Rev. Danny Fisher

Via Digital Dharma: The Pew Forum on Religion & Public Life has posted an interview with Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion at George Washington University Law School, on “Accommodating Faith in the Military”. Of particular interest to chaplains is this snippet on chaplaincy, government funding, and the First Amendment:

The military chaplaincy seems to present a constitutional paradox in that the First Amendment’s Establishment Clause restricts the government’s authority to fund and endorse religion, but the military funds chaplains who promote religious messages. Can you explain why, despite these constitutional restrictions, the chaplaincy exists?

The chaplaincy does present something of a paradox. The government pays the chaplains’ salaries. The government also pays for the places of worship and even for the worship materials themselves. So the chaplaincy does appear to be an oddity under the Establishment Clause.

The reason that the chaplaincy is likely constitutional, despite the Establishment Clause restrictions you mentioned, has to do with the principle of religious accommodation. While the Establishment Clause generally prohibits the government from funding and sponsoring religious activities, there is one important exception to this rule: The government may fund or sponsor a religious activity if the government does so to accommodate the religious needs of people who, because of government action, no longer have access to religious resources. Thus, when the military has isolated service members from their normal worship opportunities, the government may then facilitate worship by providing the necessary religious resources, like chaplains. In such situations, the government is merely responding to a religious need and is therefore not promoting religion.

Have courts upheld the constitutionality of the military chaplaincy on the basis of this accommodation principle?

The U.S. Supreme Court has never heard a case directly involving the military chaplaincy. But in Abington School District v. Schempp (1963), a landmark decision that prohibited public schools from leading Bible reading, several justices argued that the military chaplaincy is a valid accommodation of religion under the Establishment Clause. The court in Schempp rejected the argument that school-sponsored Bible reading is a permissible way of accommodating students with religious needs. The court said that since students have plenty of opportunities to read the Bible outside of school, whether before or after the school day, school-led Bible reading doesn’t accommodate religious students but rather promotes religion.

In their written opinions on the case, some of the justices contrasted the religious needs of students with those of service members. Because military duties might take service members into isolated and hostile environments, service members might not be able to participate in civilian worship communities or receive spiritual counsel from civilian clergy. Given this inability of service members to worship outside the military base, some of the justices concluded that the military may provide chaplains to accommodate the religious needs of service members. These comments about the chaplaincy, though, don’t have any direct legal effect because the Schempp case dealt only with the constitutional question of Bible reading in public schools.

The only federal court decision directly dealing with the military chaplaincy’s constitutionality is Katcoff v. Marsh (1985), a case decided by the 2nd U.S. Circuit Court of Appeals. In Katcoff, the 2nd Circuit upheld the U.S. Army’s chaplaincy on the ground that service members have a constitutional right under the First Amendment’s Free Exercise Clause to engage in religious worship, a right that the Army would unduly burden if it did not provide chaplains.

Today, it is very unlikely that a court would follow the reasoning in Katcoff because courts have interpreted the Free Exercise Clause much more narrowly over the last 20 years. (For more information on how courts have narrowed the religious liberty guaranteed by the Free Exercise Clause, see A Delicate Balance: The Free Exercise Clause and the Supreme Court.) Nevertheless, courts today would probably reach the same outcome – upholding the chaplaincy’s constitutionality – but for different reasons. Instead of finding that the Free Exercise Clause requires the military to establish a chaplaincy, as the Katcoff court did, most courts today would likely find that the Establishment Clause permits the military to provide chaplains so long as it does so in response to the religious needs of service members.

But what if the government responded to these religious needs by providing chaplains in a way that favored some religions over others?

That precise question has been raised in a series of cases, going back a decade, over the way that the U.S. Navy selects chaplains. These lawsuits allege that the Navy has hired chaplains using a “thirds policy.” According to the people bringing the suits, the Navy used a formula dividing its chaplains into thirds: one-third consisting of liturgical Protestant denominations (such as such as Methodists, Lutherans, Episcopalians and Presbyterians); another third consisting of Catholics; and a last third consisting of non-liturgical Protestant denominations (such as Baptists, evangelicals, Bible churches, Pentecostals and charismatics) and other faiths. The lawsuits claim that the Navy’s criteria are unconstitutional because they disfavor non-liturgical Protestants, who make up a great deal more than one-third of the Navy, while Catholics and liturgical Protestants each make up less than one-third.

In April 2007, a U.S. District Court in Washington, D.C., rejected one of these challenges to the Navy’s chaplain selection criteria. The court held that the Navy had abandoned the thirds policy and said that its current criteria were constitutional because the Navy has broad discretion to determine how to accommodate the religious needs of its service members. This decision was affirmed in 2008 by the U.S. Court of Appeals for the District of Columbia Circuit.

What if the military asked a chaplain to pray at an official event and the chaplain offered a prayer specific to his faith tradition – for example, by praying in Jesus’ name? Would that be constitutional?

Your question touches on what has become, over the past couple of years, the most public and heated controversy within the military chaplaincy. To understand this issue, it’s important to distinguish between what is and isn’t involved here. We’re not talking about a faith group’s private worship. Rather, this controversy is about public events, such as a ceremony for a change of command, at which the military might ask a chaplain to give an invocation. In addition, the controversy isn’t about whether the Constitution allows chaplains to provide an invocation at these public events. Instead, this controversy is about whether the chaplains may provide faith-specific prayers.

Some argue that chaplains violate the Establishment Clause by offering faith-specific prayers at public events because such prayers represent the government’s official endorsement of that particular faith and also impose religious experience on those who are required to attend the event. But others say that the military must permit these faith-specific prayers because the chaplains have a constitutional right to pray as their specific faith requires; they argue that this right is guaranteed by either the Free Exercise Clause, which protects religious liberty, or the Free Speech Clause, which limits the government’s ability to restrict the content of private speech. So one side is arguing that the Constitution prohibits faith-specific prayers and another side is arguing that the Constitution guarantees chaplains a right to offer faith-specific prayers.

While no court has yet had to address this question, I think that if this issue were presented, a court would likely disagree with both sides. On the one hand, the Constitution probably permits faith-specific references in prayers at official events, even if service members are required to attend those events, as long as chaplains don’t use the prayers to proselytize. But there would of course be stronger arguments against such faith-specific prayers if they were offered on a regular basis. On the other hand, the Constitution probably permits the military to prohibit chaplains from making any faith-specific references during a public invocation because the government has broad authority to control what public officials say. And I think a court would find that chaplains act as public officials when they speak at official events. Thus, courts are likely to hold that the military has the discretion to decide whether chaplains may offer faith-specific prayers at public events.

Our friend and upcoming interviewee Erick D. White forwards along two articles worth reading:

Via deathpower: The nonprofit Human Rights Watch is reporting that Vietnamese Buddhist monk and human rights defender Tim Sakhorn was released from prison in Vietnam on June 28, 2008, but that his whereabouts are now unknown. He was last seen in the company of government officials.

On June 30, 2007, authorities in Cambodia arrested and defrocked Sakhorn and sent him to Vietnam. On November 8, 2007, a criminal court in An Giang province sentenced Sakhorn to one year of imprisonment on charges of “undermining national unity” under article 87 of Vietnam’s penal code. Sakhorn reportedly had no legal representation during his trial. Human Rights Watch said that the politically motivated prosecution of Sakhorn was a thinly veiled attempt by the Vietnamese and Cambodian governments to stop peaceful dissent by the Khmer Krom minority in both countries.

“While his release from prison is welcome, as a peaceful activist and human rights defender, Tim Sakhorn should never have been imprisoned in the first place,” said Brad Adams, Asia director at Human Rights Watch. “Sakhorn should now be able to go where he wants, when he wants, but it is not clear that he is able to do so.”

Sakhorn, 40, a member of the Khmer Krom ethnic minority group that lives in both southern Vietnam and Cambodia, had been a monk at a Buddhist pagoda in Takeo province, Cambodia, for 17 years. A member of the Khmer Kampuchea Krom Federation, a US-based advocacy group, Sakhorn had actively promoted the rights of Khmer Krom people and provided shelter in his pagoda in Cambodia to Khmer Krom migrants and asylum seekers from Vietnam.

[...]

In the months preceding Sakhorn’s arrest, government authorities in both Cambodia and Vietnam had become increasingly uneasy about a number of peaceful protests conducted by Khmer Krom monks and farmers in both countries calling for greater religious freedom and land rights. Protesters also called for the release of five Khmer Krom Buddhist monks imprisoned in Vietnam after a peaceful demonstration in Soc Trang, Vietnam, in February 2007.

Sakhorn’s deportation to Vietnam was in violation of the Cambodian Constitution and Nationality Law, which state that Khmer citizens shall not be arrested and deported to any foreign country unless there is a mutual extradition treaty, which does not exist between Cambodia and Vietnam.

Human Rights Watch said it feared that Sakhorn may be pressured or forced to return to his birthplace – not his pagoda – and placed under house arrest and police surveillance, like other imprisoned dissident monks in Vietnam, such as those from the banned Unified Buddhist Church of Vietnam. Upon their release from prison, political and religious prisoners in Vietnam are sometimes placed under house arrest, or “probationary detention” (quan che), for periods of one to five years, under article 38 of the criminal code. During that time they are placed under the supervision and “re-education” of local officials and deprived of certain rights, such as the right to travel, vote, or preside over religious organizations.

“Tim Sakhorn’s arrest and deportation were totally unjustified,” Adams said. “He should not have been imprisoned for simply promoting people’s rights or being in contact with an international advocacy organization. Now, ensuring that he is completely free is the priority.”

This from the Washington Post:

Envoys for the Dalai Lama ended more than two days of talks with Chinese government officials Thursday with no immediate reports of substantive progress on easing tensions in Tibet, something the United States and other foreign governments had pushed for.

A report on the talks in state-controlled media unveiled no concessions on the part of the Chinese to allow more autonomy for Tibetans in the wake of widespread protests this spring against Chinese rule. Rather, the report repeated conditions that the Tibetan spiritual leader must meet before the Chinese would agree to new talks before year-end. The most significant demands are to prove he does not support activities that would disturb next month’s Olympic Games in Beijing and to “concretely curb” violent activities of groups advocating for Tibet’s independence.

The Dalai Lama’s envoys left Beijing Thursday afternoon, and spokesman Tenzin Taklha said they would return to Dharamsala, India, to brief the Dalai Lama before making any public statements. The Dalai Lama has said repeatedly that he supports Beijing as host to the Olympic Games and would even attend, if invited. He has also denied he is seeking independence; rather, he is urging more cultural autonomy.

Some Tibet experts had hoped for signs that the talks were more than a Chinese attempt to take international focus off Tibet until after the Olympics. They found only slight shifts in which to take heart.

“Now they are implicitly accusing him of ‘supporting’ violence instead of directly insisting that he masterminds it,” said Robbie Barnett, a Tibet scholar and professor at Columbia University. “I can’t see this going down very well in Tibet or anywhere else.”

Tibet protests had calmed after May’s massive earthquake in Sichuan province that killed nearly 70,000 people. But once again several foreign leaders are being pressed to boycott the Olympic Games to protest China’s hard-line stance on Tibet. Although President Bush has already said he will attend the Games, French President Nicolas Sarkozy said this week he would decide whether to attend the opening ceremony based on the progress of the Tibet talks.

The Zen Hospice Project will be offering three 2-day workshops in 2008 on “Providing End-of-Life Care”. The dates are: