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Defense Department Issues New Rules on Religious Liberty in the Military

January 28, 2014
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New Rules Greeted With Cautious Optimism

The Department of Defense recently released an Instruction (Number 1300.17) to implement a defense bill "conscience clause" to protect religious liberty in the military.  The January 22 directive referenced Section 533 of the National Defense Authorization Act (NDAA) for 2013, which reaffirmed the constitutional rights of chaplains and people of faith to act in accordance with their beliefs on issues affecting morality and religious beliefs.  

The Center for Military Readiness and many groups affiliated with the Military Culture Coalition supported the legislation, which was passed in 2012:

Congress Takes First Steps to Accommodate Religious Liberty in the Military

If carried out as Congress intended, the law and Instruction will be helpful in pushing back against violations of religious liberty that have become increasingly apparent since 2010.  In late December of that year, Congress voted to repeal the law regarding gays in the military, known as "Don't Ask, Don't Tell." 

Under the new policy, which should be called LGBT Law, lesbian, gay, bisexual, and transgender rights activists keep insisting that any disagreement with their agenda, even on religious grounds, should not be permitted in the military outside of worship services.  Shortly after the new policy went into effect, incidents of discrimination, hostility, and a "chilling effect" discouraging religious expression started to occur. 

The law restores balance because military chaplains who support LGBT law already have the freedom to express their views.  Now the law protects other chaplains and people of faith who want to express their religious beliefs and act in accordance with them on issues involving morality, including homosexual conduct and natural marriage. 

As stated in the law, the Armed Forces must "accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member."  The law also states that the armed forces "may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment."  

In the absence of Defense Department regulations to enforce the new law, violations of religious liberty continued during 2013.  Some of the more egregious examples were summarized in a full-page Military Times advertisement sponsored by the Restore Military Religious Freedom Coalition (RMRF) Coalition.

Congress responded by strengthening the conscience clause.  Sen. Mike Lee (R-UT) sponsored an amendment to the annual defense bill that was similar to a House-passed amendment sponsored by Rep. John Fleming (R-LA).  The Lee amendment was agreed to in conference and was signed into law as part of the NDAA for 2014. 

The expanded statute states that as far as practicable, the "expression" of "sincerely held" conscience, moral principles, or religious beliefs of the member may not be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training or assignment.

Although it is not yet reflected in the new DoD Instruction, the strengthened religious liberty clause also mandates that the Department of Defense "consult with official military faith-group representatives who endorse military chaplains" in the process of writing implementing regulations affecting chaplains who represent various faith communities. 

Balancing Religious Liberty and Military Necessity

In compliance with legislative intent, the new Instruction requires that the Defense Department justify any policy that "substantially burdens a Service member's exercise of religion."  This echoes elements of the Religious Freedom Restoration Act as well as protections for religious liberty that have been in the U. S. Constitution since our nation's founding.  Rights of religious liberty are especially important to troops deployed overseas.  

This does not mean that anything goes.  As stated in the directive, "Because the military is a specialized community within the U.S., governed by a discipline separate from that of the rest of society, the importance of uniformity and adhering to standards, of putting unit before self, is more significant and needs to be carefully evaluated when considering each request for accommodation of religious practices.  It is particularly important to consider the effect on unit cohesion."  (p. 4, emphasis added)

Rights of free speech and personal freedom, as well as religious liberty, sometimes are circumscribed by the needs of the military.  Individuals in uniform are not free to dress as they please, openly criticize the president and other public officials, or walk away from their assigned duties without authorization.  In particular, the new Instruction does not change previous prohibitions against religious apparel that

"a. Impairs the safe and effective operation of weapons, military equipment, or machinery;

" b. Poses a health or safety hazard to the Service member wearing the religious apparel and/or others;

"c. Interferes with the wear or proper function of special or protective clothing or equipment (e.g., helmets, flak jackets, flight suits, camouflaged uniforms, protective masks, wet suits, and crash and rescue equipment); or

"d. Otherwise impairs the accomplishment of the military mission." (p. 8)

Religious items or articles that are not visible or otherwise apparent may be worn with the uniform, but a complete ban on such items may be appropriate "in circumstances in which the Service member's duties, the military mission, or the maintenance of discipline require absolute uniformity."  (p. 8)

The law and Instruction will help to restore balance in accommodating constitutional rights.  Chaplains who express sincerely-held religious beliefs will be protected from adverse personnel actions if they decline to participate in activities contrary to their conscience.  This is a positive development for chaplains and men and women of faith in the military. 

Beards and Turbans Not the Main Issue

The Pentagon's announcement of the new Instruction did not mention the need for religious liberty protections that became increasingly apparent after repeal of the policy called "Don't Ask, Don't Tell" in 2010.  Instead, early headlines focused on speculation that the new rules might encourage inappropriate dress and grooming in the military. 

NBC News, for example, showed one of the three Sikh soldiers who currently serve in the Army, primarily in medical fields, wearing distinctive but modest garb.  This accommodation of religious beliefs and practices was granted five years ago.  According to the New York Times, American Sikh leaders, who wanted looser restrictions on turbans, head scarves, and beards in the military, are disappointed with the new rules.

Relaxed standards of dress and grooming are not likely to happen because the Instruction stipulates that religious accommodations will be allowed only on a "Neat and Conservative," case-by-case basis.  (p. 2)  No one can guarantee the future, but if the Instruction is implemented properly, it will not interfere with military missions and unit cohesion. 

Nor will protections for religious liberty preclude disciplinary or administrative action for conduct that is proscribed by the Uniform Code of Military Justice (UCMJ).  As intended, the Instruction states that the military is an institution set apart from the civilian world, and the UCMJ applies at all times.

The new directive does impose some paperwork to apply and re-apply for religious accommodation at a new station.  One commander may approve while another might not.  The requirement seems reasonable, however, because conditions in combat zones may be quite different from normal workplace environments in the continental United States. 

In many military occupations, headgear required for safety and mission accomplishment precludes religious garb that could create a hazard.  The new Instruction may allow the wearing of a small crucifix or Star of David on a discreet chain or a yarmulke under one's helmet, but if those items could get tangled in weapons or operational gear, a commander should and will be able to say no.  The commander is responsible to decide such matters, and there are options to appeal to higher levels if accommodation is denied. 

Cautious Optimism

Even though this is a positive development, caution is in order until we see how the new Instruction plays out.  Problems likely will remain, especially if personnel and field commanders do not receive adequate training on the new law and DoD Instruction.  Chaplains, individuals, and families should report problems of discrimination while exercising their rights of religious liberty.  Caution and vigilance are in order, but the new law is a step in the right direction. 

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 Note: As always, military personnel and families are encouraged to communicate with CMR through the "Confidential Contact" spot on our website, www.cmrlink.org.

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