GetReligion Commandante Mattingly and I have have been having a bit of a back-and-forth about chaplains in the military post-DADT over on Cathy Grossman’s Facebook page, and I thought the issue worth venting a bit more publicly. (Here’s his official review of the coverage.)
TMatt’s view seems to be that it’s a question of (as Kierkegaard might say) Either/Or: “You either have no discrimination and equality, or you have no chaplains.” He believes that the current regime, which restricts what military chaplains can say, is intolerable, and seems to prefer something on the order of “equal access” for all clergy.
My own view is more along the lines of the closest thing we have to a definitive legal standard: the Second Circuit Court of Appeal’s 1985 ruling in Katcoff v. Marsh. (The plaintiffs, who lost, chose not to appeal to the Supreme Court.) Katcoff makes clear that the reason hiring chaplains doesn’t violate the Establishment Clause is that the military must provide for the religious needs of its personnel. It’s not, in other words, the chaplains’ free exercise rights that count, but those of the people they have been hired to serve. And the chaplains are under an obligation to provide those services to all military personnel.
TMatt believes that this adds up to “a state-mandated and funded theology.” In my view, what it adds up to is some real restrictions on what military chaplains can do and say. For example, it is and should be against the rules for a fundamentalist Protestant minister to tell a Jewish soldier dying on the battlefield that this is his last chance to accept Jesus as his Lord and Savior and thereby avoid being damned for all eternity. And it should be against the rules for a gay Lutheran serviceman who comes to a Catholic priest for counseling to be told that he must spend the rest of his days celibate or be guilty of a mortal sin. These are things that clergy in civilian life can do, exercising their free exercise rights.
At the same time, it must be recognized that making religious services available to military personnel means giving them access to the bona fide teachings of their own traditions. Let’s suppose, for example, that a conservative evangelical comes to a conservative evangelical chaplain looking for guidance on how to square his own convictions about the immorality of homosexual activity with the military’s post-DADT policies (to say nothing of civil society, where it is unconstitutional to pass laws against homosexual activity). The chaplain should be able to talk about how their common religious tradition teaches that such activity is immoral while the larger society (including the army community) sees it as licit.
Bottom line: Military chaplaincy cannot be ruled by Either/Or. Like our First Amendment jurisprudence generally, there needs to be a balancing of free exercise rights with bans on religious establishments. Just as military personnel need to be able to have access to the religious services of their choice, so military chaplains need to see themselves as government employees, rendering unto Caesar according to Caesar’s rules.