Petition for Writ of Certiorari — Laird v. Anderson

Supreme Court brief1972

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INDEX

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EN Abbie eee anncenenenesacneanenn ss 1

atch enterica teases teen cmiemain a wane 1

T_T eee 2

Statute and constitutional provision involved ___-_______- 2

Statement:

1. The Service Academies and the chapel regulations- 2

2. The proceedings below________________________- 8

Reasons for granting the writ________________________- 9

a le ee ene ea et ae en naan eee 17

EE ten ianienpncincdwenidinnc nee a eteeem inns la

nnn tbhnekw haere tenth newhernn umes 70a

cae erie ald eases a enamine eevee ae presen 94a

CITATIONS

Abington School District v. Schempp, 374 U.S. 203_--_ 14, 15

Anderson v. Laird, 437 F. 2d 912, certiorari denied,

ESSE, i emer ie ener 11

Burns v. Wilson, 346 U.S. 137___.__-_--_--_------- 10

Cortright v. Resor, 447 F. 2d 245, certiorari denied,

ESE ARES TER RL ee ee 10

Dash v. Commanding General, 307 F. Supp. 849,

affirmed per curiam, 429 F. 2d 427, certiorari denied,

i owaaud 11

Everson v. Board of Education, 330 U.S. 1._____-_-_- 14

Flower v. United States, 407 U.S. 197__________- aos 11

Hamilton v. Regents, 293 U.S. 245...._._._____- SP adits 11

Kiiskila v. Nichols, 433 F. 2d 745____.____.______-- 11

Lemon v. Kurtzman, 403 U.S. 602_.___.__._______-- 14

Lichter v. United States, 334 U.S. 742______________- 9

Noland v. Desobry (C.A. 6, No. 71-1661, decided .

April 24, 1972), certiorari October 16, 1972, No.

_ Se Sanh: clap ete iene Of 11

Noyd v. Bond, 395 U.S. 683____- ee ore eee 10

Noyd v. McNamara, 378 F. 2d 538__._.___-___-_--- 11

Orloff v. Willoughby, 345 U.S. 83__._-_._-_---_----- 13

Raderman v. Kaine, 411 F. 2d 1102, certiorari dis-

ee ewewebeees 10, 11

Schneider v. Laird, 453 F. 2d 345, certiorari denied,

ER REE re ee ea ES 11

(I)

479-627 O—72——-1

;

PEP RY

ELBIR SBE PS DONOR? Si TR

Cases—Continued —

Tilton v. Richardson, 403 U.S. 672___----------___- 14, 15

United States v. Bradley, 418 F. 2d 688_____________ ll

United States v. Burry, 36 C.M.R. 829_-.-__________ 11

United States v. Cupp, 24 C.M.R. 565_---_________- 11

United States v. Morgan, 17 C.M.R. 584_-_________- 11

Walz v. Tax Commission, 397 U.S. 664___---_-_-- 13, 14,15

Wasson v. Trowbridge, 382 F. 2d 807_-____________- 13

West Virginia State Board of Education v. Barnette, 319

Ss ee ea alae 12

Yahr v. Resor, 431 F. 2d 690, certiorari denied, 401

Sea ns eee ue eee etauae ll

Constitution and statutes:

United States Constitution:

Article I, Sec. 8, clauses 12, 13, 14.___________- )

Article VI_.....-.-22--.--c2.-.------2e, ayaepee 8

First Amendment___________-_-_- 2, 8,9, 10, 12, 14, 15

10 U.S.C. 3012(b), 4331-4355, 6951-6974, 8012(b),

Nas a vodch dk cad oak cee erect 13

Miscellaneous:

Currie, Suitcase Divorce in the Conflict of Laws, 34

U.Chi_L. Rev. 26 (1966)__....-....---.-...-..-..- 16

Eleventh Conference of Superintendents of the

Academies of the Armed Forces, Record of Proceed-

Re See Wi Mo own e oe SE nace anes 6

Emerson, Toward a General Theory of the First Amend-

ment, 72 Yale L.J. 877 (1963)_----.------------- 10

French, Unconstitutional Conditions: An Analysis, 50

Geo. L.J. 234 (1961)__..._-_------------------- 16

Freund, Public Aid to Parochial Schools, 82 Harv. L.

a 15

Giannella, Religious Liberty Nonestablishment, and

Doctrinal Development, Part II. The Nonestablish-

ment Principle, 81 Harv.L.Rev. 513 (1968)--____- 15

United States Air Force Academy Regulations, No.

8 RSE sip pee eur) Maat eh pete IER an the A es ee 5

United States Military Academy Regulations, Chap-

re a ee aa 5

United States Naval Academy Regulations, Part II,

SR ota en a ene eee a pions 5, 6

Warren, The Bill of Rights and the Military, 37

Pa ees : WE Gs oie nsec e ve ceeccues 12

Gu the Supreme Court of the United States

OctToBER TERM, 1972

No.

Metvin R. Lairp, SECRETARY OF DEFENSE, ET AL.,

PETITIONERS

MicHAEL B. ANDERSON, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

The Solicitor General, on hehalf of the Secretary of

Defense and the Secretaries of the Army, Navy and

Air Force, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinions of the court of appeals (Appendix

A, infra, pp. la-69a) are not yet reported. The opinion

of the district court (Appendix B, infra, pp. 70a-93a)

is reported at 316 F.Supp. 1081.

JURISDICTION

The judgment of the court of appeals (Appendix

C, infra, p. 94a) was entered on June 30, 1972. On Sep-

tember 19, 1972, the Chief Justice extended the time

for filing a petition for a writ of certiorari to and in-

(1)

—_—e NITROBL AEST OOLE OIE OIE IL ESB, MBL INT FERENCE fe AME! SANE PIR ils 2

we SRA AERR ITT ats AT PASEO Ee RA ANC aa! LR ———

eluding October 28, 1972. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether regulations of the three federal military

academies requiring attendance of cadets and mid-

shipmen at Protestant, Catholic or Jewish chapel

services each Sunday violate the Establishment or

Free Exercise Clauses of the First Amendment.

STATUTE AND CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States Con-

stitution provides, in pertinent part:

Congress shall make no law respecting an es-

tablishment of religion, or prohibiting the free

exercise thereof * * *.

The pertinent regulations of the Service Academies

are set out in footnote 4 infra, p. 5.

STATEMENT

Respondents are two cadets at the United States

Military Academy at West Point, New York, and

nine midshipmen at the United States Naval Academy

at Annapolis, Maryland. They brought this suit as a

class action on behalf of all cadets and midshipmen

at the three federal military academies, seeking dec-

laratory and injunctive relief against regulations re-

quiring cadets and midshipmen to attend Protestant,

Catholic or Jewish chapel services each Sunday.

1. THE SERVICE ACADEMIES AND THE CHAPEL REGULATIONS

The training of cadets and midshipmen at the Service

Academies is a military activity ofthe United States

~~ SOE i Ot LIE ee POE LINERS, LS BAM POE LL ROBIE REMASE CE PELE NEE LAL| GES ALAR ADIE SLA SAGA SIS PLANED RES OP GE

government. The purposes and methods of the acad-

emies are not comparable to those of any civilian educa-

tional institution. As stated by General Koster, Super-

intendent of West Point, “The United States Military

Academy accepts responsibility for the total develop-

ment of a cadet: mental, physical, and moral’’ (App.

30).' Their methods, in addition to academic studies, in- i

clude the Honor Code, mandatory athletic training, ;

compulsory military drills and pervasive military F

discipline.* :

The all-encompassing character of the academies’ i

programs stems from the ‘‘unlimited” (5 Tr. 43) re- é

sponsibilities of the command positions for which the

cadets and midshipmen are being trained. As Admiral

Thomas H. Moorer, then Chief of Naval Operations

and later Chairman of the Joint Chiefs of Staff, testi-

fied (6 Tr. 187-189) :

1“App.” refers to the Appendix in the Court of Appeals.

“—Tr.—” refers to the volume and page of the ten volume tran-

script of the proceedings below (“A Tr.—” refers to a specially

prepared volume coming between volumes 1 and 2).

?The importance of discipline in the academies’ program was

stressed by Roger 'T. Kelley, Assistant Secretary of Defense in

charge of manpower:

“Understanding the conditions under which they operate, there

are very many actions, very many decisions made for the mid-

shipmen and cadets in the course of his four years at the serv-

ice academy. In the process of following authority and _ fol-

lowing rules prescribed by others and practices laid down by

others in authority, a midshipman and cadet learns to follow

and in the course of learning to follow. he begins to form a

foundation for knowing how to lead.

“In the course of following certain rules and practices which

he may find personally onerous or disagreeable at the time.

there is instilled in the individual a devotion to the service

which he nominated himself for in full knowledge of the rules

and the conditions that were to be imposed on him” (6 Tr. 34).

PAE MLSE RIE DT DOR BE MRE RESO RAB INTE ATT

‘ AIT ME i ATT RD RAR Go at Pte

RR ai

The responsibility and, indeed, accountability

of every commander is to insure that he puts

forth every effort to protect and enhance the

welfare of the personnel under his com-

mand. * * * He must look on each man as an

individual and make certain that the needs, the

welfare and the desires of each individual are

taken into account when he issues orders, estab-

lishes routines or takes any action which would

[have] impact on the day-to-day life of the

individual concerned. * * * [Ultimately] leader-

ship is the art or technique of influencing an

individual or a group of individuals to work

together towards the achievement of a common

goal; and you will not get this kind of effort

and this working together unless the individ-

uals in the command have the utmost confi-

dence that the commander recognizes them-as

individuals and will take every action in his

power to see to it that their welfare, * * * their

desires and their needs are always considered

when he gives an order.

A commander’s responsibilities may include, partic-

ularly in combat and crisis situations, attending to

the spiritual needs of his men.’ The academies there-

fore attempt to develop in cadets and midshipmen a

* Admiral Moorer noted the special responsibilities of com-

manders during crises (6 Tr. 205) :

“[In] a crisis situation, different men react in different ways,

and it is very important that the commander * * * understands

why the various men in his command will react in a different

way, and why some of them find a need to resort to religion to

support them in this time of extreme danger and extreme trial.

And unless he understands that many people have this feeling

and have this need to resort to their religious beliefs to provide

strength to them in this period of crisis, he cannot properly * * *

handle this crisis situation.”

respect for, an understanding of, and a sensitivity to

religion and the religious feeling of others (A Tr. 5,

11, 13; 2 Tr. 106-107, 120, 126-130, 138; 5 Tr. 27-28, t

41-43, 71, 111-112, 122-123, 140; 6 Tr. 191, 211, 229). f

In recognition of these responsibilities the acad- :

emies require cadets and midshipmen to attend a re-

ligious service each Sunday as part of their overall

training. As General Koster stated: “In recognition

of this responsibility [of the total development of a

cadet], the fact that moral values are the foundation

stone of honor and integrity, and the necessity for

every Officer to have a first-hand knowledge of the

religious traditions of our country, the Academy re-

quires each cadet to attend Protestant, Catholic or

Jewish chapel on Sunday”’ (App. 30).*

‘The West Point regulation provides:

“Attendance at chapel is part of a cadet’s training; no cadet

is exempt. Each cadet must attend either the Cadet Chapel.

Catholic Chapel or Jewish Chapel service each Sunday, ac-

cording to announced schedules.” [Regulations for the United

States Military Academy Chapter 8, Section TV. §819.]

The Naval Academy regulation provides:

“1, The basic requirements concerning religious matters at

the Naval Academy are:

“(a) All midshipmen will attend church or chapel services

on Sunday mornings but are required to attend at no other

times.” | Part II, Chapter 15, § 1501 of the United States Naval

Academy Regulations. ]

The Air Force Academy regulation provides:

“Attendance at an established church service is mandatory

for those Second, Third and Fourth Classmen present for duty

in the Cadet Area.” [Air Foree Cadet Regulation No. 265-1.]

The Naval and Air Force Academies also permit their mid-

shipmen and cadets to attend services at local churches in lieu

of the academy church or chapel service. West Point is not

located in any town; consequently, Army cadets must choose

among the services available at the Academy.

PRR a Ret RII AR ATT E SITS ALI OE RL POS BE EL PS PO EN SEZ PRGA |

Violations are punished in the same manner as Vio-

lations of the other academy regulations: by repri-

mands, demerits, marching tours, confinement to

quarters and, for repeated violations, expulsion. The

academies recognize, however, that some cadets and mid-

shipmen may be excused for conscientious objection

to church or chapel attendance.’

The academies permit a cadet or midshipman to

change the church of his regular attendance if he

receives permission from the respective chaplains in-

volved (and from his parents if he is under twenty-

one), and on demonstration of a sincere desire to

affiliate with a new church.“

The government officials responsible for the super-

vision of the Service Academies testified that the

chapel attendance requirements served the purpose

of training cadets and midshipmen to become better

commanders, rather than any purely religious pur-

pose. Thus Admiral Moorer stated (6 Tr. 191):

The purpose, of course, is to enhance his

leadership and his commandability by putting

*The policy statement of the Academy Superintendents in

April 1969 included the following language :

“It is understood that intelligent provisions must be made

for bona fide cases where attendance would be in conflict with

sincerely held convictions of individual cadets or midshipmen.~

[The Eleventh Conference of Superintendents of the Academies

of the Armed Forces. Record of Proceedings. April 18, 1969

at p. 32.]

©The Naval Academy regulations provide that “| rjequests for

changes to a different denominational church based on personal

whims of the midshipman, rather than a sincere desire to

affiliate with the stated denomination, will not be approved.”

Part Il, Chapter 15, § 1502.1a of the United States Naval

Academy Regulations.

_—

him in a position where he can get a feel, an

understanding of the impact of religion on the

various types of individuals and so he can see

this in operation; and, consequently, as he acts

as a leader in later years, he will appreciate

this impact that religion has on so many peo-

ples

Admiral Moorer acknowledged that the chapel at-

tendance requirements could have an effect on the re-

ligious lives of some cadets and midshipmen (6(a) Tr.

268):

*** T think a midshipman who attends, initially,

and who has been raised by a family who did

not require their children to go to church,

might receive from the service, some inspira-

tion, some motivation of his beliefs that would

create in him a desire to be more active in the

church. * * *

However, it was emphasized that the academies were

net attempting to force any system of belief on the

cadets and midshipmen. Thus, Rear Admiral James Cal-

vert, Superintendent of the Naval Academy, testified

(A Tr. 12):

If the man in his own intellectual situation

really does not believe, that is his privilege;

mt it is not his privilege as an officer who is

fulfilling his job satisfactorily to ignore the re-

ligious feelings of his men. He cannot do that.

- ?

7 ONO Peet preg 6 Me NRLAt i OFF ERE ew ere

‘Secretary Kelley likewise testified to the training purposes

of the chapel requirement (5 Tr. 26-27) :

“Very simply the reason for the requirement is to help the

midshipmen and the cadets understand the basis of religious be-

lief and practice on the part of other midshipmen and cadets

and thus equip him for positions of leadership responsibility in

later service life.”

re ——— |

Finally both Admiral Moorer and Secretary Kelley

stated that the training values sought to be advanced

by the chapel attendance requirement could not be ob-

tained by substituting classroom study for the required

chapel. Admiral Moorer said (6 Tr. 192):

[An academic course in morals and ethies and

comparative religions] would be artificial be-

cause that is not the way that people live and

that people feel and so on with respect to re-

ligion. So, I think it is better, by far, to permit

the midshipmen or require the midshipmen te

observe this in a real world, so to speak.

See also the testimony of Secretary Kelley, 5 Tr. 87.

2. THE PROCEEDINGS BELOW

The district court held that the Service Academies’

requirement of mandatory chapel attendance did not

infringe either the Establishment or Free Exercise

Clauses of the First Amendment or the “religious

test” clause of Article Six of the United States Con-

stitution." The court of appeals, with Judge MaeKin-

non dissenting, reversed. Chief Judge Bazelon and

Judge Leventhal, in separate opinions for the court

of appeals’ majority, advanced different reasons for

the result. Chief Judge Bazelon held that mandatory

chapel attendance is a per se violation of the Estab-

lishment Clause, on the ground that there are “no

overriding secular interests which could ever justify

a government's imposition of those religious activities

which the Clause was written to abolish.’”’ (Appendix

* Article VI provides. in pertinent part: “no religious Test

shall ever be required as a Qualification to any Office or pub-

lic Trust under the United States.~

A, p. lia, infra). Judge Bazelon concluded that the reg-

ulations were also unconstitutional under the Free Exer-

cise Clause (id., p. 26a, infra). While Judge Lev-

enthal did not reach that issue, he found required

chapel attendance “presumptively invalid” as a meas-

ure respecting an establishment of religion. In his

view, the regulations were invalid because military

officials failed to demonstrate that chapel attendance

is an “unquestioned and imperative necessity” to the

effective training of military officers. Judge MacKin-

non dissented, concluding “that the military power

recognized by the Constitution authorizes the aead-

emies to include the chapel attendance requirement

in their curriculum as a necessary part of the acad-

not violate the First Amendment of the Constitution”

(id., p. ia, infra).

This ease presents important questions concerning

the application of the Religion Clauses of the First

Amendment to the training of officers of the Armed

Forces.” The court of appeals has applied erroneous

standards in striking down a century-old practice eon-

sidered essential to the effective training of cadets

and midshipmen at the Service Academies. The acad-

emies’ chapel attendance requirements are a valid ex-

* Article I. $8. cl. 12. 13 and 14 of the Constitution. give

Congress the power “To raise and support Armies * * * [t]lo

provide and maintain a Navy [and] [t]o make Rules for the

Government and Regulation of the land and naval Forces.”

These enumerated powers necessarily imply the power prop-

erly to train military personnel. Cf. Lichter v. United States.

34 US. 742. 778-783.

ercise of authority by the military over its own

personnel; they restrict First Amendment interests

only to the extent necessary to vindicate legitimate mil-

itary need.

1. The majority opinions—in holding the chapel at-

tendance requirements “presumptively” invalid or un-

constitutional per se—make constitutionally suspect

any action of the military touching on the religious

lives of servicemen. In our view, this approach fails

to accord proper weight to the special needs and re-

sponsibilities of the Armed Services.

In reviewing military decisions, civilian courts

“must accommodate the demands of individual rights

and the social order in a context which is far removed

from’? those encountered in civil- litigation. Noyd v.

Bond, 395 U.S. 683, 694. This Court has recognized

that in that context “the rights of men in the armed

forces must perforce be conditioned to meet certain

overriding demands of discipline and duty * * *.”

Burns v. Wilson, 346 U.S. 137, 140. These “overrid-

ing demands” have led to judicial recognition that the

scope of a serviceman’s First Amendment freedoms

of speech and expression are not the same as those in

civilian life.” See e.g., Cortright v. Resor, 447 F. 2d

“To a certain extent, at least, the military sector of a so-

ciety must function outside the realm of democratic principles,

including the principle of freedom of expression. * * * Cer-

tainly, members of the armed forces, at least when operating in

that capacity, can be restricted in their right to open discus-

sion.” Emerson, Toward a General Theory of the First Amend-

ment, 72 Yale LJ. 877. 935-936 (1963). See Cortright v. Resor.

447 F. 2d 245, 253-254, certiorari denied, 405 U.S. 965; Rader-

man ¥. Kaine, 411 F. 2d 1102, 1104, certiorari dismissed, 396 U.S.

976. Similarly, the right of servicemen to distribute literature on

_—_— . 0 RO Be err

945, 252 (C.A. 2), certiorari denied, 405 U.S. 965;

Raderman v. Kaine,°411 F. 2d 1102 (C.A. 2), cer-

tiorari dismissed, 396 U.S. 976; Dash v. Commanding

General, 307 F. Supp. 849 (D. S.C.), affirmed per

curiam, 429 F. 2d 427 (C.A. 4), certiorari denied, 401

U.S. 981.

Military courts have held that a serviceman’s re-

ligious freedoms may be subject to reasonable

limitation when military necessity requires. See United

States v. Cupp, 24 C.M.R. 565, 570-572(court martial

conviction for refusal to salute superior officer upheld

against religious claims of serviceman who became a

Jehovah’s Witness after his enlistment) ; United States

vy. Morgan, 17 C.M.R. 584, 587-588 (court martial con-

vietion for refusal to “present arms” upheld against :

religious claims of serviceman who was a Jehovah’s

Witness); United States v. Burry, 36 C.M.R. 829,

831 (court martial conviction upheld for refusal to work :

on Saturday sabbath). See also Hamilton v. Regents, 293 ,

U.S. 245, 263-264. (

On the only oceasion on which this Court has com- ;

mented on the matter, the Court appeared to recog-

a li le ated ooh

which could validly be imposed on civilians. Compare Noland v.

Desorby (C.A. 6, No. 71-1661, decided April 24, 1972), certiorari

denied (No. 72-145, October 16, 1972) ; Schneider v. Laird, 453 F.

2d 545 (CLA. 10), certiorari denied, 407 U.S. 914; Yahr v. Resor,

431 F. 2d 690(C.A. 4), certiorari denied, 401 U.S. 982; and Dash v.

Commanding General, supra, with Flower v. United States, 407

US. 197; Hiiskila v. Nichols, 433 F. 2d 745, 750 (C.A. 7); and

United States v. Bradley, 418 F. 2d 688 (C.A. 4). And a service-

man’s personal freedoms of conduct and appearance must yield

to the military's need to establish procedures for duty assignments,

see Voyd v. McNamara, 378 F. 2d 538 (C.A. 10), and to regulate

physical appearance, Anderson v. Laird, 437 F. 2d 912 (C.A. 7).

certiorari denied, 404 U.S. 865; Raderman v. Kaine, supra.

a military base may be subject to greater restraints than those :

;

na tes at ek Rake ea)

;

‘

nize that military needs and responsibilities may

justify restrictions on a serviceman’s religious actions.

West Virginia State Board of Education v. Barnette,

319 U.S. 624, 642, n. 19. In Barnette, Jehovah’s Wit-

ness parents of school children challenged a West

Virginia school board resolution requiring public

school children to salute the flag and pledge allegiance.

Although the Court struck down this requirement

as “invad[ing] the sphere of intellect and spirit which

it is the purpose of the First Amendment to our Consti-

tution to reserve from all official control’’ (319 U.S. at

642), the Court specifically recognized that “those sub-

ject to military discipline are under many duties and

may not claim many freedoms that we hold inviolable

as to those in civilian life” (id. at 642, n. 19).

These cases indicate that the courts will not inter-

fere with “the relationship of the military to its own

personnel” (Warren, The Bill of Rights and the Mili-

tary, 37 N.Y.U.L.Rev. 181, 186 (1962)), where chal-

lenged military action is reasonably related to the at-

tainment of a legitimate military need and narrowly

cireumseribed to avoid unnecessary conflict with con-

stitutionally protected interests of servicemen. We

submit that, contrary to the court of appeals’ ruling,

the fact that military action restricts the First

Amendment interests of servicemen does not, of it-

self, create a “presumption” of invalidity or render

the military action unconstitutional per se.

2. The academies’ requirement of mandatory chapel

attendance does not violate the freedom of Religion

Clauses of the First Amendment, since it restricts con-

a _ wae

stitutionally protected interests only to the extent nec-

essary to ensure effective military training.

The academies have accepted “responsibility for the

total development of a cadet [or midshipman]: mental,

physical, and moral’’ (supra, p. 3). The selection of

training procedures best suited for the development of

officers of the highest caliber has been committed to

the military. 10 U.S.C. 3012(b) (1), 4831-4355, 6951-

6974, 8012(b)(1), 9331-9355; cf. Orloff v. Wil-

loughby, 345 U.S. 83, 94; Wasson v. Trowbridge, 382

F. 2d 807, 812 (C.A. 2). They have concluded that the

“moral responsibility of ‘command’ (A Tr. 5)

requires a comprehensive training program which in-

cludes regular chapel] attendance. As the trial court q

found, “[e]xperience has shown that * * * a sensitivity 3

to the spiritual needs of men in the times of combat crisis '

[is] essential in leading men in the face of danger” '

(Appendix B, p. 83a, infra; 316 F. Supp. at 1089). A :

reviewing court should not lightly substitute its esti- :

mates for that judgment. :

Moreover, there has been “an unbroken pattern of é

150 years of mandatory chapel under the eyes of the 3

President and the Congress, the military authorities, :

and the public in general’’ (Appendix B, pp. 80a-81a,

infra; 316 F. Supp. at 1087-1089) The long existence of

this practice “is not something to be lightly cast aside”

(Walz v. Tax Commission, 397 U.S. 664, 678).

To survive a challenge that it is a “law respecting é

the establishment of religion’? governmental action ‘

must satisfy three criteria: §

First, the statute must have a secular legisla- ;

tive purpose; second, its principle or primary :

Nac aE wea gH Pe

ASAE ANSEL PDO LILIES Be BEATS A a OM STB a.

effect must be one that neither advances nor

inhibits religion * * *; finally, the statute must

not foster “an excessive governmental entangle-

ment with religion” * * * [Lemon v. Kurtsman,

403 U.S. 602, 612-613; see also Tilton v. Rich-

ardson, 403 U.S. 672, 678].

Under these standards, the chapel attendance regula-

tions pass muster.”

The military training purpose of these regulations is

established by the record (supra, pp. 6-7).

While the academies’ regulations may encourage

religious tendencies in some cadets and midshipmen

or intensify unfavorable attitudes towards religion in

others, the primary effect of the regulations, as the

district court found, is to produce better military offi-

cers: men with an understanding of, and respect for,

our Judeo-Christian heritage, and a capacity to re-

spond to the religious needs and motivations of the

men they command. The religious impact of the regu-

lations is minimized by administrative provisions for

excusing conscientious objectors (supra, p. 6, n. 5)-and

1! While the Court in prior cases has said that the “establish-

ment of religion” clause of the First Amendment forbids the

government to “force [or] influence a person to go to or remain

away from church against his will” and that “[n]o person can

be punished * * * for church attendance or non-attendance,”

Everson v. Board of Education, 330 U.S. 1, 15-16, important

constitutional questions cannot always be decided by the appli-

cation of sweeping generalities to different factual situations.

In Walz v. Tax Commission, 397 U.S. 664, 670, the Court re-

ferred to “[t]he hazards of placing too much weight on a few

words or phrases of the Court.” There is a significant difference

between the imposition of prayer and Bible reading in the pub-

lic schools (see, ¢.g., Abington School District v. Schempp, 374

U.S. 203) and the military regulations here, which apply only

to military personnel training of their own volition to become

officers of the Armed Forces.

Aeaates 1

a ——— Sv pe atte: ie in Re EERE a Pt ENS AREA EL ONS. ee COL RA

those for whom the services are “counterproductive”

(5 Tr. 79). Moreover, since the cadets and midshipmen

are of college age, the religious impact of required at-

tendance is likely to be secondary.”* See Tilton v. Rich-

ardson, 403 U.S. at 686. Finally, in the considered judg-

ment of the responsible officials the values found in

chapel services would be lost if academic classes in

morals and comparative religion were substituted. Thus

the regulations do not violate the injunction that the }

government not “use essentially religious means to |

serve governmental ends where secular means would

suffice.’’ Abington School District v. Schempp, 374 U.S.

203, 231 (Brennan, J., concurring) ; Walz v. Tax Com-

mission, 397 U.S. 664, 680 (Brennan, J., concurring).

Nor do the attendance regulations foster ‘‘an exces-

sive governmental entanglement with religion.’’ Walz

v. Tax Commission, supra, 397 U.S. at 674. As the

court below acknowledged (Appendix A, p. 32a,

infra), the Establishment Clause does not prohibit

the academies from providing property, facilities, and

personnel in order to permit chapel and church at-

tendance by cadets on a voluntary basis. See Abington

School District v. Schempp, 374 U.S. at 296-297 (Bren-

* The cadet or midshipman at the academies is obviously less

susceptible to inculcation of religious beliefs than a pre-college

student might be, “since either his basic religious personality

has already been formed or it can be influenced successfully

only by stimulating the student to acquire understanding and

insight which persuade him to accept certain religious teach-

ings.” Giannella, Religious Liberty. Nonestablishment. and Doc-

trinal Development, Part 11. The Nonestablishment Principle.

81 Harv. L. Rev. 513, 583 (1968). See, also, Freund. Public Aid

to Parochial Schools, 82 Harv. L. Rev. 1680. 1691 (1969).

J PONE MELT PEE ATTIRE LT aa! |

yr yee

Eee SEEN PPPS TEE BATT LP TRA BOLT AIOE

A Aig ME BOGE RN LOO LEY ELE AE LENE. SIREN, BS ter WWD A Pie Pte

nan, J., concurring) ; id. at 306 (Goldberg, J., concur-

ring). Thus the academies’ financial involvement in the

administration of these regulations does not “exces-

sively”’ involve the government. As we have contended

above (supra, pp. 2-8), the compulsory aspect of the

chapel program involves the government in religion only

to the extent necessary to attain legitimate military

training objectives. Such involvement is not “excessive”

in light of its overriding military purpose.

3. The court of appeals also erred in holding that

mandatory chapel attendance could not constitution-

ally be imposed as a condition of admission to the

Service Academies (Appendix A, p. 47a, infra).

For “[i]t is sometimes proper to condition the grant

of a privilege upon the surrender of a right that can-

not be taken away directly * * * if granting the privi-

lege enhances the state’s interest in denying the right.

The interest in requiring disclosure of associations

or beliefs, for example, increases if one is to be given

aecess to military secrets.” Currie, Suitcase Divorce

in the Conflict of Laws, 34 U.Chi.L.Rev. 26, 32

(1966). See generally French, Unconstitutional Con-

ditions: An Analysis, 50 Geo. L.J. 234, 247-248

(1961). In our view, the academies’ attendance re-

quirement meets this test. Attendance at the acad-

emies is voluntary. Prospective applicants are told

of the chapel requirements prior to their acceptance

(App. 145-149). In view of the government’s interest in

requiring some minimal exposure to religion of those

admitted, whose leadership capacity will depend in

part on an ability to understand the concrete religious

needs and motivations of others, compulsory chapel

. ‘ or ae ~~ “ Oakdale emg a .

a WEA REWER eA NON ad bern DID rnc AE A

attendance is a valid condition upon attendance at the

Service Academies.

CONCLUSION

The Service Academies are conducting an educa-

tional program for the purpose of providing well and

broadly trained officers for our armed forces. Within

very Wide limits the persons charged with planning

and carrying out that program should be free to de-

termine its content and details. The responsible offi-

cers of the government have long held the position

that awareness of our moral and religious heritage :

is an essential part of the education of future military

leaders at the Service Academies. No cadet or midship-

man is required to believe what he hears. No one is sub-

jected to a catechism by governmental authority. But all

students are required to gain an appreciation of our

moral and religious heritage. This should be recognized

as an appropriate part of education and within the

proper authority of those charged with the development

of the educational program of the Service Academies.

To say that this is an establishment of religion is to be

tyrannized by labels, while unduly denigrating the au-

thority of those responsible for the educational program

of the military services acting, under the power ex-

pressly granted by the Constitution to “make Rules for

the Government and Regulation of the land and naval

Forces.”’

SE ec |

a A ee a a ERE |

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Erwin N. Griswo_b,

Solicitor General.

Haruinaton Woop, Jr.,

Assistant Attorney General.

ALAN A. TUTTLE,

Assistant to the Solicitor General.

Morton HOLLANDER,

Attorney.

OcToBER 1972.

Sian iNT ROR BAS 08 EEN TR TEL TY Ta RIE NTE N EY IA ITAL DEE Se AEH LA ARE CTE Be nt C2. take oS SOL at POD

APPENDIX A

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ABPL IAL ——

No. 24,617

MicHaEL B. ANDERSON, ET AL., APPELLANTS

Me vin R. Latrp,

SECRETARY OF DEFENSE OF THE UNITED STATES

oF AMERICA, ET AL.

Appeal from the United States District Court

for the District of Columbia

Decided June 30, 1972

Mr. Warren K. Kaplan, with whom Mrs. Hope Eastman

was on the brief, for appellants.

Mr. Robert J. Higgins, Assistant United States Attor-

ney, with whom Messrs. Thomas A. Flannery, United

States Attorney at the time the brief was filed, and John

A. Terry and Joseph M. Hannon, Assistant United States

Attorneys, were on the brief, for appellee.

Mr. Joseph B. Friedman filed a brief on behalf of the

Baptist Joint Committee on Public Affairs, as amicus

curiae urging reversal.

Mr. John J. Adams filed a brief on behalf of the General

Commission on Chaplains and Armed Forces Personnel,

as amicus curiae urging reversal.

Messrs. Joel H. Levy and Albert E. Arent filed a brief

(la)

Se a Nate Oe eae Oe ate a eC |

on behalf of the American Jewish Congress, et al, as

Before Bazeron, Chief Judge, and Levertuat and Mac.

Kixnon, Circuit Judges.

Opinion per curiam.

Opinion for reversal filed by BAZELON, Chief Judge.

Separate opinion for reversal filed by LEVENTHAL, Circuit

Judge, at p. 29.

- PR ARS SS Ss eer ae

p. 47.

Per Curiam: The separate opinions of Chief Judge

Bazelon and Circuit Judge Leventhal concur in the con-

clusion that the judgment of the District Court, denying

appellants’ motions for declaratory and injunctive relief

against compulsory chapel attendance at the military acad-

emies should be reversed. The case is remanded for the

entry of an appropriate order. Circuit Judge MacKinnon

dissents.

Bazeton, Chief Judge: This appeal seeks reversal of

the District Court's decision that the requirement of man-

datory chapel attendance for cadets and midshipmen at

three federal military academies does not violate the

—

violate the Free Exercise Clause. Judge MacKinnon, in

dissent, would uphold the decision of the District Court, 316

F. Supp. 1081 (D.D.C. 1970).

——

services at local churches instead of the academy chapels

No alternative attendance is permitted at West Poin

“The test may be stated as follows: what are the pur

pose and the primary effect of the enactment? mt

The District Court found no violation of the Free Exer-

* Anderson v. Laird, 316 F.Supp. 1081, 1090 (D.D.C.1970).

*374 U.S. 208, 222 (1963).

to attend and he chooses whether to participate and wor-

In making its decision, the court accorded great weight

to the opinions and judgments of the military personnel

concerned with officer training; noted the unbroken tradi-

tion of compulsory chapel attendance at the academies;

and relied on the traditional reluctance of courts to inter-

fere in the management of the armed forces.”

These regulations, however, exceed the constitutionally

permitted scope of governmental power. Study of the his-

tory of the First Amendment and the Supreme Court de-

cisions interpreting it instructs that the Establishment

Clause was written to abolish certain forms of govern-

mental regulation of religion in order to protect abso-

lutely the core values of religious liberty. Attendance at

religious exercises is an activity which under the Estab.

lishment Clause a government may never compel.

If.

The language of the First Amendment expresses the

feelings aroused in early America in reaction to the relig-

ious conditions and practices transplanted from the Old

World. The background of the First Amendment has been

probed in depth in many Supreme Court opinions "' and, in

v. Secretary of Navy, 422 F.2d 934 (2d Cir. 1970); Rader-

man v. Kaine, 411 F.2d 1102 (2d. Cir. 1969); Byrne v.

Resor, 412 F.2d 774 (3rd Cir. 1969); Smith v. Resor, 406

F.2d 141 (2d Cir. 1969) ; United States ex rel. Schonbrun v.

Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert.

denied 394 U.S. 929 (1969) and others.

11 Foremost among these are Mr. Justice Black’s Opinion

of the Court and Mr. Justice Rutledge’s dissent in Everson

v. Board of Education, 330 U.S. 1 (1947). The two opinions

agree that the struggle for religious liberty in Virginia, led

o~"H7*™-: a ee ee ee

the words of Mr. Justice Rutledge, “[n]o provision of the

Constitution is more closely tied to or given content by its

generating history than the religious clause of the First

Amendment.” *

Compulsory church attendance was one of the primary

restrictions on religious freedom which the Framers of

our. Constitution sought to abolish."* Nonattendance was

often treated as an offense which could be severely pun-

ished in order to enforce loyalty to an established sect.

by James Madison and Thomas Jefferson, culminated in

the drafting of the Religion Clauses of the First Amendment.

See also Engel v. Vitale, 370 U.S. 421, 431-35 (1962).

12 Everson v. Board of Education, supra note 11, 330 U.S.

at 33.

13 The views of Roger Williams, progenitor of the theory of

separation of church and state, are succinct on this point:

“There goes many a ship to sea, with many hundred

souls in one ship, whose weal and woe is common, and is

a true picture of a commonwealth, or human combina-

tion, or society. It hath fallen out sometimes, that both

Papists and Protestants, Jews and Turks, may be em-

barked in one ship; upon which supposal, I affirm that

all the liberty of conscience I ever pleaded for, turns

upon these two hinges, that none of the Papists, Protes-

tants, Jews, or Turks be forced to come to the ship’s

prayers or worship, nor compelled from their own par-

ticular prayers or worship, if they practice any.” 1

STOKES, CHURCH AND STATE IN THE UNITED STATES 197

(1950). Also quoted in School District of Abington Town-

ship Vv. Schempp, supra note 6, 374 U.S. at 214, n. 6.

For a thorough discussion of the efforts to dis-establish relig-

ion during and after the Revolution, see S. CoBB, THE RISE

or RELIGIOUS LIBERTY IN AMERICA 482-509 (1968).

4 In Virginia, the Governor Sir Thomas Dale ordained in

1612 that “non-attendance on religious services entailed a

penalty, for the first offense, of the stoppage of allowance; for

the second, whipping; for the third, the galley for six

LY PP POAT LT MEANS I MU

Viewer,

ee TER OT ee ————ae

The “Virginia Bill for Religious Liberty”, originally

drafted by Thomas Jefferson, was enacted in Virginia in

1786 in the wake of the defeat of the state’s tax levy for

support of established churches. This legislation culmi-

nated James Madison’s and Jefferson’s struggle for relig-

ious liberty in that state. The Bill specifically provided:

“That no man shall be compelled to frequent or

support any religious worship, place, or ministry

restrained,

whatsoever, nor shall be enforced, mo-

lested, or burthened in his body or nor shall

otherwise suffer on account of his religi opinions

or belief... .”™

This statute seeks to define certain categories of gov-

ernmental involvement with individual religious conduct

which must be prohibited. The writers of the First

Amendment abandoned this definitional task in favor of

drafting broader language to forbid any law “ i

an establishment of religion, or prohibiting the free exer-

cise thereof”. The actions which the Virginia legislation

forbade indicate a core value which remains protected

by the Establishment Clause—freedom from governmental

months.” The first Virginia Assembly whose acts have been

recorded provided for absence from Church for one Sunday

the fine of five pounds of tobacco in 1623. And in 1631, ab

sentees from Church were to be fined one shilling for each

offence. See CoBB, supra note 13, at 78, 80, 82-83. What Cobb

refers to as “a desire for old-time persecution” occasionally

reared its head in eighteenth century Virginia. In 1722, the

Grand Jury returned thirteen presentments for absenteeism.

Td. at 99.

In Massachusetts, the “law of domicile . . . required all

people to live within easy distance of the meeting-house so

that all could attend worship.” Jd. at 176. Furthermore, non-

attendance at services was punished by a fine of five shillings

in 1646. Id. at 177.

* 12 Hening, Statutes of Virginia (1823) 84, also quoted

in Everson v. Board of Education, supra note 11, 330 U.S. at

13.

SR a a a ei ee ——

imposition of religious activity. The Supreme Court has

recognized that “the provisions of the First Amendment,

in the drafting and adoption of which Madison and Jeffer-

son played such leading roles, had the same objective and

and were intended to provide the same protection against

governmental intrusion on religious liberty as the Virginia

statute.” **

The struggle in Virginia also led Madison to write his

famed “Memorial and Remonstrance Against Religious

Assessments.” ** This document reflects Madison’s oppo-

sition to official relations between church and state in

every form and to every degree, whether the relations

afforded a preference to a particular sect or simply aided

in general the practice of religion. Thus the word reli-

gion “connotes the broadest content, determined not by the

form or formality of the teaching or where it occurs, but

by its essential nature regardless of those details.” ** The

Government is prohibited from “establishing” all reli-

gions as well as just one.”* And, it is also the legacy of

%* Everson v. Board of Education, supra note 11, 330 U.S.

at 13, citing Reynolds v. United States, 98 U.S. 145, 164

(1878) ; Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ; and

Davis v. Beason, 133 U.S. 333, 342 (1890). And see McGowan

v. Maryland, 366 U.S. 420, 437 (1961).

* II Writings of James Madison 183, reproduced in full as

the Appendix to Mr. Justice Rutledge’s dissent in Everson v.

Board of Education, supra note 11, 330 U.S. at 63.

8 Everson v. Board of Education, supra note 11, 330 U.S.

at 33 (Rutledge, J. dissenting).

% The Supreme Court “has rejected unequivocally the con-

tention that the Establishment Clause forbids only govern-

mental preference of one religion over another.” School Dis-

trict of Abington Township v. Schempp, supra note 6, 374 U.S.

at 216. See also Illinois ex rel. McCollum v. Board of Edu-

cation, 333 U.S. 203, 210-211 (1948) and McGowan v. Mary-

land, 366 U.S. 420, 442 (1961).

PERE SPE ele

10a

Madison’s writings which teach that certain governmental

practices must be abolished completely, no matter how

slight an incursion they seem to work on the essential

nature of religious liberty.”

This brief account reveals that the men who framed

the Religion Clauses of the First Amendment were writ-

ing to abolish specific governmental practices which de-

stroyed individual religious liberty and thereby “estab.

lished” religion. Governmental compulsion of church at-

tendance was one of those practices.

TI.

However, the holding in this case does not rest on his-

tory alone.2* The Supreme Court has applied the Estab-

20 J. Madison, “Memorial and Remonstrance”, supra note

17, quoted in Everson v. Board of Education, supra note 11,

330 U.S. at 65-66:

“(I]t is proper to take alarm at the first experiment

on our liberties. We hold this prudent jealousy to be the

first duty of citizens, and one of [the] noblest character-

istics of the late Revolution. The freemen of America

did not wait till usurped power had strengthened itself

by exercise, and entangled the question in precedents.

They saw all the consequences in the principle, and they

avoided the consequences by denying the principle. We

revere this lesson too much, soon to forget it. Who does

not see that the same authority which can establish

Christianity, in exclusion of all other religions, may

establish with the same ease any particular sect of

Christians, in exclusion of all other Sects? That the

same authority which can force a citizen to contribute

three pence only of his property for the support of any

one establishment, may force him to conform to any

other establishment in all cases whatsoever?”

21 That the Framers intended to abolish a specific practice

might not be dispositive today, at least in the opinion of Mr.

Justice Brennan. In Schempp, he warned against a “too

SEE SAE ET SE FILS —

lla

lishment Clause in circumstances unfamiliar to early

Americans,” and has interpreted it to prohibit those gov-

ernmental actions which pose the same threat to religious

liberty as did earlier colonial practices.* Thus in Everson

y. Board of Education, Mr. Justice Black wrote for the

Court:

literal quest for the advice of the Founding Fathers” because

of the ambiguity of the extant history, but also because the

changing circumstances of American life call for a broad

application of the principles established in colonial times.

374 U.S. at 237-242. He noted that the Fathers were con-

cerned with “far more flagrant intrusions of government

into the realm of religion . . .” than we might see today. Id.

at 237. The relevance of history to our opinion in this case

is that compulsory attendance laws were among the very “fla-

grant intrusions” which the Establishment Clause was writ-

ten to abolish.

22The Framers “did not limit the constitutional proscrip-

tion to any particular, dated form of state-supported theolog-

ical venture.” McGowan v. Maryland, 366 U.S. 420, 465

(1961) (Opinion of Frankfurter, J.).

23 The Court has framed its task as translating the “majes-

tic generalities of the Bill of Rights, conceived as part of the

pattern of liberal government in the eighteenth century, into

concrete restraints on officials dealing with the problems of

the twentienth century. .. .” West Virginia Board of Edw

cation v. Barnette, 319 U.S. 624, 639 (1943). A broad interp-

retation of the Clause is justified by the general language of

the Amendment, since, in its final form, the Amendment “did

not simply bar a congressional enactment establishing a

church. . . . [The Court] has found that the First and

Fourteenth Amendments afford protection against religious

establishment far more extensive than merely to forbid a

national or state church.” McGowan v. Maryland, 366 U.S.

420, 442 (1961).

Mr. Justice Brennan has succinctly stated that the proper

inquiry “is whether the practices here challenged threaten

those consequences which the Framers deeply feared... .”

School District of Abington Township v. Schempp, supra note

6, 374 U.S. at 236.

PoE DOES Ry INC mere BEEN sae

ee ae en a we Ce a tas |

—

12a

“The ‘establishment of religion’ clause of the First

Amendment means at least this: Neither a state nor

the Federal Government can set up a church. Neither

can pass laws which aid one religion, aid all religions,

or prefer one religion over another. Neither can force

nor influence a person to go to or to remain away from

church against his will or force him to profess a belief

or disbelief in any religion. No person can be pun.

ished for entertaining or professing religious beliefs

or disbeliefs, for church attendance or non-attendance.

No tax in any amount, large or small, can be levied

to support any religious activities or institutions,

whatever they may be called, or whatever form they

may adopt to teach or practice religion.” *

Our case would seem to be resolved by Everson, since

the attendance regulations undoubtedly force or influence

church attendance, and non-attendance is admittedly pun-

ished. The inquiry cannot begin and end with Everson,

however, for while this reading of the Establishment

Clause has been re-affirmed several times™ it has also

been difficult to apply. Certain forms of government in-

volvement which recognize, favor and even support relig-

ious interesis have been sustained under the Establishment

Clause in order to avoid conflict with the Free Exercise

Clause.

That conflicts are created by an absolute rendering of

each Clause is now well-recognized.” In Walz v. Taz

24330 U.S. at 15-16.

25 See Illinois ex rel. McCollum v. Board of Education, 333

U.S. 203, 210-211 (1948); McGowan v. Maryland, 366 US.

420, 443 (1961) ; and Torcaso v. Watkins, 367 U.S. 488, 492-98

(1961).

26 Scholarly comment on this conflict is extensive. See, ¢.g.,

Schwarz, No Imposition of Religion: The Establishment

Clause Value, 77 YALE L.J. 692 (1968) ; Kurland, Of Church

and State and the Supreme Court, 29 U. Cut. L. REv. 1

(1961) ; Gianella, Religious Liberty, Nonestablishment, and

“2. ai. Le Pe LE Rae ESN MIG AN I REE Mk, Ay Pann Nei, SS ede GN I AEN

13a

Commission,” relied on by the District Court in this case,” :

Chief Justice Burger pointed out that not only was an ]

absolute separation of church and state impossible, but

also the absolute language of both Religion Clauses might

have to be ignored in order to accommodate the values

protected by each. “The course of constitutional neutrality

in this area cannot be an absolutely straight line; rigidity

could well defeat the basic purpose of these provisions,

which is to insure that no religion be sponsored or fav-

ored, none commanded, and none inhibited.” *

The need for accommodation between the two Clauses is :

;

evident in Walz. In that case the Court upheld a New

York State tax exemption for houses of religious worship

challenged as a violation of the Establishment Clause.

The Court recognized that the statute did grant an indirect

economic benefit to churches * and might therefore violate

the Establishment Clause, interpreted as it was in Ever-

son as prohibiting laws which aid all religions. On the

other hand, deliberate exclusion of religious institutions

from the tax exemption * would possibly violate the Free

Exercise Clause.** The Chief Justice, writing for the

——_—

Doctrinal Development, 80 Harv. L. REV. 1881 (1967); and

Ely, Legislative and Administrative Motivation in Constitu-

tional Law, 79 YALE L.J. 1205, 1818 (1970).

1 397 U.S. 664 (1970).

% Anderson v. Laird, supra note 7, 316 F.Supp. at 1087.

*% Walz v. Tax Commission, supra note 27, 397 U.S. at 669.

80 Td. at 674.

%1The exemption extended to other non-profit charitable

property.

The opinion in Walz refers to other municipal benefits

which could not arguably be withdrawn from religious insti-

tutions under the Free Exercise Clause:

“Separation in this context cannot mean absence of all

EES ESAT TULA E NR TERIOR HARE HEE ICI Se RRS SRY RSE RR A ih aaa a Ae Na

l4a

Court, therefore questioned the breadth of the language in

Everson® and devised the principle of benevolent neutral-

contact; the complexities of modern life inevitably pro-

duce some contact and the fire and police protection re-

ceived by houses of religious worship are no more than

incidental benefits accorded all persons or institutions

within a State’s boundaries, along with many other ex-

empt organizations.” Jd. at 676.

For other difficulties inherent in withdrawing tax exemptions

from religious institutions see Bittker, Churches, Taxes and

the Constitution, 78 YALE L.J. 1285 (1969). Walz also draws

its lesson that the Establishment Clause must bend to accom-

modate free exercise rights from four other Supreme Court

decisions. In Everson itself, the use of public funds to re.

imburse parents of parochial school children, admittedly an

aid to their religious education, was upheld as a neutral form

of governmental action which had to be extended to users of

religious schools—analogous to governmental police and fire

protection. 330 U.S. at 16-18. In Zorach v. Clauson, 343 U.S.

806 (1952), a released time program for religious instruction

outside New York’s public schools was upheld as a neutral

“accomodation” to “the religious needs of the people” despite

the majority’s recognition that the program in fact en-

couraged religious education. 343 U.S. at 313-315. And in

Board of Education v. Allen, 392 U.S. 236 (1968) the Court

upheld the New York State subsidy of textbooks loaned to

parochial school children relying heavily on the analvsis of

Everson. Finally, in Sherbert v. Verner, 374 U.S. 398 (1963),

deference to the Free Exercise Clause mandated the Court’s

siriking down a state statute which provided no exceptions

for practitioners of special religious sects. See the discussion

of these cases in Walz, 397 U.S. at 669-672.

33 “The hazards of placing too much weight on a few words

or phrases of the Court is abundantly illustrated within

the pages of the Court’s opinion in Everson.” Walz v. Taz

Commission, supra note 27, 397 U.S. at 670. The Chief Justice

noted that the Court had stated in Everson that the govern-

ment cannot “pass laws which aid one religion, aid all re-

ligions, or prefer one religion over another” but had no

difficulty in upholding a taxing statute which undoubtedly

helped children get to church schools. /bid.

LENE TNS EIEIO LISTE. MCE TIES ANTE LINE AN —

a CPA Sek : Seah NASR Fait I BN ER a tM: sea

15a

ity between State and Church to accommodate no-estab-

lishment and free exercise values.*

This principle was mistaken by the District Court as

authority for its holding that all First Amendment rights

must bend when they conflict with military interests.** The

Supreme Court’s interpretations of the Establishment

Clause refer to no overriding secular interests which could

ever justify a government’s imposition of those religious

activities which the Clause was written to abolish. It

should be clear from Walz that the actions absolutely pro-

scribed by the Establishment Clause, among which is the

compulsion of church attendance, could be constitutionally

justified only out of the necessity of preserving the right ‘

to free exercise of religion.** To decline to apply the

Clause absolutely in this case is to create a loophole in

the scope of its protection which the Supreme Court sim-

ply does not admit. This is the crux of the difference of

‘

4030 DW

EE ae Pe ‘

——_—_—

34 Id. at 669.

35 The District Court prefaced its analysis of the regulations

at issue thus:

“Nor is it revolutionary to say that First Amendment

rights are not absolute. . . And although the Religion

Clauses are couched in absolute terms, it is not realistic-

ally possible to have absolute or perfect separation and

non-involvement. Zorach v. Clauson. . . The very exist-

ence of the clauses denotes an involvement of sorts. As

the Chief Justice has said, ‘* * * [T]here is room for play

in the joints productive of a benevolent neutrality * * *.’

Walz v. Tax Commission. . . .” Anderson v. Laird, supra

note 7, 316 F.Supp. at 1087.

36 Thus, accommodation of the Establishment Clause to per-

mit maintenance of religious personnel and institutions within

the military is necessitated not by military interests, but by the

mandate of the Free Exercise Clause that soldiers be given

the opportunity to worship.

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program of daily classroom invocation of God’s blessings

... is @ religious activity.” Once it was conceded that the

prayer was of a “religious nature”, inquiry into its pos-

Zier 4k ae dean a ak casi eal

form of governmental imposition of religion.

Thus the trial court’s findings of fact in the case before

court should have investigated “purpose and effect” no

further since the very language of the regulations reveals

that the government is imposing conduct in violation of

the letter and the spirit of the Establishment Clause.

It is of no importance that certain cadets and midship-

men may be excused from attendance for conscientiously

held beliefs. Such was also true in Engel and Schempp.

We rely on the Supreme Court's holding in Engel:

The Establishment Clause, unlike the Free Exercise

Cana, Cie ee Guess Goes any Seay Sree

governmental compulsion and is violated by the en-

religion

whether those laws operate directly to coerce nonob-

serving individuals or not. This is not to say, of

course, that laws officially prescribing a

* Id. at 224.

* Ibid.

* See note.3, supra.

® See, e.g., the worship programs and sermon attached on

pages 134-135, and 150-153 of the Appendix.

Re te ae ee

at the academies is not mandatory.“ However, the Su

preme Court's decision in Torcaso v. Watkins turns on its

holding that the government may not attach unconstitu-

tional conditions to the award of public employment.“ An

individual's voluntary assumption of an employment or an

educational relationship with the government is not a

waiver of First Amendment rights.“

Vv.

The court below, however, grounded its decision in a

deference to the unique role of the military in our society.

* 370 U.S. at 430-431.

Unlike Schempp, Engel v. Vitale and West Virginia

Board of Education v. Barnette, 319 U.S. 624 (1943) in which

stitution. This was settled by our holding in Wieman v. Up-

degraff, 344 U.S. 183. We there pointed out that whether or

not ‘an abstract right to public employment exists,’ Congress

could not pass a law providing ‘. . . that no federal employee

shall attend Mass or take any active part in missionary

work.’” (footnote omitted). 367 U.S. at 495-496.

“ Hamilton v. Regents of the University of California, 293

.S. 245 (1934) is not to the contrary. See note 80 infra.

POLL LEE FE PO POOL OS SS —

23a

In fact, it is diffieult to believe that the trial court would

have sustained the attendance requirements were any

other than select military educational institutions involved

—if, for example, the Government had made church at-

tendance compulsory for all welfare recipients; for all

elected officials; or even for all of its fighting forces.“

In passing, it should also be noted that the court ac-

corded great weight to the testimony of military officials

about the effect of the academy regulations.“ This casts

serious doubt on the validity of the trial court’s findings,

sinee those upon whom the regulations have an impact—

the students and their religious advisors—are uniquely

qualified to testify to their effect. However, it is not

Such possible extensions of the rationale of the District

Court’s opinion are not to be glossed over. It is not far-

fetched to imagine that an imposing argument could be

martialed for the proposition that all elected officials should

church since it is important for them to understand

spiritual forces which motivate and effect a substantial

“ The court below states that it was not “downgrading” the

testimony offered by plaintiffs. 316 F.Supp. at 1090. However,

the following statement does establish that the District Court

sented by persons who are not now and never have been

i with the training of our military lead-

the Court must accord them due de-

ference, but in matters military the Court feels con-

strained to look to the military experts.” Jbid.

The “effect” of a regulation is a separate question from

“necessity” for it. Evidence as to the effect of the

attendance requirements from military officials should have

been weighed only equally against evidence from other

relevant sources—for example, chaplains who have con-

oy newer” SOUS Pe LET LCI ALE I OOD) LEIS LOLA ALE EE ay

necessary to the disposition of this case to overturn the

findings, since any factual inquiry, beyond noting that at-

tendance at religious exercises was compelled, was unneces-

sary.”

In contrast to the holding of this opinion that secular

interests may never justify governmental imposition of

church attendance, the District Court decided that this ab-

solute rendering of the Establishment Clause could be

abandoned since the military’s interest in training a select

group of officers was at stake.** This is also the position of

the dissenting opinion, infra. However, a careful examina-

tion of the cases relied on by the District Court indicates

that while an individual’s freedoms may of necessity be

abridged upon his entrance into military life, there is no

authority for the point that his right to freedom of reli-

gion is abolished.”

ducted chapel services. Furthermore, since the court below

emphasized that the purpose of a military regulation may

change over the centuries of its existence, it should have

been equally open to the possibility that the effect may also

change and that students presently enrolled in the acad-

emies are in the best position to analyze the current effect.

* See Part IV. of this opinion.

* See note 35, supra. The District Court also stated:

“As a guiding principle it can be said that the amount

of judicial interference with the military should be

limited; the amount of deference given the military in

matters of discipline and training should be wide.” 316

F.Supp. at 1085-86.

1 See, e.g., Orloff v. Willoughby, supra note 10, 345 US.

83; Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971);

Raderman Vv. Kaine, supra note 10, 411 F.2d 934, and cases

cited in note 10, supra. The dissent candidly admits at pp.

53-55, infra that decisions holding that constitutional rights

do not apply fully to the military are limited to questions of

criminal procedure and military discipline. Although free

oe a ae EI a Fa a aa Rar 8 ke Ee Na Se ie ee ee _—

25a

Personal freedoms of conduct and appearance have been

accommodated to the military’s perceived need to estab-

lish procedures best suited to regulate its day-to-day

operations, duty assignments and call-up orders;” to de-

termine a reservist’s discharge of his duties; to regulate

physical appearance; and to ascertain “the essential

characteristics of fitness for duty.” This deference to

military decisionmaking has been justified by the military’s

role, its mandate to prepare for the waging of war, and

the necessity of this mandate for our national security.

However, deference has inherent limitations which have

also been fully recognized in judicial decision.

Thus, although First Amendment rights to free speech

and expression may be “less” for a soldier than a civilian,

they are by no means lost to him. The Second Circuit has

emphasized in Cortright v. Resor that “we are far from

holding that under no circumstances could a civilian court

interfere with a transfer order or prescribe other relief

if that were needed to prevent abridgement of « soldier’s

First Amendment rights.” *

exercise rights may have to bend to military exigencies, I

would again emphasize that this is not authority for the mili-

tary to impose religious exercise on its members.

" Orloff v. Willoughby, supra note 10, 345 U.S. 83; Nizon

vy. Secretary of the Navy, supra note 10, 422 F.2d 934; U.S.

ex rel. Schonbrun v. Commanding Officer, supra note 10, 403

F.2d 371; Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967) ;

Luftig v. McNamara, 126 U.S.App.D.C. 4, 373 F.2d 664 (D.C.

Cir.), cert. denied, 387 U.S. 945 (1967).

7% Fox v. Brown, 402 F.2d 837 (2d Cir. 1968), cert. denied,

393 U.S. 1114 (1969).

% Raderman V. Kaine, supra note 10, 411 F.2d 1102;

Smith v. Resor, supra note 10, 406 F.2d 141; Byrne v. Resor,

supra note 10, 412 F.2d 774.

™ Wasson V. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967).

% Supra note 70, 447 F.2d at 254-55.

26a

Individual freedom may not be sacrificed to military

interests to the point that constitutional rights are abol-

ished. The military regulations in this case violate the core

value of the Establishment Clause ® and completely abol-

ish its protection. Therefore, judicial action is mandated

now.

VI.

Finally I reach appellants’ claim that the attendance

regulations are also unconstitutional under the Free Exer-

cise Clause. It has already been ascertained that the

academies have made some provision for excusing cadets

and midshipmen for “conscientious objections.” How-

ever, as the Supreme Court has made clear, coercion as

well as compulsion is prohibited by the Free Exercise

Clause: “The Free Exercise Clause . . . withdraws from

legislative power, state and federal, the exertion of any

restraint on the free exercise of religion . . . . a violation

of the Free Exercise Clause is predicated on

coercion. .. .”™

Adopting this interpretation, I cannot agree with the

District Court’s bald conclusions that:

“These regulations in no way operate against a cadet

in practicing his own religion or in practicing none.

The individual chooses which service to attend and

he chooses whether to participate and worship or not.

And for sincerely held reasons he can be excused from

attendance.” ” 7

It bears emphasis that the fact that attendance at the

7 See pages 11-12 supra.

™ See note 5, supra.

7 School District of Abington Township v. Schempp, supra

note 6, 374 U.S. at 222-223.

7 Anderson V. Laird, supra note 7, 316 F.Supp. at 1091.

EEE Ae ENF ORAS SNE NS Ss RNR TRIE TLD, BAREIS EPA LER a RE REN

27a

military academies is voluntary does not eliminate the

possibility of coercion.” Since there is no difference be-

tween requiring attendance and requiring worship,"' the

District Court’s reference to the freedom “to participate or

worship or not” is misleading. A single reading of these

regulations reveals sufficient coercion to violate the Free

Exercise Clause.

First, the failure to attend formal, group worship is

punished like any other violation of an academy rule. The

most devout believer, who may wish just once or always to

worship alone is plainly coerced to attend services. The

Supreme Court has recognized in Engel and Schempp

that peer group pressure to conform to established prac-

8° In Hamilton v. Regents of the University of California,

293 U.S. 245 (1934) the Supreme Court upheld the consti-

tutionality of the state university’s requirement that all

students must participate in military training against at-

tack under the Free Exercise Clause. The Court reasoned

that since the students were not compelled to attend the

university, they were not compelled to violate their religious

scruples. 293 U.S. at 262. The continued validity of this

reasoning is doubtful in light of recent Supreme Court deci-

sions, e.g., Tinker v. Des Moines Independent School Dis-

trict, 393 U.S. 503 (1969); Epperson v. Arkansas, 393 U.S.

97 (1968) ; Torcaso v. Watkins, supra note 43, 367 U.S. 488;

Keyishian Vv. Board of Regents, 385 U.S. 589 (1967).

Moreover, Mr. Justice Cardozo noted in his concurrence in

Hamilton, in which he was joined by Justices Brandeis and

Stone:

“Instruction in military science is not instruction in the

practice or tenets of a religion. Neither directly nor

indirectly is government establishing a state religion

when it insists upon such training.” 293 U.S. at 266.

Thus Hamilton is distinguished from this case in which the

government compels attendance at admittedly religious exer-

cises.

*! See page 11, supra.

Se SPP ET ORC LEE DD PID, eae

—_— SETS eI ES ET EOL I PEG ETE NE, RY

—_—_—_

28a

tices is a forceful form of coercion.** Thirdly, practition-

ers of sectarian beliefs may attend only “approved” alter-

natives to the academy chapels. For certain minorities,

and all cadets at West Point, there are no alternatives

available. Parental and chaplain approval is required for

a change in attendance. And finally, visitation of a variety

of religious services, thoroughly consistent with the search

for or exercise of religious beliefs, is absolutely prohibi-

ted.

These manifest restraints on the free exercise of relig-

ion can be saved from unconstitutionality only if they

were enacted to serve paramount and compelling state in-

terests; and if there are no alternative means to achieve

the government’s goals. This dual test of constitutional

validity was established by the Supreme Court in Sherbert

v. Verner * and has been applied in this Circuit.“ The

fact that military interests are involved in this case does

not make the test less rigorous.

82 370 U.S. at 431 and 374 U.S. at 225.

83374 U.S. 398 (1963). The Free Exercise Clause does

not afford absolute protection to overt acts prompted by

religious belief if the conduct poses “some substantial threat

to public safety, peace or order.” Jd. at 403, citing Reynolds

v. United States, 98 U.S. 145; and Jacobson v. Massachusetts,

197 U.S. 11 among others. Any burden on the free exercise

of religion may be justified only “by a ‘compelling state in-

terest in the regulation of a subject within the State’s con-

stitutional power to regulate... .. NAACP v. Button, 371

U.S. 415, 438.” Ibid. The Court also stated that even if in

Sherbert there was a threat to some valid state interest, “it

would plainly be incumbent upon the appellees to demon-

strate that no alernative forms of regulation would [be

effective] without infringing First Amendment rights.” I/d.

at 407.

% Barnett Vv. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995

(1969).

| 29a

The military’s interest espoused in this case has already

been contrasted to “paramount and compelling” concerns

which have justified infringements of personal freedoms

in the past.” This case does not involve programs vital

to our immediate national security, or even to military

operational or disciplinary procedures. Nor does it appear

that the ruling will have any detrimental impact on the

academies’ training programs. The appellees have made

no showing that chapel attendance requirements are the

best or the only means to impart to officers some familiar-

ity with religion and its effects on our soldiers.

ARE IES ORE RUOR: ——

While some weight must be accorded the military judg-

ment that familiarity with religion is necessary for the all-

around officer, it is for this court to assess that decision in

constitutional terms. In the words of Mr. Justice Jackson,

we act not by virtue of a superior competence but by

virtue of our commission to protect basic constitutional

rights.** Absent any attempt by appellees to devise an

alternative program other than compulsory attendance at

the regular chapel services of a single denomination, I am

not constrained to declare these regulations invalid under

the Free Exercise Clause.

LeveNTHAL, Circuit Judge: I concur in reversal,

and in the conclusion that the Establishment Clause

of the First Amendment, which prohibits government

8 See page 25 supra.

*¢ “(W]e act in these matters not by authority of our comp-

etence but by force of our commissions. We cannot, because

of modest estimates of our competence in such specialties as

public education, withhold the judgment that history authen-

ticates as the function of this Court when liberty is in-

fringed.” Board of Education v. Barnette, 319 U.S. 624, 640

(1943).

Although I reach the same conclusion as Chief Judge

Bazelon on violation of the Establishment Clause, I do not

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34a

tention to seek to avoid the thrust of the First Amend.

ment.” *

It would be difficult on this record to sustain the con-

clusion that the purpose of the regulations is wholly sec.

ular. We have been asked to look at history, by the Gov-

ernment and the District Court (“tradition cannot be

lightly discarded”). The regulations begin with an unmis-

takable religious premise. The 1970 affidavit of Admiral

Calvert, Superintendent of the Naval Academy, sets forth:

“1. Naval Academy records show that since the

year 1853 Naval Academy Regulations have in-

cluded a provision for oe chapel attendance by

midshipmen as a regular part of the Naval Academy

program for training of future naval officers. The ar-

ticles for the government of the United States Navy

in effect at that time charged commanding officers

with the responsibility, ‘to take care that divine serv-

ices were performed . . . and that they cause all, or as

many of the ship’s company as can be spared from

duty, to attend at every performance of worship of

*P. 14 of brief of the General Commission on Chaplains

and Armed Forces Personnel. The Baptist Joint Committee

on Public Affairs takes a similar view. The General Com-

mission sets forth its interest as follows, brief p. 2:

The Commission was organized in 1917 by the major

Protestant denominations supplying chaplains for the

Armed Forces and was incorporated under the laws of

the District of Columbia in 1955. The Commission is

presently comprised of 35 member denominations and

five additional consultative and contributing religious

bodies with an aggregate membership of 60,000,000 in

the United States. The Commission and its related bod-

ies currently recruit about 95% of the Protestant clergy

who volunteer for duty with the military and in vet-

erans hospitals. The Commission functions as a dele-

gated, permanent conference on the chaplaincy of the

Armed Forces and the Veterans Administration, and

on the moral and religious welfare of armed forces per-

sonnel and hospitalized veterans.

CBS FETE TSS Hel ERT OE eS a ee el eke ae

35a

Almighty God.’ Act of April 23, 1800. 6th Congress,

ist Session, 2 Stat. 45.

“The present Naval Academy tions are based

upon Title 10 US Code, Section 6031, which states,

in part, ‘. . . commanders of vessels and naval ac-

tivities to which chaplains are attached shall cause

divine service to be performed on Sunday . . .; and

it is earnestly recommended to all officers, seamen,

and others in the naval service diligently to attend at

every performance of the worship of Almighty God.’

“This statute is also implemented by U.S. Navy

Regulations, Article 0711, which states, in part, ‘. . .

the religious tendencies of individuals shall be rec-

ognized and encouraged.’ ”

There is likewise an unmistakable religious premise in

the 1821 General Regulations for the Army which con-

tains an Academy chapel requirement as an act of legis-

lation.*

A practice is not necessarily frozen in its religious

roots, as appears from the decisions upholding the Sun-

day closing legislation as “having undergone extensive

changes from the earliest forms” and not retaining a “re-

ligious character.” MeGowan v. Maryland, 366 U.S. 420,

431 (1966).

In the case of compulsory chapel, however, we do not

have the kind of long-standing transfer to secular objec-

tives which characterized the Sunday closing legislation.

To some extent there have been changes that reflect a

shift from compulsory to voluntary worship, as appears

in the shift from the 1800 legislation, 2 Stat. 45, to the

* See Art. 78 of 2 Stat. 45. See, also, art. 100:

Any cadet, who shall behave indecently or irreverently

while attending divine service, or shall use any profane

oath or execration, or who shall profane the Sabbath,

shall be dismissed or otherwise less severely punished,

according to the nature of his offense.

thew wry

The Naval Academy catalog for 1 :

Because we are ‘one nation, under God,’ it is most

In this litigation, the Government stands on the Chapel

Attendance Statement adopted in 1969 by the Superin-

tendents of the four Service Academies, which focuses on

the requirement in training terms.° As for the mixture of

religious and training premises, the Government has de-

veloped an alternative position on the appeal, that the

ere cep —

fosters an atmosphere and provides instruction which

together help develop the moral strength and integrity

of the future officer. Further, the program provides the

cadet opportunities for growth in the faith in which he

was reared, and it leads him to understand the religious

responsibilities of an officer who will command men of

(1) Attendance at scheduled chapel services is con-

sidered an essential part of cadet training.

Appellants’ motion to supplement the Appendix presents

to us the statement of the Air Force Academy superintend-

ent, accompanying am announcement (release of May 4,

1971) that all cadets may fulfill the chapel attendance obli-

gation by attending civilian churches of their choice: “We're

convinced of the need to expose our future Air Force leaders

to religion. The power of faith and the spiritual dimensions

of leadership have played no small part in the history of our

country. And one is hard put to name a successful American

military leader in our history who has not also at the same

time been a man of deep faith.”

CHAPEL ATTENDANCE

1. It is the consensus of the four Superintendents that

the purpose of regular attendance at religious services is

to instill a sense of respect for religion as a factor in the

daily lives and activities of the vast majority of mankind.

It is through this respect that officers of the Armed

Services can come to understand problems within their

future commands which may be motivated by moral,

spiritual, or ethical considerations. Regular attendance

at religious services is an important part of the develop-

ment and training of prospective officers of the Armed

Services. It is, therefore, the general policy of the

Superintendents of the Service Academies of the United

“=

eel 2 TOP RL LIL IO ALE LIL AEA LES IA, a

38a

primary purpose of the chapel attendance requirement is

secular, even if that is not the sole purpose, as stated by

the District Court, and that this suffices for validity, as-

suming the effect as well as the purpose is primarily sec-

ular.

4. Accepting, for purpose of discussion, that the Super-

intendents’ subjective purpose is now primarily secular,

the objective appearance and effect of the regulations are

critical in appraisal of validity, and it can hardly be gain-

said that they have substantial religious impact and con-

sequences.

It is inescapable that compulsory chapel operates to

encourage religious tendencies of cadets. Admiral Moorer

conceded in his testimony (Tr. 267-271) that chapel at-

tendance tends “to strengthen a man’s religious ties” in

most cases, and specifically that the requirement of at-

tendance—over and above the course of merely making a

chapel available—has “the effect of encouraging his re-

ligious tendencies.” *

The adverse effect of compulsory chapel on religious

sentiment was also the subject of evidence. The General

Commission on Chaplains lauds voluntary attendance, by

those who come to learn as well as participate, but opposes

compelled attendance as a hindrance and inhibition of re-

States of America that cadets and midshipmen will

attend regularly scheduled religious services. It is under-

stood that intelligent provisions must be made for bona

fide cases where attendance would be in conflict with

sincerely held convictions of individual cadets or mid-

shipmen.

7 Admiral Moorer instanced “a midshipman who attends,

initially, and who has been raised by a family who did not

require their children to go to church, might receive from

the service, some inspiration, some motivation of his belief

that would create in him a desire to be more active in the

church.” (Tr. 268).

EES LLIN SRE EET COS —

2 i Sal er nt A OE TN I EOI Ph BE PLO GEA 9 OT OO OI De Le

39a

ligious worship by those seeking a meaningful and devout

relationship with their God and fellow believers. This was

the thrust of testimony at the trial by various ministers.*

The testimony of cadets and chaplains presents in the

record the development of resentment, hostility and cyni-

cism toward religion engendered in cadets subject to the

chapel requirement. The position of the General Com-

mission on Chaplains is before us not only in amicus

curiae memorandum (supra, note 3),-but in the testimony

of its deputy secretary, Reverend A. Ray Applequist. He

testified that in 1964 the Commission considered the sub-

ject of compulsory chapel attendance, because of growing

opposition and concern from cadets and church leaders,

and the adverse effect on recruitment of Protestant chap-

lains. The Commission prepared on behalf of its 35 mem-

ber denominations a position paper against mandatory at-

tendance, and petitioned the Defense Department to drop

the mandatory requirement. Reverend Applequist further

testified, from his experience as an Army chaplain, con-

cerning Academy officers who declined to attend chapel

after graduation, explicitly stating they had been ad-

versely affected by the experience, as characterized by

one, of “having religion rammed down my throat for my

four years at the Point.” However the Government’s wit-

nesses, like Admiral Moorer, were not familiar with any

such problem of weakening of religious ties.

The District Court acknowledged the “forceful testi-

mony” adduced by plaintiffs as to the generally negative

effects of compulsory attendance at worship services, and

the testimony that mandatory attendance will have some

religious effect on some of the cadets, but stated that

ee a

®*Reverend Glyn Jones, Baptist minister with over 23

years of service as a Navy chaplain; Father Robert Drinan;

Rabbi Eugene Lipman; Reverend Dean Kelly, of the Na-

tional Council of Churches.

aoe Mp LF PRE) Ee _— 8 ERR A fee teres eee ————— —

rant ave PIT : = PS . Be SS ae |

40a

“plaintiffs failed . . . to demonstrate the effect is anything

but slight, insubstantial and non-extensive.” The District

Court cited that the regulations provided that a cadet may

be excused from attendance for sincerely held reasons or

beliefs. Such excuse, even if readily available, would not

negative the existence of a religious practice forbidden

by the Establishment Clause, see Abington School Dist. vy.

Schempp, supra, 374 U.S. at 224-225.

Moreover, it is plain that the excuse provision does not

in fact mitigate the rigidity of the compulsory require-

ment. It is available only to a cadet able to prove “be-

yond any reasonable question of doubt” that chapel attend-

ance would be “counterproductive,” as interfering with his

awareness of the effect of religion on others. (Tr. 79; As-

sistant Secretary of Defense Roger Kelley.) It is not

sufficient that the cadet does not believe in a Supreme

Being, or that he feels that mandatory chapel attendance

viglates his conscience or inhibits his moral development.

No cadet has ever been excused at West Point, and four ca-

dets who sought to be excused in 1969 were called “trouble-

makers.” At the Naval Academy, there were three excusals

in the past 40 years. The rigidity of the attendance require-

ment is underscored by the policy concerning transfer from

one church or chapel service to another: the cadet must get

the permission of both chaplains, and the permission of

his parents, at least if he is under 21, and must demon-

strate a sincere desire to affiliate with the stated denom-

ination.

5. When a practice, like compelled church attendance,

is religious in general significance, as well as origin, and

the defense is put that a particular context marks an ex-

ception where the practice is secular, the conclusion that

the particular compulsion is permissible requires an ex-

traordinary showing. No such showing has been made as

to compulsory chapel at the Academies. The badge of re-

ligious establishment has not been swept away; the re-

ee~ LR 8 Se TEAL DEEP CLELAND ERE AES. ITEP A ARE LIPS IRE IA, eit CEE EAE

4la

ligious characteristic has not been shown to be a mere

“vestige,” or a mere “ceremonial” feature devoid of any

meaningful religious impact.

The conclusion that compelled chapel attendance must

be considered as retaining a substantial religious charac-

ter does not necessarily end the case. The question arises

whether the government’s use of a practice that bears a

religious impress is saved from unconstitutionality be-

cause of an overriding state interest in effective training

of its military officers. That is the nub of this case, as I

see it. For the government to invoke this possibility of

justification it must show the clearest kind of imperative,

and lack of alternative, for the “government may not

employ religious means to serve secular interests, how-

ever legitimate they may be, at least without the clearest

demonstration that nonreligious means will not suffice.” °

The burden on the government is at least as great as

when it offers a secular justification to deny a claim under

the First Amendment right of free exercise of religion,

and there the Court has insisted that there must be more

than a showing by the -Government of a rational rela-

tionship to a state interest, there must be a showing that

the governmental interest is “compelling”, and “that no

alternative” measures are available that could be used

“without infringing First Amendment rights.” Sherbert

v. Verner, 374 U.S. 398, 406-07 (1963) ; cf. Shelton v. Tucker,

364 U.S. 479, 487-90 (1960). The government action is un-

constitutional unless it is “necessary” to promote a com-

pelling governmental interest.° That burden persists

under the formulation that there must be no “excessive”

entanglement with religion.”

®See Justice Brennan concurring in Abington School Dist.

v. Schempp, supra, 374 U.S. at 365.

10 Shapiro v. Thompson, 394 U.S. 618, 634 (1969).

11 Walz v. Tax Commission, 397 U.S. 664, 674 (1970).

PRELIM DE BASIE ICMR eee

She” SAGO RDA LLIB, NELLA ANODE SP GELALLL DELO LIE LALA IIA a

42a

The government simply has not made the required show-

ing that its interference with religious freedoms is com.

pelled by, and goes no further than what is compelled by,

the effective training of military officers needed for sur-

vival.

a. The concept of government necessity is undercut by

the fact that approximately 95% of the Service officers

do not graduate from the Academies,” and have never

been subject to this compulsory chapel requirement.

The District Court made reference to the interest in

the training of “the key reservoir of officer talent” as

effective combat leaders. Apart from generalities, the

only specific testimony in the record on this point was

Admiral Calvert’s reference (Tr. 7-8), from experience,

to the occasional need for commanding officers to conduct

religious exercises, on the eve of battle. The official posi-

tion is not premised on this need for a surrogate-chaplain,

notwithstanding its emotional tug, presumably in recog-

nition that it proves too much, and ultimately calls for

the service of someone steeped in religion. Only a limited

training would be needed to ensure a relatively simple

service by a secular commanding officer; secular judges

have been able, with general experience and without spe-

cial training, to conduct often eloquent marriage services.

If we move toward a religious-type comfort to men

under stress, or to “sensitivity” awareness, as a compel-

ling imperative, neither judicial notice nor the record

establishes how this can be at the same time required for

Academy graduates and not for the bulk of the officers, in-

cluding those closest to the men. In certain respects,

12 The essence of this conclusion is not negatived by the

fact that the 95% figure requires adjustment because Acad-

emy graduates account for a disproportionate percentage of

combat officers, and stay in service longer.

LET SRR INERT PRE IE TIE TE ——

ee ee PART RE DOA E PAST TA NIP ALOR PIS OE ‘ * Shes

43a

Academy graduates can set the standards for the entire

officer corps. But if there is truly an imperative need

for Academy officers to obtain sensitivity training through

personal observation of worship, they could not pass it

along to non-Academy officers who have not had such

observation.

The long-standing restriction of the chapel attendance

obligation to Academy graduates seems to me a powerful

demonstration that it is not a necessity in the making of

an officer. And constitutional doctrine will not support

an infringement of religious liberty except on a showing

of unquestioned and imperative necessity.

b. The church leaders and groups opposing compulsory

chapel made it clear to the Defense Department that they

shared its objectives of enhancing officer sensitivity to

the religious wellsprings of servicemen, but believed these

did not require the overriding of the voluntarism essential

to the vitality of religious life, and could best be achieved

by focusing on strong programs encouraging voluntary

attendance at chapel and church services and by pro-

viding a regular place in the training schedule, including

formal instruction, for the overall achievement of the

“vital concerns” of the training objectives.* The signifi-

cance of this viewpoint is underscored by the fact that

it does not reflect an attitude of implacable opposition to

any and all involvement of the military in religious mat-

ters; these groups approved the military’s maintenance

of chaplaincies and places of worship as necessary to pro-

13 F.g., the Oct. 1964 statement authorized by the Ex-

ecutive Committee of the General Commission on Chaplains

(Pif. Exh. 36) and the United Presbyterian Report on the

Military Chaplaincy May 1965, adopted by the 177th Gen-

eral Assembly of the United Presbyterian Church, U.S.A., re-

printed in Church, State and Chaplaincy (ed. A.R. Apple-

quist, 1969), Pif. Exh. 38, at 44.

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volve the interplay between different principles; this case

is no exception. The majority opinions, however, seem to

me to apply the decisional language of the prior cases in

a manner which does not fully consider the unique factual

situation which confronts us here. I have no criticism of

their quoted references to prior holdings, or of their state-

ments of the general principles that have been considered

to be controlling in other cases. They do, however, over-

emphasize the controlling effect of the constitutional pro-

visions they rely upon. This overemphasis is their prin-

cipal error as I see it. One of the opinions also further

extends such conclusions to impermissible limits by claims

of “per se violations” and “presumptions of invalidity”

that tend to substitute assertion and characterization for

logic. I find that their analysis, which fundamentally is

based on an absolutist approach to the First Amendment,

does not furnish a basis for a proper decision of this case.

It is my basic conclusion that the chapel attendance reg-

ulations of the academies are within the military power of

the United States Government as recognized by the Con-

stitution, and that the First Amendment does not require

a different conclusion. The majority opinions overly stress

the application of the First Amendment and seem almost

to fail to recognize the Nation's inherent military power;

they apparently assume that the First Amendment has

overriding supremacy. In doing so they fail to give ade-

quate recognition to the basic power, recognized in the

Constitution, under which the armed services educate and

train the Nation's future military leaders. I find in the

Constitution both a recognition of the military power and

the guarantees of freedom of religion, and I believe that

these two provisions must be interpreted together.

In approaching the task of accommodating these con-

— 48a

law respecting an establishment of religion, or prohibiting the

free exercise thereof... .”

Re PO Ss SOREN erm ee Og ere Se -e —

_—_

49a

stitutional provisions, there are many factual similarities

to previous cases involving the religion clauses of the First

Amendment. We are involved, once again, in exploring

the relationship between student and school albeit we are

here dealing with higher education and not secondary

schools where attendance is compulsory and the pupils are

of tender years. We must deal with the traditional prob-

lems posed by the educational institution's assumption of

responsibility, in loco parentis, for the physical well-being

as well as the moral and intellectual development of the

student, while acknowledging the deference we owe to the

essentially contractual relationship between the more ma-

ture college-age student and his institution.’

However, the overriding factual difference in this case

derives from the crucial role these educational institutions

play in our military establishment. Unlike civilian and

secular institutions, which are properly concerned only

pupils.

Gott v. Berea College, 156 Ky. 376, 161 S.W. 204, 206 (1913).

vate college and a student

group of people to attend religious services. These regu-

lations must be examined through the overlay of their im-

*The military academies present a four-year course of

undergraduate study in a highly regimented atmosphere of

order and discipline. From the time a cadet or midshipman

enters the academy his personal life as well as his school

life is under academy control. His entire day follows a pre-

scribed schedule. The educational and training program

places great emphasis on developing character and qualities

of leadership so that will lay

aa.

cer meets the necessary requirements of a military

*A very minimal exposure is all that is involved in

PSY EO ONES ee

se =

5la

jeaders. Several additional factors particularly aid me in :

reaching the conclusion that the First Amendment effects ]

of the chapel attendance requirements are de minimis at

best, and are clearly overriden by their importance to the

proper training of our military leaders: the religious ex-

posure required is to the family religion of the individual

cadet or midshipmen; the parents are consulted as to any

problems that arise;* the regulation is fully disclosed to

applicants prior to their entering the academies ;" attend-

ence only at chapel, and not participation is required; *

* The Air Force Academy exempts first classmen (seniors) i

from mandatory chapel. .

* The strong role of the family in the religious activities and ‘

education of their children was recognized in Wisconsin v. :

Yoder, US. ——, 40 U.S.L.W. 4476 (U.S. May 15, 1972), ;

and in Pierce v. Society of Sisters, 268 U.S. 510 (1925). f

*E.g., the catalogue of the Military Academy (Ex. B. p. >

76) states: “Each cadet must attend one of the weekly :

chapel services—Protestant, Catholic, or Jewish.” :

*The 1969 Record of Proceedings of the Conference of

Superintendents of the Academies of the Armed Forces

states :

It is the consensus of the four Superintendents that

the purpose of regular attendance at religious services

i instill a sense of respect for religion as a factor

Armed Services can come to understand problems within

their

tendance at religious services is an important part of

the development and training of prospective officers of

the Armed Services. It is, therefore, the general policy

52a

belief or non-belief is not imposed;* and those who have a

bona fide objection to attending services on grounds of

conscience may be excused."®

I. Tae Murrary Power or THE Nationat GovERNMENT

The Constitution provides that Congress shall have

power “to raise armies . . . to provide . . . a navy [and] to

make Rules for the Government and Regulation of the land

and naval forces.” "* These enumerated powers necessarily

imply the power properly to train the necessary person-

nel.'*? This must include the power and authority to spe-

cially train a select group of officers in order to guarantee

that our Nation will not want for qualified military leaders

in the future. Congress has delegated this training respon-

sibility to the various armed services; and students at

the academies are members of the armed forces."*

bona fide cases where attendance would be in conflict

with sincerely held convictions of individual cadets or

midshipmen.

Pl. Ex. 10, p. 32.

* Id.

10 Td.

1 U.S. Const. art. I, § 8, cl. 12, 13, 14. It was not neces-

sary to insert these powers in the Constitution to vest

the national Government with such power but rather to

designate that Congress alone and not the President can

raise armies. II STORY, COMMENTARIES § 1187 (4th ed. 1873).

The Constitution places no express limitations on the military

power. It is an inherent power of any nation.

12“A constitutional power implies a power of delegation of

authority under it sufficient to effect its purposes.” Lichter

v. United States, 334 U.S. 742, 778-783 (1948).

1310 U.S.C. §§ 3012, 5012, 8012 (1970). Command and

supervision of the academies is provided for by 10 U.S.C.

§§ 4334 (Army), 9334 (Air Force) (1970).

% Cadets and midshipmen are subject to the punitive arti-

cles of the Uniform Code of Military Justice (Articles 77

53a

The unfettered power to raise armies and provide a

navy was recognized in the original Constitution and the

power was conferred on Congress rather than the Execu-

tive. Of necessity, because of the strong purpose it serves,

it is a great power. Its existence was recognized in the

Constitution prior to the adoption of any of the Consti-

tutional Amendments, and several decisions indicate that

a number of the Constitutional Amendments are not

strictly applicable to the military. Most of these de-

through 134) and have continuing military obligations. Cf.

10 U.S.C. §§ 516, 4348b, 6959b, 9348b (1970) ; UNrTED STATES

DEPT. OF DEFENSE, MANUAL FOR COURTS-MARTIAL { 16a, at

212 a Rev. ed.) (hereafter cited as MANUAL FOR COURTS-

MARTIAL).

In Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857),

the Supreme Court held that the military provisions of the

Constitution authorize Congress to provide for the trial and

punishment of military offenses in the manner then and now

practiced by civilized nations without any connection be-

tween such power and the Third Article of the Constitution

defining the judicial power of the United States. “The two

powers are entirely independent of each other.” Thereafter,

Chief Justice Chase in his concurring opinion in Ex parte

Milligan, 71 U.S. (4 Wall.) 1, 187-138 (1866), remarked:

It is not denied that the power to make rules for the

government of the army and navy is a power to pro-

vide for trial and punishment by military courts with-

out a jury. It has been so understood and exercised

from the adoption of the Constitution to the present time.

Nor, in our judgment, does the fifth, or any other

amendment, abridge that power. “Cases arising in the

land and naval forces, or in the militia in actual service

in time of war or public danger,” are expressly excepted

from the fifth amendment, “that no person shall be held

to answer for a capital or otherwise infamous crime,

unless on a presentment or indictment of a grand jury,”

and it is admitted that the exception applies to the other

amendments as well as to the fifth. (Emphasis added)

It has become well settled that the right to trial by jury guar-

SAORI I BON LURES BLEED LEI NAS SLEIGH wt

54a

cisions relate to criminal proceedings and the legal prin-

ciples upon which they are based may have only a limited

anteed by the Sixth Amendment is not applicable to trials

by courts martial or military commissions. Whelchel v. Mc-

Donald, 340 U.S. 122, 127 (1950); cf. Kahn v. Anderson,

255 U.S. 1, 89 (1921); Ex parte Quirin, 317 U.S. 1, 40-41

(1942). Easley v. Hunter, 209 F.2d 483, 486 (10th Cir.

1953) states:

It has been indicated in a number of cases that the

power of Congress in the government of the land and

naval forces of the United States are not affected by any

of the constitutional amendments. Hiatt v. Brown, supra;

Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94

L.Ed. 1255; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87

L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 138, 18

L.Ed. 281. ( Emphasis added.)

This may be an overstatement of the law. Those cases re-

lated to essentially criminal matters. A more accurate state-

ment may be that the amendments do not literally affect the

judicial powers of the land and naval forces, but the mili-

tary’s judicial tribunals for a long time were generally con-

sidered to be required to comply with the spirit of such

amendments. See, as to the Sixth Amendment right to coun-

sel, WINTHROP, supra note 2, at 165 n.38; right to confronta-

tion of witnesses, id. at 287 n.27; prohibition against excessive

fines and cruel and unusual punishment, id. at 298.

The Uniform Code of Military Justice, 10 U.S.C. § 801

et seq., has subsequently provided more recognition for some

of these constitutional guarantees: e.g., Art. 31 prohibits

constitutional self-incrimination; Art. 49 authorizes use of

depositions thus minimizing the guarantee of witness con-

frontation; and an accused is given a right to counsel of

his own choice, with some exceptions, MANUAL FOR CouRTS-

MARTIAL § 48. However, the statutory nature of these enact-

ments with respect to these basic constitutional guarantees

is a recognition of the special status of the military with

respect to some of these matters. It may well be that the con-

stitutional power in Congress to provide for the government

and regulation of the land and naval forces furnishes more

support for the conclusion expressed in this opinion than I

FRESE EAN I ee —

55a

application to First Amendment rights,’* but they do indi-

cate the posture of the Nation’s military power as recog-

nized by the Constitution. In any event it is clear that the

First Amendment is not fully applicable in the armed

have afforded it. Certainly, when such power was conferred

on Congress in the original Constitution, it was not subject to

any religious restriction whatsoever. See nn. 16, 17, infra.

1° At one time Article 52 of the Articles of War “earnestly

recommended to all officers and soldiers diligently to attend

divine services.” WINTHROP, supra note 2, at 656, comments

on this provision as follows:

THE RECOMMENDATION. The Article, in its first

clause, differs from the corresponding British article,

from which it was directly derived and which requires

attendance at divine worship, in recommending only such

attendance; a difference doubtless growing out of the

provision in our Constitution, by which Congress is

forbidden to make any “law respecting an establishment

of religion or prohibiting the free exercise thereof.” A

statute making it obligatory upon officers or soldiers to

attend religious services on Sunday (or other day) would

be of doubtful constitutionality, as opposed to the spirit

if not to the letter of the organic law. The Article, there-

fore, while favoring such attendance, has well left it op-

tional with officers and soldiers whether they will or not

be present at any such services. (Emphasis added)

(footnotes omitted)

The First Amendment to the Constitution was submitted

to the legislatures of the several states on September 25, 1789

by the first Congress to meet under the United States Con-

stitution. Ratification by three-fourths of the states was

completed on December 15, 1791. Subsequently, in 1799, when

there were still a number of members in Congress who had

submitted the First Amendment to the states, and after the

amendment had been adopted and its provisions were fresh

in the public mind, Congress in the Act for the Government

of the Navy required that:

The commanders of the ships of the United States,

having on board chaplains, are to take care, that divine

service be performed twice a day, and a sermon preached

ees

56a

services. The 1800 statute, supra note 16, was mandatory

and exceeds the present academy regulations. It required

that all Navy commanders “shall . . . cause all, or as many

of the ship’s company as can be spared from duty to attend

at every performance of worship of Almighty God.” This

indicates that contemporary opinion in Congress, when the

First Amendment was fresh in the public mind, was that

such a religious attendance provision was not con-

sidered to be violative of the religious clauses. In addition,

it is certain that the right of free speech is properly

subordinated to necessary order and discipline in the

armed service, the right of assembly is_ principally

exercised at the call of a bugle, and the right of free exer-

cise of religion is not absolute where military necessity or

facilities make it difficult or impossible to recognize. It

could be strongly argued that the Chaplain Corps and serv-

ice chapels would violate the Establishment Clause if that

clause were not modified by the F'ree Exercise Clause and

by the military power which is recognized in the Constitu-

tion. These religious facilities are saved by reading the

on Sundays, unless bad weather, or other extraordinary

accidents prevent. (Emphasis added.)

Act of March 2, 1799, ch. XCIV, 1 Stat. 709. This act passed

both houses without objection, and without even a roll call

vote (House Journal, Feb. 25, 1799, p. 491; Senate Journal,

Feb. 27, 1799, p. 597). In the Senate the bill was recom-

mended by a committee of three, including Senator Goodhue

of Massachusetts, who served when the Bill of Rights was

submitted. Senator Goodhue was chairman of the committee.

In 1800 Congress replaced the above provision with a

stronger one, providing:

Art. II. The commanders of all ships and vessels in

the navy, having chaplains on board, shall take care

that divine service be performed in a solemn, orderly,

and reverent manner twice a day, and a sermon preached

on Sunday, unless bad weather, or other extraordinary

accidents prevent it; and that they cause all, or as many

57a

military and religious clauses together." Each clause has

a certain area in which it is supreme, and where they over-

lap we must seek accommodation. Neither can be com-

pletely absolute. In so interpreting their provisions, I

would conclude that the military power recognized by the

Constitution authorizes the academies to include the chapel

attendance requirement in their curriculum as a necessary

part of the academies’ training, and that such minimal reg-

ulation does not violate the First Amendment to the Con-

stitution.

II. Tue First AMENDMENT

It is clear beyond the need for restatement that ab-

solute separation of church and state is not compelled by

the Constitution. Virtually all of the recent cases involv-

ing the religion clauses deal with the permissible limits

of governmental involvement with religion. The Establish-

ment and Free Exercise clauses pose slightly different

problems, but I find the impact of these academy regula-

tions on either clause to be no more than minimal.

A. Establishment Clause

In the most recent Establishment clause cases,'* decided

of the ship’s company as can be spared from duty, to

attend at every performance of the worship of Almighty

God. (Emphasis added.)

Act of April 23, 1800, ch. 33, 2 Stat. 45.

17 Welsh v. United States, 398 U.S. 333, 371 (1970) (Justice

White, dissenting) :

The power to raise armies must be exercised consistently

with the First Amendment which, among other things,

forbids laws prohibiting the free exercise of religion. It

is surely essential therefore—surely “necessary and

proper”—in enacting laws for the raising of armies to

take account of the First Amendment and to avoid pos-

sible violations of the Free Exercise Clause.

18 Lemon v. Kurtzman, 403 U.S. 602 (1971) and Tilton v.

Richardson, 408 U.S. 672 (1971).

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62a

The fundamental requirement imposed on the Government

by the First Amendment is, as Chief Justice Burger has

characterized it, a “benevolent neutrality.” In my view

as long as that essential neutrality is maintained, and

the effects on religion are as insignificant as here, where

minimal attendance only and not belief is required,” and

conscientious objectors may be excused from chapel at-

tendance, the vital importance of the regulations to the

accomplishment of the academies’ training objectives de-

mands that we sustain them here. To do so is merely an

accommodation of the overlapping interests reflected by

the military and religious provisions of the Constitution.

Neutrality is faithfully observed in these regulations.

No better description than “neutrality” could be applied to

the position the academies have taken on chapel attend-

ance beginning with West Point in 1821.” The cadets and

midshipmen are merely placed in a position to observe

church services of their own denomination; participation

is purely voluntary. Significantly, the regulations do

nothing more than generally provide for carrying forward

pre-existing family religious preferences of the cadets and

midshipmen. For the future, I would also emphasize the

absolute necessity that the academies be certain to pro-

vide for a completely fair application of that portion of

their regulations which permits conscientious objectors

to chapel attendance to be excused therefrom.” I would

22 In evaluating the effect of the chapel attendance regula-

tion it must be recognized that each hour of a cadet’s day is

scheduled by academy regulations.

23 Act of March 2, 1821 (3 Stat. 615) approved and adopted

for the government of the Army of the United States the

“General regulations for the Army” compiled by Major Gen-

eral Scott. Ch. XIII, 5.14. These required that all “academick

officers and cadets must strictly attend . . . divine service . . .

on Sundays.” (Regulation 99.)

% Cadets and midshipmen who complain that their con-

_— a

suggest they conform to the controlling principles set

forth in the paraphrase of Justice Goldberg's remarks at

pages 65-66, infra.

The importance of the attendance regulations to the

academies’ training program is of the highest order, to

my mind. It is in the great importance that I place on

this portion of the curriculum, which is directed to build-

ing the character of academy graduates and qualifying

them to understand the spiritual qualities of the men under

their command, that I part company with my colleagues. I

consider such training to be more important and necessary

than they do. As I view the chapel attendance require-

ment, it is a partial guarantee that our military leaders ’

will be aware of the moral principles that influence and ;

guide our Nation, and that they will be cognizant of the i

religious needs and motivations of those who serve in the 1

armed services under their command. To assure that our

military leaders will meet these standards requires that

academy graduates be conversant with religion and not

ignorant of its forms or values. The academies have a

compelling obligation to the Nation to see that their

graduates are fully trained and that ignorance of the

spiritual and moral values of our Nation and our service- :

men does not occur. We do not wish to train military

leaders—who will have the power in our name to order

the destruction of cities and nations—without some assur-

ances that they have at least been exposed to the prin-

ciples of basic morality that we stand for as a nation.

The stakes are too high—we should continue doing every-

thing humanly possible to avoid future My Lais.

Practically all Americans have some religious back-

Gone erty

scientious objections to church attendance are not respected

may request individual relief from courts after they have

processed their complaint through administrative channels

of the academy.

EP Sey Or a 1G

PP IUD eB OO ms - ne Pt a — ah

ground.* When our men are mustered into the armed

services, and realize they may eventually face combat duty,

their interest in religion often quickens. The closer they

approach combat with enemy forces the more frequently

many of them seek comfort in religion. Few men face

death without giving consideration to religious factors.™ It

is thus necessary to insure that our top military leaders,

most of whom are graduates of our Government military

academies, have a thorough understanding of the religious

needs and motivations of their men. This is a vital morale

factor. It has been said: “In war, morale considerations

make up three-quarters of the game; the relative balance

2° For example, during the Civil War in the winter of 1863-

64, while the armies of the Confederacy and the Union were

preparing for the battles that began with the Wilderness and

ended at Appomattox, a tremendous religious revival occurred

in the Confederate Army camped on the banks of the Rapidan:

In every Confederate camp chaplains and visiting minis-

soldiers knelt and worshipped the Hea Father

sued form a most remarkable and impressive chapter of

war history. Not only on the Sabbath day, but during

the week, night after night for long periods, these services

continued, increasing in and until

they brought under religious influence the great body of

the army. Along the mountain-sides and in the forests,

where the Southern camps were pitched, the rocks and

woods rang with appeals for holiness and consecration,

and devoted soldiers of the cross. General Lee, who was

a deeply pious man, manifested a constant and profound

SPELT LEY LIE LET 2 —_—

65a

of manpower accounts only for the remaining quarter.” *

It is thus vitally essential to my mind that academy train-

ing continue to include this required minimal exposure to

one’s own religion in this minimal good faith attempt to

accomplish these purely secular objectives. To paraphrase

Justice Goldberg’s concurring remarks in Abington School

District v. Schempp, 374 U.S. 203, 306 (1963) :*

The academies must inevitably take cognizance of the

existence of religion and the Court must recognize the

propriety of allowing cadets and midshipmen at the

academies to receive a minimal exposure to religion,

interest in the progress of this religious work among his

soldiers. He usually attended his own church when

services were held there, but his interest was confined to

no particular denomination. He encouraged all and

helped all.

Gen. J. B. Gorpon, CSA, REMINISCENCES OF THE CIVIL WAR

229-30 (1903).

* Napoleon I, Saint Cloud, August 27, 1808.

* Justice Goldberg’s concurring opinion states:

stances the First Amendment may require that it do so.

And it seems clear to me from the opinions in the pres-

ent and past cases that the Court would recognize the

a = I of providing military chaplains and of the

teaching about religion, as distinguished from the teach-

with due allowance for those whose conscience would

be invaded, so that the religious exposure will be

free of hostility or favor and without undue involve.

ment.

66a

3. Excessive government entanglement.

The record in this case does not indicate that the chapel

attendance requirement involves any additional entangle-

ment of Government with religion other than that already

existing by the armed services’ compliance with the Free

Exercise clause.2* What is involved is nothing more than

the academies furnishing the facilities and personnel

(chapels and chaplains) necessary to provide military per-

sonnel with the opportunity to exercise their own religion.

Even if chapel attendance were voluntary the academies

would still be required to make substantially the same fa-

cilities available for church attendance. The maintenance

of chapels and chaplains * throughout the armed services

guarantees that the constitutional right to free exercise

of religion will not be denied while men are serving their

country. There is no showing here that these services

are materially increased by the attendance requirement,

or that the resulting attendance enmeshes government sub-

stantially over and above the involvement which would

otherwise result from furnishing the facilities necessary

to meet its obligations under the free exercise require-

ment.

The majority opinions do not question the constitutional

29 See note 17, supra, and accompanying text.

3° Buildings may be provided for religious worship at the

academies. 10 U.S.C. §§ 4854(b) (Army), 9354 (Air Force).

Chaplains are provided throughout the services and at the

academies. 10 U.S.C. §§ 3064, 3073, 4337 (Army), 5142,

5404, 5576, 6031 (Navy), 8067(h), 8293, 8547, 9337 (Air

Force).

67a

validity of the Chaplain Corps and the furnishing of re-

ligious facilities in the armed services. It is submitted

that if it is constitutional for the Government to furnish

the extensive religious facilities of chapels and chaplains

for religious worship throughout the armed services, and

I do not question that it is constitutionally permissible,

then it is “necessary and proper” to require that our mili-

tary leaders be exposed to training sufficient to give them

a minimal understanding of the religious commitment and

motivation of our people.

SAHIN CT ee a

ART

B. The Free Exercise Clause

There can be no question that the knowledge and under-

standing of religion that cadets and midshipmen acquire

by chapel attendance operates to guarantee that the right

of men in the armed services to fully exercise their re-

ligion will be more fully understood and recognized when

these academy graduates ascend, as they certainly will,

to positions of military leadership.

Ill. Tue Errect or tHe Masority Decision

Judge Bazelon’s opinion states:

This case does not involve programs vital to our im-

mediate national security, or even to military opera-

tional or disciplinary procedures. Nor does it appear

that the ruling will have any detrimental impact on

the academies’ training programs. The appellees have

made no showing that chapel attendance requirements

are the best or the only means to impart to officers

some familiarity with religion and its effects on our

soldiers.

While some weight must be accorded the military

judgment that familiarity with religion is necessary for.

the all-around officer, it is for this court to assess that

decision in constitutional terms. In the words of Mr.

Justice Jackson, we act not by virtue of a superior

competence but by virtue of our commission to protect

basic constitutional rights.

EGP PARE EADS PS IERIE acta PIS BIO LO Rhy Ta a a

68a

Slip opinion at 29. The foregoing fails to consider or reflect

upon the effect that deficiently trained officers can have on

the personnel of our armed forces and their morale. The

passage recognizes that such training is necessary, but sug-

gests that it can be obtained by other means. There is

nothing in the record to support this conclusion. The testi-

mony of our military leaders who are charged with the

responsibility of supervising our military academies was to

the contrary. Trying to give a person an understanding of

the moral force and motivation of religion without attend-

ing church is like trying to teach swimming without water.

However, if we recognize that some training in religion

is necessary, and the majority opinions seem begrudgingly

to recognize this, we have come a long way. Then the only

question is whether it may permissibly be given by requir-

ing attendance at chapel or in the classroom. In my view

the United States has authority to educate its cadets and

midshipmen so that they will be fully qualified to assume

their place as military leaders of the Nation. If those who

are placed in charge of our armed services determine that

a minimum exposure to the religion of one’s own choice

is necessary through chapel attendance, and if our 150-year

experience has demonstrated that the implementation of

this policy does not result in an establishment of religion,

it seems to me that we should not be swayed by the vanity

of the present and the belated fears of the majority that

thee 150 years are an aberration of the experience we

should expect. I believe this lengthy experience demon-

strates that the basic guarantee of the First Amendment

is not violated or likely to be violated by the chapel re-

quirement, and I also consider that such training fur-

nishes substantial assurance that the free exercise of re-

ligion in the armed services will be respected." I accord.

31 There has been some objection by various religious bodies

to the academies’ chapel attendance regulation. At the same

— pn ee en eee. ee ee

ingly conclude that a “sensible and realistic application of

the Religious Clauses” ** compels a finding that the chapel

attendance requirement does not unduly trespass upon the

establishment or free exercise provisions.

For the foregoing reasons I respectfully dissent from the

majority opinions and would affirm the conclusion reached

in Anderson v. Laird, 316 F. Supp. 1081 (D.D.C. 1970). I

am in general agreement with Judge Corcoran’s reason-

ing to the extent hereinbefore indicated.

<—SPop owe

time these bodies seek to bring about a “vigorous and fruit-

ful religious life” in the military through a “strong religious

program” in which “participation by officers and enlisted per-

sonnel is voluntary.” Pl. Ex. 38, p. 44. They would thus

change the present program so as to greatly increase the

armed forces’ emphasis on religion and apply the increased

program to all “officers and enlisted personnel.” This sug-

gestion proposes a suictantially broader religious pro-

gram than exists at the present time. It would change the

policy throughout the armed forces to provide for more

encouragement of religion and thus depart from the present

policy of neutrality. It seems to me that the present empha-

sis at the academies is about right.

2 Wisconsin v. Yoder, —— U.S. ——, 40 U.S.L.W. 4476,

4480 (U.S. May 15, 1972).

” Seo 9: i% City dt Mohabscan eke Ao kates Mates ake Duis athe vars = |

—_———— SHERI COME NATE Sere AOR elt ABO La

APPENDIX B

United States District Court for the District of

Columbia

[Filed: July 31, 1970, Robert M. Stearns, Clerk]

Civil Action No. 169-70

MICHAEL B. ANDERSON, CaveEt, U.S.A., ET AL.,

PLAINTIFFS

MELVIN R. LAIRD, ET AL., DEFENDANTS

Opinion and Order

Warren K. Kaplan, Esq., 815 Connecticut Avenue,

NW., Washington, D.C., for the plaintiffs. Of Counsel:

Lawrence Speiser, Esq., American Civil Liberties

Union, 1424 16th Street, NW., Washington, D.C., and

Melvin Wulf, Esq., American Civil Liberties Union,

156 Fifth Avenue, New York, N.Y.

Thomas A. Flannery, United States Attorney for

the District of Columbia, and Joseph M. Hannon, As-

sistant United States Attorney for the District of Co-

lumbia, for the Government. Of Counsel: John A.

McIntire, Esq., for the Department of Defense and

Department of the Navy; Robert K. Weaver, Colonel,

United States Army, Office of the Judge Advocate

General; and C. Claude Teagarden, Major, United

States Air Force, Office of the Judge Advocate

General.

(70a )

- Pe eee ee ee

7la

I. GENERAL STATEMENT

Plaintiffs, two cadets of the United States Military

Academy and nine midshipmen* of the United States

Naval Academy, brought this suit as a class action on

behalf of all cadets and midshipmen’ at the United

States Military Academy at West Point, New York,

the United States Naval Academy at Annapolis, Mary-

land, and the United States Air Force Academy at

Colorado Springs, Colorado.’ The defendants are the

Secretary of Defense and the Secretaries of the Army,

Air Force, and Navy.

Plaintiffs claim that the regulations of the Acad-

emies compelling Sunday attendance at Catholic, Prot-

estant, or Jewish chapel service violate the Establish-

ment/Free Exercise Clauses of the First Amendment

and constitute a “religious test”’ in violation of Article

VI of the Constitution. They urge that such compul- :

sory attendance is contrary to the Supreme Court’s :

declarations hmiting governmental actions involving

‘Most midshipmen were minors and appeared through the

Reverend Father Robert F. Drinan as “next friend.” The de-

fendants challenged the right of Father Drinan to appear for

the minors absent a showing that the parents of the minors

had been consulted and consented to such an appearance. Since

the Court had ruled that the action was a class action it deemed

the challenge immaterial and denied the motion to strike Father

Drinan’s appearance as next friend.

*The term “cadets” is hereinafter used to include not only

the cadets at the West Point and the Air Force Academies but

the midshipmen at Annapolis as well.

‘None of the named plaintiffs was a cadet at the Air Force

Academy. The similarity of regulations at the three Academies

and the similarity of cadet positions at each Academy brings

the Air Foree Academy within the confines of this suit held

to be a class action pursuant to Rule 23 F.R.Civ.P. See Class

Actions, Charles Alan Wright, 47 F.R.D. 169, 172, 174, 178

(1969).

72a

religion because compulsory attendance constitutes

religious proselytizing and governmental support of re-

ligion. They also urge that mandatory attendance con-

stitutes an establishment of religion and an interference

with plaintiffs’ free exercise of religion. Plaintiffs seek

(1) a declaratory judgment that compulsory church or

chapel attendance violates the above noted provisions

of the Constitution, and (2) a permanent injunction

forbidding the Academies from enforcing the regula-

tions and from disciplining those cadets involved in

this court action.

The applications for preliminary and permanent in-

junction were heard on a consolidated basis. The

Court first took testimony and heard argument on

whether the plaintiffs had exhausted their administra-

tive remedies within the Academies before filing suit.

The Court ruled that adequate and effective administra-

tive remedies were not available and hence that the ex-

haustion doctrine was not available as 9 defense.

Thereafter the Court completed testimony on the

merits and took the case under advisement.

For the reasons appearing below the Court holds

that the regulations requiring mandatory church or

chapel attendance on Sunday violate neither the First

Amendment to nor Article VI of the Constitution of

the United States.

Il. THe Cuare, REQUIREMENTS

There is no question that Sunday church or chapel

attendance is required by all cadets attending the

three service Academies.’

‘Nor is there any question that prospective candidates for

the service Academies. volunteers all, are on notice as to the

behavior expected of them if accepted as officer candidates—

including the requirements to attend Sunday services. They are

73a

The West Point regulation provides:

**Attendance at Chapel is part of a cadet’s train-

ing; no cadet is exempt. Each cadet must at-

tend either the Cadet Chapel, Catholic Chapel or

Jewish Chapel service on each Sunday, aecord-

ing to announced schedules.” Regulations for

the United States Cadet Corps of the United

States Military Academy, Chapter 8, Section

IV. paragraph 819.

Air Force regulation No. 265-1 provides:

“Attendance at an established church service is

mandatory for those Second, Third and Fourth

Classmen present for duty in the Cadet area.”

Part II, Chapter 15, of the United States Naval

Academy Regulations states :

“1. The basic requirements concerning religious mat-

ters at the Naval Academy are:

(a) All Midshipmen will attend church or

chapel services on Sunday mornings but are re-

quired to attend at no other times.”

Violations of these regulations are punished in the

same manner as violations of other regulations, i.e., by

reprimands, demerits, punishment marching tours,

confinement to quarters, and for repeated violations,

expulsion.

There are slight variations in the respective Acad-

emy Regulations concerning alternative worship serv-

ices available. At West Point, all cadets are required

to attend one of the three services on the academy

premises, as there is no town nearby to provide other

alternatives. At the Naval Academy, midshipmen are

permitted to attend a denominational service im An-

napolis in lieu of the Academy church or chapel serv-

so notified throngh the catalogs distributed to them when they

apply. It might well be argued that the cadets by their own

choice have imposed restrictions on their activities at the Acad-

emies. See Raderman vo Naive, 411 F. 2d 1102, 1104 (2nd Cir.

1969).

= = oe ~ ows - a awe . _

a a . .

74a

ice. At the Air Force Academy, a cadet may attend

church in Colorado Springs which has been approved

by the Senior Chaplain.

Cadets may change their regular attendance from

one church or chapel service to another only after first

securing the approval of the respective chaplains in-

volved, and, if they are under twenty-one, the ap-

proval of their parents. The cadet must demonstrate a

sincere desire to affiliate with the new church. Ap-

proval of requests to change chapel squads is not

granted on a mere personal whim any more than re-

quests to change muster, classes, or meals.

However, a cadet who has sincerely held convictions

against church or chapel attendance itself may be ex-

cused from such attendance. It was so declared by the

Superintendents of the Academies in April 1969 in a

policy statement which said:

“It is understood that intelligent provisions

must be made for bona fide cases where attend-

ance would be in conflict with sincerely held

convictions of individual cadets or midship-

men.” *

Thus when the effect on the individual cadet is op-

posite to that intended, i.e., when he becomes incapable

of observing, assimilating or becoming involved with

an understanding of the religious beliefs of men and

finds himself turning away from an understanding of

what their religious belief and value systems are, then

he is relieved from the attendance requirement.

The requirement of attendance at Sunday services

at the service Academies reaches for its origins far

back into the nineteenth century. West Point estab-

lished its requirement as early as 1821; the Annapolis

*The Eleventh Conference of Superintendents of the Acad-

emies of the Armed Forces, Record of Proceedings, April 18,

1969 at 32.

75a

regulation dates back to 1853; and the Air Force :

Academy, following tradition, adopted a similar re- ;

quirement when it was organized in 1955.

Ill. THe First AMENDMENT

The First Amendment to the Constitution provides

in part that “Congress shall make no law respecting

an establishment of religion or prohibiting the free

exercise thereof.”’

It is urged by the plaintiffs that the compulsory

chapel requirements quoted above have a purpose

which advances religion and have a primary effect

which in some ways advances and in other ways in-

hibits religion in violation of the First Amendment.

The defendants on the other hand urge that the re-

quirement to attend is not a requirement to worship;

that the purpose of attendance is purely secular and

an integral part of the military training accorded to

the various groups of cadets, and that its primary

effect is to instill in the cadets an understanding of

the religious values which can. at times motivate the

men who will ultimately come under their command.

The conduct of the service Academies is a military

activity (perhaps in the long run the most important

military activity) of the United States. It is admin-

istered by the respective military services and Secre-

taries and under the overall responsibility of the

Secretary of Defense.

Accordingly to put the issues in proper perspective

it would seem appropriate, at the very outset, to note

the limitations which have traditionally guided the

courts in dealing with matters military.

The Courts have always been reluctant to interfere

in the management of the military services. Orloff v.

Willoughby, 345 U.S. 83 (1953); Niron v. Secretary

ELE AAPOR NT ESO IN STITT SOASIME® OSI. RES IER SRT Ea GARI erp anna Reise

— Becta PCE DIRE: Dn —————

76a

of Navy, 422 F.2d 934 (2nd Cir. 1970) ; Raderman y,

Kaine, 411 F.2d 1102 (2nd Cir. 1969) ; Byrne v. Resor,

412 F.2d 774 (3rd Cir. 1969); Smith v. Resor, 406

F.2d 141 (2nd Cir. 1969); Schonbrun v. Commanding

Officer, 403 F.2d 371 (2nd Cir. 1968) ; cert. denied 394

U.S. 929 (1969); For v. Brown, 402 F.2d 837 (2nd

Cir. 1968); Wasson v. Trowbridge, 382 F.2d 807, 812

(2nd Cir. 1967); Noyd v. McNamara, 378 F.2d 538

(10th Cir.), cert. denied 389 U.S. 1022 (1967) ; Luftig

v. McNamara, 373 F.2d 664 (D.C. Cir. 1967); Feli-

ciano v. Laird, 311 F.Supp. 791 (E.D. N.Y. 1970);

Dash v. Commanding General, 307 F.Supp. 849 (D.

S.C. 1969); Arnheiter v. Ignatius, 292 F.Supp. 911

(N.D. Calif. 1968); Rand v. Glezer, 288 F.Supp. 174

(D.Colo. 1968).

The problem here facing the Court is but one facet

of the age-old problem of how to balance the require-

ments of the military and its needs for discipline and

training with the Constitutionally protected rights and

privileges of the civilian society.

Mr. Justice Harlan succinctly noted in Noyd v.

Bond, 395 U.S. 683, 694 (1969) that

“In reviewing military decisions, we must aec-

commodate the demands of individual rights

and the social order in a context which is far

removed from those which we encounter in the

ordinary run of civilian litigation, whether state

or federal.”

As a guiding principle it can be said that the amount

of judicial interference with the military should be

limited; the amount of deference given the military

in matters of discipline and training should be wide.

As Mr. Justice Jackson commented :

“TJ]udges are not given the task of running

the army ... The military constitutes a spe-

cialized community governed by a seporate dis-

77a

cipline from that of the civilian.’’ Orloff v.

Willoughby, 345 U.S. 93-94 (1953).°

The reason for this special treatment is the unique

role which the military performs. Mr. Justice Black

pointed out in Toth v. Quarles, 350 U.S. 11, 17 (1955),

and it was reemphasized by Mr. Justice Douglas in

0’Callahan v. Parker, 395 U.S. 258, 262 (1969) that

“‘Unlike courts it is the primary business of

armies and navies to fight or be ready to fight

wars should the occasion arise.”’

Judge Latimer of the United States Court of Mili-

tary Appeals in a similar vein has written ‘‘that

military units have one major purpose justifying their

existence: to prepare themselves for war and to wage

it successfully. That purpose must never be over-

looked in weighing the conflicting rights of the service-

man... and the right of the Government to prepare

for and pursue a war to a successful conclusion.” U.S.

v. Voorhees, 4 U.S.C.M.A. 509, 531, 16 C.M.R. 83

(1954). And in the same opinion, Chief Judge Quinn,

while speaking strongly to the constitutional rights of

men in uniform, pointed out that ‘‘there are differ-

ences between the civilian and military communities.”

Td. at 531.

A most forceful statement of the limitation on the

judiciary when dealing with matters military comes

from former Chief Justice Warren.

‘So far as the relationship of the military to

its own personnel is concerned, the basic at-

titude of the Court has been that the latter’s

jurisdiction is most limited.

~ * * * *

*Mr. Justice Harlan in a separate context also has em-

phasized the unique position of military personnel in American

society. Currington v. Rash. 380 U.S. 89, 100-01 (1965) (dis-

senting opinion).

anicye emapiaeeaines

78a

«|, [I]t is indisputable that the tradition

of our country .. . has supported the military

establishment’s broad power to deal with its

own personnel. The most obvious reason is that

courts are ill-equipped to determine the impact

upon discipline that any particular intrusion

upon military authority might have. Many of

the problems of the military society are, in.a

sense, alien to the problems with which the

judiciary is trained to deal.” [Emphasis sup-

plied] Warren, The Bill of Rights and the

Military, 37 N.Y.U.L.Rev. 181, 186-7 (1962).

The Second Circuit, speaking to issues which paral-

lel this case, has echoed the ideas of Chief Justice

Warren.

“Few decisions properly rest so exclusively

within the discretion of the appropriate gov-

ernment officials than the selection, training,

discipline and dismissal of the future officers of

military . . . Instilling and maintaining disci-

pline and morale in these young men who will

be required to bear weighty responsibility in the

face of adversity—at times extreme—s a matter

of substantial national importance scarcely

within the competence of the judiciary.’’ (Emp-

hasis supplied) Wasson v. Trowbridge, 382 F.

2d 807, 812 (2nd Cir. 1967).

Of course it is uncontested that a member of the

armed services retains certain fundamental rights

notwithstanding his membership in the military. The

Supreme Court has left no doubt as to the applica-

bility of the Constitution to the Military establish-

ment. Burns v. Wilson, 346 U.S. 137 (1953). And, as

the Court of Military Appeals has said, ‘‘[T]he pro-

tections in the Bill of Rights, except those which are

expressly or by necessary implication inapplicable,

are available to members of our armed forces.”’ U.S. v.

Jacoby, 11 U.S.C.M.A. 428, 431-2, 29 C.M.R. 244,

79a

246-7 (1960). However, it is equally clear that being

a member of the armed services does curtail the asser-

tion of certain constitutional rights.’ As Chief Judge ,

Quinn of the United States Court of Military Appeals :

wrote :

‘Service in the armed forces, in both war and

peace, entails substantial restriction on funda-

member of the armed services:

mental rights.’’ Quinn, The U.S. Court of Mili- 4

tary Appeals and Individual Rights in the é

Military Service, 35 Notre Dame Law, 491 493 FY

(1960). fe

The Second Circuit has said, as to the rights of a i

‘‘Of necessity, he is forced to surrender many

important rights. He arises unwillingly at an

unreasonable hour at the sound of a bugle un-

reasonably loud. From that moment on, his

freedom of choice and will ceases to exist. He

acts at the command of some person—not a rep-

resentative of his own choice—who gives com-

mands to him which he does not like to obey.

He is assigned to a squad and forced to asso-

ciate with companions not of his selection and

frequently the chores which he may be ordered

to perform are of a most menial nature. Yet

the armed services, their officers and their mnan-

ner of discipline do serve an essential function

in safeguarding the country. The need for disci-

pline, with the attendant impairment of certain

rights, is an important factor in fully dis-

charging that duty.” Raderman vy. Kaine, 411 F.

2d 1102, 1104 (2nd Cir. 1969).

There is nothing revolutionary in concluding that

one logically distinguishable group in society enjoys

"Of. Kester, Soldiers Who Insult The President. An Uneasy i

Look at Article 88 of The Uniform Code of Military Justice,

81 Harv. L. Rev. 1697, 1743 (1968).

Aes RON RACAL RIEL GLE LD TESA SIENA PARLE IBID DALAL ay

80a

more limited rights than ordinary individuals. Picker-

ing Vv. Board of Education, 391 U.S. 563, 568 (1968) ;

Meehan v. Macy, 425 F.2d 469, 470 (D.C. Cir. 1968) ;

Ginsberg v. N.Y., 390-U.S. 629 (1968).

Nor is it revolutionary to say that First Amend-

ment rights are not absolute. Callison v. U.S., 413

F.2d 133, 136 (9th Cir. 1969). And although the Reli-

gion Clauses are couched in absolute terms, it is not

realistically possible to have absolute or perfect sepa-

ration and non-involvement. Zorach v. Clauson, 343

U.S. 306, 312 (1952). The very existence of the clauses

denotes an involvement of sorts. As the Chief Justice

has said, “. . . [T]here is room for play in the joints

productive of a benevolent neutrality .. .’’ Walz v.

Tax Commission, 397 U.S. 664, 669 (1970). The Reli-

gion Clauses are in effect boundaries laid out to avoid

excessive entanglement.

Tradition—and the continuous public acceptance of

a practice—earries weight and demands recognition.

The practice of compulsory chapel at the military

academies did not arise only yesterday. There is an

unbroken pattern of 150 years of mandatory chapel

under the eyes of the President and the Congress,"

® A Board of Visitors is constituted annually to each of the

service academies. It is made up of the Chairman of the Com-

mittee on Armed Services of the Senate (or his designee) ; three

other members of the Senate (two of whom are members

of the Committee on Appropriations); the Chairman of the

Committee on Armed Services of the House of Representa-

tives (or his designee); four other members of the House of

Representatives (two of whom are members of the Committee

on Appropriations): and six persons designated by the Presi-

dent. Among their duties are to inquire into the morale and

discipline, the curriculum, instruction, physical equipment, ‘s-

cal affairs, academic methods and other matters relating to the

Academy. The Board is required to report to the President

within sixty days after its annual visit to each academy. Title

10, $$ 4355. 9355, 6968.

8la

the military authorities, and the public in general.

Such tradition cannot be lightly discarded; and the

longer its existence the greater its influence on the con-

stitutional interpretation of the regulations involved. 5

As Judge (later Mr. Justice) Cardozo observed

“Not lightly to be vacated is the verdict of quiescent

years.”’ Coler v. Corn Exchange Bank, 250 NY 136,

164 NE 882, 884 (1928). In the same vein is Mr. Jus-

tice Holmes’ comment that ‘‘a page of history is worth

a volume of logic’? New York Trust Co. v. Eisner, 256

U.S. 345, 349 (1921). In a later case, Jackson v.

Rosenbaum, 260 U.S. 22, 31 (1922) Mr. Justice Holmes

further reiterated the force of tradition in these

words:

ease a ne. |

“[I]f a thing has been practised for two hun-

dred years by common consent, it will need a

strong case for the Fourteenth Amendment to

affect it.”

The Court recognizes of course that long continued

use cannot turn a constitutional violation into a right.

However, the purpose of a statute or regulation ean

change over the years from “the impermissible pur-

pose of supporting religion” to the “permissible pur-

pose of furthering overwhelmingly secular ends.”’

Abington School District v. Schempp, 374 U.S. 203,

264 (1963) (Brennan, J. concurring); Walz v. Tar

Commission, supra, 397 U.S. at 687, fn. 8 (Brennan,

J. concurring).

The Court turns now to a closer examination of the

chapel attendance regulations in relation to the Free-

dom of Religion Clauses of the Constitution.

In Abington School District v. Schempp, supra, 374

U.S. at 222, Mr. Justice Clark set down the test to be

followed in determining whether the Freedom of Reli-

gion Clauses of the First Amendment have been

violated. “‘. . . [T]o withstand the strictures of the

Oks Se ea ee ee aE TT |

a al le sa anes : ; sits ; a

Establishment Clause there must be a secular legis-

lative purpose and a primary effect that neither ad-

vances nor inhibits religion.”

The Chief Justice re-framed the issue in these

words:

“Each value judgment under the Religion

Clauses must therefore turn on whether partic-

ular acts in question are intended to establish

or interfere with religious beliefs and practices

or have the effect of doing so.” [Emphasis sup-

plied] Walz v. Tax Commission, supra, 397 U.S.

at 659.

The most cogent testimony as to “purpose’’ and

“effect” of mandatory chapel attendance, as might

be expected, was given by those people directly

charged with the training of the cadets.

Among others, the defendants called upon Rear

Admiral James Calvert, the Superintendent of the

Naval Academy, Admiral Thomas Moorer, the then

Chief of Naval Operations and now Chairman of the

Joint Chiefs of Staff, and Mr. Roger Kelley, the As-

sistant Secretary of Defense for Manpower and Re- |

serve Affairs. They testified substantially as noted

below.

The cadets are required only to attend church or

chapel services and to remain attentive in keeping

with the avowed purpose of the activity; they are not

required to participate in the service or to worship.

The choice is left to each individual.’ There is no

punishment for non-participation. The activities in-

volved are not aimed at the cultivation of religious

® When the age, maturity, and voluntary position of the indi-

viduals are considered, the problems of peer pressure and youth-

ful minds which loomed large in the school prayer cases (£'ngel

v. Vitale, 370 U.S. 421 (1962), Abington School District v. |

Schempp, supra, 374 U.S. 203) present no obstacle. |

83a

faith or motivation,’® but are aimed rather at the

complete training of future officers who in combat

will shoulder awesome responsibilities. For this reason

the young men who volunteer to become cadets submit

themselves to a training program the rigors of which

far exceed_those of other institutions of higher learn-

ing. The Academies are called upon to educate and

train as effective combat leaders these young men who

represent the country’s key reservoir of officer talent

and who are expected to set and maintain the stand-

ards for performance and conduct of all commis-

sioned officers. Particular emphasis is placed neces-

sarily on inculeating a sense of duty, integrity, and

moral responsibility. Experience has shown that these

qualities and a sensitivity to the spiritual needs of

men in times of combat crisis are essential in leading

men in the face of danger. Why some men resort to

religion or spiritual values as support and strength in

times of extreme danger and trial must be understood

by a commanding officer.

Within the overall training program of the acade-

mies the most effective method of inculeating this

sensitivity is attendance at chapel or church services

which provide the only opportunity to observe the

impact that spiritual values have on the lives of men.

It would he as inconsistent with the responsibility the

Academies have to train complete combat officers to

ignore this necessity as it would be to ignore the more

obvious physical and tactical education.

“One of the most challenging aspects of officer-

ship is the ability to draw out the best in the

people who are subordinate to that officer’s

command, and the ability to draw out the best

in those people requires, beyond any question,

Cf. Kayser, Church and State: Cooperative Separation, 60

Mich. L. Rev. 1, 31 (1961).

}

ae TRB ee NE sett est ee eee" i ARE sont TSOYA oth IN

an understanding of the spiritual value system

that those people use as a basis for conducting

their lives and this spiritual value system is

to the most rigorous test in military life, par-

ticularly in conditions of combat and crisis.”’"

Highly trained military leaders are essential to na-

tional security, and the understanding gleaned from

chapel attendance is necessary to mold the well-

trained officer. Without it a vital component of officer

development would be missing causing a weakness in

the fiber of the officer corps which in the long run

would have a harmful effect on national security. Lee-

tures or courses in moral guidance, comparative

religion, or ethics would not achieve the same effect as

attendance since the crucial element of observation

would have been removed. Secretary Kelley testified :

“The opportunity to observe others at worship

is clear manifestation of the manner and the

extent to which they draw upon God or a super-

natural being in the conduct of their lives.’’“

Specifically as to the “purpose” of mandatory at-

tendance Secretary Kelley further testified:

“Very simply the reason for the requirement is

to help the midshipmen and the cadets under-

stand the basis of religious belief and practice

on the part of other midshipmen and cadets

and thus equip him for positions of leadership

responsibility in later service life.”

And Admiral Moorer said:

“The purpose, of course, is to enhance his lead-

ership and command ability by putting him in

a position where he can get a feel, an under-

standing of the impact of religion on the various

types of individuals and so he can see this in

operation; and, consequently, as he acts as a

" Testimony of Secretary Kelley, Tr. Vol. V at 28.

"Tr. Vol. V at 27.

_ co tat rt ee a ee ee

leader in later years, he will appreciate this

impact that religion will have on so many

people.

* * * * *

“(T}hat is the sole pu . We are in the

process of developing leaders and this is a vital

part of the overall leadership package ; and that

is the sole purpose.”

Looking to the primary effect (as contrasted with

purpose) the Chief Justice has pointed out that the

end result—the effect—must not be “‘ercessive govern-

mental entanglement with religion. The test is ineseap-

ably one of degree.”’ (Emphasis supplied) Walz v.

Tar Commission, supra, 397 U.S. at 674."

As Secretary Kelley testified :

“The institutional judgment of the Department

of Defense as to the primary effect of required

chapel attendance is to develop in those required

to attend chapel an understanding of the re-

ligious beliefs and the spiritual value systems

of other midshipmen and cadets . . .

“T meant primary effect of requiring attend-

ance at chapel is to instill in a midshipman the

understanding of the religious beliefs of

others.”

And Admiral Moorer added :

“The primary effect is to generate in the indi-

vidual a better understanding of the impact,

related on the lives of men, and certainly per-

mitting them in the future to be better leaders.

“When we experience a crisis situation, differ-

ent men react in different ways, and it is very

ee hel oie ee en ed

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oP tome

"The Court of Appeals had one month earlier reached the

same result in Allen v. Mickel, 424 F. 2d 944, 949 (D.C. Cir.

(1970). “The question is not whether there is any religious

effect at all but rather whether that effect. if present. is

substantial.”

important that the commander, or the senior

man on the scene of the conflict or difficulty,

understands why the various men in his com-

mand will react in a different way, and why

some of them find a need to resort to religion

to support them in this time of extreme danger

and extreme trial. And unless he understands

that many people have this feeling and have

this need to resort to their religious beliefs

to provide strength to them in this period of

crisis, he cannot properly, in my view, handle

this crisis situation.”

As indicated earlier the Court is prepared to and

does accord great weight to the opinions and the judg-

ment of those military experts who have the responsi-

bility of training and developing the country’s future

military leaders. In the absence of any compelling testi-

mony to the contrary, it agrees with their evaluation

that the purpose of required attendance at church or

chapel service is wholly secular; that it is a vital part

of the overall training program designed to create

effective officers and leaders by preparing them to

meet all the exigencies of command. The Court also

agrees that the primary effect of required attendance

is secular in that it enables those who will one day

hold command positions to gain an awareness and

respect for the force religion has on the lives of men

so as to react for the benefit of all in combat crises

including the giving of spiritual counseling and guid-

ance to those who turn to religion in such situations.

In according deference to the opinions and judg-

ments of the military, the Court is not downgrading

the testimony proffered by the plaintiffs. The plain-

tiffs introduced forceful testimony as to the negative

effects of compulsory attendance at worship services

upon mankind in general. And it is undeniable that

the plaintiffs adduced testimony that the mandatory

attendance will have some religious effect on some of

the cadets. The plaintiffs failed, however, to demon-

strate that the effect is anything but slight, insubstan-

tial, and non-extensive.” It is significant, too, that the

testimony adduced by the plaintiffs was presented by

who are not now and never have heen directly

concerned with the training of our military leaders.

As moralists the Court must accord them due defer-

ence, but in matters military the Court feels con-

strained to look to the military experts.

With the foregoing testimony in mind, the Court .

concludes that the Religion Clauses of the First ;

Amendment have not been breached by the chapel :

attendance requirement. '

The Court first makes the necessary distinction be-

tween “attendance” and “‘worship” and holds that

attendance under the circumstances in question does

not constitute worship. While this distinction might

he said to he slight, it is in this ease crucial. As Chief

Justice Burger has said, “‘[T]t is an essential part of

adjudication to draw distinctions, including the fine

ones, in the process of interpreting the Constitution.”

Walz v. Tar Commission, supra, 397 U.S. at 679.

The Court next finds that the purpose and primary

effect of compulsory attendance cannot be said to

either substantially *“‘advance”’ or “‘inhibit’’ religion.

The thrust is toward the complete training of a mili-

tary leader. The effect of attendance is no different

than the effect of other regulations which all blend

together to mold the future officer. “The educational

system at the service Academies is a total educational

and training concept having to do with developing

the whole man, the whole officer ... There is an

integration between the elements of the total system

Wy TOP ae” Ha eeeE

“As has heen noted, svpra. a cadet or midshipman may be

excused from attendance for sincerely held reasons or beliefs.

a ee

88a

and each makes its own significant contribution to

developing the whole man-officer which equips him

as a leader of men.” *

Any advancement or inhibition, any sponsorship or

hostility (and the Court finds none) would only be

incidental. And if only incidental, it would be insuff-

cient to hold it in violation of the Religion Clauses.

As Mr. Justice Harlan wrote, concurring in Board

of Education vy. Allen, 392 U.S. 236, 249 (1968) :

**T would hold that where the contested govern-

mental activity is calculated to achieve non-

religious purposes otherwise within the compe-

tence of the State, and where the activity does

not involve the State ‘so significantly and

directly in the realm of the sectarian as to give

rise to . . . divisive influences and inhibitions

of freedom,’ Abington School District v.

Schempp, supra, 374 U.S. at 307 (concurring

opinion of Goldberg, J.), it is not forbidden

by the religious clauses of the First Amend-

ment.”’

This mandatory attendance requirement also meets

the test for the Free Exercise Clause as laid down in

Abington School District v. Schempp, supra, 374 US.

at 223. To come into conflict with the Clause it must

be shown that there is a coercive effect which operates

against the individual in the pra

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