Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, May 2, 2013

Elizabeth Brown on Proselytizing in the Military

Another very helpful comment to an earlier post of my own that I think bears bringing up above the line comes courtesy of Elizabeth Brown.  Here is Elizabeth:

If people wanted to know what military laws and regulations say regarding proselytizing in the military, there are much better sources than the conservative blogs. For example, I would recommend people read a 2007 article from the Air Force Law Review:


If one does, one will realize that the military regulations prohibiting coercive proselytizing are not “new” but have been in place for decades, although they were updated under President Bush because of problems found with coercive proselytizing at the U.S. Air Force Academy by independent observers like the Yale Divinity School. The recent statement by the DoD is just reiterating what the existing regulations already require. As Grant Galileo at dotCommonweal has already noted, this ban on unwanted or coercive proselytizing does not cover voluntary peer-to-peer conversations about religion.

To better understand how the military actually regulates proselytizing, please read this passage from the 2007 law review article from pp. 35-36 [citations omitted]:

“Unwanted proselytizing of another military member, even when it occurs among peers, can create delicate issues when it continues after the listener has expressed the desire not to hear any more invitations to adopt the speaker’s religion. As a general principle, of course, the Free Speech Clause does not require a speaker to cease speaking a message just because others do not like hearing it. A military member complaining to the chain of command about another member’s off-duty proselytizing might be advised to avoid, if possible, spending off-duty time with the proselytizer.

When the listener realistically cannot avoid the proselytizer, however, the situation is different. Examples include if the two are assigned as roommates or must work closely together or if the proselytizer is “stalking” the listener. Because of the repeated, unwanted nature of the proselytizing and the listener’s inability to avoid it, the proselytizing can affect the listener’s morale and ability to do his job and thus interfere with mission accomplishment and unit effectiveness. If it does, the religious speech becomes “unprotected,” and superiors should act to stop these adverse effects. Typically this would begin with counseling the proselytizer, emphasizing the religious speech’s effect on military efficiency due to its repeated, unwanted nature rather than the content of the speech.

Some religious speech by military members could also be limited under the Free Speech Clause not because of its content but because it violates some valid content-neutral law or order. For example, a regulation prohibiting the routine use of slogans and quotes on official e-mails would also prohibit religious quotations. Similarly, a lawful order to maintain ‘radio silence’ during a mission would also prohibit religious speech. These limitations are certainly permissible, despite their incidental impact on religious speech, because they are not aimed at any particular message and directly further important military interests. Finally, the Joint Ethics Regulation’s provision on ‘misuse of position’ prohibits governmental employees, including military members, from using their official position for ‘endorsement of any . . . enterprise’ or ‘in a manner that could reasonably be construed to imply that . . . the Government sanctions or endorses [their] personal activities.’ This content-neutral regulation limits religious speech in a way similar to the Establishment Clause’s limitation on religious speech.”

It should be noted that the military’s exisiting regulations against unwanted or coercive proselytizing both by servicemens and by chaplains have been upheld as constitutional by the courts. This is made clear by the 2007 law review article linked to above. Footnote 286 on p. 39-40 of the 2007 article discusses how the Second Circuit in Katcoff v. Marsh held that the military regulations prohibiting servicemen and chaplains from engaging in uninvited proselytizing or evangelizing are constitutional. It states:

“Although the constitutionality of the chaplaincy has not reached the Supreme Court, a Court of Appeals has upheld the chaplaincy, including its meeting of spiritual needs of military members, against an Establishment Clause challenge. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1984). When chaplains engage in religious speech with people who have sought them for that purpose, they are meeting the spiritual needs of military members, as permitted by Katcoff. But chaplains’ uninvited proselytizing religious speech to military members poses a different practical and legal issue. On one hand, persuading others to adopt their beliefs is central to some major religious. See, e.g., Matthew 28:19 (quoting Jesus’ exhortation to ‘go and make disciples of all nations’) (New International Version). Chaplains of such religions likely would feel a strong calling to proselytize. On the other hand, the military’s permitting its chaplains to proselytize members—without the members’ explicit or implicit invitation—would likely violate the Establishment Clause. The court in Katcoff noted that ‘[n]o chaplain is authorized to proselytize soldiers or their families,’ id. at 228, and that ‘[t]he primary function of the military chaplain is to engage in activities designed to meet the religious needs of a pluralistic military community, including military personnel and their dependents,’ id. at 226. A chaplaincy that meets the religious need of military personnel, who may be deployed in remote locations away from their own churches, is permitted (and arguably mandated) by the Free Exercise Clause and does not violate the Establishment Clause. See id. at 232. Similarly, chaplains who provide spiritual insight to those who have sought it are also meeting the religious needs of military members. But chaplains who, without invitation, actively proselytize are not meeting the Free Exercise needs of military members. They are essentially creating new religious needs by promoting religion. Thus, attempts by chaplains in their capacity as governmental representatives to persuade military members to adopt a particular religion likely violate the Establishment Clause under Katcoff’s rationale. Sometimes chaplains distinguish between evangelizing (attempting to convert people who have no religious affiliation) and proselytizing (attempting to convert people who already have religious beliefs), permitting the former but not the latter. See Laurie Goodstein, Air Force Rule on Chaplains Was Revoked, N.Y. TIMES, Oct. 12, 2005, at A16. This is a distinction without First Amendment significance. Under Katcoff’s rationale, both activities by chaplains would be impermissible when applied to personnel not seeking to be converted. The Air Force’s interim religious guidelines state that chaplains ‘should respect the rights of others to their own religious beliefs, including the right to hold no beliefs’ and ‘must be as sensitive to those who do not welcome offerings of faith, as they are generous in sharing their faith with those who do.’ Air Force Interim Guidelines, supra note 26, ¶ 3D(2).”

As already noted by Grant Galileo at dotCommonweal, any violation of military regulations can subject a service member to court martial but usually there are a wide range of corrective actions that can be taken before the military even considers court martialling someone for a violation of its regulations.

[Portions of this previously cross-posted at dotCommonweal.]


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I misidentified the author on dotCommonweal that I referred to in my original post. He was Grant Gallicho (not Grant Galileo as I originally wrote).

Posted by: Elizabeth Brown | May 2, 2013 8:55:51 PM

Hey, that's better than what my P.E. teacher used to call me in high school: Mr. Galliano.

Posted by: Grant Gallicho | May 3, 2013 7:57:58 AM

Today's update - http://www.washingtonpost.com/national/on-faith/pentagon-debunks-reports-of-anti-christian-policies/2013/05/02/74476c20-b36b-11e2-9fb1-62de9581c946_story.html

Open issues -

What role was played by Weinstein? The liberal Post notes he is "known for his inflammatory rhetoric about religious believers and Christians." This sounds like a euphemism for bigotry. Assuming this is correct, Mr. Weinstein is "toxic" and should have no recognized role in the review process. Let him file public comments, like any other citizen. Respectable groups like the American Civil Liberties Union can be consulted as needed. Assuming he had a role, the decision to involve him showed terrible judgement and appropriate action needs to be taken by the DoD.

What can the Administration do about their "Catholic Problem." No one would have taken this issue seriously in the Bush or Clinton administration, because both were trusted on matters of religion. The evidence suggests the current administration is not.

Finally, and most importantly, just what is going on in the field? The military is "different" and deserves to manage their own culture and traditions with minimal inference from elected politicians. Maybe the House needs to investigate, this sort of thing happens all the time in Washington through the oversight committees. If nothing is wrong, the Chairman of the Committee gets a staff report detailing what is found. If problems exist, hearings are held, and changes are made.

Posted by: Malcolm Coate | May 3, 2013 8:15:55 AM