Soul Care Conversation (Military Cultural Competency: The First Amendment Rights Military Members Experience Limited Protection)
July 29th, 2015 Posted by Dave Smith Blog No Comment yet(The purpose of Soul Care Conversations is to create a place to generate dialogue, initiate thoughtful consideration for the challenges our veterans face each day, share ideas of veteran and family well-being and healing, and spark within all of us a call to be engaged with the veteran and caregiver community. Click here to visit the forum and join the conversation!)
Last week we continued our conversation on military cultural competency. We initially reviewed the oath of enlistment that all service members take while entering the military, an oath to “protect and defend the Constitution of the United States.” Then we discussed “military-deference,” an application of the protections of the First Amendment in which military members have limitations or restrictions such as the freedom of speech. This week we will discuss in more detail the three First Amendment rights where our service members experience limited protection. I must apologize, this blog will be longer in order for us to continue the flow of the conversation on this topic.
Religion
The First Amendment protects the free exercise of religion. This short phrase, “free exercise” has complex implications for service members. The two primary factors regarding free exercise for service members include:
- religious expression
- accommodation
Over the course of the last decade there has been much debate over religious expression in the US, to include in the military. Numerous complaints have been levied against commanders’ use of excessive religious expression while the commander is in her/his official capacity. This may give the appearance to subordinates that what has been shared by the commander has official government endorsement. On the other side of the argument, some would claim that restricting religious speech of military commanders would be unconstitutional and possibly repressive.
Which side is correct? Free expression cases have included situations of sectarian prayers (praying in Jesus name) such as an invocation at a change of command ceremony where all service members are required to attend. Another type of case has been service members proselytizing. The debate continues as Constitutional scholars and lawyers, and interested parties from both sides make their case.
In the mean time, there are regulatory and legal precedence that Congress, the courts and the military have used.
“A basic principle of our nation is free exercise of religion. The Department of Defense (DoD) places a high value on the rights of members of the Armed Forces to observe the tenets of their perspective religions. It is DoD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.” So reads the first paragraph of DoD Directive 1300.17 “Accommodation of Religious Practices Within the Military Services.” Military commanders are given the authority to determine the appropriateness of any request based on their assessment of how it will affect a unit’s morale, cohesiveness and discipline; individual liberties are of secondary consideration. (Excerpts taken from the First Amendment Center, “Military Speech,” Bill Kenworthy)
This DoD Directive established a process whereby every service member has the opportunity to practice her/his religion as they are required by their respective faith group or denomination. However there may be instances where the practice of one’s faith may conflict with unit cohesion, morale, disciplines, or standards. When this happens, the service member may request an accommodation with the respective unit commander.
As a chaplain I assisted numerous Soldiers who requested an accommodation from the commander, such as a Wicca Soldier who wanted to use and store the Athame in his room. The Athame is a ceremonial dagger with a double-edged blade. As a knife, this is considered a weapon and can not be stored in a barracks room or in post/base quarters. In this instance, the commander was willing to store the “knife” in the arms room and the Soldier was able to sign it out when needed. At times the commander may deny the free exercise due to mission requirements, good order and discipline, safety, and other considerations.
A totally separate issue but relevant to free exercise and the accommodation of religious practices is the fact that although the military is a governmental enterprise, Congress established the military chaplaincy on 29 July 1775. Some believe that a military chaplaincy appears to be an endorsement of a religion which the First Amendment prohibits. Numerous law suits have attempted to refute the Constitutionality of the military chaplaincy. However, in each case the courts have sided with the United States military, claiming the importance of the chaplains to protect the free exercise of every service member as well as accommodating the rights and beliefs of each.
Also, American Forces Radio and Television Service (AFRTS) provides radio and television information and entertainment programming from a mix of American broadcast and cable networks to DoD personnel and their families overseas. AFRTS is part of the DoD and has a dual mission. AFRTS’s mission, “is to communicate Department of Defense policies, priorities, programs, goals and initiatives” and to provide “stateside radio and television programming, ‘a touch of home,’ to U.S. service men and women, DoD civilians, and their families serving outside the continental United States.”
Interesting enough, I served three years as the Religious Program Coordinator for AFRTS. Remember, the facilities authorized to broadcast AFRTS programming operate under DoD’s management and control. And yet, my responsibility was to obtain and distribute religious programming for television and radio. The programming that I obtained went through a very rigorous approval process with an advisory group. There were chaplains who produced local religious programming for various overseas audiences. Our mandate was to ensure religious sensitivities, and be inclusive of race, gender, and religion.
As you can see religious expression and accommodation practices in the military are very complex. These emotionally charged issues will most likely continue.
Speech
The three primary resources that limit free speech:
- DoD Directives
- Service specific regulations
- The Uniform Code of Military Justice (UCMJ)
There have been numerous challenges to the articles in the UCMJ within the courts. However, the court’s decisions have sided with the articles because of the military’s necessity for obedience and discipline. The courts premise is that free speech may undermine the effectiveness of command and is not constitutionally protected.
An example of this restriction would be that while I served as an officer, I could not publicly speak against the Command-in-Chief. It would not bode well seeing a service member in uniform publically denouncing the President. It could give the appearance of the Army’s endorsement of my viewpoint. As one reviews the UCMJ and Article 88 we see that this restriction goes beyond the President.
Article 88: Contempt Toward Officials, states that “Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”
The military is an authoritarian culture with a command structure. Article 88 has implications for not only the officers but also the enlisted members in that they are restricted from the same. Numerous cases have been taken to the Court of Military Review. The court has determined that “military necessity can be a compelling government interest warranting the limitation of free speech.” At the center of these decisions has been balancing the needs of the government in promoting a disciplined military force.
The restrictions of free speech go beyond what one can say or not say about the President or other government officials. A service member can not campaign, publically endorse, wear or display a campaign advertisement for a particular party or individual. Also, social media has expanded the opportunities for service members to share about anything. The result has been adding restrictive measures for service members in the use of social media, such as blogging and email. Some may question this restriction.
However, while serving in Afghanistan or Iraq, warriors were not permitted to email or call home for a period of time following a casualty. DoD does not want a family discovering that their loved one was wounded or killed through an email or phone call. The proper casualty notification procedure is critical. Casualty notification is a delicate and sensitive process that includes a trained service member and a chaplain.
Assembly
The third limitation focuses on assembly. The restrictions include:
- Service members planning and conducting an assembly
- Service members attending an assembly planned and conducted by a civilian but while in uniform
One can understand these limitations due to the perception that the public may think that the military adheres to the political viewpoint or purpose of the meeting or protest.
The right to peaceable assembly may also be restricted by military commanders if the gathering is shown to be detrimental to loyalty, discipline or morale. U.S. District Judge Donald Russell in 1969 heard such a case, in which several enlisted men were denied the right to hold an open and public meeting on a South Carolina Army base for a free discussion of the Vietnam War (see Dash v. Commanding General, 307 F.Supp. 849 (D.S.C. 1969). Judge Russell decided that post commanders had the authority to deny servicemen under their command the right to hold public meetings on post. Although the plaintiffs in this case asserted the purpose of the meeting was to discuss peaceably the justification for the U.S. involvement in Vietnam, the judge found it clear that they sought to generate discontent with the Vietnam War among servicemen in hopes that the political decision to involve the nation in the war “might be influenced, if not reversed.” Russell cited evidence presented by the defendants that, during an impromptu open meeting discussing the issue, fights broke out, orders were disobeyed and disciplinary control was lost. In light of this, the court found the post commander’s decision reasonable. (Excerpts take from the First Amendment Center, “Military Speech,” Bill Kenworthy)
There have been numerous incidents where a service member feels strongly about a position and therefore protests, while in uniform. We all can understand why this would be difficult in a society that largely has no privacy and has instant media access.
This conversation certainly does not go into depth on the issues, concerns, cases, and policies regarding the application of the First Amendment’s protections. The intent is not to be an exhaustive discussion but to introduce us to a little known but an important part of the military culture. Next week, we will begin to share about some specific aspects of the military that will help us get to know our warriors. Until next week, I look forward to our conversation…