Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District
Supreme Court briefApr 1, 2022
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No. 21-418
IN THE
Supreme Court of the United States
_______________________________
JOSEPH A. KENNEDY,
v.
Petitioner,
BREMERTON SCHOOL DISTRICT,
Respondent.
_______________________________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS F OR THE NINTH CIRCUIT
_______________________________
BRIEF OF AMICI CURIAE THE FORUM ON
THE MILITARY CHAPLAINCY AND FORMER
MEMBERS OF THE MILITARY AND MILITARY
CHAPLAINCIES IN SUPPORT OF RESPONDENT
_______________________________
Jonathan K. Youngwood
Counsel of Record
David Elbaum
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jyoungwood@stblaw.com
Avia Gridi
Laurel Fresquez
Kate Lambroza
SIMPSON THACHER & BARTLETT LLP
900 G Street, NW
Washington, D.C. 20001
Counsel for Amici Curiae
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
TABLE OF CONTENTS
Table of Authorities ..................................................... ii
Interests of Amici Curiae .............................................1
Summary of Argument .................................................3
Argument .......................................................................6
I. Chaplains Implement the Religious Programs
of Commanding Officers to Support the Diverse
Religious Needs of Service Members in a Pluralistic
Environment ..................................................................6
A. Chaplains Serve as Religious Leaders and
Staff Advisers ..........................................................9
B. Chaplains Are Required to Respect Diverse
Religious Faiths and the Military’s Pluralistic
Environment ......................................................... 13
C. Chaplain Memoirs Demonstrate That They
Respect Their Pluralistic Environment and the
Free Exercise Rights of Service Members......... 19
II. Affirming The Ninth Circuit’s Decision Will
Not Have Any Negative Impact on Military
Chaplains .................................................................... 22
A. The Court Should Not Address the Alliance’s
Hypothetical Issues ........................................... 23
B. The Ninth Circuit’s Decision Will Not
Undermine the Military Chaplaincies ............. 27
Conclusion ................................................................... 30
i
TABLE OF AUTHORITIES
Cases
Brown v. Glines,
444 U.S. 348 (1980) ................................................. 23
Engel v. Vitale,
370 U.S. 421 (1962) ................................................. 24
In re England,
375 F.3d 1169 (D.C. Cir. 2004) .................................9
Epperson v. Arkansas,
390 U.S. 941 (1968) ................................................. 28
Garcetti v. Ceballos,
547 U.S. 410 (2006) ....................................... 3, 26, 27
Gen. Media Commc’ns Inc. v. Cohen,
131 F.3d 273 (2d Cir. 1997) ................................... 24
Goldman v. Weinberger,
475 U.S. 503 (1986) ................................................. 23
Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001) ................................................... 27
Katcoff v. Marsh,
755 F.2d 223 (2d Cir. 1985) ................................. 9, 24
McCreary Cnty. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ............................................ 27-28
ii
Parker v. Levy,
417 U.S. 733 (1974) ................................................. 23
Rostker v. Goldberg,
453 U.S. 57 (1981) .............................................. 23-24
School Dist. of Abington Twp. v. Schempp,
374 U.S. 203 (1963) ................................................. 24
Widmar v. Vincent,
454 U.S. 263 (1981) ................................................. 27
Statutes
10 U.S.C. § 7217 ............................................................6
10 U.S.C. § 8221 ..................................................... 6, 11
10 U.S.C. § 9217 ............................................................6
Pub. L. 112-239, § 533(b) ..............................................9
Other Authorities
Arnold E. Resnicoff, Prayers that Hurt: Public Prayer
in Interfaith Settings (July 1, 2009) .................... 20-21
CDR William A. Wildhack III, CHC, UNR, Navy
Chaplains at the Crossroads: Navigating the
Intersection of Free Speech, Free Exercise,
Establishment and Equal Protection, 51 Naval L.
Rev. 217 (2005) ........................................................... 12
Chief of Naval Operations Instruction 1730.1E,
Religious Ministry in the Navy (2012) ................. 8, 12
iii
Congressional Research Service, Diversity, Inclusion,
and Equal Opportunity in the Armed Services:
Background and Issues for Congress (June 2019) ..... 16
Department of Defense, Department of Defense
Directive 1304.19, Appointment of Chaplains for the
Military Departments (2007) .................... 7, 10, 14, 16
Department of Defense, Department of
Defense Instruction 1304.28, Instruction:
The Appointment and Service of Chaplains
(2021) ................................................ 7, 9, 10, 12, 14, 28
Department of the Air Force, Air Force Instruction
52-105, Chaplain Corps Resourcing (2020) ........ 8, 10
Department of the Army, Army Regulation
165-1, Army Chaplain Corps Activities
(2015) ............................................. 6, 8, 9, 10, 14-15, 29
Department of the Army, U.S. Army Chaplaincy
Center and School, Mission ...................................... 16
Department of the Navy, Commander Naval Surface
Force, Surface Forces Professional Naval Chaplaincy
Training Manual (Feb. 7, 2017) ............................... 15
Department of the Navy, Navy War Publication
1-05, Religious Ministry in the Fleet
(2012) ................................................................... passim
Department of the Navy, Secretary of
the Navy Instruction 1730.7D, Religious
Ministry in the Department of the Navy
(2008) ........................................... 7-8, 10, 11, 12, 18, 29
Harold L. Robinson, Free Exercise Meets the
Establishment Clause in Military Service, Religious
Freedom Institute (July 14, 2016) ........................... 22
iv
M.G. Kibben, Chief of Chaplains, Dep’t of the Navy,
Letter to Colleagues in the Ministry (Mar. 15,
2017) ............................................................................ 16
Michelle Tan, Chaplain under fire for comments
during training, Army Times (Dec. 10, 2014) ........... 18
Mitchell Lewis, How I Pray at Military Ceremonies
(Aug. 15, 2016) ............................................................ 20
Office of the Assistant Secretary of Defense, Faith
and Belief Codes for Reporting Personal Data of
Service Members (Mar. 27, 2017) ........................ 16-17
RADM Brent W. Scott, Chaplain Corps Provides
Irreplaceable Services, U.S. Navy (Feb. 21, 2020) ..... 17
Religious Accommodations in the Armed Forces:
Hearing Before the House of Rep. Armed Serv.
Comm. Hearing [H.A.S.C. No. 113-76], 113th Cong.
(Jan. 29, 2014) (statement of Reverend James B.
Magness) ..................................................................... 21
Religious Accommodations in the Armed Forces:
House of Rep. Armed Serv. Comm. Hearing [H.A.S.C.
No. 113-129], 113th Cong. (Nov. 19, 2014) (statement
of Rabbi Bruce E. Kahn) ....................................... 19-20
United States Navy, “Navy Chaplain”
(https://bit.ly/36Dpakn) ............................................. 17
v
INTERESTS OF AMICI CURIAE1
Amici curiae are former members of the
military with an interest in the free exercise of
religion for all service members.
Forum on the Military Chaplaincy is an
unincorporated association led by retired military
chaplains whose membership also includes clergy, lay
leaders, veterans, and concerned citizens committed
to free and diverse religious expression. Since 2005
the Forum has sought to provide resources and
advocacy for a military chaplaincy that is committed
to and expressive of the sacred values of personal
integrity, selfless compassion, respect for others, and
excellence in leadership. The Forum supports the
Chiefs of Chaplains in their constitutional duty to
secure the free exercise of religion for all of America’s
service members, to provide an inclusive, socially and
spiritually responsive program of training and
education, and to extend a welcome and affirming
presence to the troops and military families that they
are called to serve.
1 Pursuant to Supreme Court Rule 37.6, amici curiae affirm that
no counsel for a party authored this brief in whole or in part, that
no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief and no person
other than amici curiae, their members, or their counsel made a
monetary contribution to its preparation or submission.
Petitioner and Respondent filed blanket consents to the filing of
amicus curiae briefs.
1
Chaplain (Colonel) Stephen B. Boyd, USA
(Retired) is a former Army Chaplain who served 32
years of active duty in the Army.
Captain Thomas T. Carpenter, USMC
(1970-1981) is a former Marine who served 15 years
and is now Co-Chair of the Forum on the Military
Chaplaincy.
Chaplain (Major) Michael T. Curd,
D.Min., USA (Retired) is a former Army Chaplain
who served 20 years of active duty in the Army.
Chaplain (Captain) Jon E. Cutler, USN
(Retired) is a former Navy Chaplain who served 32
years in the Navy and is now Co-Chair of the Forum
on the Military Chaplaincy.
Chaplain (Colonel) Paul W. Dodd, D.Min,
LPC, USA (Retired) is a former Army Chaplain who
served 31 years in the Army.
Chaplain (Captain) John F. Gundlach,
USN (Retired) is a former Navy Chaplain who
served 27 years in the Navy.
Chaplain (Captain) Bruce E. Kahn, USN
(Retired), is a former Navy Chaplain who served 28
years for retirement purposes on active duty and in
the reserve.
Chaplain (Captain) Philip D. King, D.Min,
USN (Retired) is a former Navy Chaplain who
served 29 years in the Navy, including seven as a pilot
and 22 as a Chaplain.
2
Chaplain (Major General) Howard D.
Stendahl, USAF (Retired) is a former Air Force
Chaplain who served 30 years of active duty,
including three as the 17th Chief of Chaplains for the
Air Force.
SUMMARY OF ARGUMENT
The Ninth Circuit’s decision properly
considered the First Amendment claims of a high
school football coach who sought to lead public
prayers on the school football field immediately after
the end of football games. In its brief on the merits,
Amicus Curiae Chaplain Alliance for Religious
Liberty (the “Alliance”) seeks to inject hypothetical
questions about military chaplaincy programs into
this appeal. The Alliance contends that the Ninth
Circuit’s decision could create “confusion” for military
chaplains and potentially “lead to a chilling” of their
ability to engage in “everyday religious speech.”
Alliance Br. 2, 18, 21. The Alliance makes a series of
sweeping and speculative assertions about military
chaplains and suggests that, beyond the Ninth
Circuit’s opinion, this Court’s decision in Garcetti v.
Ceballos, 547 U.S. 410 (2006), poses a “threat” to
military chaplains. Alliance Br. at 19.
The Forum on the Military Chaplaincy and
additional Amici submit this brief to provide the
Court with important context surrounding the
military’s religious programs and to explain why the
Ninth Circuit’s decision will not negatively impact
military chaplains or their ability to work with service
members.
3
Established by Congress, the military
chaplaincies are subject to a comprehensive set of
policies and regulations issued by the Department of
Defense and the individual service branches. Those
regulations define the objectives of the chaplaincy
programs and establish the roles, responsibilities,
and obligations of both commanders and chaplains
who implement the military’s religious programs. All
of these policy documents, from the Secretary of
Defense’s Directive through multiple layers of
implementing rules and procedures, recognize that
chaplains operate in a pluralistic religious
environment and mandate that they advance the freeexercise rights of service members to follow their own
religious faiths.
Military religious programs are established by
the commanders and religious services are provided
by chaplains under the authority of their
commanding officers. Chaplains are required to
provide or facilitate religious and non-religious
programs for all service members of all faiths. In
accepting their commissions, military chaplains
acknowledge that they must respect the rights of
service members to have whatever faith they choose
or no faith at all. Unlike civilian clergy, military
chaplains must help meet the religious needs of
service members who follow a different faith from
their own. The Navy has rightly called this pluralistic
requirement the “keystone of institutional ministry.”
See Department of the Navy, Navy War Publication
(“NWP”) 1-05, Religious Ministry in the Fleet, § 2.4.1
(2012) (https://bit.ly/3LHaOP1).
4
The Court, however, will not find any of this in
the Alliance’s brief. The Alliance does not discuss
these long-standing military policies or the unique
mandate of military chaplains to serve a religiously
diverse population. Nor does it explain what may
constitute “everyday religious speech” or how the
asserted right to engage in such speech may impact
the free-exercise rights of service members who follow
a different faith or the military’s interests in
preventing religious coercion.
Alliance Br. 21.
Indeed, the military’s specialized environment and
strict chain of command increase the risks of
improper religious endorsement and coercion,
especially when attendance at command functions or
other non-religious events is mandatory. And the
Court cannot address the Alliance’s hypothetical First
Amendment issues about chaplains in broad strokes
or in a vacuum.
A ruling affirming the Ninth Circuit’s decision
will not have any negative impact on chaplains’
ability to support military service members in
accordance with the applicable policies and
regulations. To the contrary, the Ninth Circuit’s
decision reaffirms the principles of religious
pluralism and avoiding religious coercion that
animate the military chaplaincies. The Court should
decline the Alliance’s invitation to go beyond the
questions presented.
5
ARGUMENT
I.
Chaplains Implement the Religious
Programs of Commanding Officers to
Support the Diverse Religious Needs of
Service Members in a Pluralistic
Environment
“Chaplains have contributed to Soldier’s
religious freedom, moral development, and spiritual
well-being throughout the history of the Army.”
Department of the Army, Army Regulation 165-1
(“AR”), Army Chaplain Corps Activities, § 1-5(b)
(2015) (https://bit.ly/3qMJAOD). The military
chaplaincy is “a product of the nation’s commitment
to religious freedom.” Id. Because military chaplains
represent their own religious organizations and serve
as military staff officers, they must balance the First
Amendment “protection of the free exercise of religion
and protection from governmental establishment of
religion.” Department of the Navy, Navy War
Publication (“NWP”), 1-05 § 1.1.
Congress has enacted statutes that provide for
chaplains and religious worship services within each
branch of the military. See, e.g., 10 U.S.C. § 7217
(2019) (“Duties: chaplains; assistance required of
commanding officers”) (Army); id. § 8221 (2019)
(“Chaplains: divine services”) (Navy and Marine
Corps); id. § 9217 (2021) (“Duties: chaplains;
assistance required of commanding officers”) (Air
Force). Given the important roles of chaplains and
the First Amendment interests at stake, the
Department of Defense and the individual service
branches have adopted a comprehensive series of
6
policies, instructions, and regulations that govern all
aspects of the chaplaincy programs, including the
appointment of chaplains, their roles and
responsibilities, and their relationships with the
chain of command.
For example, in Department of Defense
Directive 1304.19, the Secretary of Defense declared
that it is “DoD policy that the Chaplaincies of the
Military Departments: . . .
Are established to advise and assist
commanders in the discharge of their
responsibilities to provide for the free
exercise of religion in the context of
military service as guaranteed by the
Constitution, to assist commanders in
managing Religious Affairs (DoD
Directive 5100.73 (reference (e)), and to
serve as the principal advisors to
commanders for all issues regarding the
impact of religion on military operations.
Department of Defense, Department of Defense
Direective (“DoDD”) 1304.19, Directive: Appointment
of Chaplains for the Military Departments, ¶ 4.1
(2007) (https://bit.ly/36Zm1uQ). The Under Secretary
of Defense for Personnel and Readiness has issued
more specific implementing regulations, as have the
individual military branches. See, e.g., Department of
Defense, Department of Defense Instruction (“DoDI”)
1304.28, The Appointment and Service of Chaplains
(2021) (https://bit.ly/3JM6nBI); Department of the
Navy, Secretary of the Navy Instruction
(“SECNAVINST”) 1730.7D, Religious Ministry in the
7
Department
of
the
Navy
(2008)
(https://bit.ly/3wNBNUv); Department of the Navy,
Chief
of
Naval
Operations
Instruction
(“OPNAVINST”) 1730.1E, Religious Ministry in the
Navy (2012) (https://bit.ly/3LokMV5); AR 165-1
(2015); NWP 1-05 (2012); Department of the Air
Force, Air Force Instruction (“AFI”) 52-105, Chaplain
Corps Resourcing (2020) (https://bit.ly/3NpUP9D).
When the Navy issued its War Publication 1-05, the
Navy’s Chief of Chaplains noted that the Publication
“embodies how, with an emphasis on resilience and
readiness, the Chaplain Corps supports the Chief of
Naval Operation’s three tenets: Warfighting First,
Operate Forward, and Be Ready.” NWP 1-05, § Cover
Mem. from M.L. Tidd ¶ 1.
Under these and other Department of Defense
policies, the military religious programs “are the
commander’s program[s],” not the chaplains’
programs. AR 165-1, § 1-10. As the Chief of Naval
Operations has directed, “[t]he commander shall
establish a command religious program (CRP)” and
“[r]eligious ministry is entrusted to Navy Chaplains
and delivered under the authority of commanders and
commanding officers.” OPNAVINST 1730.1E, ¶ 4(c),
(e); see also AR 165-1, § 2-1(a) (“Commanders provide
for the free-exercise of religion through assigned
chaplains, religious affairs specialists, and other
religious personnel.”).
Accordingly, “[n]either
command religious programs (CRPs) nor the
responsibility for accommodating religious needs of
personnel belong to chaplains or religious ministry
team (RMT) personnel.” NWP 1-05, § 1.2. Instead,
8
“commanders are responsible for the accommodation
of religion.” Id. 2
A.
Chaplains Serve as Religious
Leaders and Staff Advisers
Within this overarching regulatory structure,
chaplains serve two primary roles: military religious
leader and military religious staff adviser. AR 165-1,
§ 3-1(b). As religious leaders, chaplains provide or
facilitate religious support “that accommodates the
Soldier’s right to the free exercise of religion.” Id. § 23(b)(1). In this role, chaplains “are required to respect
the right of those served to have whatever faith they
choose or none at all” and to make “a professional
commitment to serve in a pluralistic environment.”
NWP 1-05, § 2.4.1; see also Katcoff v. Marsh, 755 F.2d
223, 227 (2d Cir. 1985) (explaining that the “primary
function of the military chaplain is to engage in
activities designed to meet the religious needs of a
pluralistic military community”).
Pursuant to statute and Department of
Defense policy, chaplains cannot be required “to
perform any rite, ritual, or ceremony that is contrary
to [their] conscience, moral principles, or religious
beliefs.” Pub. L. 112-239, § 533(b) (codified at 10
U.S.C. prec. 1030 note); DoDI 1304.28, § 2.2(a).
However, “[i]f a chaplain is unable to support a
Once chaplains have been endorsed by their sponsoring
religious organization, the selection and promotion of chaplains
are subject to generally-applicable military procedures and
regulations, including officer selection boards. In re England,
375 F.3d 1169, 1172 (D.C. Cir. 2004) (“The Navy uses the same
personnel system for all officers, including chaplains.”).
2
9
specific request because of his or her religious
endorsing organization’s teachings, the chaplain
must offer referral to another chaplain or
professional.
Such referrals are accomplished
respectfully, professionally, and in a reasonable
period of time.” DoDI 1304.28, § 3.1(g)(3).
As religious staff advisors, chaplains advise
commanders on, among other things, “the discharge
of the commander’s responsibility to support the free
exercise of religion” and “matters of morale, ethics,
and overall wellbeing within the command.”
SECNAVINST 1730.10A, Chaplain and Advisement
Liaison, ¶ 4(d)(2) (2018) (https://bit.ly/3iS3eEO); see
also SECNAVINST 1730.7D, ¶ 5(e)(3)(d). Chaplains
are “uniquely qualified and credentialed to
authoritatively advise the commander and all leaders
up and down the unit chain of command” on matters
of religious accommodation. NWP 1-05, § 1.1. Indeed,
“throughout the Army’s history, chaplains have
advised commanders on the impact of religion both
within their own ranks and within the larger
operational environment.” AR 165-1, § 1-5(b). 3
Consistent with Department of Defense
Directive 1304.19 and “to meet the requirements of
religious accommodation, morale and welfare, and to
facilitate the understanding of the complexities of
religion with regard to its personnel and mission,” the
Air Force Instruction 52-105 similarly states that the
“Department of the Air Force Chaplain Corps provides religious
and spiritual care, advises leadership and ensures all Airmen
and Guardians and their family members have opportunities to
exercise their constitutional right to the free exercise of religion.”
AFI 52-105, § 1.1.
3
10
Navy divides these roles into four “core
competencies” or “capabilities” for naval chaplains:
provide, facilitate, care and advise. SECNAVINST
1730.7D, ¶ 5(e)(3).
Provide: Chaplains provide religious services
for those of the same religious faith. Chaplains
conduct divine services, administer sacraments and
perform the rites or ceremonies in the form and
manner of their own faith group. NWP 1-05, § 1.4.
Congress has protected chaplains’ ability to conduct
these religious services according to their own faith.
See 10 U.S.C. § 8221(a) (2019) (“An officer in the
Chaplain Corps may conduct public worship
according to the manner and forms of the church of
which he is a member.”). But “attendance at divine
services shall be voluntary.” SECNAVINST 1730.7D,
¶ 4(c).
Facilitate: Chaplains facilitate the ministries
for service members of other faiths. For example,
chaplains may provide service members with
religious scriptures or other materials of their faiths
and assist in connecting service members with other
chaplains or lay leader volunteers who can fulfill their
faith-specific needs. NWP 1-05, §§ 2.4.1, 2.4.2.4.
Especially in connection with deployments or other
contingencies where access to religious support may be
limited, a chaplain’s recruitment and training of lay
leaders “is at the heart of facilitation.” Id. § 2.4.2.4.
The chaplain’s facilitation of other religious faiths is
essential in the military’s pluralistic environment.
“In identifying facilitation as a capability, the Navy
recognizes the diversity of religious backgrounds of
naval personnel and the need for expertise in
11
handling regular support of [their] requirements.” Id.
§ 1.4.2; see also DoDI 1304.28, § 3.1(f) (Chaplains
“[f]acilitate meeting the religious needs and
requirements for those persons to whom they cannot
directly minister.”).
Care: Chaplains care for the welfare and
morale of all service members, regardless of their
religious faith. They must deliver care that is
“informed, guided, and shaped by the chaplains’
unique pastoral identity and insight” but also
“sensitive to the religious, spiritual, moral, cultural,
and personal differences of those served.”
OPNAVINST 1730.1E, ¶ 6(c). Chaplains provide a
range of non-religious services and programs,
including counselling on mental health, marriage and
relationships, suicide prevention and substance
abuse. See NWP 1-05, § 2.6; see also CDR William A.
Wildhack III, CHC, UNR, Navy Chaplains at the
Crossroads: Navigating the Intersection of Free
Speech, Free Exercise, Establishment and Equal
Protection, 51 Naval L. Rev. 217, 240–41, 241 n.150
(2005). The Secretary of the Navy’s Instruction
emphasizes that individual advice from chaplains
should only be faith-based “when requested,” and not
when the chaplain unilaterally desires to engage in
religious speech. SECNAVINST 1730.10A, ¶ 4(b)
(“Chaplains listen to individuals who come to them for
help, regardless of religious affiliation, and offer
advice to help individuals make sound decisions.
Chaplain advice is rooted in ethics and morality, and
when requested, can be faith-based.”); see also DoDI
1304.28, § 3.1(g) (“Such care and counseling are
rooted in ethics and morality and may or may not be
faith based at the person’s request.”).
12
Advise: Chaplains assist and advise officers in
their chain of command regarding religious ministry
requirements, ethics, morale and quality of life among
service members, unit enhancement, culture and
religious accommodations.
See SECNAVINST
1730.10A, ¶ 4(d)(2); NWP 1-05, § 1.4. Commanders
may also consult with chaplains about the
appropriate form of religious elements to the included
in command functions and other events. NWP 1-05,
§ 2.5.
B.
Chaplains Are Required to Respect
Diverse Religious Faiths and the
Military’s Pluralistic Environment
In their role as religious leaders, chaplains
must serve the needs of all service members,
regardless of their own religious affiliation. This
requirement is repeated throughout Department of
Defense policies and regulations, including the
Directive issued by the Secretary of Defense, the
Instructions issued by the Under Secretary of Defense
for Personnel and Readiness, and the implementing
regulations issued by the individual military
branches.
The Secretary of Defense’s Directive states that
military chaplaincies:
Shall serve a religiously diverse
population.
Within
the
military,
commanders are required to provide
comprehensive religious support to all
authorized individuals within their
areas of responsibility. Religious
Organizations that choose to participate
13
in the Chaplaincies recognize this
command imperative and express
willingness for their Religious Ministry
Professionals (RMPs) to perform their
professional duties as chaplains in
cooperation with RMPs from other
religious traditions.
DoDD 1304.19, ¶ 4.2. Accordingly, Department of
Defense Instructions require that “to be considered
for appointment,” a chaplain must be “willing to
function in a pluralistic environment” and “to support
directly and indirectly the free exercise of religion by
all members of the Military Services.” DoDI 1304.28,
§ 3.2(b).
Religious organizations that endorse
chaplains for military service likewise “must
recognize that the chaplaincies of the Military
Departments serve a religiously diverse population
and that military commanders must provide
comprehensive religious support to all authorized
individuals in their areas of responsibility . . . [and
they] must express willingness for their [religious
ministry professionals] to perform their professional
duties as chaplains in coordination with chaplains
from other religious traditions.” Id. § 4.1.
At the individual service branch level, the
Army requires that chaplains provide “religious
support for all Soldiers . . . from all religious
traditions” within the “pluralistic religious setting of
the military.” AR 165-1, § 1-6(b). Chaplains must
“cooperate with each other, without compromising
their religious tradition or ecclesiastical endorsement
requirements, to ensure the most comprehensive
religious support opportunities possible within the
14
unique military environment.” Id. And Army
“chaplains will minister to the personnel of their unit
and/or facilitate the free-exercise rights of all
personnel, regardless of religious affiliation of either
the chaplain or the unit member.” Id. § 3-2(b)(3).
Similarly, the Navy states that “in accepting
their commissions, chaplains acknowledge the
pluralistic environment in which they will serve” and
that they “are required to respect the right of those
served to have whatever faith they choose or none at
all.” NWP 1-05, § 2.4.1; see also id. § 3.3.2.1 (“As a
matter of DOD policy, it is understood that Navy
chaplains, while never being required to compromise
the standards of their RO, are required to function in
a pluralistic environment.”).
“The support and
assistance given to Sailors who are not of the same
faith background as the chaplain giving the support”
is a “uniquely institutional aspect of naval ministry.”
Id. § 1.4.2. Indeed, the “requirement to respect the
religious rights of others is the keystone of
institutional ministry.” Id. § 2.4.1. 4
These requirements are also included in chaplain training
materials. Navy chaplains are instructed that their duties
involve “the support and assistance given to Sailors who are not
of the same faith background as the Chaplain giving the support
… [a]s one of the CPR’s [Command Religious Program] primary
functions is to meet diverse religious needs.” Department of the
Navy, Commander Naval Surface Force, Surface Forces
Professional Naval Chaplaincy Training Manual, at 11 (Feb. 7,
2017) (https://bit.ly/3iT3LWI). And the facilitation requirement
specifically “presupposes the delivery of appropriate training by
the Navy Chaplain Corps (CHC) to empower chaplains to
effectively facilitate the faith requirements of those not of their
specific faith group.” NWP 1-05, § 2.4.1. Army chaplains are
similarly instructed that the mission of their training program
4
15
As the Navy’s Chief of Chaplains has
explained, chaplains must “acknowledge [their]
obligation to care for all in a way that respects the
rights of individuals to determine their own religious
and personal convictions.” M.G. Kibben, Chief of
Chaplains, Dep’t of the Navy, Letter to Colleagues in
the
Ministry,
at
1
(Mar.
15,
2017)
(https://bit.ly/3iO5sEU). The Navy recognizes that
“in doing so, the chaplain, on behalf of the
[Department of the Navy], honors the First
Amendment.” NWP 1-05, § 2.4.1.
The Secretary of Defense’s finding that
chaplains serve a “religiously diverse population”
cannot be disputed. DoDD 1304.19, ¶ 4.2. As the
Congressional Research Service has found,
“[r]eligious diversity in the military is broadly
representative of the U.S. population.” Congressional
Research Service, Diversity, Inclusion, and Equal
Opportunity in the Armed Services: Background and
Issues for Congress, at 46 (June 2019)
(https://bit.ly/3NptX9A). The Department of Defense
currently recognizes more than 200 religions in its
faith and belief codes for service members, including
Christianity, Judaism, Islam, Buddhism, Hinduism,
Sikhism, and Atheism, among others. See Office of
the Assistant Secretary of Defense, Faith and Belief
Codes for Reporting Personal Data of Service Members
(Mar. 27, 2017) (https://bit.ly/3NptYua). And some
religious faiths include several different groups.
There is significant diversity within the Christian
is to create “professionals capable for serving a diverse force in
any environment under any conditions.” Department of the
Army, U.S. Army Chaplaincy Center and School, Mission
(https://bit.ly/3tOXS3l) (last accessed Mar. 30, 2022).
16
faith, including Catholics, Protestants, Baptists,
Methodists, Mormons, Christian Scientists, Eastern
Orthodox, Pentecostals, and others. Id.
The chaplains themselves are also diverse. The
Navy has 840 chaplains who are endorsed by more
than 100 religious organizations. See United States
Navy, “Navy Chaplain” (https://bit.ly/36Dpakn) (last
visited Mar. 29, 2022). As a result, and taken
together with institutional staffing limitations,
chaplains will often serve large numbers of service
members who follow diverse faiths. In 2020, the Navy
Chief of Chaplains reported that “the Navy’s 840
chaplains care for more than 564,000 active
component service members in the Navy, Coast
Guard and Marine Corps. On average, every chaplain
cares for more than 670 service members, not
counting their family members and the civilians who
are authorized to use their services.” See RADM
Brent W. Scott, Chaplain Corps Provides
Irreplaceable Services, U.S. Navy (Feb. 21, 2020)
(https://bit.ly/36DrCaz).
Chaplains are thus required to recognize, from
the time of their initial appointment, that they must
support and respect the diverse religious faiths of all
service members and that religious speech specific to
their faith may not be appropriate or permitted in
certain
contexts
within
their
professional
responsibilities. For example, chaplains may not
project their own religious faith into mandatory nonreligious programs. As one example, in 2014 the
Army Times reported that a chaplain had been issued
a letter of concern after he distributed a two-sided
piece of paper during a suicide prevention training
17
session with a list of Army resources on one side and
Christian scripture and solutions on the other. At the
non-religious training session, service members could
not obtain Army resources about suicide prevention
without also receiving Christian resources, regardless
of their individual religious faith. Consistent with
DoD policy and Army regulations, the commanding
general issued a statement that chaplains may “not
provide religious instruction during non-religious
mandatory training classes.” Michelle Tan, Chaplain
under fire for comments during training, Army Times
(Dec. 10, 2014) (https://bit.ly/3iJpgcL).
Military commanders also have the authority
to determine the appropriate role for chaplains at
command functions, such as retirements, promotions,
changes of command, or official memorial
observances. These events are often mandatory for
service members and thus could feature a chaplain
speaking from a podium, with commanding officers,
before a captive audience. In such situations, a
chaplain’s religious speech could easily be interpreted
as an endorsement of the chaplain’s faith and carry
an implicit message of religious coercion.
Accordingly, Secretary of the Navy Instruction
1730.7D states that “commanders shall determine
whether religious elements . . . shall be included in
command functions.” SECNAVINST 1730.7D, ¶ 6(d).
Applying that Instruction, Navy War Publication 1-05
specifies that commanders have “discretion to
determine whether or not to have religious elements
at an event.” NWP 1-05, § 2.5. Chaplains do not have
the “right to participate” in these functions; instead
they are “invited to do so.” Id. Further, “[i]f the
18
chaplain is not comfortable with what the commander
has determined to be appropriate for inclusion in the
ceremony (in consultation with the chaplain),” then
“the chaplain is free to decline the invitation to
provide a religious element.” Id. The chaplain,
however, must “assist[] the commander in finding
someone who can provide the religious element. The
commander is free to make the determination that
there will be no prayer from the podium.” Id.
C.
Chaplain Memoirs Demonstrate
That They Respect Their Pluralistic
Environment and the Free Exercise
Rights of Service Members
Numerous memoirs and testimonials by
chaplains demonstrate how they have historically
worked to support the religious needs of all service
members, including those of different faiths,
respecting the military’s pluralistic environment and
not seeking to proselytize other service members. For
example, Rabbi Bruce E. Kahn, a retired Navy
chaplain, testified to Congress that the “chaplain
adapts his or her exercise of religious freedom in order
to affirm the religious freedom of the members of the
command in which we are providing ministry.” See
Religious Accommodations in the Armed Forces:
House of Rep. Armed Serv. Comm. Hearing [H.A.S.C.
No. 113-129], 113th Cong. (Nov. 19, 2014) (statement
of Rabbi Kahn at 2) (https://bit.ly/3LkwhwQ). Over
the course of his career, Rabbi Kahn “served the needs
of Catholics and Protestants of every denomination,
different groups of Latter-Day Saints, and numerous
Christians of other affiliation, . . . the needs of
different groups of Buddhists and Muslims and more,
19
as well as those with no affiliation, including
agnostics and atheists.” Id. at 3. Among other
anecdotes, Rabbi Kahn recalled counselling a
Christian woman whose husband, a service member,
had just died. He engaged with her about her
Christian faith, not his own, to help her find strength.
See id. at 4. Rabbi Kahn concluded that “[t]he
religious freedom of the troops is not to be sacrificed
to meet the demands of the chaplain. The chaplain
adjusts to meet the faith requirements of the troops.”
Id.
Retired Army Chaplain Mitchell Lewis has
described the importance of religious pluralism in his
preparation for prayer at a non-religious command
event. He would
try to speak in the first person singular
or in the imperative . . . .
In a
government ceremony, I cannot assume
that everyone prays as I do. It would be
inaccurate to put my words in their
mouths. Since I can only speak for
myself, I don’t ordinarily say ‘we ask’ or
‘we pray’ or other words that presume to
speak for others.
See Mitchell Lewis, How I Pray at Military
Ceremonies (Aug. 15, 2016) (https://bit.ly/3IPmUmY).
As Rabbi Arnold E. Resnicoff, a retired Navy
chaplain, similarly explained, in a mandatory
command function, chaplains recognize the balance
between the “right” of the speaker and the “right” of
the listener. See Arnold E. Resnicoff, Prayers that
Hurt: Public Prayer in Interfaith Settings (July 1,
20
2009) (https://bit.ly/36Ua7m7). Consistent with Navy
policies, when chaplains “accept the invitation or the
assignment to participate in a public ceremony by
offering a word of prayer, . . . [they] are making a
contract of sorts.” Id. Chaplains are not required to
give such a prayer, and may opt out of doing so, but
after accepting the assignment they must respect the
rights of others in the audience.
Reverend James B. Magness, a retired Navy
chaplain and former Episcopal Bishop for the Armed
Forces, testified to Congress that military chaplains
have a responsibility to serve “military members who
come from a diverse population.” See Religious
Accommodations in the Armed Forces: Hearing Before
the House of Rep. Armed Serv. Comm. Hearing
[H.A.S.C. No. 113-76], 113th Cong. (Jan. 29, 2014)
(statement of Reverend James B. Magness at 1)
(https://bit.ly/3uENEBB). He explained that the
current religious accommodation policies protect
troops from “unwanted religious advances.” See id. at
2. He recalled an instance early in his career when he
spoke at an official retirement ceremony for a Navy
Captain. After he concluded his prayer with the
words “through Jesus Christ our Lord,” he learned
that “[he] had just excluded the honoree and all of his
family by offering an inappropriate prayer. I realized
then that my responsibility when offering public
prayers in uniform is to care for all of those who are
present, not just those from my own faith tradition.”
Id.
Rabbi Harold Robinson, a retired Navy Rear
Admiral, expressed the same sentiment of religious
pluralism through the example of a Jewish chaplain
21
counselling a Christian Marine enduring physical
therapy on his burned hand. See Harold L. Robinson,
Free Exercise Meets the Establishment Clause in
Military Service, Religious Freedom Institute (July
14, 2016) (https://bit.ly/35oxcgu).
The chaplain
encouraged the Marine with analogies to the suffering
of Christ on the cross and helped the Marine recite
the rosary during the therapy. Rabbi Robinson noted
that the
[R]abbi has not abandoned his faith; he
has found room in his heart to know and
support the Marine in his, allowing him
to find strength and solace there. And
the rabbi has prepared for this moment.
He is clear on the distinctions between
his personal spiritual needs and his
responsibility to help others to fulfill
theirs.
Id. Rabbi Robinson appreciated that this type of
religious speech and service would never be expected
of civilian rabbis, but he believed it was required for
Navy chaplains. Id.
II.
Affirming The Ninth Circuit’s Decision
Will Not Have Any Negative Impact on
Military Chaplains
The Ninth Circuit focused on whether
Petitioner was acting in his capacity as a government
employee when he engaged in demonstrative religious
activity on the high school football field and whether
the School District’s response was justified and
permitted. Pet. App. 12–23. In answering these
questions, the Ninth Circuit noted that Petitioner
22
“was clothed with the mantle of one who imparts
knowledge and wisdom” and that “expression was
Kennedy’s stock in trade.” Pet. App. 14. The Alliance
argues that that description could also be applied
generally to military chaplains, and from that
tenuous link, speculates that affirming the Ninth
Circuit’s decision has the potential to create
“uncertainty” or “confusion” that “could lead to a
chilling” of unspecified speech by chaplains in
unknown contexts. Alliance Br. 18. The multiple
layers of hypothetical inferences that are required to
reach the Alliance’s tentative suggestions demonstrate
that these issues are not ripe for the Court’s
consideration and should play no role in this appeal.
A.
The Court Should Not Address the
Alliance’s Hypothetical Issues
As an initial matter, and as the Alliance
concedes, this Court has consistently applied the First
Amendment differently in the military context than
in the public school context. See, e.g., Parker v. Levy,
417 U.S. 733, 758 (1974) (cited in Alliance Br. 3 n.2).
The military is “a specialized society separate from
civilian society,” and, while “military services are
entitled to the protections of the First Amendment,
the different character of the military community and
of the military mission requires a different
application of those protections.” Brown v. Glines,
444 U.S. 348, 354 (1980) (internal quotation marks
omitted); see also Goldman v. Weinberger, 475 U.S.
503, 508 (1986) (substantial deference is appropriate
because “military authorities have been charged by
the Executive and Legislative Branches with carrying
out our Nation’s military policy”); Rostker v. Goldberg,
23
453 U.S. 57, 66 (1981) (explaining that “particular
deference” should be given to Congress and
regulations made under Congress’s “authority to
regulate the land and naval forces concerning what
rights were available”). Any constitutional analysis
of the rights of military chaplains to engage in
religious speech must consider the unique context of
the military, the history of the chaplaincy, and the
historic focus on the free-exercise rights of the service
members. See Katcoff, 755 F.2d at 232 (emphasizing
that “neither the Establishment Clause nor statutes
creating and maintaining the Army chaplaincy may
be interpreted as if they existed in a sterile vacuum”).
“Congress, acting under its authority to maintain and
regulate the armed forces, may constitutionally place
some restrictions on the speech that occurs under
military command.” Gen. Media Commc’ns Inc. v.
Cohen, 131 F.3d 273, 276 (2d Cir. 1997). Accordingly,
the Court need not address the military chaplaincy to
affirm the Ninth Circuit’s opinion.5
In any event, the Ninth Circuit’s decision will
not negatively impact chaplains. The Ninth Circuit
addressed context-specific questions about a high
school football coach, the scope of his responsibilities
5 The military chaplaincy also involves substantially different
First Amendment issues than public school cases. Historically,
the chaplaincy has advanced the free-exercise requirements of
service members who are compelled to travel to distant bases or
deployments, without violating the Establishment Clause. See,
e.g., Katcoff, 755 F.2d at 228. By contrast, public schools operate
in a different environment, with children having access to their
homes and local religious institutions, and cannot provide
religious services to students under the Establishment Clause.
See School Dist. of Abington Twp. v. Schempp, 374 U.S. 203
(1963); Engel v. Vitale, 370 U.S. 421 (1962).
24
following the end of a football game, and the
likelihood that the School District may be deemed to
endorse his post-game religious expressions on the
school field. The Ninth Circuit held that Petitioner
“spoke as a public employee when he kneeled and
prayed on the fifty-yard line immediately after games
while in view of students and parents.” Pet. App. 17.
The Ninth Circuit further detailed that he “insisted
that his speech occur while players stood next to him,
fans watched from the stands, and he stood at the
center of the football field,” a location he had access to
only “because of his employment” and “during a time
when he was generally tasked with communicating
with students.” Pet. App. 15. Those conclusions are
supported by the factual findings of the district court.
The Alliance seeks to draw an analogy between
Petitioner and military chaplains, but its analysis
skips over the enabling regulations for the chaplaincy
programs that balance the relevant First Amendment
interests within the pluralistic military environment.
The Alliance does not discuss the policies and
regulations issued by the Department of Defense and
individual service branches that seek to protect the
free-exercise rights of all service members and avoid
improper religious endorsement or coercion. The
Alliance similarly ignores the overarching policies of
religious accommodation and facilitation that are
central to the military’s goals of meeting the diverse
religious requirements of service members. Neither
the chaplaincy, nor any potential impact of the Ninth
Circuit’s decision, can be evaluated in a such a
theoretical vacuum.
25
The Alliance suggests that chaplains should
have an unlimited right to engage in undefined
“everyday religious speech” on Army bases and naval
vessels, but it never explains what that speech might
encompass, in what contexts that speech may be
made and to whom, or how it may comply with the
military’s long-standing policies. Alliance Br. 21. The
Court can only speculate as to what types of
statements could constitute “everyday religious
speech.” As explained above, the military’s policies
comprehensively address the varied contexts in which
chaplains may provide or facilitate religious and nonreligious programs for service members.
In
compliance with directives from multiples levels
within the Department of Defense, starting with the
Secretary of Defense, the military chaplaincy has
been dedicated to providing services for all service
members and respecting the religious rights of others
in the diverse military environment. The Court
should not accept the Alliance’s invitation to engage
in unsupported speculation about the military’s
chaplaincy programs in the context of this high
school-related appeal.
The Court should similarly reject the Alliance’s
vague suggestion that the decision in Garcetti v.
Ceballos, 547 U.S. 410 (2006), poses a “threat” to the
military chaplaincy because chaplains could become
“subject to regulation.”
Alliance Br. 19–20.
Chaplains are military officers commissioned by the
armed services and they have been subject to
regulations for decades. The Alliance cannot ignore
the entire body of existing military policies and
doctrines.
These regulations properly distinguish
between chaplains’ varied roles in supporting the
26
religious needs of the pluralistic military forces, while
protecting the right of chaplains to opt-out of
participating in functions that may violate specific
tenets of their own faiths. The Alliance also cannot
show there are any risks of potential “confusion” or
“uncertainty” in a vacuum, without addressing the
established military policies that were in place before
the Court decided Garcetti and have been repeatedly
reaffirmed by Department of Defense leadership over
the last 16 years. While the Alliance may wish that
military commanders would reach a different balance
or draw different lines in advancing the free-exercise
rights of service members, this appeal is not an
appropriate vehicle for the Court to evaluate the
military chaplaincy writ large.
B.
The Ninth Circuit’s Decision Will
Not
Undermine
the
Military
Chaplaincies
The Ninth Circuit’s decision reflects a
balancing of Free Exercise and Establishment Clause
interests that also animates the Department of
Defense policies governing military chaplaincies.
Thus, for example, the Ninth Circuit recognized this
Court’s holding that “a state interest in avoiding an
Establishment Clause violation may be characterized
as compelling, and therefore may justify contentbased discrimination.” Pet. App. 57 (quoting Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 112–14
(2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271
(1981))). The Ninth Circuit further acknowledged
that
the
Establishment
Clause
“mandates
government neutrality between religion and religion,
and religion and nonreligion.” Pet. App. 75 (quoting
27
McCreary Cnty. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844, 860 (2005) (quoting Epperson v.
Arkansas, 390 U.S. 941 (1968))).
So too for military chaplains.
The
comprehensive military rules carefully balance the
First Amendment interests and protect the rights of
all service members to follow their own faith or no
faith at all. Like school district officials, chaplains
must show their own form of religious “neutrality,”
primarily embodied in the facilitation requirement, in
order to serve the diverse and pluralistic military
population. The Department of Defense instructs
chaplains to “facilitate meeting the religious needs
and requirements” of service members “to whom they
cannot directly minister” because they have a
different religious tradition. DoDI 1304.28, § 3.1(f).
Chaplains
must also
do
so
“respectfully,
professionally and in a reasonable amount of time.”
Id. § 3.1(g)(3).
The facilitation requirement
“recognizes the diversity of religious backgrounds of
[military] personnel” and the need for chaplains to
“respect the religious rights of others.” NWP 1-05,
§§ 1.4.2, 2.4.1.
These and other military policies preclude
chaplains from proselytizing or, in the Alliance’s
words, using their military positions to “spread their
message” to service members who follow a different
religious faith. Alliance Br. 4. Contrary to the
Alliance’s suggestion, chaplains “[p]romote the
spiritual well-being of Sailors and their families, in
accordance with the First Amendment, by respecting
and
accommodating their diverse
religious
requirements.” NWP 1-05, § 3.2.2. Army Regulations
28
emphasize that chaplains must implement “the
commander’s programs” for the benefit and support of
other service members. AR 165-1, § 1-10. The
military religious programs do not “belong” to
chaplains, NWP 1-05, § 1.2, and they are not a vehicle
for chaplains to “spread” their message. Alliance Br.
at 4.
The Ninth Circuit also emphasized the risks of
potential religious coercion in school environments,
an issue of heightened concern within the military’s
command structure. Pet. App. 17. Discussing
Petitioner’s post-game prayers on the football field,
the court of appeals noted that “over time, little by
little, [Petitioner’s] players began to join him in this
activity—at least one out of a fear that declining to do
so would negatively impact his playing time.” Pet.
App. 21. The military similarly recognizes that
religious expressions by chaplains could carry
messages of government endorsement or coercion of
the chaplain’s specific religious faith. Thus, for
example, because many military command functions
require mandatory attendance, commanders have
discretion to determine the degree of chaplain
participation in non-religious events. SECNAVINST
1730.7D, ¶ 6(d).
The professional chaplaincy “is the means by
which [the military] supports the free exercise of
religion and avoids the establishment of a state
religion, while at the same time ensuring that
religious ministry is offered in a way which is
respectful of good order and discipline.” NWP 1-05,
§ 3.3.1. Affirming the Ninth Circuit’s decision will
29
only advance, and not undermine, these principles of
the military chaplaincies.
CONCLUSION
For the foregoing reasons, the Court should
affirm the decision below.
Respectfully submitted,
Jonathan K. Youngwood
Counsel of Record
David Elbaum
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jyoungwood@stblaw.com
Avia Gridi
Laurel Fresquez
Kate Lambroza
SIMPSON THACHER & BARTLETT LLP
900 G Street, NW
Washington, D.C. 20001
Counsel for Amici Curiae
30
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.