Free speech for chaplains

Rick Duncan nebraskalawprof at yahoo.com
Tue Jul 12 09:28:17 PDT 2005


I have a question for Marty. If it violates the EC for a chaplin to preach--in his official capacity--the doctrine of salvation by faith in Christ, then why aren't all official sermons and prayers violations of the EC? Surely, the EC does not allow the official praying of some prayers and the official preaching of some religious doctrines while forbidding others? Does it? Denominational neutrality is at the core of the EC. Clearly, government has no business expressing approval of some and disapproval of other sermons and prayers. Am I wrong?
 
If so, where are the lists of those doctines that have the government's blessing (and those that have its curse)? 
 
Rick


marty.lederman at comcast.net wrote:
Of course, this isn't a context in which religious tests can be eliminated altogether. (Query: Why isn't it therefore a violation of article VI?) But the military clergy hiring must be nondenominational, i.e., made without sectarian discrimination. (But cf. the recent Simpson Wiccan decision and Scalia and Thomas opinions in the Ten Commandments cases, all of which give a green light to sectarian discrimination.)

I assume that the comments in question here were spoken in Klingenschmitt's official capacity. If so, he violated the Establishment Clause, and the government can discipline him for acting in clear violation of the Constitution (and, for that matter, in violation of military rules about appropriate official speech and conduct). That is to say, this (presumably) is not a penalty imposed based on Klingenschmitt's *private* speech or beliefs, as Rick Duncan appears to assume. To the extent my assumption is wrong, and it *is* a punishment for speech in his private capacity, it raises interesting questions at the intersection of Pickering/Connick/Torcaso/McDaniel/Larson/etc. 


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From: "Mark Graber" <MGRABER at gvpt.umd.edu>
To: <religionlaw at lists.ucla.edu>
Subject: RE: Free speech for chaplains
Date: Tue, 12 Jul 2005 15:20:47 +0000

How does the military appoint a chaplain without requiring a religious test for the office?
 
MAG


>>> nebraskalawprof at yahoo.com 07/12/05 11:12AM >>>

Sandy's question is an interesting one. Can the military fire or discipline a chaplin because the military disagrees with his religious beliefs (or at least with his preaching of his religious beliefs)? Doesn't such a decision amount to a religious test for office? Or at the very least, denominational discrimination forbidden by Larson v. Valente (evangelicals need not apply)? 
 
In other words, could the military require a doctrinal statement--"salvation is universal for all who believe anything sincerely"-- for the office of chaplin?
 
To put a twist on the issue, suppose a chaplin preaches that homosexual marriages are within God's will. Could a chaplin be disciplined for preaching that?
 
Cheers, Rick Duncam

Sanford Levinson <SLevinson at law.utexas.edu> wrote:
font-face {	font-family: Tahoma;}P.MsoNormal {	FONT-SIZE: 12pt; MARGIN: 0in 0in 0pt; FONT-FAMILY: "Times New Roman"}LI.MsoNormal {	FONT-SIZE: 12pt; MARGIN: 0in 0in 0pt; FONT-FAMILY: "Times New Roman"}DIV.MsoNormal {	FONT-SIZE: 12pt; MARGIN: 0in 0in 0pt; FONT-FAMILY: "Times New Roman"}A:link {	COLOR: blue; TEXT-DECORATION: underline}SPAN.MsoHyperlink {	COLOR: blue; TEXT-DECORATION: underline}A:visited {	COLOR: purple; TEXT-DECORATION: underline}SPAN.MsoHyperlinkFollowed {	COLOR: purple; TEXT-DECORATION: underline}SPAN.EmailStyle17 {	COLOR: navy; FONT-FAMILY: Arial}DIV.Section1 {	page: Section1}There is a fascinating article in today's NYTimes on the increasing number of Evangelical chaplains in the armed services.  Consider oe James Klingenschmitt, of the Evangelical Episcopal Church, whose retention was recommended against by his commanding officer following, among other things, his preaching at a memorial service at sea for a Catholic sailor that "emphasized that for those !
 who did
 not accept Jesus, 'God's wrath remains upon him.'"  I presume that the this was not meant to apply to the Catholic seaman, but it obviously suggested to any Jewish or Muslim (or atheist or Buddhist, etc., etc., etc.) that they were condemned to God's wrath.  In any event, is there a serious argument that it is improper to take such speech into account in deciding whether to recommend that the contract be renewed.  I presume, incidentally, that the armed forces would not renew the contract of a chaplain who sugested that a given wa! r was in fact "unjust,"  If the armed services can constittionally do that (presumably on grounds that it is not good for the morale of those in the armed services), then why can't it fire chaplains who suggest that many members of the armed services are damned to eternal perdition?
 
sandy
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
Red State Lawblog: www.redstatelaw.blogspot.com

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner 
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
Red State Lawblog: www.redstatelaw.blogspot.com

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
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