This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military chaplaincy. Part II turns to the contention that constitutional inquiry into the military chaplaincy should begin from the basic insight that the military chaplaincy exists for the primary purpose of accommodating the religious needs of military personnel. Thus, the chaplaincy bears a family resemblance to other types of religious accommodations, such as exemptions for religious entities from regulation of employment or land use, protections for religious exercises of prisoners or employees, and arrangements for the religious instruction of public school students.
The Supreme Court has considered Establishment Clause challenges to a variety of religious accommodations and, despite the prevailing general sense of disorder in the universe of Religion Clause jurisprudence, the Court's accommodation decisions represent a surprisingly coherent model. These decisions suggest that religious accommodations must satisfy four, linked constitutional norms. First, is the accommodation a reasonable effort to relieve a government-imposed burden on religious practice? Second, do beneficiaries of the accommodation participate voluntarily? Third, is the accommodation available on a denominationally-neutral basis? Fourth, does the accommodation impose significant material burdens on third parties? In Parts III and IV, the authors apply those criteria to constitutional challenges affecting the military chaplaincy. Part III deals with constitutional challenges to the chaplaincy as a whole.
The authors suggest that the institution of the chaplaincy itself should survive challenge, although specific practices of the institution have less certain constitutional footings. Part IV turns to particular challenges, such as the services' policies for hiring, promotion, and retention of chaplains. The authors also examine the services' regulation of particular aspects of chaplains' ministry, including the conduct of worship, prayer at official functions, and pastoral care. The authors attempt to show how the Establishment Clause standards for religious accommodations should guide the relevant inquiry and judgments and assert that consistent application of these standards will intelligently clarify and wisely resolve the current and heated controversies surrounding the military chaplaincy.
GW Paper Series
GWU Legal Studies Research Paper No. 284; GWU Law School Public Law Research Paper No. 284
Ira C. Lupu & Robert W. Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, 110 W. Va. L. Rev. 89 (2007).