By Mike Berry, General Counsel
In January 2014, the Department of Defense revised DOD Instruction 1300.17, the regulation that governs the accommodation of religious practices within the military. Shortly thereafter, I was invited on behalf of First Liberty Institute to testify before the U.S. House Armed Services Committee about the threats to religious freedom in the military. During the hearing, I stated that the January 2014 revision was a positive, but incomplete, action. I explained that if our service members were to enjoy the Constitution’s full promise of religious freedom, the DOD instruction would need a substantial overhaul.
On Sept. 1, 2020, after more than six years of persistent efforts by First Liberty and others, the DOD delivered in spades. And the revision comes not a moment too soon.
For years, incidents of religious hostility within the military increased both in frequency and severity. For example, in recent years First Liberty has defended: an Air Force colonel who was relieved of his command and removed from the promotion list to one-star general because he was unable to fulfill an optional request due to his faith; an Army chaplain who was accused of the military crime of dereliction of duty because he was unable to facilitate a marriage retreat for a same-sex couple even though he followed Army regulations and the U.S. Constitution; a Navy chaplain who faced involuntary separation from the service because some service members complained that his denomination’s religious beliefs were old-fashioned and politically incorrect; and Shields of Strength, a private company that has been banned from selling replica military dog tags that include uplifting and patriotic Scripture references.
Recent events during the COVID-19 pandemic have only exacerbated the problem. At bases from Fort Drum, N.Y., to Camp Humphreys, South Korea, our military chaplains remained at their posts, finding innovative ways to continue to serve the troops. Often, the chaplains turned to social media and the internet to find ways to stay connected to the troops in order to offer messages of hope and encouragement during difficult times. Nevertheless, activists and agitators, such as the Military Religious Freedom Foundation, demanded that such messages be censored. Shockingly, the military frequently complied, revealing that far too often military leaders’ knee-jerk reaction to any complaint, no matter how petty, is to curtail and censor the religious freedom of those serving in uniform.
But thanks to our commander in chief’s strong stance on religious freedom, the DOD is once again in step with the Constitution and federal law. The revised DOD Instruction is a major paradigm shift that offers new hope for religious liberty in the military.
For America’s brave service members, for whom faith is an essential element of their life and duty, the new guidance is most welcome. The revised DOD instruction makes clear that religious freedom is a top priority. It now reflects the principles set forth in President Donald Trump’s Executive Order 13798, “Promoting Free Speech and Religious Liberty.” And importantly, it clearly and unequivocally applies the Religious Freedom Restoration Act to the military.
With new guidance firmly in place, the real work begins. A regulation is only as strong as the will to enforce it. The DOD must now ensure that military leaders, chaplains and lawyers are trained to this new constitutional standard. Many within the Pentagon are sure to be hostile to change, even if the Constitution requires it.
To be sure, no regulation can ever be a panacea for religious hostility. New cases will certainly arise. But when they do, our service members should be comforted to know that the commander in chief is in their corner. And regardless of who occupies the White House, First Liberty Institute will always stand watch over their religious freedom.
Note: This article was first published on Stars and Stripes and is re-published here with permission. The article presents the main points of an op-ed published in Stars and Stripes. This work was authored co-authored by Mike Berry. The full article can be found on the Stars and Stripes website, here.