recognizing that “the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning”
How later courts described this case
- recognizing that “the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning”
- observing that army chaplaincy program “meets the requirement of voluntariness by leaving the practice of religion solely to the individual soldier, who is free to worship or not as he chooses without fear of any discipline or stigma”
- holding that Army’s chaplaincy program did not violate the Establishment Clause
- upholding constitutionality of military chaplaincy program for most personnel but remanding to district court for consideration whether program is constitutionally permissible for certain stateside personnel
Written by the judges who cited it.
The opinion
MESKILL, Circuit Judge,
concurring and dissenting.
Because I believe that no remand is required, I would affirm the order of the district court in its entirety. I dissent from so much of the majority’s decision as reverses and remands to the district court.
Judge Mansfield describes the alternative proposal to the present chaplaincy program advanced by the plaintiffs — who, incidentally, have never served in the military — as “so inherently impractical as to border on the frivolous.” I agree. Judge Mansfield continues:
Absent some substantial evidence that it might be within the realm of the feasible, we do not believe that taxpayers, merely by instituting a lawsuit, are entitled to engage in a costly and time-consuming broad-scale investigation into an entirely speculative suggestion, made without an evidentiary basis for believing that the claim is well-grounded in fact. See Fed. R.Civ.P. 11.
Majority Op. at 236.
Given the breadth of these conclusions, I see no reason for us as an appellate court to subject chaplaincy services for retired military personnel and chaplaincy program activities in large urban areas (e.g., at the Pentagon and in New York City) to further and deeper analysis. In my opinion, the fringe activities of the chaplaincy program that would be examined under the majority’s remand are not of constitutional magnitude. Investigation into these peripheral services performed by some military chaplains amounts to little more than judicial nit-picking. Where, as here, the plaintiffs have failed in their basic constitutional attack on the funding of the chaplaincy program, we would do well to exercise judicial restraint and limit our decision to the disposition of the broad-scale attack mounted by the plaintiffs.
I surmise that the remand ordered by the majority will serve only to burden the district court and the parties with a purposeless task. Indeed, a few moments of reflection suggest what the results of continued factfinding will likely be. It is common knowledge that retired military personnel frequently settle near a military installation where they have post exchange and commissary privileges and free medical service. Whether such retirees attend religious services on military bases or seek counseling from military chaplains does not seem to me to warrant further judicial inquiry on the record before Judge McLaughlin.
Some high ranking officers in the chaplaincy program are undoubtedly stationed at the Pentagon. That is to be expected at Department of Defense headquarters. *239 Some of these officers may also officiate at religious services, just as Popes and Bishops continue to say Mass in addition to their hierarchical duties. There has been no showing here that any services performed at or around the Pentagon are attended by other than military personnel on duty at the time rather than military personnel stationed in the Washington, D.C. area who live in the suburbs. Considering the distances military personnel would have to travel to attend such services, such practices would be highly unlikely.
I would affirm the order of the district court in its entirety.