Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, May 2, 2013

Consider the Source: Paul Horwitz on Weinstein and Proselytization in the Military

Before any of our readers begin updating their passports for fear they are now, in virtue of their Catholicism, inhabiting a latterday Warsaw Ghetto under attack by the US military, I encourage them to read Paul Horwitz's admirably patient, painstaking sorting of fact and mere spin in his comments to an earlier post here.

I shall quote Paul's first such comment in full just below, notwithstanding my continuing belief that it is a mistake to take 'Mikey,' or the military's hearing him out along with multiple others who have axes to grind, seriously.  In the meanwhile, I trust it will not be controversial to point out that Breitbart and Fox are no more 'news' sources than are MSNBC or the Jon Stewart show.  Nor, I hope, will it be controversial to point out that some forms of proselytizing within a pluralist and professional state institution such as the military must be would be both profoundly disrespectful of non-Christian fellow citizens and undermining of necessary unit cohesian.  All rides on what is to count as impermissible 'proselytizing,' and neither rightwing nor leftwing 'infotainment' outlets are plausible prognosticators where this question is concerned.

Here is Paul:    

I appreciate your offering a response to Prof. Brennan and, as important, opening comments. I wanted to offer a response to him on his post, but let me offer it here. Although I agree with you that Breitbart is a poor primary source for news reporting, and indeed most of the story Brennan links to consists of irrelevant and unsourced matter, I think it only fair to try to treat the central facts reported in that story in and of themselves, investigating whether and to what extent they are accurate. After all, the language that Brennan quotes is indeed disturbing, and should be so for people of a broad array of religious beliefs or non-beliefs.

It is accurate that Weinstein is the head of a group that combats religious proselytization in the Armed Forces, although any sophisticated American knows that there are countless advocacy groups and many of them are far more vocal than powerful, often consisting of just a couple of staffers and a good deal of fundraising. It is also true that Weinstein wrote a couple of columns for the Huffington Post that are full of highly objectionable language. I think "rhetorically adolescent" is too kind. His writing is alarmist, hostile, rude beyond its most legitimate targets, hyperventilating, and self-aggrandizing. This is also surprisingly and unfortunately true of Brennan's own writing in the past several posts, but that hardly excuses Weinstein's ridiculous prose. It may make Brennan feel slightly better that on Weinstein's group's blog, some supporters of the group themselves criticized Weinstein's language. But I wouldn't blame him if he didn't feel much better. It is true that he uses the term treason and absolutely shouldn't have, although unfortunately many people overuse that word. In short, I found Weinstein unbalanced and his writing offensive. For that matter, I thought Quinn's column was a pretty poor piece of writing, close to incoherent.

It is also true, as any reader on the military knows, that proselytism has been a serious issue for sectors of the military, especially the Air Force and its academy. This is not what readers might think of as common peer-to-peer proselytization, in which the subject is free to accept or reject the proselytization. It is proselytization from on high, often from the senior ranks to cadets, often of an extreme nature, often linked to broader and disturbing sects of Christianity, and often accompanied by peer and official harassment. Even those who believe that proselytization is an essential part of both religious freedom and free speech ought to research the particular details of the kinds of conduct that exercises Weinstein, some of which is genuinely problematic. What Prof. Brennan, whose rhetorical style in these posts exaggerates what he finds worst and minimizes what he most favors, lightly calls "sharing the Gospel" is often far from what we might consider "sharing." Mandatory prayer for cadets, for instance, is not "sharing the Gospel." None of this excuses what I find Weinstein's offensive comments, but it does help provide some context, of which Brennan provides little or none. Let me add that, to its credit, the Air Force has spent a good deal of time over the past decade trying to address these questions in a way that avoids harassment or abuse of power by those in officer positions while making clear that cadets and officers must be able to engage in religious expression. In putting "religious toleration" in scare quotes, Brennan does a disservice to the actual efforts to ensure genuine religious toleration and avoid religious intolerance in the Air Force and elsewhere in the military.

Finally and centrally, there is the language by Prof. Brennan suggesting that Weinstein is an "official consultant to the Pentagon" and has been "retained by the Pentagon" to offer advice on forming policy. Perhaps Brennan has better sources than I do. The Breitbart story makes such assertions, but it links to the Quinn story, which does not. Weinstein's group's own website does not offer any such announcement, and believe me, it is not shy about trumpeting anything that might increase its visibility or assist in fundraising. As far as I can tell from Quinn's badly written story, and I am open to correction, Weinstein was one of several people invited to a listening meeting at a Pentagon meeting. With all due respect to Prof. Brennan, anyone who is not "naive, willful, or stupid" knows that such meetings are a dime a dozen, don't constitute an endorsement of the views of the attendees, and can mean as little as that a government office decided to mollify a vocal interest group with a meeting.

I think Brennan, without falling for all of the tripe with which the Breitbart story was filled, could easily and fairly have questioned whether Weinstein should have been invited to any such meeting. I question it myself, having read Weinstein's offensive columns. It is true that every White House and every government office regularly has people visit it whose views it does not endorse and whom many would find objectionable; this is a staple of alarmist reporting in every administration, Democratic and Republican. My own view is that such stories are rarely worth the pseudo-panics they involve, and that the fact that a Dominionist Christian or militant atheist made it into the door of a government office is rarely newsworthy in and of itself. But I'm sure everyone would draw a line somewhere, even those who believe that hearing from interest groups and constituents is a standard part of government procedure; I would be less than delighted if a neo-Nazi were invited to be part of even a meaningless meeting at the Pentagon, even if I didn't then jump to the conclusion that the government must be a fan of neo-Nazis.

So I think Brennan's concern that Weinstein was invited to such a meeting, no matter how insignificant or pro forma that meeting was, is reasonable, and I share it. Again, however, absent further details, that does not make Weinstein some kind of "official consultant to the Pentagon" in any meaningful sense in which anyone other than a lawyer would use those words. Condemnation of Weinstein's language seems right on target to me, even if there are genuine issues with respect to genuine religious toleration in the Air Force or the broader military. Concern that he was included in a meeting at all seems reasonable to me, even if knowledgeable people are aware that such meetings are common, include all kinds of people, and don't constitute an endorsement of the views of the motley crew that attends them. Relying heavily on such a poor source as the Breitbart story--and I am evaluating the story on its own merits, not on the basis of the larger Breitbart operation--seems unwise to me. And the general tone of Brennan's post, and his apparent contempt for anyone who views the matter in anything less than the alarmist fashion that he does, just seems hysterical--not wholly ungrounded, but hysterical.

[NB: In a subsequent comment, Paul apologizes for use of the word 'hysterical.'  He is more courtly than I.]

UPDATE:  The original title of this post has been changed.


Garnett, Rick | Permalink


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The concern for "Mandatory prayer" and such promotes religious liberty.

The balance between establishments and free exercise being evenly protected is at times complex as is balancing free exercise with other things, such as public accommodation rules. But, at times, and the overheated rhetoric here at times seems to me of this sort, certain religious beliefs are supported over others.

This is not shocking given this is "A blog dedicated to the development of Catholic legal theory," not "religious legal theory" or the like, but notable.

Posted by: Joe | May 2, 2013 12:42:32 PM

Grant Gallicho debunks the claims being made by the various conservative blogs and media outlets that Patrick Brennan has been echoing here. Gallicho's post on dotCommonweal is titled, "No, the Pentagon won’t court-martial service members for sharing their faith." Here is a link:

Posted by: David | May 2, 2013 12:51:42 PM

Grant Gallicho debunks the claims being made by various conservative media outlets and blogs—and credulously repeated on Mirror of Justice by Patrick Brennan—in a post over on dotCommonweal titled "No, the Pentagon won’t court-martial service members for sharing their faith."

Posted by: David | May 2, 2013 12:57:10 PM

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.]

Posted by: Elizabeth Brown | May 2, 2013 1:32:46 PM

I appreciate Bob's reprint, although I certainly hope it calms the waters rather than roils them. I should say, as I have before, that I admire Patrick's work as an academic and his willingness to explore unstintingly in that work the implications of his understanding of a strong commitment to Catholic social thought for law and society, even where it causes real tensions between those commitments and what we think of as more conventional liberal or even American commitments. And let me restate, perhaps tediously, that I read Weinstein's columns and object to them.

I would not have added anything at all, but I wanted to say a word of caution, if I might, about Patrick's latest post, which I read, perhaps wrongly, as something of a way of saying that it helped vindicate his earlier concerns. (I have not read the David Gallicho post above but will try to do so when I can. Doubtless its information is better than mine.)

Patrick writes in that new post, in strong and definitive terms: "Men and women serving in the United States' military will be court-martialed for sharing the Gospel with one another. Details about the new policy remain to be disclosed, to be sure, but the intent and direction appear now to be undeniable." His post links to a story by "Breitbart News legal columnist Ken Klukowski," who is a "senior fellow for religious liberty with the Family Research Council and on faculty at Liberty University School of Law." That story is pretty poor, but really turns out to rely on a link to Fox, http://radio.foxnews.com/toddstarnes/top-stories/pentagon-religious-proselytizing-is-not-permitted.html, which, to be clear, is not by a line reporter for Fox News, but by a commentator for the network. That story contains three parts. Part one is about Weinstein consulting with the Pentagon, and part three contains reactions by various usual suspects. (Not that they're wrong or right; it's just that the reactions are not informational.) Part two says:

"The Pentagon confirmed to Fox News that Christian evangelism is against regulations. 'Religious proselytization is not permitted within the Department of Defense,' LCDR Nate Christensen said in a written statement. He declined to say if any chaplains or service members had been prosecuted for such an offense. 'Court martials and non-judicial punishments are decided on a case-by-case basis and it would be inappropriate to speculate on the outcome in specific cases,' he said."

This appears to be the basis for the claims made in the Breitbart story and in Patrick's new post. What's not clear from this statement is: 1) the contours of this rule, ie. whether it applies to standard peer-to-peer proselytization, or proselytization outside official channels, or applies more narrowly to circumstances that might reasonably be considered to involve misuse of rank etc.; 2) whether the rule is new or whether the Pentagon spokesperson is just referring to existing policy; 3) whether the rule, new or old, has anything to do with Weinstein; 4) whether there have been any courts-martial for such conduct; 5) what kinds of circumstances would have to apply for a court-martial to even be considered; 6) whether there is anything like some kind of going-forward policy, new or old, of using courts-martial as a punishment for "sharing the Gospel with one another."

I don't think it matters for my point whether one believes there should be no proselytization ever, which appears to be Weinstein's view, or whether any and every form of proselytization ought to be immune from standard military rules, no matter the rank or circumstances involved, which seems to be the implication of Patrick's posts, or whether, as with any number of matters of military relations, this is a context-dependent matter, which would be my view. What matters to me is that there is not much evidence of a new policy and not much clarity about the policy itself. Moreover, the spokesman's response on courts-martials really seems to constitute more of an equivocation (meant here in a pretty neutral way, as a way of officially answering a question without saying much) than a positive statement. There's also not much, or at least not much clear, tying anything to Weinstein, although in fairness that wasn't the main point of Patrick's post. (It was, however, a main point of the Breitbart story.) There's just not much there there, and certainly, it seems to me, not enough to have justified the confident description given by Patrick.

Patrick is certainly justified in criticizing Weinstein and questioning the nature of his involvement with the Pentagon, even if it turns out to be pretty minor. But I think he would be much better off reading his sources much more carefully and avoiding the overconfident summaries he provides. I appreciate his fervor on this issue, but, as always, would encourage caution in basing definitive statements on the say-so of so-so news sources.

Posted by: Paul Horwitz | May 2, 2013 1:52:06 PM

Paul -- here's a quick "take" by me on all this:



Posted by: Rick Garnett | May 2, 2013 2:00:35 PM

Thanks, Rick.

Posted by: Paul Horwitz | May 2, 2013 2:06:26 PM

The fact that "Laws and regulations have been in place for years", does not change the fact that the Obama Administration, through Hosanna-Tabor, the HHS Mandate, their failure to defend DOMA, their desire to elevate abortion and same-sex marriage to a civil rights issue at home and abroad, has demonstrated that they believe Religious Liberty is an obstacle in their desire to implement the goals of their administration, thus when one considers the fact that Mr.Weinstein had been invited to meet with the Pentagon, and soon after a statement is made regarding "proselytism" in the military, one can hardly call one hysterical for seeing what appears to be a common thread.

Posted by: Nancy | May 3, 2013 9:35:38 AM