The Pentagon has issued new guidance on religious liberty within the military — following pressure from Republican lawmakers to “prioritize protecting the rights and freedoms of service members” in the wake of the COVID-19 pandemic.
While critics of the revised regulation say it will encourage military superiors to push their religious beliefs on subordinates and fellow service members, proponents of the rule have hailed it as a victory for religious liberty.
“Service members don’t lose their religious freedom by virtue of being in the military,” Mike Berry, general counsel for First Liberty Institute, told Military Times.
The revised regulation, DoD Instruction 1300.17, Religious Liberty in the Military Services, was unveiled earlier this month. It establishes Department of Defense policy “in furtherance of the Free Exercise Clause of the First Amendment” and states that DoD components will “accommodate individual expressions of sincerely held beliefs” ― provided there are no adverse impacts on military readiness and unit cohesion. Such beliefs can include religious beliefs or moral principles, the guidance says.
Likewise, the policy claims that an expression of these “sincerely held beliefs” will not be used as the “basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.” It also calls on the military services to spearhead education and training efforts on religious liberty policies for commanders, judge advocate generals, chaplains, recruiters and others.
The new regulation implements requirements of the The Religious Freedom Restoration Act, which was passed in 1993. The law states that “governments shall not substantially burden a person’s exercise of religion.”
An exception is made if it can be demonstrated that the limitation is in “furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
The law, known as RFRA, was introduced by then-Rep. Chuck Schumer, D-N.Y., and had 170 co-sponsors. Schumer is currently the Senate minority leader.
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The Pentagon’s updated guidance has received backlash from groups such as the Military Religious Freedom Foundation, whose founder and president, Mikey Weinstein, argues that the revised regulation will “obliterate the wall of separation between church and state in our military.” Others, like First Liberty, a conservative legal firm that advocates for religious liberty and First Amendment rights, have lauded it as a “great victory for America’s brave service members” and claim it reflects the principles included in President Donald Trump’s 2017 executive order “Promoting Free Speech and Religious Liberty.”
“This clarifies what the Constitution and federal law already says and applies it to the DoD,” said Berry, who served on active duty in the Marine Corps for seven years and currently is a Marine Corps reservist. “So in other words, this regulation is not breaking new ground at all in terms of the law, right? The law hasn’t changed, it’s just that the DoD has finally got around to recognizing ‘Oh, this is what the law is.’”
The Pentagon has faced increased pressure recently to update its religious liberty policies. Conservative Republican lawmakers and First Liberty have issued a series of letters over the past year, urging the Defense Department to take action. In May, for example, 20 lawmakers sent a letter to Secretary of Defense Mark Esper arguing that senior military leaders “continue to violate the religious liberty” of chaplains in the military.
In particular, they pointed to three recent cases where they argued the Army restricted the religious liberty rights of chaplains and service members. In one case, military chaplains shared faith-based videos on their brigade’s Facebook page, but the videos were removed after a complaint from the MRFF.
The letter also cited Air Force Lt. Col. David McGraw, who was holding “Sunday Christian Porch Preaching” on his apartment balcony at Kelley Barracks in Stuttgart, Germany, during the COVID-19 pandemic this spring. McGraw has since continued the services at a separate location, and MRFF called for leadership at U.S. Army Garrison Stuttgart to face a military court-martial or be subjected to non-judicial punishment via Uniform Code of Military Justice Article 15.
In a third case, Col. Moon Kim, a chaplain at Camp Humphreys in South Korea shared an online book with 35 subordinates via military email. Authored by Christian preacher John Piper, the book claimed that some people would contract COVID-19 as “a specific judgment from God” due to sinful behavior. Army officials have since said the service is investigating his case.
“It is clear that Army commands are not on the same page about how to address religious liberty issues that may arise,” the lawmakers, led by Reps. Doug Collins, R-Ga., and Doug Lamborn, R-Colo., wrote in their letter to Esper, copying Army Secretary Ryan McCarthy.
“If we want our military to remain the strongest, most capable military, we’ve got to ensure that our troops don’t lose their constitutional freedoms because otherwise, they’re going to start asking, ‘Why are we fighting?’” Berry said.
But Mikey Weinstein, president and founder of the Military Religious Freedom Foundation, argued that those who serve in the military are under a different standard than their civilian counterparts. He pointed to a 1974 U.S. Supreme Court case, Parker v. Levy, which says the court “has long recognized that the military is, by necessity, a specialized society separate from civilian society.”
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections,” the Supreme Court wrote.
Specifically, Weinstein slammed the incorporation of RFRA and argued that it is the “sick epitome of the right-wing Christians’ tortured view of the First Amendment’s religion clauses.” He argued those who back RFRA fail to recognize the First Amendment’s Establishment Clause that bars the government from making any law regarding an establishment of religion.
Weinstein takes issue with the policy’s definition of religious practices, which the DoD now characterizes as “an action, behavior, or course of conduct constituting individual expressions of religious beliefs, whether or not compelled by, or central to, the religion concerned.”
Weinstein, an Air Force Academy graduate who served in the service for more than 10 years, argued this would encourage military superiors to proselytize their subordinates and press lower-ranking service members to adopt their superior’s faith or worldview concepts, or suffer career damaging fallout.
Although Weinstein claimed that the majority of his clients are Christians, he said that MRFF would “fight tooth and nail, day and night to stop this new, twisted and perverted version” of the new policy from being implemented.
“Indeed, MRFF will never allow this brand-new regulatory provision to illicitly buttress the already repugnant and omnipresent efforts of the fundamentalist Christian religious right from perpetuating its pervasive and pernicious pattern and practice of forcing its weaponized version of the Gospel of Jesus Christ upon otherwise defenseless military subordinates,” Weinstein said in a statement to Military Times.
According to Berry, though, it remains to be seen how serious the Pentagon will be in enforcing this new regulation. Additionally, he said, the “hard work” is just beginning to ensure that commanders, JAGs and chaplains are trained so they’re up to speed on what the law says.
“So it’s not to say that our work is done,” Berry said. “This is not a panacea for every religious issue that will come up in the military, but it’s certainly a huge step in the right direction.”