Daniel Blomberg

Instead of wrestling with the repeated warnings from chaplains, endorsing agencies, and service members that military religious liberty will suffer if the existing law on homosexual behavior is dismantled, the recent Pentagon “Don’t Ask, Don’t Tell” report only gives it lip service.

The report, compiled by the Comprehensive Review Working Group, merely acknowledges the problem’s existence and then passes it off by stating that it will not be as bad as predicted, assuming existing regulations protecting religious liberty are followed.

Horribly misleading, to say the least.

Under-Secretary for Defense and Personnel Readiness Clifford Stanley (who is a member of the CRWG) has already rejected such a solution under oath. In his affidavit to the U.S. Court of Appeals for the 9th Circuit in Log Cabin Republicans v. Gates, the retired major general stated that the tear-down would require the changing of “dozens” of regulations, including those protecting the “rights and obligations of the Chaplain corps,” to avoid “significant disruption to the force.” His words echo those of over 60 high-ranking veteran military chaplains who have described the potentially devastating effect of dismantling the law, 10 U.S.C. § 654. These chaplains provided the CRWG with a letter (PDF) that, among other things, described the numerous instances where legally normalizing homosexual behavior has resulted in significant losses of religious liberty.

The report tries to avoid these consequences by stating it does not recommend that abolishing the law be followed by making “sexual orientation” a class that receives non-discrimination protections similar to those for race. But this statement is misleading. While some limited protections granted to classes like race would not be available under the CRWG’s recommendation, the CRWG still recommends ambiguous protections that prevent “discrimination” or “harassment” on the basis of sexual orientation.

This type of system is just what chaplains and endorsing agencies have warned can be used to limit religious liberty for chaplains and service members, basing their warnings on many real-life examples that have already occurred in civilian circles and in foreign militaries.

Further, the report—in its attached “Support Plan for Implementation”—admits that current religious liberty regulations create “boundaries that are not always clearly defined.” In that same section, the report specifically admits that the CRWG recommendation would allow a complaint to be filed on the basis of “sexual orientation discrimination” against a chaplain who had preached a sermon teaching that marriage can only be between a man and a woman.

While the report suggests that such a complaint has little likelihood of success, it ignores the obvious fact that (1) unclearly defined regulatory boundaries will push chaplains toward self-censorship to avoid even specious complaints, (2) the proposed complaint resolution system—where the local chain of command resolves complaints on an ad hoc basis—could worsen that chill on religious speech by having inconsistent applications of unclear rules, and (3) even where a complaint is dismissed, the investigation process itself can create pressure to avoid religious teachings on sexual ethics to avoid being branded as a “troublemaker” or seen as “not a team player.” And given that commanders can be criminally punished for failure to prosecute sexual orientation discrimination or harassment complaints, there’s a significant likelihood that even baseless complaints will be exhaustively investigated.

At least some of this harm could have been relieved by encouraging Congress to adopt detailed and comprehensive religious liberty protections—which are often common additions to laws that give sexual orientation special non-discrimination protections—if it chooses to tear down the current law. The CRWG requested and received model legislation from religious liberty groups, based on existing federal legal protections that are available to civilians, that would have helped limit the damage to religious liberty. But, ignoring both that model legislation and its own recognition that current regulations are unclear, the report simply advocates relying on existing regulations.

And this is despite the overwhelming feedback from the survey the CRWG conducted that service members and chaplains are acutely concerned about repeal’s effect on religious liberty.

The existence of this strong emphasis on religious liberty concerns is itself notable because the CRWG survey of 400,000 service members failed to ask a single direct question about that issue. The CRWG’s script for the many discussions with groups of service members similarly failed to inquire about the concern.

And the one notable time that the CRWG did directly solicit input about possible effects on religious liberty—by contacting chaplain endorsing agencies—the majority of respondents emphasized their opposition to dismantling the law and expressed their concern with its effect on religious liberty. One reliable source has indicated that nearly 75 percent of the responding endorsing agencies opposed repeal.

That the CRWG is content to simply recognize the existence of a problem without doing a thing to avoid it is highly troubling. The report does not nearly address the many difficult concerns that endorsing agencies and chaplains have been raising for months, and which they specifically brought to the CRWG’s attention, such as:

Will the Army Chaplaincy’s Strong Bonds program, which exists to strengthen Army marriages, be forced to include same-sex couples? Will chaplains be allowed to offer advice on sexual ethics to commanders? Will chaplains with orthodox beliefs be able to teach ethics courses at military schools, as they do now? Will chaplains be able to reference their beliefs when hiring civilians for military ministry positions? What will happen when chaplains are approached by a service member engaged in homosexual behavior and asked to provide counsel on that behavior? Can chaplains counsel such a person to cease the homosexual conduct, like they can counsel service members to cease adulterous conduct?

The report’s response: silence.

While the report laudably rejects the argument that opposition to homosexual behavior is the same as racism by noting both that “skin color and sexual orientation are fundamentally different” and that the chaplaincy helped lead racial integration efforts in the 1940s, the report nonetheless creates a different erroneous comparison.

It says that since chaplains and service members have been able to handle the moral issue of abortion without loss of religious liberty under existing regulations, they will be able to do the same with homosexual behavior. But this is wrong for at least two reasons.

First, military regulations did not prevent President Clinton from trying to silence chaplains about abortion in the 1990s. Rather, it took a federal court which recognized in Rigdon v. Perry that his efforts violated the chaplains’ rights protected by the First Amendment.

Second, people who choose to have an abortion are not a protected class in the military, unlike the practical effect of the report’s recommendations regarding people who choose to engage in homosexual behavior. In fact, military bases are banned from performing abortions, and military doctors are given special conscience protections regarding abortion.

In fact, the abortion example’s only useful function is to highlight that chaplains are willing to minister to anyone, including those who make moral decisions with which they disagree. But that is true for chaplains in the context of homosexual behavior as well, as chaplains and endorsing organizations opposed to repeal have repeatedly stressed. Their concern is not who they will be ministering to (since they are happy to minister to everyone), but rather how they will be allowed to minister in the wake of crushing the existing law. And nothing about the CRWG Report addressed that concern.

So, the report does make some important contributions to religious liberty concerns by compiling data and recognizing the distinction between homosexual behavior and innate, innocuous characteristics like race. But because the report’s religious liberty analysis is misleading and inaccurate, it will lead to a loss of that liberty. We should not jeopardize the religious liberty of those who fight to protect our own.


Daniel Blomberg

Daniel Blomberg serves as litigation counsel with the Alliance Defense Fund (www.telladf.org).