America continues to move forward toward equality and inclusion. Within the last four years, Don’t Ask Don’t Tell was repealed, the Supreme Court ruled DOMA unconstitutional, and a growing number of states have marriage equality as a matter of law. As ultra-conservative groups such as the Family Research Council, American Family Association, ADF and CARL continue to lose battles in their self-proclaimed culture wars, they have changed strategy. Rather than focusing on fighting a specific issue, they now want to be seen as either the victims of intolerance or the champions of religious liberty or both. Their tactic is to enlist conservative politicians to pass legislation that supports their deeply held religious beliefs. Seemingly cloaked in the mantel of the First Amendment, these members of Congress propose legislation that, on its face, seem appropriate and reasonable. But a closer look at these proposals exposes their true intent to give legal cover to ultra-conservatives in their fight to turn back time.
PENDING PROBLEMATIC LEGISLATION
There are presently three separate pieces of pending legislation in Congress about which the Forum is concerned. The first deals with the so-called “conscience protection”, the second allowing Chaplains to pray in accordance with their faith tradition (i.e. in Jesus name) and finally preventing the appointment of Humanist chaplains.
1. Conscience Protection
The 2013 National Defense Authorization Act (NDAA) contained the first so called “conscience protection” provision. Section 533 of the Act, purports to ensure religious protections for servicemen and women. According to the Baptist Joint Committee for Religious Liberty, this section of the document “may require the military to accommodate the religious objections of military personnel.”
The text makes it clear that the military must respect the moral views and conscience held by its members. Additionally, it goes on to say that these beliefs may not be used to discriminate against or to deny promotion for those who embrace them (read the entire law, including Section 533, here).
In his signing statement the President said the following:
Section 533 is an unnecessary and ill-advised provision, as the military already appropriately protects the freedom of conscience of chaplains and service members. The Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct. My Administration remains fully committed to continuing the successful implementation of the repeal of Don’t Ask, Don’t Tell, and to protecting the rights of gay and lesbian service members; Section 533 will not alter that.
The conservative Republicans concluded that this “conscience protection” did not go far enough. Led by Representative John Fleming (R-LA) they have proposed to expand these protections in the 2014 NDAA. The new provision, Section 530, shifts the burden onto the Pentagon to prove that the expression of religious beliefs would be an “actual harm” to good order and discipline in refusing to make an accommodation. It’s seen as a way for troops to harass their LGB colleagues for religious reasons without fear of reprisal.
As with the previous provision that was included in the 2013 NDAA, the White House objected saying:
“Limiting the discretion of commanders to address potentially problematic speech and actions within their units, this provision would have a significant adverse effect on good order, discipline, morale, and mission accomplishment.”
The House version of the 2014 NDAA, H.R.160, with the “conscience protection” section intact, was passed by the House on June 14, 2013 by a vote of 315/108.
On the Senate side, in June 2013 a similar provision, cosponsored by Senators Ted Cruz (R-TX), Mike Lee (R-UT), and David Vitter (R-LA), was adopted by the Senate Armed Services Committee on a bipartisan vote as part of the NDAA “mark up”.
The this new provision poses dangers to not only unit morale, discipline, cohesion but also the very existence of the Chaplaincy and are discussed in these articles:
2. Chaplain Prayer
On February 21, 2006, under new regulations (SECNAVINST 1730.7C) signed by the Secretary of the Navy, chaplains of all faiths in the Navy were asked to consider the views of their audience before invoking specific religious beliefs in prayer. This new policy encouraged chaplains to use only “nonsectarian” language outside of divine services. This prompted criticism that regulating prayer services violates the chaplains’ First Amendment rights.
Complaints by the ultra-conservatives were sent to both the Senate and House Armed Services committees. In September 26, 2006, the NDAA conference committee was considering various House Amendments to Title 10 that would have, except in cases of military necessity, allowed chaplains to pray in a manner consistent with the dictates of their conscience. Further these amendments required that any limitation be done in the least restrictive manner feasible.
As a compromise, the conference committee agreed that the House would withdraw these amendments and the conference instructed the Secretary of the Navy (and Secretary of the Air Force) to rescind new regulations and reinstate the earlier policy.
On November 6, 2006, the Secretary of the Navy carried out the orders of the NDAA conference committee and rescinded SECNAVINST 1730.7C.
On January 22, 2013, Representative Walter Jones, Jr. (R-NC) introduced H.R. 343. This bill authorizes a military chaplain, if called upon to lead a prayer outside of a religious service, to close the prayer according to the dictates of the chaplain’s conscience. Presently being considered by the Personnel Subcommittee of the House Armed Services Committee, it is predicted to only have 6% chance of getting beyond the committee and a 1% chance of being enacted.
3. Humanist Chaplains
After Representative John Fleming (R-LA) was informed the military was considering appointing Humanist chaplains, he introduced an amendment to the Department of Defense Appropriations Act (DDAA), 2014, H.R. 2397, which would prevent funds from being used to appoint chaplains that did not have an endorsing agency.
On July 23, 2013, after debate in the House the amendment was passed by a vote of 253 to 173. On July 24, 2013, the DDAA was passed by the House. The DDAA 2014, in its present form, has a 20% chance of being enacted.
With the pending application of Jason Heap to become the first Humanist to serve as a chaplain in the US Armed Forces, this issue is very timely. It is discussed in these articles:
The Forum on the Military Chaplaincy has taken a position on this issue found in its Statement of Principle: