By Mike Berry, General Counsel
For the tens of millions of Americans of faith who worship together regularly, the onset of COVID-19 has been a spiritual tragedy. Houses of worship of every faith and denomination have been emptied by government fiat.
Perhaps failing to recognize that there is no pandemic exception to the First Amendment, government officials across the nation have deprived Americans of the ability to seek spiritual refuge in the nation’s churches, synagogues and temples. In contrast, President Donald Trump recognized how this religious crackdown cuts squarely against the American faith tradition. “I think churches are essential,” he has declared. And as U.S. Court of Appeals for the Fifth Circuit Judge James C. Ho pointed out in his recent concurring opinion in Spell v. Edwards, “Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’ and which remain ‘closed.'”
One person who wants to be in church is Major Daniel Schultz of the United States Air Force. A devout Christian, Major Schultz is active in his church and is a member of the worship team. He attends church each week because he believes gathering with his fellow believers is an essential practice of his faith. Major Schultz is currently assigned to a U.S. Navy command, so when the Navy issued an order stating “service members are prohibited from visiting, patronizing or engaging in…off-installation specific facilities, services or activities…to include indoor religious services,” he suddenly found himself unable to enjoy the very First Amendment rights he serves to defend. Major Schultz also found himself in a moral and legal dilemma: Should he violate the Navy’s order and exercise his constitutional right to attend church and risk being court-martialed, or should he simply salute and carry on?
But in a 2015 unanimous decision, the U.S. Supreme Court stated that forcing one to choose between religious exercise and “serious disciplinary action” constitutes a substantial burden to First Amendment rights. But here, the Navy is doing just that by forcing Major Schultz to choose between religious exercise and the possibility of adverse or disciplinary action.
The Navy issued the order supposedly out of a desire to restrict the spread of COVID-19. However, the order permits service members to use public transit, visit commercial establishments and even host house parties of any size. Worse still, the order makes no mention of barring sailors from participating in public protests. Essentially, Navy personnel can invite friends to bring their own beer, but not bring their own Bibles. Banning attendance at religious services while permitting activities that are equally or more likely to facilitate the spread of COVID-19 belies the Navy’s claim that the order is primarily concerned with the health of its servicemen and women.
In response, First Liberty Institute sent a letter to the Navy on behalf of Major Schultz, requesting a religious accommodation to attend in-person services. The fact that American service members must now ask for permission to attend church should strike many as bordering on the absurd.
Even if the Navy order were not intended to discriminate against people of faith, it undeniably has a discriminatory effect. And it is just the latest in a parade of horribles.
In 2017, the First Liberty Institute released a stunning report chronicling the rise in religious persecution across all branches of the U.S. military. The report outlines cases like that of Air Force Colonel Leland Bohannon, who was relieved of his command and nearly had his military career destroyed. Why? Because his religious beliefs prevented him from signing an optional document endorsing same-sex marriage, even though a two-star general signed it in his place.
Army Chaplain Major Scott Squires was threatened with court-martial because his endorsing church’s tenets prohibited him from performing a marriage enrichment event for a same-sex couple.
Air Force veteran Oscar Rodriguez was assaulted and forcefully removed from Master Sgt. Chuck Roberson’s retirement ceremony because Oscar was going to mention “God” in his flag-folding speech.
Such hostility extends even to replica dog tags, which Shields of Strength provides to service members as a tangible reminder of Divine protection and strength. Since an activist group complained that the military had licensed the trademarks of the Army, Air Force and Marines to appear opposite of an inspirational verse of Scripture, Shields of Strength now faces the possibility of losing the right to inspire our service members. Denying our troops a source of inspiration, hope and encouragement simply because it contains a religious message is an outrage.
Hostility against chaplains and other service members engaging in the free exercise of religion has continued, even after the election of President Trump. It is deeply disappointing to the men and women of our armed forces that the Department of Defense is so often at odds with the clear policy directives to increase religious freedom both here and abroad, as dictated by the commander-in-chief.
Hopefully, common sense will prevail and the Navy will right its ship. But if the Navy does not reverse course, President Trump should invoke his authority as commander-in-chief to order Schultz’s egregious order rescinded. No American should ever be punished for exercising his or her constitutional right to worship alongside fellow believers.