Victory for Military Chaplains Who Pray "In Jesus Name"

[W. A. Wildhack III]

Disclaimer:  Any views expressed below are my own and do not necessarily
reflect the official position of the Department of the Navy or the Navy
Chaplain Corps.
 
Professors,
 
If the agreement to remove the "Military Chaplains Prayer Law" from the
National Defense Authorization Act resulted somehow in language being
inserted that would have the effect of rescinding the cited instructions and
reinstating earlier directives --- and I did see the note asserting that the
action has no operative legal effect --- far more may be rescinded than just
the language described as limiting prayer.  I am not familiar with Air Force
Instructions, but rescinding the Navy's 19-page instruction and reinstating
the earlier, 4-page instruction --- in addition to rescinding the section
apparently at issue --- may also throw the following other provisions of the
newer instruction into question:

*	

	the position of Deputy Chief of Chaplains for Reserve Affairs
*	

	express language requiring chaplains to "strive to avoid the
establishment of religion to ensure that free exercise rights are protected
for all authorized personnel" and to "provide ministry to those of their own
faith, facilitate ministry to those of other faiths, and care for all
service members."
*	

	a requirement for chaplains to "respect the rights of others to
their own religious beliefs, including the right to hold no beliefs."
*	

	a prohibition against chaplains obtaining and wearing weapons or
warfare qualifications
*	

	an express prohibition against compelling chaplains "to participate
in religious activities inconsistent with their beliefls" (suggesting,
perhaps, that they can be so compelled?)
*	

	a 3 1/2 page Department of the Navy policy on confidentiality of
communications made to chaplains and religious program specialists,
including broad new protections for servicemembers and chaplains that exceed
even the rules on privileged communications in the UCMJ
*	

	a 6 1/2 page Department of the Navy policy on accommodation of
religious practices within the Navy apparently designed to protect the
rights of both chaplains and other servicemembers.

For your convenience and some context, since my guess is that few have had
the time to review the text of SECNAVINST 1730.7C, the key provisions at
issue in all this appear to be in paragraphs 5.d. and 6. of the instruction.
Paragraph 5.d. includes the following provisions (among others):

(2) As a condition of appointment, every [Religious Ministry Professional
(RMP)] must be willing to function in a pluralistic environment in the
military, where diverse religious traditions exist side-by-side with
tolerance and respect. Every RMP must be willing to support directly and
indirectly the free exercise of religion by all military members of the DON,
their family members, and other, persons authorized to be served, in
cooperation with other chaplains and RMPs. Chaplains are trained to minister
within the specialized demands of the military environment without
compromising the tenets of their own religious tradition.
 
(3) In providing religious ministry, chaplains shall strive to avoid the
establishment of religion to ensure that free exercise rights are protected
for all authorized personnel.
 
(4) Chaplains will provide ministry to those of their own faith, facilitate
ministry to those of other faiths, and care for all service members,
including those who claim no religious faith. Chaplains shall respect the
rights of others to their own religious beliefs, including the right to hold
no beliefs.

Paragraph 6 includes the following provisions among others:

b. Chaplains will not be compelled to participate in religious activities
inconsistent with their beliefs. 
 
c. Commanders retain the responsibility to provide guidance for all command
functions. In planning command functions, commanders shall determine whether
a religious element is appropriate. In considering the appropriateness for
including a religious element, commanders, with appropriate advice from a
chaplain, should assess the setting and context of the function, the
diversity of faith that may be represented among the participants; and
whether the function is mandatory for all hands. Other than Divine/Religious
Services, religious elements for a command function, absent extraordinary
circumstances, should be non-sectarian in nature. Neither the participation
of a chaplain, nor the inclusion of a religious element, in and of
themselves, renders a command function a Divine Service or, public worship.
Once a commander determines a religious element is appropriate, the chaplain
may choose to participate based on his or her faith constraints. If the
chaplain chooses not to participate, he or she may do so with no adverse
consequences. Anyone accepting a commander's invitation to provide religious
elements at a command function is accountable for following the commander's
guidance.

I hope you will pardon this intrusion by a non-academic on this list "for
Law Academics."  I also hope this contribution adds some more context to
your discussion of the issues raised by earlier postings.
 
Very respectfully,
 
    Bill Wildhack
 
Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve
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