M.R. 255
(1970)). The Supreme Court upheld Captain Levy’s conviction under UCMJ Article 133 (conduct
unbecoming an ofcer) for making on-duty statements to enlisted soldiers that he would refuse to go
to Vietnam if ordered to do so, and suggesting that “colored soldiers” should also refuse to deploy or
ght because they are discriminated against and suffer a majority of the casualties.
13. United States v. Brown, 45 M.J. 389, 395 (1996).
14. Sherbert v. Verner, 374 U.S. 398, 403 (1963).
Religious Speech in the Military: Freedoms and Limitations
Autumn 2011 71
15. See, for example, Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872, 877 (1990), which explained that “The free exercise of religion means, rst and
foremost, the right to believe and profess [italics added] whatever religious doctrine one desires.”
16. Ibid., 877-90.
17. See, for example, Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
18. Goldman v. Weinberger, 475 U.S. 503 (1986).
19. Ibid., 508-510; In response to Goldman, Congress in 1987 enacted a statute generally per-
mitting military members to wear items of religious apparel, including a yarmulke, in uniform. 10
U.S.C. § 774: Religious Apparel: Wearing While in Uniform.
20. Employment Division v. Smith.
21. 42 U.S.C. § 2000bb et seq.
22. When the Supreme Court decides the scope of an individual constitutional right, the govern-
ment cannot provide any less protection than the Court has articulated, but it may provide more.
23. The Religious Freedom Restoration Act (RFRA) initially limited both federal and state gov-
ernments. The Supreme Court struck down (primarily on federalism grounds) RFRA as it applied to
state laws in City of Boerne v. Flores, 521 U.S. 507 (1997). Thereafter, Congress amended RFRA to
apply only to the federal government. See 42 U.S.C. § 2000bb-2(1).
24. Gonzales v. O Centro Espirita Benecente Uniao do Vegeta, 546 U.S. 418 (2006).
25. McCreary County v. ACLU, 545 U.S. 844, 860 (2005); Epperson v. Arkansas, 393 U.S. 97,
104 (1968).
26. Lemon v. Kutzman, 403 U.S. 602 (1971).
27. Ibid., 612-13.
28. Lee v. Weisman, 505 U.S. 577, 587 (1992).
29. Mellen v. Bunting, 327 F.3d 355, 371-72 (4th Cir. 2003).
30. Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O’Connor, J., concurring in the judgment).
31. 5 C.F.R. § 2635.702(b).
32. U. S. Chief of Staff Memorandum on Maintaining Government Neutrality.
33. Merriam-Webster’s Collegiate Dictionary, 11th ed., s.v. “proselytizing,” 998. Proselytizing
is dened as inducing or recruiting (attempting to induce) someone to convert to one’s faith.
34. The Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey,” February
2008, http://religions.pewforum.org/reports (accessed November 1, 2011); Military Leadership
Diversity Commission, Religious Diversity in the U.S. Military, Issue Paper #22, June 2010,
http://mldc.whs.mil/download/documents/Issue%20Papers/22_Religious_Diversity.pdf (accessed
November 1, 2011).
35. See, for example, Matthew 28:19, where Jesus commanded his followers to “go and make
disciples of all nations” (New International Version).
36. At least one federal appellate court ruled that prayer at a public university graduation has the
legitimate secular purpose of “solemnize[ing]” the occasion, express[ing] condence in the future,
and encourage[ing] what is worthy of appreciation in society.” Chaudhuri v. Tennessee, 130 F.3d
232, 236 (6th Cir. 1997) (quoting County of Allegheny v. American Civil Liberties Union, 492 U.S.
573, 625, (1989) (O’Connor, J., concurring in part and concurring in the judgment). The Supreme
Court has not ruled on the issue of graduation prayer at public universities or on the issue of prayer
at military functions.
37. See, for example, Wallace v. Jaffree, 472 U.S. 38, 59 (1985), which, even while holding that
a moment of silence done with the clear governmental purpose of advancing religion is impermis-
sible, suggested that most moments of silence in which individuals engage in voluntary prayer are
permissible.
38. For amplication of these concerns, see Paula M. Grant, “The Need for (More) New
Guidance Concerning Religious Expression in the Air Force,” in Attitudes Aren’t Free: Thinking
Deeply About Diversity Issues in the US Armed Forces, eds. James E. Parco and David A. Levy
(Maxwell Air Force Base, Air University Press, 2010), 39, 52, http://aupress.au.af.mil/digital/pdf/
book/Parco_Attitudes_Arent_Free.pdf (accessed November 1, 2011); David E. Fitzkee and Linell
David E. Fitzkee
72 Parameters
A. Letendre, “Religion in the Military: Navigating the Channel Between the Religion Clauses,” Air
Force Law Review 59: 1, 43-52 (2007) (detailing concerns over the constitutionality of public prayer
at military functions).
39. See, for example, “Prayer at Staff Meetings,” Opinion of The Air Force Judge Advocate
General, No. 1998/76, July 14, 1998.
40. Air Force JAG School, The Military Commander and the Law, 233.
41. See, for example, Lynch v. Donnelly, 465 U.S. 668 (1984).
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