Advancing Religious Liberty
5/19/10 at 04:58 PM 0 Comments

The Debate over Chaplains’ Religious Liberty Heats Up

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Author: ADF Litigation Counsel Daniel Blomberg

Last week, 3 retired chaplains expressed, in strong and occasionally harsh terms, their disagreement with 41 chaplains' stance that normalizing homosexual conduct in the military threatened military religious liberty.  Out of respect for these 3 chaplains' long service to our country, and out of an equal respect for the 41's even longer service, I offer this response to their arguments.

First, the 3 argue that normalizing homosexual behavior in the military "would have absolutely no effect whatsoever on chaplains' duties, roles and responsibilities."  This is not credible, especially since the only support they offer are unidentified military regulations that protect religious liberty.  Against that argument stand two stark and incontrovertible facts: (1) Military regulations, no matter how protective-and it is questionable how protective they actually are-have no power against a statute.  If Congress passes a law demanding that homosexual behavior be treated with the same deference as race or gender, that law will trump military regulations.  And the only bills currently before Congress do exactly that, without a shred of protection for religious liberties.  (2) Nationwide, where sexual orientation protections have become law, they have almost uniformly been accompanied by intolerant attacks on religious liberty.  The 41 chaplains documented some glaring examples of this phenomenon in their letter.  The 3 chaplains failed to respond to these examples.  If the 3 chaplains are serious about protecting religious liberty, they should take a long, hard look at the type of religious persecution such non-discrimination laws have engendered.

Nor are the 41 alone in their concerns.  A recent editorial written by a professor at the Army War College noted that religious liberty problems were among the "significant issues" raised by normalizing homosexual behavior in the military.  Further, numerous endorsing organizations-the entities upon which the military relies for their supply of chaplains-have voiced similar concerns.

Second, in a seeming contradiction to their assurances that normalizing homosexual behavior "would have absolutely no effect whatsoever" on chaplains, the 3 chaplains write that "[i]f federal law bars discrimination against gays in the military, then all service members, regardless of their faith, must abide by the rule of law."  The 3 cannot have it both ways-they cannot try to cast the 41 as paranoid for raising the concern that normalizing homosexual behavior will mean minimizing religious belief while simultaneously telling them to check their religious beliefs at the door.

To support their argument that the homosexual agenda should override chaplains' and Service members' consciences, the 3 say that the First Amendment's free exercise clause protects religious freedom only "until it violates the law."  But the First Amendment is the law.  To the extent that it protects the free exercise of religion, it does so vigorously.  An anti-discrimination law does not trump the First Amendment, particularly not one foisted upon the military to advance a political agenda that is completely unconnected with the military's purpose.  Before accusing the 41 chaplains of failing to "honor the Constitution," especially given that many of the 41 are men who have placed themselves in harm's way to defend that Constitution, the 3 should get a better handle on what they're talking about.

This leads to the third point.  While the First Amendment may ultimately be found by courts to protect chaplains and Service members from the dangers that the 41 chaplains identify, such a holding would only come after long, arduous, and disruptive litigation.  And the timing couldn't be worse.  "We're a nation at war.  We're deploying our warriors repeatedly.  They're separated from their family, home, loved ones," says Chaplain (BG) David Cyr, Air Force deputy chief of chaplains.  "They turn to their chaplains for help."   In fact, Service members are increasingly seeking chaplains' counsel, particularly in the areas that stand to be most harmed by normalized homosexuality, spiritual/ethical concerns and family issues.  It is precisely because chaplains are so necessary to Service members that the military must be careful to refrain from muzzling chaplains in the name of political correctness.  Yet not once in their arguments do the 3 show why disruption of the chaplaincy-an institution that has served faithfully since George Washington's leadership of the Continental Army-is helpful in fulfilling the military's mission to protect American liberty through American strength.  (In fact, this is a flaw with the entire political push to normalize homosexuality in the military: it has not been shown how it will contribute to the military mission.  Even proponents of the change, like Admiral Mullen, admit that the change would disrupt our Armed Forces; how exactly it will help is not clear.  Notably, President Obama's own Justice Department recently filed documents in federal court admitting that the current ban on open homosexual conduct strengthens national security.)

What's especially puzzling is that the 3 chaplains don't even acknowledge that the 41 identified a path that would help avoid this otherwise-inevitable conflict if current law is repealed: creating statutory protections for religious belief.  But that entire avenue is ignored, and instead the 3 revert to talking points about "bigots" clinging to "archaic" beliefs on sexuality, an uncharitable description of not only the 41, but also the numerous Service members and Americans who share those beliefs.  While such comments may impress the readership of the Huffington Post, they do nothing to resolve what should be a central concern for the 3, even if they disagree with the 41: protecting religious liberty in the military.  Notably, though, a lack of concern for religious liberty isn't restricted to the 3 chaplains, for neither of the bills pending before Congress even address the issue.  By contrast, most laws elevating homosexual behavior to a protected status-like the misbegotten "hate crimes" law of recent vintage-have at least had the wisdom to include statutory exemptions for religious liberty.  And, as the 41 chaplains argue, the need for such an exemption would be even more acute in the military setting-which makes its absence all the more disturbing.

Fourth, the 3 chaplains argue that the chaplaincy's mission is to protect the free exercise of religion for Service members, ministering to the religious beliefs of every Soldier, Airman, Sailor, or Marine regardless of whether they share those beliefs.  On this point, at least, the 41 are in full agreement, for they said the same things in their letter.  But it does not follow, as the 3 insist that it does, that chaplains must abandon their own beliefs to meet this requirement.  The Army explains this distinction under the rubric "Provide and Perform."  A chaplain is duty-bound to provide for the religious needs of every Service member.  If a Hindu soldier asks a Christian chaplain for incense for a Hindu ceremony, the chaplain will cheerfully and promptly provide what he needs.  Similarly, if the Hindu soldier requests moral counseling, the Christian chaplain will happily fulfill that need.  But if the soldier requests that the chaplain perform a Hindu ceremony or give Hindu spiritual counsel, the chaplain is duty-bound-and conscience-bound-to decline.  In fact, a chaplain who violates the beliefs of his endorsing church by performing the ecclesiastical functions of other religions jeopardizes his status as a chaplain.

Further, if chaplains are muzzled by political correctness, they will be unable to support the free exercise of religion for many Service members whose beliefs don't coincide with a new military religious doctrine on sexual ethics.  And thus the chaplaincy's central purpose will have been sacrificed.  Unfortunately, the 3 chaplains seem quite comfortable with this result, as they argue the 41's theology should only be permissible "until it infringes on the rights of others who adhere to a more inclusive and affirming [i.e., the 3 chaplains'] spirituality."  That is, the 3 believe their religious beliefs should be trump all others, even if that means sacrificing the purpose of the chaplaincy corps and Service members' free exercise rights.  It's worth noting that this result-the establishing of required military religious beliefs-was predicted by the 41 in their letter; the 3 have proved that point.

Another prediction of the 41 that the 3 have shown accurate is that normalizing homosexuality will mean marginalizing religious belief.  Already, simply for speaking up in favor of current law from the perspective of traditional Christian ethics, the 3 chaplains repeatedly characterize those fairly popular beliefs as "archaic" "bigotry" comparable to racism and defending stoning children to death.  And they go on to say that the military will be best served if this "bigotry" is excised from the ranks.

If that's how orthodox Christian belief is treated for defending current law, just imagine what will happen if the law is changed.

This post originally appeared here.

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