A new commanding general has just reported aboard. All personnel report to the change-of-command ceremony, which is memorable for one reason only: It is intensely and profoundly religious. The general reveals that he is “born again” and makes numerous references to Christ. Many members of the audience react with shock and disbelief. The author had never before seen any officer espouse his personal religious beliefs in public, but other Marines have witnessed such occurrences in other ceremonies.
Individuals are not divested of their rights to free speech and free exercise of religion upon assumption of command, but those rights are not absolute. They are limited where they conflict with the Establishment Clause of the Constitution, which prohibits excessive entanglement between church and state.
There is no implication of malice on the part of the commander who made the remarks; in fact, the motive was undoubtedly noble. Nevertheless, the public and inherently official aspects of command—particularly at the flag level—demand circumspection in speech, because it is all too easy to create offense, even when none is intended. For example. Senator Alexander Wiley, a former chairman of the Senate Foreign Relations Committee, once suggested that the “Jews and Arabs should settle their differences in the true spirit of Christian charity.” Military officers must temper their public speaking with sensitivity, propriety, and common sense. Public religious speech in a military context disregards all three of these caveats.
Commanding officers can exert a tremendous amount of influence. Military command imposes the legal requirement upon subordinates of following lawful orders. Since the requirement for attendance at formation is buttressed with criminal sanctions for unauthorized absence, religious comment is thus forcibly imposed on an unwilling audience who did not join the military to hear sermons. Today’s commanders must realize that they appear before multi-denominational groups— not a monolithic Christian audience.
The Army Office of the Judge Advocate General promulgated a message that advised, inter alia: “Politics, religion, and military justice are topics the commander should not address in public.”'
In United States v. Treakle,2 the Army Court of Military Appeals stated, “[I]n this area, the band of permissible activity by the commander is narrow, and the risks of overstepping its boundaries are great.”
In Anderson v. Laird,2 the plaintiff sought relief against compulsory chapel attendance at the military academies. A federal court refused to condone this practice.
In Roberts v. Madigan,' a public school teacher kept a Christian bible on his desk and Christian books in the classroom library. He also read the bible during daily class silent-reading periods. The court prohibited his conduct to uphold the separation of church and state, noting that if the conduct endorses a particular religion, and might be perceived to “bear the imprimatur of the school,” it would then constitute state action and could be prohibited. The court noted that school children “are impressionable and their attendance is involuntary. ”
Comparing these actions with the commander’s, the conduct is analogous, and the commander seems far more culpable in establishing a nexus between church and state. Since a senior commander is literally an officer of the state, his public declarations of enthusiasm for or loyalty to a particular religion not only constitute a government endorsement but also border on proselytizing. Like the school children, young Marines and sailors are impressionable and do not have a choice regarding attendance at formations.
With religious speech by commanders currently in vogue in the military, a similar lawsuit to Roberts is surely in the cards. If this commander was sued for his conduct, the same courts would have probably ruled against him. Commanders should be aware of the procedure that occurs when they are sued in their personal capacity. Whether the officer receives personal representation by the government in a civil lawsuit is determined by the Department of Justice, which makes a determination whether the officer was acting “in the scope of his employment.” To obtain representation, he must fulfill this criterion. But since peddling a particular religion is not only completely irrelevant to the commander’s duties but also arguably violative of the Establishment Clause of the Constitution, it is conceivable that the Department of Justice would decline representation.
A separate but corollary issue concerns the commander’s immunity from ( judgment. When a commander is sued in his personal capacity (a sure bet in this type of case) for commission of a constitutional tort, absolute immunity no longer attaches to his actions—in the wake of the Bivens case.5 Since absolute immunity is usually not available to federal officials where a constitutional violation is alleged, the best the commander could hope for would be qualified immunity. The commander’s conduct would not pass muster under this analysis. Ultimately, if he lost the lawsuit, the judgment would be paid out of his own pocket.
Given today’s litigious society, a lawsuit against the Marine Corps, Navy, and the commanders who make such remarks is quite predictable. The moral obligation commanders have to the Marines and sailors in their units, however, should be a far greater reason for silence in this area than fear of a lawsuit.
Much damage has already been done from religious commentary by commanders. However well-intentioned, it is rarely received that way. When subordinates are antagonized by the missionary zeal of their commanders, there can be few positive results. It is time for this conduct to cease—whether by self-imposed restraint or by official prohibition.
1. DAJA-CL 071600z January 1991.
2. United States v. Treakle, 18 M.J. 646, 653 (A.C.M.R. 1984).
3. Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972).
4. Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990).
5. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 401 U.S. 388 (1971).