Victory for Military Chaplains Who Pray "In Jesus Name"

Tue Oct 3 06:33:28 PDT 2006

I think Marty's Point 2 is slightly overbroad. Chaplains do not have the
right to pray as they wish when carrying out duties outside the conduct
of regular voluntary worship services. I doubt that anyone believes that
the military can tell a rabbi or priest or pastor what is an acceptable
regular worship service (i.e. a Latin or vernacular mass. In the entire
dispute over the Air Force guidelines, no one has contended- or at least
no one serious has contended -that the ban on praying in Jesus' name,
for example, applies to weekly services.

Marc Stern

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 30, 2006 5:50 PM
To: chaplaingate at yahoo.com; Law & Religion issues for Law Academics
Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"

Chaplain Klingenschmitt:

With all due respect, this is simple nonsense.

1.  Section 6031 does not say that military chaplains may pray "in
Jesus's name," and if it did authorize such prayers in the chaplains'
official capacities, it would almost certainly violate the Establishment
Clause in that respect.

2.  For reasons we've discussed at great length before, chaplains have
no Free Exercise rights to pray in the manner of their choosing when
they are acting in their official capacities.

3.  Citing Lee v. Weisman, and only Lee v. Weisman, for the proposition
that the state must permit a state employee to give a sectarian prayer
in a public capacity, is just about the most absurd "reading" of a case
that I've ever seen.   

	----- Original Message ----- 

	From: Gordon James Klingenschmitt
<mailto:chaplaingate at yahoo.com>  

	To: Law & Religion issues for Law Academics
<mailto:religionlaw at lists.ucla.edu>  

	Sent: Saturday, September 30, 2006 5:25 PM

	Subject: Re: Victory for Military Chaplains Who Pray "In Jesus
Name"

	Ah yes, Marty, the House receded, but so did these (novel,
invasive) Feb 2006 policies recede into oblivion, allowing the real
power of the old law (enshrined since 1860) to be fully restored:  

	THE LAW, GENTLEMEN:  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 the U.S. Supreme Court disagrees with your interpretation,
that allowing "freedom" in prayer content would somehow violate the
establishment clause, in fact they ruled the opposite:

	1991 Lee vs. Weisman (Majority Decision):

	"The government may not establish an official or civic religion
as a means of avoiding the establishment of a religion with more
specific creeds...The State's role did not end with the decision to
include a prayer and with the choice of clergyman. Principal Lee
provided Rabbi Gutterman with a copy of the "Guidelines for Civic
Occasions" and advised him that his prayers should be nonsectarian.
Through these means, the principal directed and controlled the content
of the prayers. Even if the only sanction for ignoring the instructions
were that the rabbi would not be invited back, we think no religious
representative who valued his or her continued reputation and
effectiveness in the community would incur the State's displeasure in

	this regard. It is a cornerstone principle of our Establishment
Clause jurisprudence that it is no part of the business of government to
compose official prayers for any group of the American people to recite
as a part of a religious program carried on by government, Engel v.
Vitale, (1962), and that is what the school officials attempted to do."

	So Marty is technically wrong on both counts:

	1) There is a long-standing law to let military chaplains pray
in Jesus name, and

	2) Government censorship of anyone's prayer content violates the
First Amendment (unless you disagree with the U.S. Supreme Court).

	Smile guys...liberty is prevailing here!  

	You still believe in freedom of speech, don't you?  

	Chaplain Klingenschmitt

	Marty Lederman <marty.lederman at comcast.net> wrote:

		That's actually rather amusing.  The House -- which
passed a bill that would have prescribed that chaplains would have the
"prerogative" to pray "according to the dictates of their conscience" --
actually receded in conference.  That is to say, the Senate conferees
prevailed, and therefore the law contains no such prescription.  

		But then the conferees purport to "driect" the Secretary
of the Air Force to rescind the recent policy.  This is not a
"direction" of Congress, let alone a duly enacted law, and it has no
operative legal effect.

		Besides which, for the chaplains in their official
capacities to engage in public prayer "in Jesus's name" would violate
the Establishment Clause, and thus could not be "prescribed," even by
statute.

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