Leaked Air Force Legal Opinion Approves Religious Expression

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Religion Dispatches Religious Liberty

Leaked Air Force Legal Opinion Approves Religious Expression

Paul Rosenberg

According to a retired attorney for the DOD, "When you proselytize as a commander...you necessarily send doubts to the subordinates that you oversee about your impartiality and thus degrade good order and discipline, and in turn degrade combat capability."

In apparent defiance of its own regulations and the First Amendment, the judge advocate general (JAG) of the Air Force has issued an opinion approving religious expression during an official change of command ceremony.

The opinion, which was leaked to the Military Religious Freedom Foundation (and a copy of which was shared with this reporter), allows even more expansive expression during a purportedly “private” promotion ceremony, conducted after a mere ten-minute break. Going beyond lax enforcement of recent cases, MRFF President Mikey Weinstein called it “a direct and defiant nuclear attack against the First Amendment’s separation of church and state.”

“The JAG opinion is definitely wrong,” Andrew Seidel, counsel for the Freedom From Religion Foundation told RD. Alex Luchenitser, associate legal director for Americans United for Separation of Church and State, agreed.

“We think this opinion is unconstitutional, that this violates the religious freedom and the separation of church and state,” Luchenitser said.

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They’re not alone. A retired senior Department of Defense attorney called the opinion “highly strained” at best. Religious freedom “doesn’t mean that you can proselytize in the military,” he said. “When you proselytize as a commander or as a supervisor in a military organization, you necessarily send doubts to the subordinates that you oversee about your impartiality and thus degrade good order and discipline, and in turn degrade combat capability.”

That standard—quite different from civilian cases—derives from a 1974 Supreme Court case, Parker v. Levy, he explained, which in turn guided the creation of Air Force Instruction 1-1, Paragraph 2.12:

Leaders at all levels…. must ensure their words and actions cannot reasonably be construed to be officially endorsing or disproving of, or extending preferential treatment for any faith, belief, or absence of belief. [emphasis added]

In contrast, the JAG opinion stated:

[A] commander may: briefly thank a Supreme Being (either generally, such as Providence, that Almighty Being, our Lord, or the Supreme Author of All Good; or specifically, such as Allah, Brahman, Christ, Ganesh, God, Yahweh, or even Beelzebub), have an invocation, and choose whomever he or she would like to provide the invocation.

“It’s directly contrary” to AFI 1-1, Luchenitser said. “If a military officer makes religious references in a military ceremony that would certainly be construed by the service members as officially endorsing or extending preferential treatment to whatever faith the military officer is referencing in the speech.”

There’s also an element of bad faith.

“The idea that any commander in the military is going to thank anybody other than Christ, or Lord—that a commander’s going to thank Allah, or Ganesh, or Beelzebub—is just outlandish,” Seidel said. “[The JAG’s] opinion is inclusive, but we certainly know that the prayers in practice never are.”

Seidel cited a 2010 study finding a quarter of service members are nonreligious. “So, you’re talking about an audience full of nonreligious service members whose commanding officer is imposing religion on them in a way they can’t escape. That’s coercion,” he said. “It shouldn’t be happening.”

MRFF plans a formal appeal “to the highest levels of the Department of Defense,” Weinstein said. “If we fail to receive timely and appropriate remediation relief, we will aggressively sue the Air Force in federal court.”