Religion in the military: navigating the channel between the religion clauses.

• Author: Fitzkee, David E.

1. INTRODUCTION II. OVERVIEW OF THE ESTABLISHMENT, FREE EXERCISE, AND FREE SPEECH CLAUSES A. The Establishment Clause B. The Free Exercise Clause 1. Laws Aimed at Religion 2. Religion-Neutral Laws a. Employment Division v. Smith b. The Religious Freedom Restoration Act of 1993 and Challenges 3. Free Exercise Clause Summary C. Tension between the Establishment Clause and the Free Exercise Clause D. The Free Speech Clause, Religious Speech, and Interplay with the Establishment Clause III. RELIGIOUS SPEECH IN THE MILITARY A. Religious Speech and the Free Speech Clause B. Religious Speech and the Establishment Clause IV. PRAYER IN THE MILITARY A. Prayer at Solemn Military Events 1. Deeply Embedded in History Exception 2. Remaining Establishment Clause Analysis B. Prayer at Routine Military Events C. Prayer or Invocation Guidance if Allowable V. RELIGIOUS DISPLAYS IN THE MILITARY A. Common Areas B. Private Areas C. Personal Governmental Work Areas VI. ACCOMMODATION OF RELIGION IN THE MILITARY A. The Free Exercise Standard B. Statutory and Regulatory Guidance VII. CONCLUSION I. INTRODUCTION

   Religion in the military (1) has reached headline proportions: Air Force Sued Over Religion, (2) Air Force Academy Staff Found Promoting Religion, (3) Evangelicals Protest New Air Force Religion Policy, (4) and Naval Academy Urged to Drop Prayer. (5) Behind all the headlines, commanders and military attorneys wrestle with a complex array of constitutional tests in an attempt to navigate the narrow channel between the free exercise of religion (6) by military members and establishment of religion by the military--a feat compared to navigating the narrow channel between the Scylla and Charybdis in Greek mythology. (7)

   The narrowness of this channel is striking given the simplicity of the text of the First Amendment's Religion Clauses, which provide that "Congress shall make no law ... respecting an establishment of religion, or prohibiting the free exercise thereof." (8) The simplicity of the language quickly erodes, however, when one considers that in the past ten years (9) the U.S. Supreme Court has decided no fewer than thirteen cases under the Establishment and Free Exercise Clauses. (10) This number of cases is hardly surprising given the profound importance of religion to many people in the United States. (11)

   The importance of religion to Americans and the influence that religion can have on people's behavior and attitudes concerning important social issues may explain why the U.S. Supreme Court's cases on religion in the past decade have addressed socially significant or controversial issues. These issues include religious displays (Ten Commandments and a cross) on governmental property; (12) the recital of the Pledge of Allegiance (containing the words "one nation under God") in public elementary schools; (13) governmental provision of "school vouchers" or tuition assistance for children's use at private schools (including religious schools); (14) private organizations' use of governmental property for religious purposes (such as Bible study or worship) when other private organizations are permitted to use the property for non-religious purposes; (15) student-led invocations before football games at public high schools; (16) governmental provision of equipment or other funding to private elementary and secondary schools, including religious schools; (17) federal authority to require accommodation of prisoners' religious practices; (18) and state authority to exempt scholarship money to public university students pursuing studies to become a pastor. (19) In addition to dealing with governmental action that directly or indirectly aids, endorses, or encourages religion, these cases illustrate the four other general contexts in which most religion issues arise: (1) governmental regulation of religious speech, (2) government-sponsored prayer, (3) religious displays on governmental property, and (4) governmental limitation or accommodation of religious practices.

   Religious issues in the military also arise in these same four contexts. As difficult as these issues are in American society as a whole, they may be even more difficult in the military. One important reason for this increased difficulty is that the military must not only honor its members' First Amendment religious rights, it must do so in a way that does not materially denigrate its profound first obligation to the nation: "defend[ing] our national interests by preparing for, and when necessary, waging war." (20) Sometimes the military's desire to honor a soldier's request to freely exercise religious rights (e.g., attending a worship service) may conflict with the military's need to accomplish a mission (e.g., participating in an important combat operation).

   Ironically, however, the military's real or perceived failure to properly respect its members' religious rights may also detract from the military unit's ability to carry out its mission by marginalizing some members of the unit. (21) A unit is a team with each member having an important role. Top-performing units rely on all their members, but members of the unit who feel marginalized, perhaps due to their perception of their leaders' or fellow soldiers' views toward their religion, will not feel fully a part of the team, and the team's ability to accomplish its mission can suffer. (22) In addition, the military's real or perceived failure to honor its members' rights can result in unfavorable national media attention and even litigation. (23)

   For military leaders and organizations to avoid these adverse effects, they must comply with the Religion Clauses and other laws concerning religion. To facilitate such compliance, this article analyzes the law concerning religious issues in the military in four general recurring contexts. Part II provides an overview of the Establishment Clause, the Free Exercise Clause, and Free Speech Clause (particularly as it pertains to religious speech), including the interplay among these clauses. Parts III through VI focus on how these clauses apply in the military in the four common contexts: Part III analyzes general religious speech issues by military members; (24) Part IV specifically analyzes government-sponsored prayer in the military; Part V examines religious displays on military property; and Part VI reviews religious accommodation in the military. Part Vii concludes the article.

   While all military services have some existing official guidance on religious issues, (25) the guidance may be rather general, (26) be scattered among several regulations or policy statements, (27) fail to address important issues, (28) or even be of questionable accuracy on some points. (29) This article fills those gaps, provides detailed background and the authors' analysis of key issues of law and religion in the military, and thereby assists military attorneys as they advise commanders and other military members in navigating the narrow channel of religion in the military.

2. OVERVIEW OF THE ESTABLISHMENT, FREE EXERCISE, AND FREE SPEECH CLAUSES

   Military attorneys providing advice on religion issues must possess a firm grasp of key principles of the U.S. Supreme Court's jurisprudence concerning the Establishment, Free Exercise, and Free Speech Clauses, as well as key statutory law. Moreover, they must understand the tension between the Free Exercise and Free Speech Clauses on one hand and the Establishment Clause on the other. This Part provides that crucial background.

   1. The Establishment Clause

      The Establishment Clause by its terms would prevent the government from establishing an official religion, as existed in England with the Church of England in the 1600s (30) and in some American states at the time of the American Revolution. (31) The Establishment Clause, however, provides more protection by prohibiting any governmental action respecting an establishment of religion. Thus, the Court has recognized that a "given law might not establish a state religion but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment." (32)

      Establishment Clause challenges typically arise as a result of the government having taken some action perceived to help religion, sometimes even if the governmental help is also conferred on nonreligious organizations. (33) Courts have struggled with determining when governmental action that confers some benefit on religion becomes an unconstitutional "law respecting an establishment of religion." But the over-arching general principle is this: the government must be neutral toward religion, neither favoring a particular religion over other religions nor favoring religion generally over non-religion. (34)

      In 1971, the U.S. Supreme Court in Lemon v. Kurtzman announced and applied a three-part test for determining the constitutionality of governmental action challenged under the Establishment Clause. (35) First, the governmental action at issue must have a secular purpose. (36) Second, "its principal or primary effect must be one that neither advances nor inhibits religion." (37) Third, the governmental action "must not foster 'an excessive government entanglement with religion."' (38) When courts use the so-called "Lemon test," the governmental action must pass all three parts of the test to be consistent with the Establishment Clause. (39)

      The "purpose prong" of the test requires that the governmental action at issue must have been done for a legitimate non-religious purpose, such as to promote education, health, or safety. Courts determine purpose by looking as an "objective observer" at the text of the statute or governmental action and all the surrounding circumstances, including its history, context, logical effect, and how it was implemented. (40) If there is more than one arguable purpose, the primary purpose must be secular. (41) Courts normally demonstrate a...