Top Navy JAG Judge rules Chaplain "properly punished" for sermoninoptionally-attended chapel

[Alan Brownstein]

Placing the particulars of Chaplain Klingenschmitt's case to the side
for the moment, and assuming arguendo that military chaplain's have
considerable religious autonomy with regard to the content of the
worship services they conduct, are there circumstances in which military
authorities can regulate or restrict that autonomy?  For example, if the
circumstances are such that only one memorial service for a member of
the military can be provided, can the military require that the service
be less sectarian and, accordingly, more accessible for soldiers of
various faiths. (If I remember correctly, this was not the situation in
Chaplain Klingenschmitt's case). Similarly, in circumstances where only
one chaplain is available to lead services for religiously diverse
troops, may the military require the chaplain to lead a less sectarian
service or may the chaplain insist on his right to lead a strictly
denominational service - presumably leaving soldiers of other faiths to
arrange worship services with lay leadership. Or if, on the eve of
combat, a non-Christian soldier asks the only available Chaplain, a
Christian Chaplain, to pray with him - may the military prohibit the
Chaplain from telling the soldier something like "If anyone believes in
the Son, he has eternal life.  If anyone does not believe in the Son, he
does not have eternal life, for God's wrath remains upon him." 

 

Finally, is it relevant in discussing this issue to consider how
military policies skew the religious demographics of its Chaplains.  I
have read that there is a shortage of Jewish Chaplains, for example,
that is exacerbated by the fact that the military will not permit
Orthodox Rabbis (Chabad and others) who do not shave to serve as
Chaplains. (Anyone know whether this is true?)

 

Alan Brownstein

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Gordon James
Klingenschmitt
Sent: Thursday, June 29, 2006 8:35 AM
To: UCLA Law Class
Subject: Top Navy JAG Judge rules Chaplain "properly punished" for
sermoninoptionally-attended chapel

 

I'm grateful for Professor Friedman's blogging, and for Marty Lederman's
thoughtful views on "speaking as a government employee."  

 

But just to remind everybody, US Code and Case Law both clearly define
speech by military chaplains as NOT government speech, rather RELIGIOUS
speech representing our "civilian bishop endorser" and the church, not
the commanding officer or the state.  

 

US Code Title 10 Section 6031: "An officer in the chaplain corps may
conduct public worship according to the manner and forms of the church
of which he is a member."  

 

And case law Rigdon v. Perry, argued by Roman Storzer, who told us last
year...

-----------------------------

Roman P. Storzer roman.storzer at gmail.com  
Tue Jul 12 09:19:31 PDT 2005 

An concrete example of this conflict was found in Rigdon v. Perry, 962
F. Supp. 150 (DDC 1997), where Catholic chaplains were ordered not to
participate in a pro-life postcard campaign. We argued that worship
services were a designated public forum and that the prohibition was
viewpoint discrimination. Judge Sporkin held that "the government has,
by statute and regulation, institutionalized the provision of religious
services in the Armed Services by creating the office of the chaplaincy
and by dedicating facilities and personnel . . . . The religious nature
of these military facilities, therefore, is wholly compatible with
expressive activity; indeed, the very purpose underlying these
facilities is expressive, religious activity." One could certainly argue
that priests speaking during such services are acting in their "official
capacity." The case wasn't appealed. Roman Storzer 

-----------------------------

 

The Navy already lost this lawsuit in 1997.  The facts are essentially
the same:  optionally-attended sermon in chapel, punished by the
government because of the content of the speech.

 

Why would the Navy now want me to sue them again?  The only reason I can
conclude, is they're afraid to police themselves and fire a Commanding
Officer, so they band together to protect the institution, not the
Constitution.

 

Chaplain Klingenschmitt

719-360-5132

 

 

 

  

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