# Petition for Writ of Certiorari — Laird v. Anderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1537%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1076 ## Text INDEX Page 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 ; . z & ; = : PEP RY ELBIR SBE PS DONOR? Si TR 84 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 v. 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 ——— 2 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 3 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- & ¥ § 3 a Be ¥ : & 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 4 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.” rs N % ¥ 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. _— 7 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 ——— | Ts 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. 10 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 11 945, 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 : ; z na tes at ek Rake ea) : ; \ - ‘ * E e 4 12 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 13 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 15 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 16 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 17 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.”’ . : ¢ . : 2 > Zz r SE ec | a A ee a a ERE | a 18 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 v. 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 | 2a 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 — 3a 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). L —— 4a 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 a 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- 2 a 2 F z f s E . : | 6a 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 © Citing Orloff v. Willoughby, 345 U.S. 83 (1953) ; Nizon 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 8a 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 —— 9a 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). + a k 4 = 2 . : & 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 b ‘ f & 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. DED Ne EE EE TS BONE TE NOY IE IS ITS ES La oats | : tA a ni Huey a Hite i gia? es H MacKinnon, and my- 16a a vs an t i HE AGE ij SM Re ee ap to ap to Sumaie cuup Sum Gumi enetent tie ean” ™ eral Government . . : tie : ibe che ie il ve Hi The foro hie nga neers a nt be in inished by subsequent Supreme Court opinions. W a il Et uel ey THe a it a f “397 US. at 68 ie ia ; j A won ee 2 7-9 © eee a ee . ee ae ee Yay HE i a i ili Hi ii} ili | iid BA “ 367 ” #967 US. 488 (1961). “374 U.S. 203 (1963). @ oe (1962). i i ie HT i! > fe =% ae Mt ill isa Re ne : - al : LTH Hil ar. it zi HHE atta * E aw of i itt i i il i iets : Hh ax 2 HIE *Hud2 ee 20a 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- ": S 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. | i 2 5 x a $ 4 M > 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 pEpiin te : ti il i a Te a Ht HE ite ft eee Re at Tee AH an dat UCT aaitits eile ! i Hil : : igs: i Hee ereat et i “i i 1 Perens . - a at 7 sila ii ce nit pan iE hie + iat ea HL tia ete DOE I SOE 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 4 E 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 i . t 7 ' 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. Yo 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 ~e 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. E : 2 : ! i iil : Le i; a é beh i : : th i He ti : lt 2 : i ah ii ee - Mie a iy ae Hi ny Se ne ee oe a ee Pau Tule: din A fo Hie ti iia ite Hu ral i i fa: | + Hit | iy ee —_—— _—_—<— ST 113 - sith 2a i inte ai i He Hea sity! at HEHE i a i ht i itt ath —— eS . ' PETE, HE ee | le a aie i ~~ —— ee ee at Ht aul i Qing fallin 5: i all 1 ile | Live it He ity if it Ht ites Hadi y sett HH HE a 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 a 5 r g ~ i fe if he aa. ht cer meets the necessary requirements of a military *A very minimal exposure is all that is involved in e 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 — ae 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). il iil | Hifi & Ha i i fi Hit it il hie if Hille atts | Hite uel } auil i Hid Oe ee a ee : HA fi i t Ht HE HT ue mit Hi ¥ ni pit Ht I a el ET ET i | Hae Hy Hie aad Hi | ini iii BALE Hl eaatehistl lit al tl ad a Sie tt i HH. Mil ty % in ‘ iH 2 THER Lite ete oe i ie i it A i iat i iu iat il ertgl gt gd SHH i Hi i Ht ; ' i! vit ¢ iit A il init Hf Mi aT | 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- et ar 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 oy 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 o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1537%3A1. Public record. Not legal advice.