Problems can result when chaplains are not preaching to the choir.
An active-duty Navy chaplain, Lieutenant Gordon Klingenschmitt, went on an 18-day hunger strike in front of the White House earlier this year. His complaint: the Navy was censoring his public prayers. Can the Navy censor prayer? As it turns out, the answer is complex under current law, and this chaplain's saga raises larger questions about the proper role of a military religious corps in a secular government.
In mid-2004, Lieutenant Klingenschmitt, an Evangelical Episcopal priest, delivered a sermon at the funeral mass of a Sailor on board the USS An(CG-68). The service was an optional command function, and not everyone in attendance was of the chaplain's faith. Some were offended by the denomination-specfic service. According to Chaplain Klingenschmitt, fully a quarter of those in attendance "hated the sermon."1
The chaplain was reassigned, and a negative performance review was followed by an investigation. But the immediate aftermath of the chaplain's sermon is less important than the debate it has sparked about the role of the military chaplain when ministering outside his or her faith group. Since his reassignment. Chaplain Klingenschmitt has embraced the cause that chaplains should have broad freedom to pray as they like in any context. He has set up a website to recruit sympathetic followers and has claimed whistleblower status.2 Most recently, he has lobbied members of Congress and tried to get the President to sign an executive order eliminating restrictions on public prayer in the military.
Chaplain Klingenschmitt was court-martialed in September for disobeying an order after he appeared in uniform at a news conference in front of the While House in March; he subsequently received a letter of reprimand. The chaplain has broadly claimed that, by restricting chaplains' prayers, the Navy is both violating their rights under the Constitution and acting contrary to federal statute. Determining whether his contentions are true must start with an analysis of the proper role of the Navy chaplain under the law-and what restrictions, if any, are necessary to ensure that such a role remains a lawful one.
Two First Amendment Clauses Apply
The Navy Chaplain Corps owes its legitimacy under the First Amendment to one clause in the Constitution-the "free exercise" clause.3 It states that "Congress shall make no law . . . prohibiting the free exercise [of religion]." Because Sailors serve away from their hometowns and churches, Congress established the Chaplain Corps to provide for their free exercise of religion while serving in the Navy.
But another equally valid provision of the Constitution cuts in the other direction. The First Amendment also states that Congress shall also make no law "respecting an establishment of religion."4 Basically, this has been interpreted to mean that the government cannot be excessively involved with religion. It applies at all levels, including federal and state governments, public schools, and the military. The Supreme Court has used this "establishment clause" to:
* Strike down prayer at public school assemblies:5
* Eliminate daily prayer for public school students;6
* Take religious symbols out of government courthouses.7
The Chaplain Corps fits between the tension of these two First Amendment clauses.8 A federal appeals court dismissed a case in 1985 that sought to have the entire Army Chaplain Corps declared unconstitutional.9 The court found that, if analyzed solely under the establishment clause, the Corps would surely have to go. But since it is necessary for the tree exercise of religion by the troops, who are sometimes deployed to remote locations, it passed constitutional muster. That court specifically cited the fact that, at the time, "no chaplain is authorized to proselytize soldiers or their families."10
Two Separate Contexts
So what does this mean for a chaplain's prayers? To analyze them, it is necessary to separate the religious role of the chaplain into two separate contexts. The first is prayer that happens strictly in the confines of religious ceremony. The second context is prayer outside of the faith group, such as prayer that accompanies official Navy functions.
The first type fits squarely within the free exercise clause of the First Amendment. At least within the confines of a bona fide voluntary religious service, a chaplain faces no restrictions on his speech, prayers, or actions.11 It is wrong to tell a chaplain how to minister to his or her own faith group: not even senior chaplains have the authority to direct a junior in matters of faith. In this manner, the chaplain facilitates the free exercise of the Sailor's religion.
Where it gets tricky is in the other context-prayer outside a chaplain's faith group. This category includes invocations and benedictions at official government functions, prayer at sea heard by everyone on board, and noontime prayer at the Naval Academy. It is in this context that Chaplain Klingenschmitt's lobby claims that chaplains should be able to pray "in Jesus' name" to an audience of service members who probably have widely differing religious viewpoints.12
Where the Establishment Clause Applies
Here's where the First Amendment's establishment clause comes in. Praying to a group of people outside the context of a religious ceremony could amount to an unconstitutional establishment of religion. The problem is not the chaplain, who by statute represents his own faith group and not the government, it is the event itself.13 A secular military event that includes a denominational religious clement likely violates the establishment clause.
The Supreme Court, while it hasn't specifically addressed this issue, has held in similar contexts that government action is unconstitutional when it:
* Involves excessive entanglement with religion;14
* Coerces religious participation;15
* Endorses a particular religious viewpoint.16
All of these could arguably apply to a public prayer given by a military chaplain.
Thus far, the Navy seems to have sought to avoid controversy in this area by directing that public prayers at such events be inclusive and avoid denomination-specific language. The Supreme Court, however, has held that secularizing public prayer does not save it from constitutional serutiny.17 Prayers given at public school events have been found to violate the Constitution, despite the fact that they were non-denominational and inclusive. Thus, even keeping public prayer pluralistic does not ensure its continued legitimacy.
Another Constitutional Problem
Another constitutional problem for public prayer is that it doesn't implicate the tree exercise of religion. Chaplains exist to provide for free exercise, and it is difficult to see how general prayers directed to an audience of various faith groups helps to promote the tree exercise of religion. For the Jew, Muslim, or atheist in the crowd, listening to a Christian prayer would instead amount to a sort of "forced exercise" of religion, which cuts against the free-exercise purpose of the Chaplain Corps in the first place. Some have suggested that public prayer should he scrapped altogether, arguing that if the solemnity of an occasion need he marked, a moment of silence would he sufficient.18
But even if such prayers were found to violate the First Amendment's religion clauses, it is still not the end of the line. The Supreme Court has carved out special exceptions to the establishment clause for historical traditions contemporaneous with the adoption of the Constitution.19 The Navy has a tradition of prayer at sea that goes back to the 18th century, so it probably in some way fits the bill. It is not clear, however, just how much such deference to tradition could overcome an infringement on the Constitution's establishment clause.
Beneath the Constitution, a federal statute governs the job of the Chaplain. The law states that a Chaplain can perform "public worship" according to the "manner and forms of the church of which he is a member."20 At first glance, the law seems like it gives carte blanche to the Chaplain to pray as he wishes in front of any audience.
Never Scrutinized in Court
But there are problems with such a cursory look at the statute. First, it has never been scrutinized by any court, and may very well be unconstitutional. Second, interpreting the statute is not the job of Navy chaplains, it is the job of federal courts. And in the absence of a court opinion, the job of interpretation falls on the secretary of the Navy, not the chaplains themselves.
The Navy has interpreted the statute to mean that public prayers must be inclusive-a reasonable interpretation. "Public worship" does not necessarily include prayer at non-religious events and gatherings. And "manner and forms of which he is a member" can be plausibly construed as preventing the military from making chaplains of one denomination lead the religious ceremonies of another. In any case, the Supreme Court generally interprets statutes to avoid declaring them unconstitutional, and any interpretation of the statute that would allow chaplains to proselytize would call its constitutionality into serious doubt.21
Free Speech?
But what about free speech? Supporters of the any-kind-of-prayer, any-time, movement claim that a chaplain's right to free speech is being violated when he is censored. These claims, however, distort the law. Any Navy restriction on public prayer-or on speech in general-will be upheld if the Navy is acting to protect a substantial government interest unrelated to the suppression of free expression.22 Here, maintaining the role of the Chaplain Corps within the confines of the Constitution is a government interest that would likely pass judicial scrutiny. It is generally not difficult for the government to get the First Amendment rights of a service member to yield to a reasonable military interest.23
Not being able to give denominational prayers to the public will not hamper the mission of the Chaplain Corps. The chaplains will be able to lead their congregations just as effectively without instituting their own religious doctrines into public Navy life. Chaplains provide a great service. They are invaluable counselors, religious leaders, and moral bearing points in today's Navy.
Chaplain Klingenschmitt, for his part, seems otherwise to have an exemplary record. He has won awards for leading community service projects and has stood up for the rights of his Sailors. The law, however, does not seem to be on the chaplain's side. It is likely that he recognizes this, as he has resorted to hunger strikes instead of lawsuits, seeking to put political pressure on Navy officials and legislators to undertake what is likely an unconstitutional policy. The Chief of Chaplains and other Navy leaders deserve praise for resisting such pressure.
Editor's Note: This article lays the groundwork for a "Crossing Swords" debate in the January 2007 issue between U.S. Naval Academy Chaplain Lieutenant Commander John Owen and Chaplain Lieutenant Gordon Klingenschmitt.
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References
1 See Gordon Klingenschmitt, Introduction in the Text of the Sermon, available as "Appendix H" at www.persuad.tv.
2 Persuade the World Ministries, available at www.persuade.tv.
3 U.S. Constituion, Amendment I.
4 Ibid.
5 See Lee v. Weisman, 505 U.S. 577 (1992).
6 See Engel v. Vitale, 370 U.S. 421 (1962).
7 See McCreary Co., Ky. v. ACLU, 125 S.Ct. 2722, 2742 (2005).
8 Although the role of the chaplain may have an independent legal status under the Armed Forces Power of Art. I, § 8, cl. 12-13, its constitutional legitimacy under the First Amendment Clauses is being analyzed here.
9 See Kateoff v. Marsh, 755 F.2d 223 (2nd Cir. 1985).
10 Ibid., at 228.
11 The D.C. Circuit has held that the U.S. Naval Academy cannot compel midshipmen to attend religious services. See Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972). Presumably, this holding can be extended to imply that the military cannot compel attendance at any bona fide religious service.
12 Sarah Pulliam, Military Culture War, Christianity Today Online, 8 March 2006, available at http://www.christianitytoday.com/ct/2006/004/3.23.html.
13 10 U.S.C.A. §§ 5142, 6031.
14 See Lemon v. Kuntzman, 403 U.S. 602 (1971).
15 See Lee v. Weisman, 505 U.S. 577 (1992).
16 See Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290 (2000).
17 See Lee v. Weisman, 505 U.S. 577 (1992).
18 Scott Poppleton, "What the Military Shouldn't Preach," the Washington Post, 13 March 2006, A15.
19 See Marsh v. Chambers, 463 U.S. 783, 786 (1983).
20 10 U.S.C.A. § 6031(a).
21 See, e.g., Brian C. Murchison, "Interpretation and Independence: How Judges Use the Avoidance Canon in Separation of Powers Cases," 30, Georgia Law Review, 85 (1995).
22 See Brown v. Glines, 444 U.S. 348. 354 (1980).
23 See Parker v. Levy, 417 U.S. at 758 (1974).
Lieutenant Obert is enrolled in the George Washington University Law School under the Law Education Program. He is qualified in submarines.