Military Personnel and Freedom of Religion: Selected Legal Issues

Congressional research reportFeb 1, 2011

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Military Personnel and Freedom of Religion:

Selected Legal Issues

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R41171

CRS Report for Congress

Prepared for Members and Committees of Congress

Military Personnel and Freedom of Religion: Selected Legal Issues

Summary

The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise

their religious beliefs without governmental interference, and simultaneously prohibits

government actions that benefit followers of one faith over another. At times, when government

actions would otherwise burden individuals’ religious exercise, the government makes efforts to

accommodate the religious practice. However, accommodation of religion to prevent violations of

the Free Exercise Clause must be carefully considered in order to prevent violation of the

Establishment Clause.

The tension between the clauses has been illustrated in a number of military scenarios in recent

years. For example, the U.S. Army recently allowed the first Sikh in more than 25 years to

graduate from the officer basic training program without sacrificing the articles of his faith,

allowing the officer to maintain his unshorn hair and beard and to wear a turban. In another

example, legislation enacted in December 2010 that has provided a process for the military’s

“don’t ask, don’t tell” policy regarding homosexual servicemembers to be repealed has raised

several questions about the impact a new policy would have on chaplains whose religious

background does not support homosexuality.

This report provides an overview of the requirements of the First Amendment related to military

personnel’s religious exercise. It analyzes current constitutional and statutory requirements

regarding religious exercise, and provides a framework for how Congress and the courts might

consider future issues that arise related to servicemembers’ religious exercise. Specifically, the

report examines the limitations placed on servicemembers in uniform in the exercise of their

religious beliefs. It also examines the role of military chaplains and the legal challenges

associated with publicly funding religious personnel. The report analyzes efforts by Congress and

the Department of Defense to address the constitutional concerns that are raised by these issues.

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Military Personnel and Freedom of Religion: Selected Legal Issues

Contents

Introduction ................................................................................................................................1

Accommodation of Religious Practices Generally .......................................................................2

First Amendment Religious Freedoms ...................................................................................2

Free Exercise Protections ................................................................................................2

Establishment Clause Considerations ..............................................................................3

Constitutionally Permissible Accommodations of Religion..............................................4

DOD Policy ..........................................................................................................................5

DOD Instruction 1300.17—Accommodation of Religious Practices Within the

Military Services..........................................................................................................5

DOD Instruction 1325.06—Handling Dissident and Protest Activities Among

Members of the Armed Forces .....................................................................................7

Restrictions on Personnel in Uniform ..........................................................................................8

Goldman v. Weinberger .........................................................................................................8

10 U.S.C. § 774—Religious apparel: wearing while in uniform........................................... 10

DOD Instruction 1334.01—Wearing of the Uniform ........................................................... 10

Provision of Religious Services to Military Personnel ............................................................... 12

Constitutionality of the Military Chaplaincy: Katcoff v. Marsh ............................................ 12

Challenges to the Specific Components of the Military Chaplaincy ..................................... 13

DOD Policy ........................................................................................................................ 16

Contacts

Author Contact Information ...................................................................................................... 17

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Military Personnel and Freedom of Religion: Selected Legal Issues

Introduction

The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise

their religious beliefs without governmental interference, and simultaneously prohibits

government actions that benefit followers of one faith over another. At times, when government

actions would otherwise burden individuals’ religious exercise, the government makes efforts to

accommodate the religious practice. However, accommodation of religion to prevent violations of

the Free Exercise Clause must be carefully considered in order to prevent violation of the

Establishment Clause. One of the premier examples of the tension between the religion clauses is

accommodation of the religious exercise of military personnel, particularly in the limitations on

personnel in uniform and the provision of military chaplains.

The tension between the clauses has been illustrated in a number of military scenarios in recent

years. For example, the U.S. Army recently allowed the first Sikh in more than 25 years to

graduate from the officer basic training program without sacrificing the articles of his faith. The

Army granted an exemption from the uniform policy, allowing the officer to maintain his unshorn

hair and beard and to wear a turban as required by his faith.1 Some argue that allowing

exemptions to the uniform policy diminishes esprit de corps and may weaken military

effectiveness. Others assert that the exemptions allow for more individuals to serve in the military

at a time when the forces have been stretched thin with the ongoing conflicts. They assert that it

furthers an important public policy goal of ensuring that servicemembers of all faiths are an

integral part of American military life and affirms the military’s role as an assimilative national

institution which has historically served to counter prejudice.

In another example, the Don’t Ask, Don’t Tell Repeal Act was enacted in December 2010 and

created a process to repeal the military’s current policy regarding homosexual servicemembers

once certain conditions are met.2 The repeal has raised several questions about the impact a new

policy would have on chaplains whose religious background does not support homosexuality.

Some argue that chaplains, as religious leaders, may be protected from providing support to

homosexual servicemembers as a matter of conscience, similar to protections for doctors who

have religious objections to abortions. Clergy and spiritual leaders traditionally benefit from

heightened protection from claims of discrimination or unequal treatment of others, but it is also

important to note that the military operates under a unique set of rules in contrast to the civilian

society in which doctors and clergy may be afforded heightened conscience protections.

This report provides an overview of the requirements of the First Amendment related to military

personnel’s religious exercise. It analyzes current constitutional and statutory requirements

regarding religious exercise, and provides a framework for how Congress and the courts might

consider future issues that arise related to servicemembers’ religious exercise. Specifically, the

report examines the limitations placed on servicemembers in uniform to exercise their religious

beliefs. It also examines the role of military chaplains and the legal challenges associated with

public funding for religious personnel. The report analyzes efforts by Congress and the

Department of Defense to address the constitutional concerns that are raised by these issues.

“1st Sikh in decades graduates Army officer school,” USA Today, March 22, 2010, available at

http://www.usatoday.com/news/religion/2010-03-22-sikh-army_N.htm.

P.L. 111-321, 111th Cong., 2nd Sess. (December 22, 2010). For more information on the policy and its repeal, see CRS

Report R40782, “Don’t Ask, Don’t Tell”: Military Policy and the Law on Same-Sex Behavior, by (name redacted),

and CRS Report R40795, “Don’t Ask, Don’t Tell”: A Legal Analysis, by (name redacted).

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Military Personnel and Freedom of Religion: Selected Legal Issues

Accommodation of Religious Practices Generally

Religious exercise is protected by a number of different laws and regulations. Primarily, the

protections and limitations on religion are based upon the Establishment Clause and Free

Exercise Clause of the First Amendment. In addition to the First Amendment’s religion clauses,

the Religious Freedom Restoration Act (RFRA) supplements the standard of review of burdens

on individuals’ religious exercise to provide heightened protection not offered by the

constitutional standard. Furthermore, the Department of Defense (DOD) has promulgated

regulations addressing religious exercise in the military.

First Amendment Religious Freedoms

The First Amendment of the U.S. Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof.”3 These clauses

are known respectively as the Establishment Clause and the Free Exercise Clause. Together, the

clauses counterbalance the interests of individuals to practice their religious beliefs with a

prohibition on government involvement in religion. At times, situations arise in which some

government action would infringe upon an individual’s religious exercise, but any corrective

action that the government might take would raise concerns of establishment. 4

Free Exercise Protections

Historically, the Free Exercise Clause protected individual exercise under a heightened standard

of review for government actions that allegedly interfered with a person’s free exercise of

religion.5 The U.S. Supreme Court reinterpreted that standard in 1990. Since then, the Court has

held that the Free Exercise Clause never “relieve[s] an individual of the obligation to comply with

a valid and neutral law of general applicability.”6 Under this interpretation, the constitutional

baseline of protection was lowered, meaning that laws that do not specifically target religion or

do not allow for individualized assessments are not subject to heightened review under the

Constitution. In doing so, the Court indicated that individuals’ right to freely exercise their

religion exists only to the extent that they can do so while complying with laws that do not target

religious exercise and apply generally to the population.

In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which statutorily

reinstated the standard of protection of heightened scrutiny for federal government actions

interfering with a person’s free exercise of religion. 7 RFRA provides that a statute or regulation of

U.S. Const. Amend. I. For discussion of the constitutional and statutory standards of review used in relation to the

free exercise clause, see CRS Report RS22833, The Law of Church and State: General Principles and Current

Interpretations, by Cynthia Brougher.

Cutter v. Wilkinson, 544 U.S. 709, 719 (2005) (“While the two Clauses express complementary values, they often

exert conflicting pressures.”); Walz v. Tax Commission of City of New York, 397 U.S. 664, 668-69 (1970) (“The

Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms,

and either of which, if expanded to a logical extreme, would tend to clash with the other.”).

See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990).

P.L. 103-141, 103d Cong., 1st Sess. (November 16, 1993); 42 U.S.C. § 2000bb et seq. When RFRA was originally

enacted, it applied to federal, state, and local government actions, but the Supreme Court later ruled that its application

(continued...)

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general applicability may lawfully burden a person’s exercise of religion only if it (1) furthers a

compelling governmental interest and (2) uses the least restrictive means to further that interest.8

This standard is sometimes referred to as strict scrutiny analysis. The Supreme Court has held that

in order for the government to prohibit exemptions to generally applicable laws, the government

must “demonstrate a compelling interest in uniform application of a particular program by

offering evidence that granting the requested religious accommodations would seriously

compromise its ability to administer the program.”9

Establishment Clause Considerations

The constitutional understanding of the Establishment Clause is more complicated than the

relatively straightforward rule for the Free Exercise Clause. The Court has used a variety of

different tests to determine whether a particular government action violates the Establishment

Clause. Historically, the primary test used to evaluate claims under the Establishment Clause is

known as the tripartite test, often referred to as the Lemon test, derived from Lemon v.

Kurtzman.10 Under this test, a law (1) must have a secular purpose, (2) must have a primary effect

that neither advances nor inhibits religion, and (3) must not lead to excessive entanglement with

religion.11 Although the Lemon test is the one commonly employed by the Court, it has been

criticized by some Justices who have applied the test in different ways. One examination focuses

on whether the government has endorsed religion. The government is prohibited “from making

adherence to a religion relevant in any way to a person’s standing in the political community.”12

Another application of the Lemon test focuses on neutrality as the governing principle in

Establishment Clause challenges. Under this interpretation, the essential element in evaluating

challenges under the Lemon test is whether or not the government act is neutral between religions

and between religion and non-religion.13

In addition to the Lemon test, the Court has used two other tests to evaluate Establishment Clause

claims. One test considers whether coercion is threatening religious freedom and forbids the

government from acting in a way that may coerce support or participation in religious practices.14

Another test permits government acts that involve religion if the Court finds that the religious

(...continued)

to state and local governments was unconstitutional under principles of federalism. City of Boerne v. Flores, 521 U.S.

407 (1997).

42 U.S.C. § 2000bb-1(b). In some instances, RFRA may be preempted by another federal law. See S.Rept. 103-111, at

12-13 (1993) (stating that “nothing in this act shall be construed as affecting religious accommodation under title VII of

the Civil Rights Act of 1964”).

Gonzales v. O Centro Espirita Beneficente Unaio Do Vegetal, 546 U.S. 418, 435-437 (2006).

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

Id. at 612-13. While the first two prongs of the test are self-explanatory, the Court noted that the third prong

prohibited “an intimate and continuing relationship” between government and religion as a result of the law. Id. at 62122.

Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring). This application of the Lemon test forbids

“government endorsement or disapproval of religion,” noting that “endorsement sends a message to nonadherents that

they are outsiders ... and an accompanying message to adherents that they are insiders, favored members of the political

community. Disapproval sends the opposite message.” Id. at 688.

Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).

This test is typically invoked in the school setting because of the impressionability of those affected by possible acts

of establishment. See Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000).

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element has played a part in the history of the nation, or as the Court has phrased it, has become

“part of the fabric of our society.”15 The applicability of these tests often varies, and multiple tests

may be applied in the same case.

Constitutionally Permissible Accommodations of Religion

In some cases, particularly those discussed later in this report, the religion clauses cannot be

considered in isolation from each other. The Supreme Court has considered a long line of cases

involving issues that arise where these two clauses intersect, often referred to as permissive

accommodation of religion. The Court’s approach to governmental accommodations of religion

has developed over the past 60 years. Accommodation cases typically ask whether a government

action that facilitates an individual’s religious exercise in order to comport with the Free Exercise

Clause can be considered an unconstitutional support of religion under the Establishment Clause.

These situations often arise in the context of religious expression in schools, which is the subject

of many of the cases that illustrate the requirements of accommodation. It is important to

remember, however, that while the general principles of the analysis would remain the same, the

military and schools both have unique characteristics that distinguish them from accommodations

offered to society at large. The Supreme Court has indicated that the framework of analysis

depends on the unique needs of the particular context in which the issue arises. In the military

context, this means that the Supreme Court has recognized that military decisions are entitled to a

higher level of deference so that the military may maintain order and discipline within its ranks.16

In 1948 and 1952, the Court decided two similar cases related to accommodations of religion with

different outcomes, illustrating the distinction between permissible accommodations and

unconstitutional accommodations. In McCollum v. Board of Education, the Court held that a

program which allowed religious education teachers to teach in public schools on a weekly basis

was unconstitutional. Four years later, in Zorach v. Clauson, the Court held that students could be

released at their parents’ request in order to receive religious instruction outside of the public

schools. The Court distinguished between the cases because of the nature of the accommodation.

In McCollum, the religious education occurred in public school classrooms during the public

school day and students who opted not to receive religious instruction did not receive any

alternative instruction during that time. In Zorach, the religious instruction occurred without the

use of public school resources and allowed non-participating students to receive other secular

instruction during the released-time program.

It may be of interest to note that a concurring opinion to a later case related to religious exercise

in public schools expounded on the constitutionality of the military chaplaincy. 17 That

concurrence noted that two factors were present in the accommodation of servicemembers’

Marsh v. Chambers, 463 U.S. 783, 792 (1983).

See Rostker v. Goldberg, 453 U.S. 57 (1981). See also Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (“The

military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly

government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must

be scrupulous not to intervene in judicial matters.”); Parker v. Levy, 417 U.S. 733, 758 (1974) (“while the members of

the military are not excluded from the protection granted by the First Amendment, the different character of the

military community and of the military mission requires a different application of those protections.”); Katcoff v.

Marsh, 755 F.2d 223, 233 (2d Cir. 1985) (“Those who want the individual liberty embodied in our Bill of Rights must

be willing to make sacrifices for it. One of these is the duty of a soldier to obey military orders and forego many of the

freedoms that he would otherwise enjoy as a civilian.”).

School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring).

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religious exercise that were not relevant in typical public prayer cases. First, membership in the

military causes servicemembers to be isolated from their religious communities and opportunities

for separate personal religious exercises for extended periods of time. 18 Second, religious services

offered by military chaplains are not forced upon members of the military, and those who opt not

to participate are not subjected to the exercises, nor punished for non-participation.19

The Court has decided other accommodations cases arising in other contexts, including labor

laws, tax laws, and zoning laws. These cases provide several significant understandings regarding

permissible accommodations. The Court has held that a valid accommodation must remain

neutral in its accommodation of individual religious exercise20 and that the accommodation must

meet a burden that is imposed directly on religious exercise. 21 Overall, the Court appears

generally to regard accommodations as constitutional if they balance the interests of the various

parties involved in the controversy and do not benefit individuals with religious objections at the

expense of individuals who are not claiming religious objections. These rules reflect the line that

the Court has drawn between permissible and unconstitutional accommodations: the government

may only accommodate or facilitate, not favor or promote, religious exercise.

DOD Policy

The Department of Defense has implemented a series of directives and instructions addressing

various aspects of religious practices within the armed services. A DOD directive “establishes

policy, delegates authority, and assigns responsibilities” with respect to a particular issue within

the DOD.22 A DOD instruction may also establish policy and assign responsibilities, but the scope

is limited to a “functional area assigned in the Head of an OSD [Office of the Secretary of

Defense] Component’s chartering DoDD [Department of Defense Directive].”23 However, a DOD

instruction, when issued in accordance with a previously published directive, “implements policy

established in a DoDD by providing general procedures for carrying out that policy.”24 The

overarching policy, reflected in the various DOD instructions and directives discussed below, is to

accommodate the free exercise of religion when it will not have an adverse impact on mission

accomplishment, military readiness, unit cohesion, standards, or discipline.

DOD Instruction 1300.17—Accommodation of Religious Practices Within the

Military Services

The DOD Instruction 1300.17 “[p]rescribes policy, procedures, and responsibilities for the

accommodation of religious practices in the Military Services.”25 The instruction states that the

“U.S. Constitution proscribes Congress from enacting any law prohibiting the free exercise of

Id. at 297-98.

Id.

See Estate of Thornton v. Caldor, 472 U.S. 703 (1985); Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987);

Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994).

See Texas Monthly v. Bullock, 489 U.S. 1 (1989).

Department of Defense, DoD Directives Program, DOD Instruction 5025.01, Enclosure 4 (October 28, 2007).

Id.

Department of Defense, Accommodation of Religious Practices Within the Military Services, DOD Instruction

1300.17 (February 10, 2009).

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religion” and indicates that the DOD “places a high value on the rights of members of the

Military Services to observe the tenets of their respective religions.” Therefore, the established

DOD policy is that “requests for accommodation of religious practices should be approved by

commanders when accommodation will not have an adverse impact on mission accomplishment,

military readiness, unit cohesion, standards, or discipline.”26

Procedures accompanying the instruction establish five factors that should be considered, in

accordance with rules prescribed by the Secretary of the military department concerned, when

determining whether to grant a request for the accommodation of religious practices. 27 The factors

are:

1. The importance of military requirements in terms of mission accomplishment,

military readiness, unit cohesion, standards, and discipline.

2. The religious importance of the accommodation to the requester.

3. The cumulative impact of repeated accommodations of a similar nature.

4. Alternative means available to meet the requested accommodation.

5. Previous treatment of the same or similar requests, including treatment of similar

requests made for other than religious reasons.28

The procedures address the ability of servicemembers to wear items of religious apparel while in

uniform, specifically referencing the authority contained in 10 U.S.C. § 774, discussed infra.29

Religious apparel items include “articles of clothing worn as part of the doctrinal or traditional

observance of the religious faith practiced by the [servicemember].”30 However, hair and

grooming practices required or observed by religious groups are not included in the definition of

religious apparel items. 31 Jewelry bearing religious inscriptions or otherwise indicating affiliation

or belief are not covered by the instruction, rather the wearing of such items are subject to

regulations applicable to jewelry that is not of a religious nature.32 The statute includes two

exceptions to the general rule allowing servicemembers to wear items of religious apparel. If the

item interferes with the ability of the servicemember to perform military duties or if the item is

not neat and conservative, it may be prohibited. The four factors to be utilized in determining if

the apparel interferes with military duties are as follows:

1. Impairs the safe and effective operation of weapons, military equipment, or

machinery.

2. Poses a health or safety hazard to the servicemember wearing the religious

apparel and/or others.

3. Interferes with the wear or proper function of special or protective clothing or

equipment.

Id. at § 4.

Id. at Enclosure.

Id. at Enclosure, § 1.

Id. at Enclosure § 5.

Id. at § 3b.

Id.

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4. Otherwise impairs the accomplishment of the military mission.33

The “neat and conservative” exception, in the context of wearing a military uniform, is addressed

by identifying acceptable items of religious nature as those that:

1. are discreet, tidy, and not dissonant or showy in style, size, design, brightness, or

color;

2. do not replace or interfere with the proper wear of any authorized article of the

uniform; and

3. are not temporarily or permanently affixed or appended to any authorized article

of the uniform.34

It appears that application of the various factors could differ based on the parties involved in the

assessment. While it may be possible that the decision whether to accommodate a religious

practice would not be uniform across the military services, the underlying DOD policy is to grant

the request when accommodation will not have an adverse impact on mission accomplishment,

military readiness, unit cohesion, standards, or discipline.

DOD Instruction 1325.06—Handling Dissident and Protest Activities Among

Members of the Armed Forces

While not specific to freedom of religion, the DOD Instruction 1325.06 establishes policy and

provides procedures for handling dissident and protest activities by servicemembers.35 The

instruction reiterates it is DOD policy that a servicemember’s “right of expression should be

preserved to the maximum extent possible in accordance with the constitutional and statutory

provisions ... and consistent with good order and discipline and the national security.”36 Thus, the

military commander is responsible for utilizing “calm and prudent judgment” in balancing the

rights of servicemembers against the need to prohibit actions that “would destroy the

effectiveness of his or her unit.”37

Procedures provide guidance to military commanders related to specific types of

actions/activities. For example, commanders are authorized to place establishments off-limits

when activities occurring there include, “counseling [servicemembers] to refuse to perform duty

or desert; pose a significant adverse effect on [servicemember’s] health, morale, or welfare; or

otherwise present a clear danger to the loyalty, discipline, or morale of a member or military

unit.”38 Additional guidance is provided with respect to on- and off-post demonstrations,

specifically prohibiting participation when violence is a likely result, or when participation may

present a clear danger to the loyalty, discipline, or morale of the troops. 39

Id. at Enclosure § 5.

Id. at § 3a.

Department of Defense, Handling Dissident and Protest Activities Among Members of the Armed Forces, DOD

Instruction 1325.06, § 1.b. (November 27, 2009).

Id. at § 3.b.

Id. at §§ 3.c. and 3.d.

Id. at Enclosure 3, § 2.

Id. at Enclosure 3, § 5 & 6.

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Arguably, the most relevant provision in the procedures, found in Section 8.a., addresses

explicitly prohibited activities. Servicemembers “must not actively advocate supremacist

doctrine, ideology, or causes, including those that advance, encourage, or advocate illegal

discrimination based on race, creed, color, sex, religion, ethnicity, or national origin or that

advance, encourage, or advocate the use of force, violence, or criminal activity or otherwise

advance efforts to deprive individuals of their civil rights.”40 While the prohibition does not

explicitly prohibit the exercise of any specific religion, it may be argued that a religion

advocating a supremacist doctrine, ideology, or cause, or the use of force, violence, or criminal

activity would be prohibited under this instruction. The procedures stress that the “functions of

command include vigilance about the existence of such activities; active use of investigative

authority to include a prompt and fair complaint process; and use of administrative powers such

as counseling, reprimands, orders, and performance evaluations” to deter servicemembers from

participating in prohibited activities. 41 Further, military commanders are authorized to “employ

the full range of administrative and disciplinary actions, including administrative separation or

appropriate criminal action” against servicemembers that participate in prohibited activities.42

Restrictions on Personnel in Uniform

Goldman v. Weinberger

In 1986, the U.S. Supreme Court, in Goldman v. Weinberger,43 addressed a constitutional

challenge of a regulation concerning wearing of the uniform. Captain S. Simcha Goldman, an Air

Force officer, challenged an Air Force regulation prohibiting servicemembers from wearing

headgear while indoors. The regulation stated that “[headgear] will not be worn ... [while] indoors

except by armed security police in the performance of their duties.”44 Goldman, an Orthodox Jew

and ordained rabbi, argued that the regulation, as applied to him, “prohibits religiously motivated

conduct” by prohibiting him from wearing a yarmulke. 45

Prior to 1981, Goldman had not been prohibited from wearing a yarmulke while on duty as a

clinical psychologist. He avoided controversy when wearing his yarmulke on base by remaining

close to his duty station and wearing a service cap over the yarmulke while outdoors. Only after

testifying as a defense witness as part of a court-martial, at which the opposing counsel

complained about the yarmulke, was Goldman ordered by his commanding officer to not violate

the regulation when outside of the hospital. After Goldman’s attorney filed a complaint with the

general counsel of the Air Force, the commanding officer then revised the order prohibiting

Goldman from wearing the yarmulke even while in the hospital. Goldman also received a formal

letter of reprimand and was warned that failure to obey the regulation could subject him to court-

Id. at Enclosure 3 § 8.a.

Id. at Enclosure 3 § 8.c.

Id.

Goldman v. Weinberger, 475 U.S. 503 (1986).

AFR 35-10, para. 1-6.h(2)(f) (1980) (AFR 35-10 has subsequently been replaced by Air Force Instruction (AFI) 362903, which contains Table 2.9, Religious Apparel Waivers).

Goldman v. Weinberger, 475 U.S. at 506.

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martial. Additionally, a recommendation endorsing Goldman’s application to extend his term of

active duty service was revoked and substituted with a negative recommendation.46

As a result of the alleged retribution, Goldman sued the Secretary of Defense and others, claiming

that the application of the Air Force regulation preventing him from wearing his yarmulke

“infringed on his First Amendment freedom to exercise his religious beliefs.”47 The United States

District Court for the District of Columbia temporarily enjoined48 enforcement of the regulation,

and after a full hearing on the issue permanently enjoined the Air Force from prohibiting

Goldman from wearing the yarmulke while in uniform.49 The case was appealed to the Court of

Appeals for the District of Columbia Circuit, which reversed the order of the lower court.50 The

court of appeals determined that the “appropriate level of scrutiny of a military regulation that

clashes with a constitutional right is neither strict scrutiny nor rational basis,” but rather the

regulation “must be examined to determine whether ‘legitimate military ends are sought to be

achieved’ and whether it is ‘designed to accommodate the individual right to an appropriate

degree.’”51 The court ultimately concluded that the interest in uniformity required the strict

enforcement of the regulation. 52

Goldman appealed the decision of the court of appeals to the U.S. Supreme Court, arguing that

the wrong standard was applied and that because the regulation prohibits religiously motivated

conduct, it should be held to a higher level of scrutiny. The Court stated that in the context of the

current case, “when evaluating whether military needs justify a particular restriction on

religiously motivated conduct, courts must give great deference to the professional judgment of

military authorities concerning the relative importance of a particular military interest.”53 The

Court continued, “military authorities have been charged by the Executive and Legislative

Branches with carrying out our Nation’s military policy. ‘[Judicial] deference ... is at its apogee

when legislative action under the congressional authority to raise and support armies and make

rules and regulations for their governance is challenged.’”54

The Court looked to the “considered professional judgment of the Air Force” to discern “that that

traditional outfitting of personnel in standardized uniform encourages the subordination of

personal preferences and identities in favor or the overall group mission.”55 The Court

acknowledged that the Air Force promulgated the regulation to develop the “necessary habits of

discipline and unity,” but also noted that “military commanders may in their discretion permit

visible religious headgear and other such apparel in designated living quarters.”56 However,

Goldman asserted “that the Free Exercise Clause of the First Amendment requires the Air Force

to make an exception to its uniform dress requirements for religious apparel unless the

Id. at 505.

Id. at 506.

Goldman v. Secretary of Defense, 530 F.Supp. 12 (1981).

Goldman v. Secretary of Defense, 29 Empl. Prac. Dec. P 32,753 (1982).

Goldman v. Secretary of Defense, 236 U. S. App. D. C. 248, 734 F.2d 1531 (1984).

Goldman v. Weinberger, 475 U.S. at 506 (citing Goldman v. Secretary of Defense, 734 F.2d at 1540).

Id. at 506.

Id. at 507.

Id. at 508 (citing Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).

Id. at 508.

Id. at 509.

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accouterment create a ‘clear danger’ of undermining discipline and esprit de corps.”57 Goldman

also argued that expert testimony established that “religious exceptions to [the regulation] are in

fact desirable and will increase morale by making the Air Force a more humane place.”58 The

Court was not swayed by this argument, stating that the opinion of expert witnesses “is quite

beside the point” and that the appropriate military officials “are under no constitutional mandate

to abandon their considered professional judgment.”59 The Court continued, “[t]he Air Force has

drawn the line essentially between religious apparel that is visible and that which is not, and we

hold that those portions of the regulations challenged here reasonably and evenhandedly regulate

dress in the interest of the military’s perceived need for uniformity.”60 The Court ultimately

concluded that the First Amendment did not prohibit application of the regulation to Goldman

even though the effect was to restrict the wearing of the yarmulke while in uniform as required by

his religious beliefs.

10 U.S.C. § 774—Religious apparel: wearing while in uniform

In 1987, shortly after the decision in Goldman v. Weinberger, Congress added Section 774 to Title

10 of the United States Code providing that, with limited exceptions, “a member of the armed

forces may wear an item of religious apparel while wearing the uniform of the member’s armed

force.”61 The statute creates two categories of exceptions: (1) items that would interfere with the

performance of the military duties; and (2) apparel that is not neat and conservative.62 Further, the

statute directs the Secretary concerned with prescribing regulations in accordance with the stated

exceptions.63 In the conference report accompanying the legislation, the conferees noted that “the

Congress has been extremely sensitive to the needs of the armed forces for uniformity, safety,

good order, and discipline, and has carefully balanced those needs in light of the right of service

members to freedom of religion, as well as the need to avoid governmental establishment of

religion.”64

DOD Instruction 1334.01—Wearing of the Uniform

The wearing of uniforms by current and former members of the armed forces is controlled by

DOD Instruction 1334.01. The instruction limits when and where current members of the armed

forces may wear the uniform, as well as establishes policy on wearing of the uniform by former

members.65 There are five specific prohibitions applicable to current members, three of which

contain a subjective element and two that are explicit prohibitions. Current members are generally

prohibited from wearing the uniform: (1) “during or in connection with furthering political

activities, private employment or commercial interests, when an inference of official sponsorship

Id. (emphasis in original).

Id.

Id. at 510.

P.L. 100-180, 101 Stat. 1086 (December 4, 1987).

10 U.S.C. § 774(b).

10 U.S.C. § 774(c).

U.S. Congress, National Defense Authorization Act For Fiscal Years 1988 and 1989, Conference Report to

accompany H.R. 1748, 100th Cong., 1st Sess., (1987), H. Conf. Rpt. 100-446 (Washington: GPO, 1987), p. 638.

Department of Defense, Wearing of the Uniform, DOD Instruction 1334.01, § 1 (October 26, 2005).

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for the activity or interest may be drawn”;66 (2) “when participating in activities such as unofficial

public speeches, interviews, picket lines, marches, rallies or any public demonstration, which may

imply Service sanction of the cause”;67 and (3) “when wearing of the uniform may tend to bring

discredit upon the Armed Forces.”68 Additionally, current members are explicitly prohibited from

wearing the uniform when “specifically prohibited by regulations of the Department

concerned.”69 However, this prohibition may contain a subjective element depending on how the

regulation has been drafted. For example, servicemembers may be authorized to wear uniforms to

and from duty, but be prohibited from exiting their vehicles while driving to and from work

unless it is an emergency.70 Under a regulation of this type, determining whether something is an

emergency may have a subjective or discretionary component. The last prohibition, and most

explicit, prohibits current members from wearing uniforms

at any meeting or demonstration that is a function of, or sponsored by an organization,

association, movement, group, or combination of persons that the Attorney General of the

United State has designated, under Executive Order 10450 as amended ... as totalitarian,

fascist, communist, or subversive, or as having adopted a policy of advocating or approving

the commission of acts of force or violence to deny others the rights under the Constitution

of the United States, or as seeking to alter the form of Government of the United States by

unconstitutional means.71

Arguably, this instruction, much like the DOD policy with respect to dissident activities discussed

above, could be applicable to a religious organization. If a religious organization were designated

by the Attorney General as “totalitarian, fascist, communist, or subversive,” a servicemember

would be prohibited from wearing a uniform at a meeting or demonstration of, or sponsored by,

the organization. Therefore, a servicemember could ultimately violate the policy against

participating in dissident activities and the uniform policy by attending a gathering while wearing

the uniform.

The wearing of the uniform by former members of the armed forces is addressed by the

instruction in permissive terms, rather than like the prohibitions applicable to current members.

The policy is that former members, who served honorably and whose most recent service was

terminated under honorable conditions, may wear the uniform while participating in two general

categories: (1) military funerals, memorial services, weddings, and inaugurals; and (2) parades on

national or state holidays; or other parades or ceremonies of a patriotic nature in which U.S.

military units are taking part.72 In all other instances, former members of the armed forces are

prohibited from wearing the uniform. 73

Id. at § 3.1.2 (emphasis added).

Id. at § 3.1.3 (emphasis added) (an exception to this prohibition exists if a servicemember receives authorization

from the Chairman of the Joint Chiefs or a Commander of a Combatant Command to participate in the event).

Id. at § 3.1.4 (emphasis added).

Id. at § 3.1.5.

For a discussion related to proposed U.S. Navy working uniforms regulations, see http://www.navytimes.com/news/

2008/12/navy_uniform_faq_121508w/

DOD Instruction 1334.01, § 3.1.1.

Id. at § 3.2.

Id. at § 3.2.3 ( Medal of Honor holders, however, may wear the uniform at their pleasure except under the

prohibitions applicable to current members of the armed forces. Id. at § 3.3).

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Provision of Religious Services to

Military Personnel

The military chaplaincy raises other issues of accommodation of religious practices in the

military. The chaplaincy is a fairly unique institution in the context of religious freedom analysis

because it is a government-funded program with the specific purpose of providing religious

services to members of the U.S. military. Although courts have not invalidated the chaplaincy as a

violation of religious freedoms so far, there have been indications that some specific operations of

the chaplaincy may raise constitutional concerns.

Constitutionality of the Military Chaplaincy: Katcoff v. Marsh

In 1985, the U.S. Court of Appeals for the Second Circuit decided the only direct constitutional

challenge to the military chaplaincy, Katcoff v. Marsh.74 Although later cases have challenged

how the chaplaincy is administered, Katcoff considered whether the mere existence of the military

chaplaincy violated the Establishment Clause. The Second Circuit held that the chaplaincy did not

violate the Establishment Clause, but concluded that specific practices of the chaplaincy may not

be constitutional. 75

The Second Circuit noted that the Supreme Court upheld the constitutionality of legislative

chaplains offering prayers at legislative sessions under the rationale that the practice was a part of

American history and had been woven into the fabric of our society. The Court had reasoned that

the legislative chaplaincy had an “unbroken history of more than 200 years.”76 Arguments have

been made that the legislative chaplaincy is distinct from the military chaplaincy, meaning that

the Supreme Court’s analysis of the legislative chaplaincy does not control the outcome of cases

challenging the military chaplaincy. Thus, the Second Circuit examined the challenge under other

constitutional tests.

The court indicated that the military chaplaincy would fail under the Lemon test’s requirements,

but recognized that the Establishment Clause concerns must be balanced by other constitutional

considerations, including the Free Exercise Clause. 77 The court held that the military chaplaincy

was a constitutional means of accommodating servicemembers’ religious exercise rights under

the Free Exercise Clause. Because members of the military have been removed from their

religious communities, the court explained that the government had interfered with their ability to

exercise their religious beliefs.78 Accordingly, the military chaplaincy, although unconstitutional if

examined solely under the Establishment Clause, alleviated the burden imposed by the military

on servicemembers’ religious exercise. The court reinforced this balance favoring the

accommodation of servicemembers’ religious exercise by noting the importance of the interests of

755 F.2d 223 (2d Cir. 1985).

Id.

Id. at 232 (citing Marsh v. Chambers, 463 U.S. 783 (1983)) (internal quotations omitted).

Id. at 232 (“If the current Army chaplaincy were viewed in isolation, there could be little doubt that it would fail to

meet the Lemon v. Kurtzman conditions. ... However, neither the Establishment Clause nor statutes creating and

maintaining the Army chaplaincy may be interpreted as if they existed in a sterile vacuum.”).

Id. at 234.

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the War Powers Clause79 of the U.S. Constitution, which required the court to give significant

deference to Congress in military affairs. The court explained that “when a matter provided for by

Congress in the exercise of its war power and implemented by the Army appears reasonably

relevant and necessary to furtherance of our national defense it should be treated as presumptively

valid and any doubt as to its constitutionality should be resolved ... in favor of deference to the

military’s exercise of discretion.”80 Thus, the court determined that because the chaplaincy serves

as an accommodation to alleviate a burden on religion imposed by the government and because

the military is entitled to deference in a reasonable policy to ensure that servicemembers are

adequately treated to maintain military order, the chaplaincy is a permissive accommodation of

religion by the government.

Challenges to the Specific Components of the Military Chaplaincy

Although the legal debate over the constitutionality of the chaplaincy program has appeared

settled since Katcoff, later cases address whether specific practices of the chaplaincy program in

various branches of the military comport with constitutional requirements. Among the issues

considered by lower courts are the employment and hiring practices for military chaplains and the

role of religious pluralism in chaplains’ practices.

One of the most recent and illustrative challenges to the specific practices of the military

chaplaincy was Larsen v. U.S. Navy, a federal district court case decided in 2007.81 In Larsen,

three non-liturgical Protestant ministers challenged the Navy’s hiring practices for the chaplaincy

as violations of the First Amendment. The ministers alleged that the Navy’s previous and current

hiring practices were inadequate to meet constitutional requirements related to religious exercise

of servicemembers. The court rejected the challenge to the earlier hiring policy, which divided the

chaplaincy into thirds (Roman Catholic, Protestant liturgical, and non-liturgical Christian and

Special Worship), as moot.82 The court did consider the constitutionality of the Navy’s hiring

practice that was in place at the time of the lawsuit, however, and ultimately held that it was a

constitutionally permissible form of religious accommodation under the First Amendment.

The Navy hiring policy at issue in Larsen was described as faith group-neutral and designed to

take “the best qualified candidates, regardless of denomination.”83 The policy considers several

factors in determining the composition of the chaplaincy:

the breadth of locations where Navy personnel serve; the unique circumstances of Naval

service, which involves personnel isolated on ships sailing all over the world; the various

fucntions and tasks of chaplain officers outside of religious services including assistance to

those of other faith groups and even no faith groups; the need to keep accession, promotion,

and retention in line with other naval communities; the need to prevent shortages of qualified

clergy; the need to maintain capacity to respond to events requiring quick access to chaplains

U.S. CONST. art. I, § 8.

Id. (citing Rostker v. Goldberg, 453 U.S. 57 (1981)).

486 F.Supp.2d 11 (D.D.C. 2007).

Id. at 24. Whether the Navy ever used the so-called Thirds Policy was a fact disputed among the parties, but the court

held that the issue was moot because the policy was not in place at the time of the lawsuit and the plaintiffs did “not

allege that the Navy plans to reinstate its challenged Thirds Policy.” Id.

Id. at 24-25 (internal quotations omitted).

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from different faith groups not stationed on site, such as terror attacks; and the need to

consider administrative necessities in managing an all-volunteer corps.84

In considering the constitutional claims related to this policy, the district court noted that typically

First Amendment analysis does not defer to the government’s rationale, but also noted that the

Supreme Court has indicated that the military is separate from civilian society and that military

actions are to receive higher deference than similar issues arising in a civilian context.85 Notably,

one Supreme Court opinion recognized that certain actions in the military context may appear to

be constitutionally suspect, but a military policy that favors the group’s mission over personal

practices is “paramount.”86

The district court in Larsen framed its decision as one which fit in the so-called “joints” of the

religion clauses, “in the space between the constitutional command against practices respecting

an establishment of religion and the command against practices which prohibit the free exercise

thereof.”87 The plaintiffs’ assertions also recognized the need to accommodate the religious

exercise of servicemembers, but based their challenge on the manner in which that

accommodation should be offered. The court disagreed with the plaintiffs’ claim that, because the

military had a compelling interest in accommodating servicemembers’ religious exercise, the

military therefore was required to accommodate.88 Rather, it interpreted the challenge as one that

could be resolved constitutionally through permissive accommodation instead of mandatory

accommodation. As such, the court rejected the claim that the chaplaincy must be narrowly

tailored to specifically provide for all servicemembers’ religious needs.

Applying the Goldman standard for deference to military decisions, the Larsen court held that the

Navy’s policy for hiring was “constitutionally sound” because it served legitimate military ends

by advancing the Navy’s mission of national defense and because it accommodated individual

religious exercise to “an appropriate degree.”89 In reaching its conclusion, it considered the

Navy’s claim that “it would be impossible in any given military unit or community to provide a

chaplain for each faith group represented by its members” and agreed that a “relaxed hiring

approach, which ignores faith group identifiers, seems reasonable and justified.”90

Under one suggested alternative hiring policy, the chaplaincy would be directly related to the

religious demographics of the Navy. The Larsen court found this alternative to be “flawed

because it confuses religious demographics with religious need.”91 Such a plan would mean that

the Navy (or another military branch) would have to spend a significant portion of resources

monitoring the appropriate representation and distribution of chaplains for its servicemembers

stationed around the world. Among the problems the court recognized were the difficulty in

addressing “the complexities and variations of religious worship among religions generally and

between individual parishioners specifically” and the assumption that chaplains of one

Id. at 25-26 (internal quotations omitted).

Id. at 26 (citing Parker v. Levy, 417 U.S. 733 (1974) and Goldman v. Weinberger, 475 U.S. 503 (1986)).

See Goldman, 475 U.S. at 511 (Stevens, J., concurring).

Id. at 30.

Id. at 31.

Id. at 33-34 (internal quotations omitted).

Id. at 34 (internal quotations omitted).

Id. at 35.

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denomination could not serve the religious needs of servicemembers of other denominations.92 In

upholding the Navy’s policy to use chaplains without a strict quota system or proportional

representation, the court indicated further adherence to the constitutional principle that religious

accommodations are permissible if they broadly facilitate opportunities to alleviate burdens

imposed upon individual religious exercise.

Other cases have addressed the specific policies of the chaplaincy as well, but very few have

resulted in decisions on the merits. Often, these cases have been resolved on procedural grounds

(e.g., the plaintiff lacked standing or the defendant was not a state actor). One controversial issue

which remains open for judicial interpretation is whether military chaplains can be required to

endorse pluralism in their practice. Chaplains are required to hold worship services, but the

military does not dictate the content of such services. 93 This allows chaplains to follow their own

religious backgrounds and allows the military to avoid dictating religious policy, both consistent

with the First Amendment. However, a tension arises because the chaplaincy requires that

religious services take a pluralistic approach to some extent, so that any servicemember may be

assisted by an available chaplain, regardless of denomination. A 2006 federal appellate decision

resolved a challenge to this issue on procedural grounds, but the question remains an important

issue in the debate over religious freedom in the military.94

The question of whether chaplains could be required to use a pluralistic approach has become

particularly salient with the legislative repeal of the “don’t ask, don’t tell” policy. The Don’t Ask,

Don’t Tell Repeal Act of 2010 provides that the policy repeal will become effective 60 days after

the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certify that they

have considered the recommendations contained in a recent DOD report on the effect of the

repeal; that DOD has prepared the necessary policies and regulations to implement the new law;

and that the implementation of such policies and regulations “is consistent with the standards of

military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed

Forces.”95 The report96 noted that:

some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell

exists among the chaplain corps. A large number of military chaplains (and their followers)

believe that homosexuality is a sin and an abomination, and that they are required by God to

condemn it as such.

However, the reality is that in today’s U.S. military, people of sharply different moral values

and religious convictions … and those who have no religious convictions at all, already coexist, work, live, and fight together on a daily basis. The other reality is that policies

regarding Service members’ individual expression and free exercise of religion already exist,

and we believe they are adequate. Service members will not be required to change their

personal views and religious beliefs; they must, however, continue to respect and serve with

others who hold different views and beliefs.97

Id. at 35-36.

See 10 U.S.C. § 3547(a); 10 U.S.C. § 6031(a); 10 U.S.C. § 8547(a).

See Veitch v. England, 471 F.3d 124 (D.C. Cir. 2006).

P.L. 111-321, § 2(b).

Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell,” Department

of Defense (November 30, 2010), available at http://www.defense.gov/home/features/2010/0610_gatesdadt/

DADTReport_FINAL_20101130(secure-hires).pdf.

Id. at 12.

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The report indicated that the issues confronted by chaplains concerning the repeal of don’t ask,

don’t tell were sufficiently addressed in existing guidance and suggested that the guidance be

reinforced during the transition efforts to a new policy. It noted the balance required to be struck

by chaplains:

Existing regulations state that chaplains “will not be required to perform a religious role …

in worship services, command ceremonies, or other events, if doing so would be in variance

with the tenets or practices of their faith.” At the same time, regulations state that “Chaplains

care for all Service members, including those who claim no religious faith, facilitate the

religious requirements of personnel of all faiths, provide faith-specific ministries, and advise

the command.”98

The implementation of the new policy may bring clarity to the manner in which these obligations

would be reconciled. Alternatively, new legal challenges may be raised that may provide courts

the proper opportunity to weigh in on the issue.

DOD Policy

It is DOD policy, established in the DOD Directive 1304.19, that the chaplaincies of each military

department exist for three purposes: (1) to “advise and assist commanders in the discharge of

their responsibilities to provide for the free exercise of religion in the context of military service

as guaranteed by the Constitution”; (2) to “assist commanders in managing Religious Affairs”;

and (3) to “serve as the principal advisors to commanders for all issues regarding the impact of

religion on military operations.”99 Further, it is the DOD policy that the chaplaincies shall serve a

“religiously diverse population” and that religious ministry professionals cooperate in providing

“comprehensive religious support to all authorized individuals” within the military commands. 100

In support of the policy, DOD Instruction 1304.28 provides guidance for the appointment of

chaplains for the military departments.101 The instruction requires that the Secretaries of the

military departments ensure that individuals appointed as chaplains meet the prescribed

“minimum professional and educational qualifications.”102 Prior to being considered for an

appointment to serve as a chaplain, a religious ministry professional must provide an endorsement

from a qualified religious organization verifying, among many things, that the individual “is

willing to function in a pluralistic environment ... and is willing to support directly and indirectly

the free exercise of religion by all members of the Military Services, their family members, and

other persons authorized to be served by the military chaplaincies.”103 Further, applicants for

appointment as chaplains must affirm that they will “abide by applicable laws, and all applicable

regulations, directives, and instructions of the Department of Defense, and of the Military

Department that grades the appointment.”104

Id. (internal citations omitted).

Department of Defense, Appointment of Chaplains for the Military Departments, DOD Directive 1304.19, § 4.1

(June 11, 2004).

100

Id. at § 4.2.

101

Department of Defense, Guidance for the Appointment of Chaplains for the Military Departments, DOD Instruction

1304.28 (June 11, 2004).

102

Id. at § 5.2.

103

Id. at § 6.1.2.

104

Id. at § 6.4.2.

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Of particular note, in 2007, the DOD implemented a change to the instruction concerning the

potential nexus between religion and terrorism.105 Any individual or religious organization may

be removed from or rejected from participating in the chaplain program if “the individual is under

indictment or has been convicted of a terrorism related offense, or other offense threatening

national or economic security”; or “the religious organization appears on the annual State

Department list of Foreign Terror Organizations.”106 The instruction provides procedures for the

removal of chaplains from the service for loss of ecclesiastical endorsement;107 however, the

instruction does not state if those procedures, rather than the standard administrative separation

procedures, would apply to an individual removed from the chaplaincy due to indictment or

conviction of terrorism related offense.

The Armed Forces Chaplains Board, established by the DOD Instruction 5120.08, serves the

purpose of making recommendations on “religious, ethical, and moral matters” for the military

services to the Secretary of Defense. 108 The Board consists of the Chief and active Deputy Chief

of Chaplains from each of the three military departments: Army, Navy, and Air Force.109 In

addition to making recommendations on the “[p]rocurement, professional standards,

requirements, training, and assignment of military chaplains,” the Board advises the Secretary of

Defense on the “[p]rotection of the free exercise of religion according to Amendment I to the

Constitution of the United States.”110

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Cynthia Brougher

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

105

Our research did not reveal a specific justification for the change in policy. However, in September of 2003, a

Muslim military chaplain was arrested and accused of espionage while ministering to Islamic inmates at Guantanamo

Bay. Shortly after the arrest, on October 14, 2003, the Senate Committee on the Judiciary, Subcommittee on Terrorism,

Technology and Homeland Security held a hearing titled “Terrorism: Radical Islamic Influence of Chaplaincy of the

U.S. Military and Prisons.” Questions were raised during the hearing regarding the DOD’s policy on qualifications and

recognition of chaplains for the military services. Ultimately, the chaplain was never court-martialed for the alleged

offenses and he subsequently resigned his commission in the U.S. Army. (See “Convictions Dropped for Muslim

Chaplain at Guantánamo Bay,” The New York Times, April 14, 2004, available at http://www.nytimes.com/2004/04/

15/national/15MUSL.html?pagewanted=1). This series of events may have lead to the change in the DOD policy

requiring the separation of chaplains indicted on terrorism related charges.

106

Id. at § 6.8.

107

Id. at § 6.5.

108

Department of Defense, Armed Forces Chaplains Board, DOD Instruction 5120.08, § 3 (August 20, 2007).

109

Id. at § 5.1.1. (the United States Marine Corps is a component of the Department of the Navy, and as such, is

represented on the Armed Forces Chaplains Board by the Department of the Navy designee).

110

Id. at § 5.1.2.

Congressional Research Service

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