Hartmann v. Stone

WELLFORD, Circuit Judge,

concurring.

I concur in the resolution of the issues discussed in parts I, II, and III of this opinion. The First Amendment does not mandate a freedom from religion, nor does it prohibit “the free exercise thereof.”

I write with respect to the discussion in part IV of the opinion, which deals with deference to the military and its decision-making, particularly its concern about “establishment of religion.”

The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other 18th-century systems_ Some limited and incidental entanglement between church and state authority is inevitable in a complex modern society....

Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122-23 , 103 S.Ct. 505, 510 , 74 L.Ed.2d 297 (1982).

We must determine whether the military’s interest, as set out in its regulations program at issue, in avoiding religious entanglement or establishment of religion is of the “highest order,” and whether the regulations least intrusively impinge upon the “free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S.Ct. 1526, 1533 , 32 L.Ed.2d 15 (1972) (“The essence of all that has been said and written on the subject is that only those interests of the highest order ... can overbalance legitimate claims to the free exercise of religion.”); accord Thomas v. Review Bd., 450 U.S. 707, 717 , 101 S.Ct. 1425, 1431-32 , 67 L.Ed.2d 624 (1981).

The Supreme Court has given special consideration and deference in the First Amendment context to regulations which relate to discipline and uniformity in military matters. See, e.g., Goldman v. Weinberger, 475 U.S. 503 , 106 S.Ct. 1310 , 89 L.Ed.2d 478 (1986); Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983); Brown v. Glines, 444 U.S. 348 , 100 S.Ct. 594 , 62 L.Ed.2d 540 (1980). These cases, however, apply to regulations that directly govern military personnel and their actions. Goldman involved a freedom of religion challenge to military dress code regulations by a chaplain during peacetime in respect to “necessary habits of discipline and unity.” Goldman, 475 U.S. at 508 , 106 S.Ct. at 1313 . In addition, the military may insist on information from its prospective officer inductees despite the individual’s conscientious objection to taking loyalty oaths. Orloff v. Willoughby, 345 U.S. 83 , 73 S.Ct. 534 , 97 L.Ed. 842 (1953).

These cases, and others cited by the Secretary, give special deference to the military in mandating certain code, conduct, and service that have a direct relation to military discipline, uniform, and authority. In my view, the regulations in controversy have not been demonstrated to have any direct relationship to these particular military requirements and concerns. For instance, a workman in an essential defense industry was not required by the Supreme Court to conform his religious beliefs in connection with production of military goods. See Thomas v. Review Bd., 450 U.S. 707 , 101 S.Ct. 1425 , 67 L.Ed.2d 624 (1981). In that case, there was only an indirect relationship to military requirements; this connection with the military in production of needed military equipment was not a military interest “of the highest order” that deserved preference over free exercise of religion.

I am of the view that the military’s interest in enforcement of the family child care pro *987 gram regulations is not of the highest order. Participation in the challenged program is not mandated by the Army, but is “entirely voluntary.” Secretary’s Brief at 17. Additionally, the program does not directly pertain to the uniformity and discipline of soldiers. While there may be an incidental benefit to military families and their religious beliefs, the military has not created any special incentive for a student to take a religious or sectarian course, and the program is generally available without regard to the sectarian/nonsectarian nature of the particular child care provided. Thus, I see no violation of the Establishment Clause. See Zobrest v. Catalina Foothills Sch. Dist., — U.S. -, 113 S.Ct. 2462 , 125 L.Ed.2d 1 (1993).

I agree with the majority that there is no compelling Army or state interest, under the circumstances, in precluding entirely any religious aspect of the child care program and its conduct by the independent contractor providers. See Witters v. Washington Dept. of Servs. for the Blind, 474 U.S. 481 , 106 S.Ct. 748 , 88 L.Ed.2d 846 (1986). Our court has recently held, in a related context, that a city ordinance authorizing lease of a small space at the city’s airport terminal to the Catholic Diocese to accommodate religious needs of travelers did not constitute endorsement of religion. Hawley v. City of Cleveland, 24 F.3d 814 (6th Cir.1994). Granting plaintiffs the relief they seek does not constitute endorsement of, or entanglement with, religion and its free exercise.

I concur in this court’s reversal of the district court, accordingly, despite our recognition of the special consideration given military regulations.