Religious Freedom in the Military

2012-08-23 21:07:07

The opening clause of the First Amendment (‘‘Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof’’) stands for the proposition that, with few restrictions, American citizens have the right to choose both their religion and the way they wish to observe it.

Supreme Court jurisprudence, however, is less clear concerning the extent to which military personnel are afforded the same constitutional rights. Although Chappel v. Wallace (1983) recognized that ‘‘citizens in uniform cannot be stripped of basic rights simply because they have doffed their civilian clothes,’’ Article I of the Constitution gives plenary power to Congress ‘‘to make rules for the Government and Regulation of the land and naval Forces.’’ The Court has traditionally deferred to professional military judgment regarding such regulations.

The doctrine of military necessity supersedes a soldier’s right to freely practice his or her religion. In both Johnson v. Robison (1974) and Gillette v. United States (1988), the Supreme Court found that military necessity is such a fundamental goal that the government need show only that the policy implemented is designed to further a substantial government interest. Therefore, the government need not meet the higher standard promulgated in Sherbert v. Verner (1963), which requires it to demonstrate that restrictions on religious practices are in furtherance of a Compelling State Interest, whose purpose cannot be achieved by means of less restrictive methods. In Employment Division, Oregon Department of Human Resources v. Smith (1990), however, the Court ruled that the federal government has the power to limit religious practices when the regulation is a ‘‘valid neutral law of general applicability.’’

In Goldman v. Weinberger (1986), a military clinical psychologist, an Orthodox Jew, brought an action in federal court seeking an against that would allow him to wear a yarmulke (skullcap) while on duty. Deferring to military judgment, the Supreme Court ruled (five to four) against Goldman. It held that the regulation was being enforced in order to achieve a legitimate end, taking into consideration the individual’s religious needs: The ‘‘Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.’’ Shortly after the Goldman decision, however, Congress ordered the secretary of defense ‘‘to minimize the potential conflict between the interests of members of the armed forces in abiding by their religious tenets and the military interest in maintaining discipline.’’ Subsequently, the secretary relaxed the restrictions so long as the apparel is neat and conservative and would not interfere with the performance of military duties.

Currently, the military’s religious accommodation policy is outlined in a Department of Defense directive, which allows for free exercise that ‘‘will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.’’ This standard places a high value on the right of military personnel to practice their religion, and prohibits discrimination in the form of jokes, compulsory services, religious exclusion, and purposeful failure to make arrangements for alternative religious services. So long as the practice does not interfere with a military objective, it is generally permitted.

Thus, for example, Jewish military personnel are now generally permitted to wear yarmulkes with their uniforms. Other variations in the uniform dress code, such as the wearing of rings that display religious symbols and necklaces containing crosses, are likewise currently permitted.

The free exercise clause of the First Amendment has been held to compel Congress to ensure that chaplains are available to military personnel wherever they are deployed. The Department of Defense also requires that accommodations be made for the various faiths’ religious services and holidays. In the absence of a general policy it considers individual requests, using a five-part test to determine (1) the importance of military requirements in terms of individual and unit readiness, (2) the religious importance of the accommodation to the individual, (3) the cumulative impact of repeated accommodations of a similar nature, (4) alternative means available to meet the requested accommodation, and (5) previous treatment of the same or similar requests. During wartime, religious accommodation is much harder to provide, and often religious worship is sacrificed for the good of the mission.

Service people whose religion has dietary restrictions are similarly accommodated. With the aid of military chaplains (who are ordained in one faith but often must minister to others), troops stationed around the world are able to request certain prepackaged meals that would allow them to observe the dietary rules mandated by their religions.

Military personnel may not refuse medical treatment during wartime, especially routine inoculations, even if their sincere religious beliefs do not allow it. In peacetime, exceptions are permitted on a case-by-case basis.

Exemptions from military service are granted, however, to American citizens who can demonstrate a sincere objection to warfare—the so-called conscientious objection rule. This exemption was first recognized during World War I and allowed people whose faith forbids them from participating in war to avoid combat service. During the 1960s, many draftees sought exemptions because they objected specifically to the war in Vietnam. In Gillette, the Supreme Court held that the free exercise clause in the First Amendment does not require exemption from military service of those conscientiously opposed to participation in particular wars; it is sufficient that the government’s interests relate directly to the burdens its regulations imposed on free exercise rights. In Robison, the Court upheld a statute that denied education benefits to conscientious objectors who performed alternative service.


References and Further Reading

  • 10 USC 774 (1987).
  • Department of Defense Directive Number 1300.17 (Accommodation of Religious Practices Within the Military Services), issued February 3, 1988; certified as current, November 21, 2003.
  • Lasson, Kenneth, Religious Liberty in the Military: The First Amendment Under ‘‘Friendly Fire,’’ Journal of Law & Religion 9 (1992): 471, 493.
  • O’Neal, Robert M., The Tenth Charles L. Decker Lecture in Administrative and Civil Law: Civil Liberty and Military Necessity—Some Preliminary Thoughts on Goldman v. Weinberger, Military Law Review 113 (1986): 31.
  • Rabinowitz, Stephen Lewis, Goldman v. Secretary of Defense: Restricting the Religious Rights of Military Servicemembers, American University Law Review 34 (1985): 881.

Cases and Statutes Cited

  • Chappel v. Wallace, 462 U.S. 296 (1983)
  • Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990)
  • Gillette v. United States, 484 U.S. 1011 (1988)
  • Goldman v. Weinberger, 106 S. Ct. 1310 (1986)
  • Johnson v. Robison, 415 U.S. 361 (1974)
  • Sherbert v. Verner, 372 U.S. 398 (1963)

See also Chaplains: Military