Fundamentalist Chaplains Part Three

Legal Questions

Having discussed the definition of fundamentalism and the theology and practices associated with it, this paper will now consider the legal basis for the chaplaincy. In recent years, litigation has ranged from complaints about the practices of individual chaplains and their use of the name of Jesus in public prayer to discrimination against chaplains in the promotion process.22 One lawsuit which challenged the constitutionality, and thus the very existence, of the chaplaincy produced what may be the most important legal decision in the history of the chaplaincy.

In 1979 two Harvard law students began litigation against the Secretary of the Army claiming that a government sponsored military chaplaincy violated the establishment clause of the First Amendment and that “…the Army chaplaincy, as presently constituted, inhibited the free exercise rights of some soldiers because of the absence of other than Christian and Jewish Army chaplains.”23 The proceedings for this suit, filed as Katcoff v. Marsh, carried on over a number of years. The case was not finally dismissed until 1986. The court settled in favor of the Department of the Army and, by proxy, the Army Chaplaincy, yet there were still a number of things left unresolved by the court findings.

The key complaint presented by Joel Katcoff and Allen Wieder was that the mere existence of a chaplaincy, funded and supported by the U.S. government, constituted the sanctioning of a state religion. They claimed this violated the First Amendment clause stating “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”24 They argued that the only way to avoid First Amendment entanglements was to use civilian clergy in place of military chaplains. In response, a team of lawyers for the defense, which included Rabbi Israel Drazin, an Army chaplain who also held a law degree, presented a compelling argument that civilian clergy were unable to fulfill the requirements. They demonstrated something which the plaintiffs failed to take into account: “that civilian clergy could not function on the battlefield…civilians, because they lacked the training, experience, acceptance, and knowledge of the military, would be unable to provide the necessary religious services.”25

The crux of the case weighed on the balance between two phrases in the First Amendment: “no law respecting an establishment of religion” and “[no law] prohibiting the free exercise thereof.” Since chaplains, regardless of faith background, are expected to either perform or provide religious services for all Soldiers and their families26, the plaintiffs could not successfully argue that paying for and supporting

clergy from specific denominations constituted the establishment of religion. On the other hand, the lawyers for the defense were able to convince the judges that removing the chaplaincy from existence would in fact place the free exercise of religion in jeopardy. Drazin and Currey, in their book about this landmark case, describe the basis for the Second Circuit Court decision which was given in 1985.

The judges described the primary function of military chaplains as the engagement „in activities designed to meet the religious needs of a pluralistic military community.‟ They noted that soldiers had unique needs….The decision spoke of the „mobile, deployable nature‟ of the military, the special and serious stresses encountered by its members, the separation, loneliness, strange surroundings, fears, financial hardships, and family problems faced by soldiers. In providing chaplains, „the Army has proceeded on the premise that having uprooted the soldiers from their natural habitats it owes them a duty to satisfy their Free Exercise rights, especially since the failure to do so would diminish morale, thereby weakening our national defense.‟27 

The court suggested that there may be some gray areas regarding the establishment clause, but the need for soldiers to be afforded the free exercise of religion took precedence. It is also important to note that the court described the environment as a “pluralistic military community.” Both of these concepts, together, constitute the primary legal basis for the existence of the chaplaincy today: a chaplain‟s primary purpose is to ensure that, in the pluralistic military community, all soldiers have the opportunity to practice their First Amendment right to the free exercise of religion. Unfortunately, this stated purpose for the chaplaincy is also its Achilles‟ heel. Some years after the court case, Chaplain Drazin issued a warning about what he considered to be the greatest threat to the chaplaincy. “The chaplaincy could be destroyed…by its own members if they were insensitive to soldiers‟ free exercise rights.” He felt that “free exercise was the raison d‟etre of the chaplaincy, without which it had neither rationale nor constitutional basis.”28

In summary, the court was willing to overlook what might possibly be a threat to the establishment clause in order to ensure the free exercise for soldiers. Therefore, chaplains must embrace pluralism29 or, at a bare minimum, tolerate it. If they do not support soldiers and their families in pursuit of their chosen faith practices, they threaten the very legal basis for their existence.

It is precisely this requirement to provide religious support in a pluralistic environment that led the Department of Defense to conclude that chaplain services are “inherently governmental.”30 As mentioned previously, Katcoff and Wieder argued that civilian clergy could be hired to work in the place of military chaplains, but the federal government recognized that this would not be sufficient to meet the needs. Department of Defense Instruction (DODI) 1100.22 explains that while “the Department of Defense can and does contract for religious ministry from individual faiths, the Department of Defense cannot contract for the type of religious pluralism required in operational environments.”31