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Religious Freedom in the Military – FAQ

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March 14, 2016

Religious Accommodation in the Military Frequently Asked Questions (FAQs) & Discussion Board

Introduction

It is well established that the First Amendment to the Constitution of the United States protects the “free exercise” of religion:

“Congress shall make no law . . . prohibiting the free exercise” of religion.

However, because of the unique nature of the military and its mission,[1] courts often apply the First Amendment to active duty service members differently than other contexts. This is because, unlike civilian society, there is less individual autonomy in the military. Obedience to orders, good order, and discipline are vital to a military force that is capable of fighting and winning wars. The United States Supreme Court repeated this on multiple occasions:

The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. The essence of military service is the subordination of the desires and interests of the individual to the needs of the service. . . . [W]ithin the military community there is simply not the same [individual] autonomy as there is in the larger civilian community.[2]

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 the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.[3]

This fundamental concept of the “needs of the service” being greater than the “desires and interests of the individual” is central to how courts view service members’ religious liberties. As a result, the Department of Defense and the five military service branches have policies that govern how the military must accommodate the religious needs of service members

The following are frequently asked questions (FAQs) regarding religious freedom in the military:

Religious Accommodation Policies

What is the Department of Defense’s policy regarding religious expression?

What is the Department of Defense’s religious accommodation policy?

What are the religious accommodation policies for the military branches?

What are my options if my requested religious accommodation is denied?

What should I do if I believe the military violated my religious freedom?

Performance of Military Duties

Can I request excusal from some of my military duties for religious reasons?

Am I required to perform military duties if I have a religious objection to them?

Can the military deploy me if I have a religious objection to the mission?

Freedom to Attend Church or Place of Worship

Can the military prohibit me from attending a particular place of worship?

Are there any exceptions to this rule?

Evangelizing and Proselytizing in the Military

Can I evangelize/proselytize/share my faith with others in the military?

Can the military restrict my ability to speak about religion in the workplace?

 

Question:  What is the Department of Defense’s policy regarding religious expression?

Short Answer

Service members are free to act and speak in accordance with their religious beliefs as long as there is no negative effect on mission accomplishment.

Legal Answer

The official Department of Defense policy states:

The Department of Defense places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.

The Department of Defense will accommodate individual expressions of sincerely held beliefs unless it could have an adverse impact on military readiness, unit cohesion, or good order and discipline.

This broad policy applies to the entire Department of Defense.

Regulations

DoD Instruction 1300.17, of February 10, 2009. The DoD implemented significant changes to DoD Instruction 1300.17 on January 24, 2014. Those changes are reflected in these FAQs.

 

Question: What is the Department of Defense’s religious accommodation policy?

 Short Answer

A request for religious accommodation will usually be approved unless it interferes with the mission.

If the requested religious accommodation interferes with the mission, it can only be denied if the government can show that denial is: (1) necessary to mission accomplishment; and (2) there is no better alternative.

Legal Answer

The official Department of Defense policy states:

Requests for religious accommodation will be resolved in a timely manner and will be approved when accommodation would not adversely affect mission accomplishment, including military readiness, unit cohesion, good order, discipline, health and safety, or any other military requirement.

For requests for religious accommodation when accommodation would adversely affect mission accomplishment:

Requests for religious accommodation from a military policy, practice, or duty

that substantially burdens a Service member’s exercise of religion may be denied only when the military policy, practice, or duty:

(a) Furthers a compelling governmental interest; and

(b) Is the least restrictive means of furthering that compelling governmental interest.

This broad policy applies to the entire Department of Defense.

Regulations

DoD Instruction 1300.17, of February 10, 2009. The DoD implemented significant changes to DoD Instruction 1300.17 on January 24, 2014. Those changes are reflected in these FAQs.

 

Question: What are the religious accommodation policies for the military branches?

Short Answer

Each branch of the military is responsible for devising its own policy consistent with DoD Instruction 1300.17.

Please note: The service branches are currently in the process of revising their respective policies to be consistent with the new DoD Instruction 1300.17. These FAQs will be updated and revised to reflect those new policies as soon as they are published.

Legal Answer

United States Army policy provides:

The Army places a high value on the rights of its Soldiers to observe tenets of their respective religious faiths. The Army will approve requests for accommodation of religious practices unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, and/or health. As used in this regulation, these factors will be referred to individually and collectively as “military necessity” unless otherwise stated. Accommodation of a Soldier’s religious practices must be examined against military necessity and cannot be guaranteed at all times.

United States Navy/United States Marine Corps policy provides:

Department of the Navy policy is to accommodate the doctrinal or traditional observances of the religious faith practiced by individual members when these doctrines or observances will not have an adverse impact on military readiness, individual or unit readiness, unit cohesion, health, safety, discipline, or mission accomplishment.

Accommodation of a member’s religious practices cannot be guaranteed at all times and is subject to military necessity. Determination of necessity rests entirely with the commanding officer.

United States Air Force policy provides:

Government Neutrality Regarding Religion. Leaders at all levels must balance constitutional protections for an individual’s free exercise of religion or other personal beliefs and the constitutional prohibition against governmental establishment of religion. For example, they must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates or to extend preferential treatment for any religion. Commanders or supervisors who engage in such behavior may cause members to doubt their impartiality and objectivity. The potential result is a degradation of the unit’s morale, good order, and discipline. Airmen, especially commanders and supervisors, must ensure that in exercising their right of religious free expression, they do not degrade morale, good order, and discipline in the Air Force or degrade the trust and confidence that the public has in the United States Air Force.

Free Exercise of Religion and Religious Accommodation. Supporting the right of free exercise of religion relates directly to the Air Force core values and the ability to maintain an effective team.

All Airmen are able to choose to practice their particular religion, or subscribe to no religious belief at all. You should confidently practice your own beliefs while respecting others whose viewpoints differ from your own.

Your right to practice your religious beliefs does not excuse you from complying with directives, instructions, and lawful orders; however, you may request religious accommodation. Requests can be denied based on military necessity. Commanders and supervisors at all levels are expected to ensure that requests for religious accommodation are dealt with fairly.

United States Coast Guard policy provides:

In keeping with the provisions of reference (e) and Coast Guard policy, unit commanding officers shall provide for the free exercise of religion for Coast Guard personnel, their dependents, and other authorized persons, and seek to accommodate the religious practices and observances of individual members when they will not have an adverse impact on military readiness, unit cohesion, health, safety or discipline.

Chaplains assigned to Coast Guard commands shall provide ministry and facilitate the free exercise of religion for all members of the Coast Guard, their dependents, and other authorized persons through the Command Religious Program (CRP).

Regulations

Army Regulation 600-20, of March 18, 2008

Secretary of the Navy Instruction 1730.8B, of October 2, 2008

Air Force Instruction 1-1, of August 7, 2012

USCG Commandant Instruction M1730.4B, of August 30, 1994

 

Question: What are my options if my requested religious accommodation is denied?

Short Answer

Service members can file a complaint with their commanding officer or higher echelon commanders for grievances.

Legal Answer

Article 138, Uniform Code of Military Justice, provides a formal complaint/grievance procedure when a service member believes he/she has been wronged by his/her commanding officer. Each military branch has detailed instructions on how to file Article 138 complaints.

As an alternative to Article 138, each military branch also provides for informal filing of grievances. You should contact your installation military attorney for specific information and guidance on how to pursue an informal grievance within your command.

Please note: According to DoD Instruction 1300.17:

When a request for accommodation is not approved, and continued tension between the unit’s requirements and the individual’s religious practices is apparent, administrative actions should be considered. Based on the needs of the

Military Service, administrative actions that may be considered include assignment, reassignment, reclassification, or separation.

Regulations

Article 138, UCMJ (10 U.S.C. §938), DoD Instruction 1300.17.

 

Question: What should I do if I believe the military violated my religious freedom?

Short Answer

If you believe that the military is discriminating against you because of your religious beliefs, please contact First Liberty Institute.

Legal Answer

Although we cannot guarantee that we will represent you, we may be able to assist you in determining what rights you have.

There are several options for contacting First First Liberty Institute:

Phone: First First Liberty Institute Armed Forces Hotline: 1-800-259-9109

Internet: http://www.FirstLiberty.org

 

Question: Can I request excusal from some of my military duties for religious reasons?

 Short Answer

Yes, depending on the military duties in question.

 Legal Answer

Depending on the nature of your request and the military duties from which you seek excusal, you may request that your chain-of-command provide accommodation for your religious practice. Generally speaking, your command should grant your request for accommodation unless it will have an adverse impact on the unit or the mission. However, the accommodation may be very limited in scope (e.g., you may be excused from duty only on Sunday mornings in order to attend a worship service).

Regulations

Department of Defense Directive 1300.17

 

Question:  Am I required to perform military duties if I have a religious objection to them?

Short Answer

Yes, religious objection does not excuse service members from the duty to follow orders.

Legal Answer

You must request and be granted a religious accommodation to be excused from performing your military duties. Refusal to follow orders, even for religious reasons, is a criminal violation in the military. This includes the requirement to perform military duties on Sabbath days, holy days, and/or religious observances. The only exception is if the order at issue is unlawful. However, all orders from superiors are presumed lawful unless a judge rules that the order was unlawful.

Some courts may be receptive to the “religious objection” if the service member applied for Conscientious Objector status prior to their objection (See Conscientious Objector FAQ sheet for more information).

Case Precedents

United States v. Wilson, 41 C.M.R. 100 (C.M.A. 1969) (“If the command was lawful, the dictates of the accused’s conscience, religion, or personal philosophy could not justify or excuse disobedience.”)

United States v. Avila, 41 C.M.R. 654 (A.C.M.R. 1969)

United States v. May, 41 C.M.R. 663 (A.C.M.R. 1969)

 

Question: Can the military deploy me if I have a religious objection to the mission?

Short Answer

Yes.

Legal Answer

There is no “right” to not deploy and the military does not violate of your First Amendment rights by requiring you to deploy with your unit.

Case Precedents

United States v. Webster, 65 M.J. 936 (2008).

 

Question: Can the military prohibit me from attending a particular place of worship?

Short Answer

Generally speaking, no.

 Legal Answer

Generally speaking, the military cannot interfere with your right to worship as your faith tradition dictates. However, certain affiliation or participation with certain faith groups are incompatible with military service. For example, because polygamy is illegal in the military, service members may not engage in polygamy even if their religion permits it. If you are unsure whether your religion or religious practice is incompatible with military service, you should seek the advice of your installation military attorney (judge advocate/JAG).

Regulations

Department of Defense Directive 1300.17

 

Question: Are there any exceptions to these rules?

Short Answer

It depends on the circumstances.

Legal Answer

The final authority for approval of a requested accommodation rests with the service member’s commanding officer. For example, a unit commander has authority to approve the use of certain illegal substances for religious ceremonial purposes.

Regulations

Department of Defense Directive 1300.17

 

Question: Can I evangelize/proselytize/share my faith with others in the military?

Short Answer

Yes, but with some exceptions.

Legal Answer

Under most circumstances in the military, religious speech is protected by the First Amendment. However, greater care must be exercised when the speaker is senior to the listener. This could lead to the appearance of coercion or official endorsement of the superior’s religion because the subordinate may perceive that he/she has no choice but to listen.

Regulations

Equal Employment Opportunity Commission Compliance Manual, of July 22, 2008, promulgated by Department of Defense Directive 1020.02, of February 5, 2009.

Air Force Instruction 1-1

 

Question: Can the military restrict my ability to speak about religion in the workplace?

Short Answer

No, unless the commander can demonstrate the religious speech is causing a problem and the commander restricts non-religious speech that causes the same kinds of problems.

Legal Answer

Commanders have authority to restrict on-duty religious speech if they can demonstrate that it will have an adverse effect on the unit or mission. However, if a commander exercises this authority, he must also restrict non-religious on-duty speech that may have an adverse effect on the unit or mission. For example, if a commander prohibits on-duty religious speech because he/she believes it will have a divisive effect on the unit, the commander must apply the same prohibition to similarly divisive non-religious speech (e.g. politics, controversial issues, etc.).

As a general rule, commanders cannot restrict off-duty religious speech.

Please note that this only pertains to religious speech. Other forms of speech, such as political speech, are usually given less protection than religious speech.

Regulations

EEOC Compliance Manual

Department of Defense Directive 1300.17

 

First Liberty Institute is committed to defending the religious rights of service members. This information is only intended to provide general guidance and should not be construed as legal advice.

 

[1] Parker v. Levy, 417 U.S. 733, 743 (1974) (“[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”)

[2] Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

[3] Parker, 417 U.S. at 758.