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:
http://www.afjag.af.mil/shared/media/document/AFD-081009-008.pdf
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.]
One of the great benefits, I am finding, of keeping comments open in connection with my posts is the wealth of thoughtful responses thereby invited by interested MoJ readers. Here is another from Paul Horwitz:
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.
Research is an enterprise not
restricted to lawyers and academics, but it is a large component of what the
members of these two professions do. In my life which has intersected both
pursuits, I have come across texts that have fallen into the category of “unpublished
manuscript.” Over the past year I have labored on two projects (one dealing
with an aspect of religious liberty in China and the other dealing with lessons
to be learned from past statutory making and interpretation) which will not be
published. So I make these available to the readers of the Mirror of Justice HERE
Download Render Unto Mao and HERE
Download Statutory Making and Interpretation Lessons of 1534-5 for the Present Age.
In the context of the essay on
statutory making and interpretation, two catalysts for the project were
thoughts of Joseph de Maistre (“a nation gets the government it deserves”) and
George Santayana (“those who cannot remember the past are condemned to repeat
it”).
RJA sj
An interesting essay, at Public Discourse, by Susan Hanssen (University of Dallas), on the elusive "definition" of "religion." She opens with this:
Twentieth-century religious liberty jurisprudence developed on the far side of a great historic chasm that separates us from the traditional definition of religion. Between Americans in 2012 and the American founders in 1776 stand William James and the beginnings of the “science of comparative religions.” If we are to grasp the founders’ idea of a natural right to religious liberty, we must perform a labor of historical imagination and recover the longstanding definition of religion that has been lost to us. . . .
Noting the move in the last century to an understanding of religion as "essentially experiential", she suggests that William James's definition, "which had a powerful effect on Progressive-era jurisprudence on religious liberty issues, would have shocked the American founders, who were steeped in an older and more comprehensive understanding of religion." She then moves to this:
At the heart of justice there were, of course, those debts that could never be repaid—the debts to God, parents, and country. While most debts were of the minor sort payable in kind, the great moral tradition always acknowledged as the highest obligations of justice those irreparable debts. One could never repay God for everything—the cosmos—that surrounded one. Nor one’s parents for the gift of life, or one’s country for the sustenance that enabled one’s flourishing. These obligations of justice were obligations in the truest sense of the word—ligaments, the ties that bind.
As the key elements of justice, religion, filial piety, and patriotism expressed the most important rational insights into the human condition. To be human is to be a person—to face a network of pre-existent, causal relations. Without the creative, procreative, supportive ligaments that have drawn us out of nothing into bodily and social existence, there could be no moral agent. Someone who refused to acknowledge these ligaments could not be relied upon to honor the multitude of lesser obligations in life.
Of this triune core at the heart of justice, religion stood pre-eminent. Religion was justice. . . .
Check it out.
