1. Legal and Ethical Issues in Military Chaplaincy – An Introduction
Presenter:
Rev. Dr. Larry Greenslit, CAPT, CHC, USN (Ret)

2. Overview Brief History of Military Chaplaincy
Legal Challenges to Military Chaplaincy
Ethical Issues in Military Chaplaincy

3. History
Chaplains have served in the American Military since the Revolutionary War
George Washington wanted religious leaders, but the role of chaplains soon expanded to include visiting the wounded, helping soldiers write letters to home, counseling, etc.
Army Chaplain Corps dates back to 29 July 1775.
Navy Chaplain Corps established 28 November 1775.
Air Force Chaplain Corps established 10 May 1949, after the US Army Air Corps was decommissioned and the USAF was established.
Chaplains are non-combatants by the rule of the Geneva Convention. They are not specifically prohibited from carrying weapons by the conventions but doing so will compromise their status as non-combatants.
Geneva Conventions comprise four treaties and three protocols. They establish humanitarian treatment in war. The term Geneva Convention usually refers to the 1949 treaty, which updated the two 1929 conventions and added two conventions. Each convention defines chaplains as religious personnel who are not to be considered prisoners of war but “detained persons” whose sole duties are caring for the sick and wounded and conducting religious services.

4. Discussion: upsides and downsides for each role
History, cont’d
Chaplains serve as both clergy and staff officers:
As clergy, they are accountable to their religious organizations for their ministry activities (preaching, teaching, worship, sacraments).
As staff officers, they are accountable to their commanders for administering the Command Religious Program (CRP). Guaranteeing the free exercise of religion is ultimately the commander’s responsibility; the chaplain is the “action officer” for the CRP.
Discussion: upsides and downsides for each role

5. Religion & The Constitution
First Amendment: “Congress shall make no law respecting an establishment of any religion, or prohibiting the free exercise thereof…”
The problem: how can those two prohibitions co-exist?

6. Katcoff v. Marsh (1985)
1979 – two Harvard Law students, Joel Katcoff & Allan Weider, filed suit in the United States District Court for Eastern District of New York. “Marsh” was John O. Marsh, who was then the Secretary of the Army
Their complaint: military (specifically, Army) chaplaincy violates the tenet underlying the Establishment Clause, that being the separation of church and state
Their proposed remedy: a voluntary, privately-funded program that would meet the religious needs of soldiers and not violate the Establishment Clause

7. The Decision
Lower Court upheld the constitutionality of the Army chaplaincy; the appeal went to the U.S. Court of Appeals for the Second Circuit.
1985: Court of Appeals upholds the lower court decision:
Rejected the argument that the religious needs of service members could be adequately met by civilian clergy.
Did not, however, completely remove the Army chaplaincy from constitutional doubt, asserting that that soldiers stationed in or near large urban areas could almost certainly have their religious needs met by civilian places of worship.

8. Subsequent Challenges
Focused primarily on personnel issues in the chaplaincies:
Have selected faith groups received favorable treatment for purposes of recruitment, retention, and promotion?
Example: Navy case

9. Governing Principles of Religious Accommodation
Four criteria used by courts to distinguish permissible from impermissible accommodation:
The accommodation must relieve a government-imposed burden on religion, rather than promoting the government’s own religion-promoting agenda.
The accommodation must facilitate private and voluntary religious practice.
The accommodation must be available on a denominationally-neutral basis.
The accommodation must not impose significant burdens on third parties.

10. Do the Military Chaplaincies meet the Four Requirements?

11. Does the chaplaincy relieve a government-imposed burden
on religious exercise?
Katcoff decision focused on aspect of the religious burden on servicemembers:
Isolation from their home religious communities when deployed overseas or in
a remote domestic assignment.
Tuttle & Lulu, Pgs 44,45: “The ministry of chaplains in many domestic settings would be
rendered constitutionally vulnerable if isolation of its service members were
Its sole justification… [But} the burden of military service has two related
dimensions: First, the military – unlike virtually all other professions – constitutes a
distinct community….Second, the military presents service members with a range of stresses and other experiences that are unique.”

12. Criterion #2: Does the accommodation facilitate
private and voluntary religious practice?
Tuttle & Lupu, pg 45:” [T]he military chaplaincy is a thoroughly
positive accommodation. The military may permit service members
free time for religious experience, but the chaplaincy creates the
content of such experiences, through preaching, worship,
religious instruction, and pastoral care.”

13. The accommodation must be available on a denominationally-neutral basis.
Compared to the first two, this one is fairly straightforward: the
chaplaincy is open to religious professionals from any religious
organization approved by the DoD to provide endorsements.

14. The accommodation must not impose significant burdens on third parties.
What kinds of “third-party burdens” might the courts have in mind?
Eg: A service member might have to perform extra duties to “cover” for an individual whose religious organization will not permit him or her to perform such a duty.
Eg: A cook might have to spend extra time preparing food for an individual whose
religious organization has special dietary requirements.
Eg: A service member who must involuntarily listen to a prayer, against his/her wishes.
For the most part, the courts have deemed such burdens as minor.
The military handles such instances case-by-case.
Eg: the Muslim who asked for permission to prepare his own food instead of eating
in the chow hall.

15. So… Are the Military Chaplaincies constitutional?
Military directives order the following:
Chaplains must serve the needs of the particular faith group that endorsed them to the chaplaincy, in accordance with the tenets of that faith group.
Chaplains must advise their commanders on how to meet the religious needs of all those for whom the commander has responsibility.
Chaplains must meet minimum requirements (education, experience, status within their faith group) in order to serve.
Chaplains who fail to meet these minimum requirements will either not be hired or, if serving, can have their endorsement revoked by their faith group, in which case they must either find another endorser or leave the military.

16. Prayer and Freedom of Religion for Chaplains
The two C’s: Context and Content
Context shapes content:
Are attendees at any given function there voluntarily or involuntarily?
This also applies, for example, to hospital chaplains. Eg patient visitation: is such visitation voluntary (requested by the patient) or involuntary (the chaplain stops by as part of rounds)?
Proselytizing. Miitary forbids proselytizing the involuntary, emphasizes a chaplain’s oath to facilitate religious expression for all service members regardless of their beliefs.

17. The biggest question: is the chaplaincy morally and ethically viable?
Should the PCUSA “de-certify” its military chaplains?
Discussion: why or why not?

18. Questions, comments, discussion

19. The Religious Freedom Restoration Act of 1993
Intent: Ensure that religious interests are protected.
1997: SCOTUS rules RFRA unconstitutional.
BUT – RFRA continues to be applied to the Federal Government.
Most pertinent to Native American religions (eg sacred land, peyote)
Reinstated the Sherbert Test (Sherbert v. Verner, 1963), mandating strict scrutiny in determining whether or not the Free Exercise clause has been violated.
Congress determined that a religiously neutral law can burden religious practice as much as a law intended to burden religion.

20. Other relevant legal decisions
Employment Division v. Smith
Sherbert v. Verner
Religious Land Use Act