Next front in religious liberty fight: Military chaplains and “ceremonies”?

The military chaplaincy, from the Catholic perspective, is one of the strangest amalgamations of duties, responsibilities, authorities, and chains of command. You have your bishop and your commanding officer. You have your “parishoners,” frequently consisting of many people not of the same faith, but for whom you have a more comprehensive pastoral responsibility—performing or arranging for religious ceremonies as possible, counseling, and helping in any way possible that respects their conscience as well as your own—than a conventional parish priest. You have a rank and operate within the military hierarchy, but are not necessarily tied to any unit; you have a freedom of movement that few others enjoy; and you really don’t command any troops except your assistant and any chaplains who are under you if you move up the chaplaincy ranks, but you can be one of the most influential people around through sound counsel. And you still owe obedience to your bishop or religious community superior, and of course to your faith.

I was a Navy chaplain candidate for three years while I was in seminary and had a fair number of opportunities to meet and work with chaplains and their flock on military installations while I held my commission. Truly a special service and an incredible way to serve God by serving those who serve us all—helping them to retain their Center, sometimes in the midst of the worst conditions and situations humanity can contrive.

Thanks to former Congressman Todd Akin, the National Defense Authorization Act passed on December 21 and signed on January 2 by President Obama protects military chaplains from having to perform any ceremonies or rites that violate their conscience.

Like same-sex “marriages.”

Akin introduced language that reads:

The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

But in a “signing statement,” a practice presidents use to thwart the true intent of the law—and a practice then-Senator Obama decried when President Bush used it—President Obama referred to this language as “unnecessary and ill-advised.”

Obama wrote:

The military already appropriately protects the freedom of conscience of chaplains and service members…The secretary of defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct.

That part, “do not permit or condone discriminatory actions” in the directive to the secretary of defense is the sticky part. We already know that President Obama considers an imagined “right” to contraceptives and abortifacients greater than an individual’s right of conscience. He also ended the “don’t ask, don’t tell” policy and has endorsed same-sex “marriage.” In a statement to supporters he assured all, “My administration remains fully committed to continuing the successful implementation of the repeal of don’t ask, don’t tell, and to protecting the rights of gay and lesbian service members,” and that this provision “will not alter that.” His notion of what is offensively “discriminatory” clearly differs from that of a faithful Catholic chaplain, and certainly from the intent of those who wrote this law.

At present military chaplains are permitted to perform same sex “marriages” on military bases. This likely means that Catholic chaplains, while not required to perform the ceremony, is required to help make accommodation for a same-sex couple to have their ceremony.

I do not know what sort of “implementing regulations” the secretary of defense can promulgate that will at one and the same time follow the plain letter of this law and not “permit or condone discriminatory actions” according to the President’s understanding of “discriminatory.” I can see litigation coming of this as soon as a confused Catholic service member demands that the Catholic chaplain perform the same-sex ceremony, perhaps because there is no other chaplain around who would willingly accommodate.

Fortunately, there already is some case law in favor of the good guys. In 1996 a Catholic Air Force Reserve chaplain, Father Vincent Rigdon, sued the Clinton administration. They had forbidden him and all Catholic chaplains from following the directives of the U.S. bishops to ask all Catholics to write Congress in support of the partial-birth abortion ban they had passed, asking them to override President Clinton’s veto. Father Rigdon, joined in the lawsuit by a Jewish chaplain, the Muslim American Military Association, and a Catholic Navy chaplain, won.

Judge Stanley Sporkin of the D.C. Circuit Court noted that chaplains have “rank without a command.” They can order a private to pray a rosary, but the private’s noncompliance does not result in disciplinary action.

Sporkin wrote, “What we have here is the government’s attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains’ free-exercise and free-speech rights, as well as those of their congregants.”

Hopefully, should the Obama administration’s directives lean more toward preventing “discriminatory actions” than respecting freedom of conscience, the courts will see clearly once again.