Pentagon guidance strengthens religious liberty protections for service members

Protestant U.S. Army chaplain Brian Chepey leads prayers on September 11, 2011, at Bagram Air Field, Afghanistan. Ten years after the 9/11 attacks in the United States and after almost a decade war in Afghanistan, American soldiers gathered for church services in prayer and solemn observance of the tragic day.
Protestant U.S. Army chaplain Brian Chepey leads prayers on September 11, 2011, at Bagram Air Field, Afghanistan. Ten years after the 9/11 attacks in the United States and after almost a decade war in Afghanistan, American soldiers gathered for church services in prayer and solemn observance of the tragic day. | John Moore/Getty Images

The U.S. Department of Defense issued new guidance this month bolstering military service members' religious freedom rights, a move praised by advocates who have voiced concern for years.

Instruction 1300.17 was issued on Sept. 1 establishing “DoD policy in furtherance of the Free Exercise Clause of the First Amendment” and the Religious Freedom Restoration Act. 

The instruction falls in line with President Donald Trump’s 2017 executive order on religious liberty and free speech. 

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The policy requires Defense Department entities “to oversee the development and provision of education and training on the policies and procedures pertaining to the accommodation of religious practices of Service members” to high-ranking military personnel. 

Under the instruction, those who are to receive training and education on religious freedom rights of service members include commanders, judge advocates, chaplains, recruiters and other personnel deemed appropriate by a military entity. 

The directive declares that “Service members have the right to observe the tenets of their religion or to observe no religion at all.” 

The policy also forbids service members from requiring chaplains to “perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain.”

The guidance also makes clear that military leadership must accommodate “individual expressions of sincerely held beliefs,” adding that “a Service member’s expression of such beliefs may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.”

In addition to laying out the rights of service members to express their First Amendment rights, the document illustrates the responsibilities that DOD officials have in ensuring that the guidance is implemented. 

The third section of the directive explains the process for submitting and reviewing requests for accommodation by service members.

Mike Berry, deputy general counsel for the nonprofit law firm First Liberty Institute, which is often involved in defending the First Amendment rights of military service members, told The Christian Post that the new instruction addresses “the concerns that First Liberty Institute has been raising for a number of years.”

The guidance comes four months after the First Liberty Institute, which describes itself as “the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans,” wrote a letter to Secretary of Defense Mark Esper. 

In the letter, Berry urged Esper to “issue clear DOD guidance, consistent with Congress’ directive, that strongly protects religious freedom within the DOD.”

He argued that such guidance was necessary to “slow the spread of misinformation, flawed legal arguments and religious discrimination.”

“In 2017, the President issued Executive Order 13798-Promoting Free Speech and Religious Liberty,” the letter noted. “Shortly thereafter, the United States Attorney General issued a guidance memorandum interpreting religious liberty protections in federal law.”

The letter expressed concern that the Department of Defense had yet to comply with Congress’ 2018 directive to “implement a comprehensive training program for chaplains and judge advocates that further incorporates EO 13798 and the Attorney General’s guidance within DOD.”

First Liberty wrote the letter in response to the Army’s compliance with demands from the Military Religious Freedom Foundation to remove social media posts featuring Army chaplains offering words of prayer and encouragement to service members amid the coronavirus pandemic. 

The letter also mentioned the Army’s decision to investigate an Army chaplain for sending an e-mail fellow Christian chaplains a book by theologian John Piper he had recently read.

“It’s really a breath of fresh air to see the Department of Defense, first of all, applying federal law, applying the Constitution and following the President’s executive order on free speech and religious liberty and applying that to the military,” Berry told CP. 

“And this is something that First Liberty and many others have been asking for. So we are very pleased to see this happen.”

In addition to First Liberty, members of Congress have also urged Esper to protect religious service members. 

“Even though this is a … fantastic step in the right direction and our hope is that this will provide a lot of clarity and a lot of guidance to military leaders, there’s still a lot of work to be done,” Berry stressed. 

“I think there are going to continue to be issues regarding religious liberty but … this new regulation should go a long way to at least providing clarity and … strong protections for religious freedom in the military.”

“This won’t prevent future issues from arising, but it will certainly help ensure that when those issues arrive, that they are adjudicated properly,” he continued. 

Berry said the debate about religious freedom in the military has “never been an issue of what service members could or could not do,” adding the Constitution and the First Amendment haven’t changed.

“The Department of Defense has now revised its regulations and its guidance to be far more consistent with the Constitution and the First Amendment,” he asserted. “Instead of it being a matter of what can troops do now that they couldn’t do before, the DOD regulations now recognize and affirmatively protect the things that people were perhaps not sure whether they could do before.”

While some religious freedom advocates are praising the new instruction, it also has critics. 

MRFF founder Mikey Weinstein said in a statement shared with CP that the "all-encompassing incorporation and prominence of the ‘Religious Freedom Restoration Act’" in the instruction is "extremely concerning" for his organization.

He vowed that MRFF, which advocates for the strict adherence to the principle of separation of church and state, will fight "tooth and nail" to stop the new instruction. He claimed that the new guidance buttresses the efforts of a "fundamentalist Christian religious right" that seeks to force its "version of the Gospel of Jesus Christ upon otherwise defenseless military subordinates.”

"In recent years, this 1993 Act has become the go-to law for fundamentalist Christian legal organizations in their ignoble and wholly reprehensible defense of completely unconstitutional promotions of uber-conservative Christianity in the United States armed forces," he argued. 

"This law is the sick epitome of the right-wing Christians’ tortured view of the First Amendment’s religion clauses as creating only a one-way wall — in other words, that that the 'Free Exercise' clause of the First Amendment is THE only religion clause that matters, and that the other direction of the wall, the 'No Establishment' clause, simply doesn’t even exist. Such a preposterous position is utterly bereft of any semblance of Constitutional legality and allowance."

Weinstein went on to argue that the instruction is a "Constitutionally abhorrent ticking time bomb." 

"The critical term 'religious practice' has now been almost infinitely expanded to include 'An action, behavior, or course of conduct constituting individual expressions of religious beliefs, whether or not compelled by, or central to, the religion concerned,'" he contended. 

"This shocking, sudden definitional expansion, specifically the 'whether or not compelled by, or central to, the religion concerned' may well now allow military superiors to proselytize their lower-ranking troops without ANY cognizable Constitutional constraints as to time, place and manner."

"And, in MRFF’s considerable civil rights advocacy experience, gleaned from our over 70,000 MRFF client cases (95% of whom are practicing Christians themselves), the oppressors in this precise dynamic are fundamentalist/dominionist Christian military superiors approximately 99.9% of the time," Weinstein continued. 

"These miserably wretched, instantaneous DoD Instruction 1300.17 mauling actions by Trump’s DoD cannot be allowed to tar and feather the Constitution's clear and incontrovertible, foundational prohibition of allowing the State to “establish” religion!"

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