I think Marty’s Point 2 is slightly overbroad. Chaplains do not have the right to pray as they wish when carrying out duties outside the conduct of regular voluntary worship services. I doubt that anyone believes that the military can tell a rabbi or priest or pastor what is an acceptable regular worship service (i.e. a Latin or vernacular mass. In the entire dispute over the Air Force guidelines, no one has contended- or at least no one serious has contended –that the ban on praying in Jesus’ name, for example, applies to weekly services.

Marc Stern


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Saturday, September 30, 2006 5:50 PM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"

 

Chaplain Klingenschmitt:

 

With all due respect, this is simple nonsense.

 

1.  Section 6031 does not say that military chaplains may pray "in Jesus's name," and if it did authorize such prayers in the chaplains' official capacities, it would almost certainly violate the Establishment Clause in that respect.

 

2.  For reasons we've discussed at great length before, chaplains have no Free Exercise rights to pray in the manner of their choosing when they are acting in their official capacities.

 

3.  Citing Lee v. Weisman, and only Lee v. Weisman, for the proposition that the state must permit a state employee to give a sectarian prayer in a public capacity, is just about the most absurd "reading" of a case that I've ever seen.   

----- Original Message -----

Sent: Saturday, September 30, 2006 5:25 PM

Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"

 

Ah yes, Marty, the House receded, but so did these (novel, invasive) Feb 2006 policies recede into oblivion, allowing the real power of the old law (enshrined since 1860) to be fully restored: 

 

THE LAW, GENTLEMEN:  US CODE TITLE 10 SECTION 6031:  "An officer in the chaplain corps may conduct public worship according to the manner and forms of the church of which he is a member."

 

And the U.S. Supreme Court disagrees with your interpretation, that allowing "freedom" in prayer content would somehow violate the establishment clause, in fact they ruled the opposite:

 

1991 Lee vs. Weisman (Majority Decision):

 

"The government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds...The State's role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions" and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in

this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale, (1962), and that is what the school officials attempted to do."

 

So Marty is technically wrong on both counts:

1) There is a long-standing law to let military chaplains pray in Jesus name, and

2) Government censorship of anyone's prayer content violates the First Amendment (unless you disagree with the U.S. Supreme Court).

 

Smile guys...liberty is prevailing here! 

You still believe in freedom of speech, don't you? 

 

Chaplain Klingenschmitt



Marty Lederman <[EMAIL PROTECTED]> wrote:

That's actually rather amusing.  The House -- which passed a bill that would have prescribed that chaplains would have the "prerogative" to pray "according to the dictates of their conscience" -- actually receded in conference.  That is to say, the Senate conferees prevailed, and therefore the law contains no such prescription

 

But then the conferees purport to "driect" the Secretary of the Air Force to rescind the recent policy.  This is not a "direction" of Congress, let alone a duly enacted law, and it has no operative legal effect.

 

Besides which, for the chaplains in their official capacities to engage in public prayer "in Jesus's name" would violate the Establishment Clause, and thus could not be "prescribed," even by statute.


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