Military Chaplain Case:

This case has garnered much attention in Christian right circles (but not much elsewhere). WND reports that the Chaplain was just dismissed. The controversy seems to be that the Navy wanted him to pray inclusive non-denominational prayers, but he insisted on praying in Jesus name. The Navy's rationale was that some service members to whose needs he administered weren't Christian, hence a non-denominational prayer would be more inclusive. The chaplain asserted his free-exercise rights to pray in Jesus name. And I understand, an establishment clause claim is being advanced as well. John Whitehead of the Rutherford Institute has gotten involved and stated: "I think the Supreme Court's going to have to look at the idea of can the government in any of its forms tell people how to pray, set up a basic religion and say you can only do it this way,"...

Moreover, Rutherford notes: "What we have here is the government's attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains' free exercise and free speech rights, as well as those of their congregants."

Though this case involves a potential complicated mix of free exercise, free speech and establishment clause claims, it seems cut and dried to me: The military is absolutely right. Chaplains qua chaplains have no free exercise rights or free speech rights and do their job completely at the behest of government. You either do your job as the government wants you to or you don't do your job at all. For a chaplain to assert he has the right to dictate his own prayers is not unlike Tony Snow asserting he has a right to free speech while acting as the President's Press Secretary. Snow absolutely has a private right to free speech and such private rights spill over to protect his government job, but only in a limited sense, via Connick v. Meyers and the Pickering balancing test. But when he speaks as Bush's Press Secretary, he tells the press what Bush wants him to or he finds another job.

What further complicates the matter is that, according to Supreme Court precedent, government is not entirely free to make any religious acknowledgements it wants. Sometimes when government endorses one religious point of view to the exclusion of others the Court holds government violates the establishment clause. Other religious acknowledgements are constitutionally permitted. And the Supreme Court has not done a good job at coherently drawing that line.

But, to the extent that government is constitutionally permitted to make religious acknowledgements, the right belongs solely to the government, and not the government employee or actor making the acknowledgement.

It's usually conservatives who argue that government shouldn't be forbidden at all from making religious acknowledgements. But that just gives government more leeway to tell its actors "how to pray...and say you can only do it this way." Imagine, if you will, the state of Utah with its high Mormon population (but its fair share of religious minorities), to be inclusive, hires a Protestant Chaplain for its legislature to pray non-denominational prayers, agreeable to the tenets of as many of the state's sects as possible. And the Chaplain gets up there and makes explicit Protestant prayers which alienate the consciences of the Mormon majority. Would the state not have the right to fire the Chaplain? Or could he assert a free exercise/free speech claim?

One other comment on Whitehead's/Rutherford's claim. They write:

"The Navy's ongoing practice of promoting the one non-sectarian, Unitarian, Pluralistic religion and discouraging public expression of diverse faiths and religions violates the Establishment Clause of the First Amendment to the United States Constitution because, among other things, the only purpose or the primary purpose is to promote the one non-sectarian, Unitarian, Pluralistic religion over all other religions and it constitutes government preference for certain specific religious tenets and modes of worship over other religious tenets and modes of worship," the lawsuit says.

What's ironic about this comment is, not only is government controlling the content of its religious acknowledgements constitutionally permitted, but specifically, government attempting to send an inclusive non-denominational theistic message is as American as apple pie; it is exactly what Washington, Adams, Jefferson, and Madison did when they, as Presidents, made their public religious supplications. Justice Scalia keenly recognized this in his very interesting dissent in McCreary, where he wrote of these Founders' God talk: "This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not)" and,

All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.

Finally, if we follow Rutherford's logic to its ultimate conclusion that government, when it makes religious acknowledgements, can not tell its actors "how to pray...and say you can only do it this way," then we are ultimately driven to two possible outcomes: government actors, not their superiors, can say/pray whatever they want with impunity which would, in our example, allow the Protestant minister to pray explicitly anti-Mormon prayers as Utah state government's chaplain. Or, government could never make religious acknowledgements at all, because in so doing would be akin to government "set[ting] up a basic religion" which would render even military chaplains unconstitutional. This, in turn, results in an even further version of "strict separation" of Church and State than what Michael Newdow and Barry Lynn desire.

Somehow, I get the feeling, if the Navy were demanding that its chaplains pray in Jesus name, Whitehead/Rutherford wouldn't have taken the case.

Update: I was double checking to make sure my assertions were warranted and I found this interesting law review article on the subject. It turns out that many cases are currently in litigation. And a few have been recently decided by lower federal courts.

This area of law is quite muddy and complex. As one judge hearing one of the cases put it, these cases literally involve four constitutional principles -- free exercise, free speech, establishment, and equal protection -- at an intersection. In one area, however, caselaw has held that chaplains clearly do have free speech/free exercise rights and that's when they minister to voluntary faith group worship. This makes sense. Because servicemen live their private lives on military bases and because they retain their free exercise rights, some chaplains will have to play the role that ministers would ordinarily play in civilian life. So if the military has X evangelical Protestant soldiers who desire such a minister for private worship, the military must do its best to meet their needs and such a chaplain has free speech/exercise rights to do his job. [That way, a Catholic superior couldn't barge in and meddle with the Protestant's messages; and, from reading the article, this is exactly the sort of thing that has occurred.]

But that is still different from the case at hand where the minister in question did not act in a quasi-private capacity, but rather spoke for the entire Navy. The caselaw, as I understand, has not recognized a free exercise/speech right in that circumstance, nor should it.