Re: State-sanctioned church "police force"

[W. A. Wildhack III]

For those who might find it interesting, here's a link to the church
website:
--- https://briarwood.org/

and a Google Maps view of the campus (which seems big but largely
self-contained):
--- https://goo.gl/maps/4wvtJuouXCJ2

By the way, I may be Presbyterian but I'm from a different branch;
Briarwood is PCA, I'm PC(USA).

 -- Bill Wildhack

Presbyterian Minister, Florida Lawyer, (recently) retired Navy Chaplain


On Wed, Apr 12, 2017 at 1:51 PM, Mark Scarberry <
mark.scarbe...@pepperdine.edu> wrote:

> It could be helpful to learn just what powers the church police force
> would have that private security guards would not. I don't know much about
> what a private security guard might do (in general, or in particular under
> Alabama law). May a private security guard detain a trespasser or vandal
> (for example) for a short time before a city police officer or county
> deputy sheriff arrives? Would the bill passed by the Alabama Senate give
> the church police power to do more than that? Would it give the church
> police power to use deadly force to apprehend a "suspect" under the same
> circumstances that would justify a city police officer in doing it?
>
> More generally, perhaps the bills specifies the rights and powers of the
> church police force. In some states I suppose a private security guard
> might be prohibited from carrying a handgun. A generally applicable law
> allowing organizations to form an internal private security guard unit that
> could carry handguns would be constitutional, I think.
>
> Mark
>
> Prof. Mark S. Scarberry
> Pepperdine Univ. School of Law
>
> On Wed, Apr 12, 2017 at 8:54 AM, Ira Lupu  wrote:
>
>> I understand completely why a large institution or company, with persons
>> and property to protect, would want a security force on the premises and
>> under its control.  But ordinarily that is done through employees or
>> private contractors, and the force is private. It does not have the power
>> to arrest, or to detain for extended periods of time. So I repeat the
>> question -- why would a megachurch (or a major corporation, re: operating
>> its headquarters, which may also be much like a campus) want its police to
>> have governmental authority?  (This is a question quite separate from
>> religious favoritism or entanglement between religious and civil
>> authority).
>>
>> On Wed, Apr 12, 2017 at 11:31 AM, Volokh, Eugene 
>> wrote:
>>
>>>The statute seems unconstitutional to me, likely based on 
>>> *Kiryas
>>> Joel*.  But the answer to the “why?” -- not that such a purpose would
>>> necessarily make it constitutional -- might well be for the same reason
>>> that many public school districts have their own police forces, though of
>>> course this one would be much smaller.
>>>
>>>
>>>
>>>Eugene
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
>>> *Sent:* Wednesday, April 12, 2017 8:19 AM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: State-sanctioned church "police force"
>>>
>>>
>>>
>>> Why would a large, predominantly white suburban congregation near
>>> Birmingham need its own police force?
>>>
>>>
>>>
>>> For a related religion clause case, see State v. Celmer,
>>> http://law.justia.com/cases/new-jersey/supreme-court
>>> /1979/80-n-j-405-0.html (invalidating on First A grounds "a statutory
>>> scheme which grants various municipal powers to the Ocean Grove Camp
>>> Meeting Association of The United Methodist Church.")
>>>
>>>
>>>
>>> On Wed, Apr 12, 2017 at 11:04 AM, Paul Horwitz 
>>> wrote:
>>>
>>> Here's a story from the AP. What do you (or, to use the proper and
>>> incredibly useful grammar of my adopted state, "y'all") think? Is it a
>>> quasi-Grendel's Den case or something of the sort? A direct Establishment
>>> Clause problem insofar as it involves granting governmental or
>>> quasi-governmental status to a church itself? A Kiryas Joel-type case
>>> insofar as it grants a governmental privilege or status that might or might
>>> not be granted to, say, a mosque or some other organization? (Not that I'm
>>> crazy about that aspect of the Kiryas Joel ruling.) Or, insofar as state
>>> law allows the state to empower various entities to have police forces, is
>>> it constitutional because respectful of equal access to governmental
>>> benefits or privileges?
>>>
>>>
>>>
>>> Paul Horwitz
>>>
>>> University of Alabama School of Law
>>>
>>>
>>>
>>> MONTGOMERY, Ala. (AP) – The Alabama Senate has voted to allow a church
>>> to form its own police force.
>>>
>>> Lawmakers on Tuesday voted 24-4 to allow Briarwood Presbyterian Church
>>> in Birmingham to establish a law enforcement department.
>>>
>>> The church says it needs its own police officers to keep its school as
>>> well as its more than 4,000 person congregation safe.
>>>
>>> Critics of the bill argue that a police department that reports to
>>

Re: Garrett Epps on the death of Al Smith

[W. A. Wildhack III]

Thanks for posting this link.  Powerful story we should all have noticed before.

By the way, I think the story gets it right when it says "the drafters
of RFRA excluded one key religious group—the Native American Church."
The law was supposed to apply equally, but I don't remember hearing or
reading that the group meeting on Maryland Ave (and in other places)
included any participants from the NAC.

Bill

W. A. Wildhack III
PCUSA minister, Florida lawyer, Navy Chaplain

On Wed, Dec 10, 2014 at 9:58 AM, Douglas Laycock  wrote:
> Not the presidential candidate, but the lead plaintiff in Employment Division 
> v. Smith.
>
> http://www.theatlantic.com/politics/archive/2014/12/elegy-for-an-american-hero-al-smith-smith-employment-division-supreme-court/383582/
>
> One detail in Garrett's story is not quite right. Congress did not exclude 
> peyote claims from RFRA. Neither did it explicitly include them. The whole 
> theory of RFRA was to enact a single standard that would apply equally to all 
> claims.
>
>
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>  434-243-8546
> ___
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Re: The clergy-penitent privilege and burdens on third parties

[W. A. Wildhack III]

It's been several years since I commented here, but this thread called to
mind an everyday example of current federal policy protecting
communications made by both religious and secular persons to "clergy" of
many different faiths in one particular setting.

While this example surely raises myriad other issues at the intersection of
church and state (!!!), I mention it because it's a broader "privilege"
than any other described so far -- and because it is highlighted in the
current issues of both Navy Times (
http://www.navytimes.com/article/20131204/NEWS/312090003/Chaplains-provide-confidentiality-discussing-sex-assault)
and Marine Corps Times (
http://www.marinecorpstimes.com/apps/pbcs.dll/article?AID=2013312090003).

What the journalist in the article loosely refers to as "federal
confidentiality laws" in the article are both the familiar clergy-penitent
privilege in the Military Rules of Evidence and the Navy policy on
confidential communications to chaplains as described in Secretary of the
Navy Instruction (SECNAVINST) 1730.9, "Confidential Communications to
Chaplains" (available at
http://doni.daps.dla.mil/Directives/01000%20Military%20Personnel%20Support/01-700%20Morale,%20Community%20and%20Religious%20Services/1730.9.pdf).


Recent (Nov 8, 2013) military media releases have highlighted this policy,
particularly in the context of caring for victims of sexual assault in the
military (see, for example,
http://www.dvidshub.net/news/116844/chaplains-find-value-three-day-training-course#.UqFPvvRDuts,
describing Navy chaplains attending "a three-day professional development
training course . . . that focuses on pastoral care and the importance of
confidentiality when dealing with service members and their families,
particularly when involving sexual assault" and referring to "an official
campaign to help educate service members, families and leadership on the
importance of confidential communications with a chaplain.").

While the other military service chaplaincies are likely governed by
similar policies, the Navy policy includes the following, rather broad,
language:

The unconstrained ability to discuss personal matters in complete privacy
encourages full and complete disclosure by personnel and family members
seeking chaplain assistance. Such disclosure establishes a sacred trust,
facilitates increased morale and mission readiness, and benefits both the
individual and the institution. The Department of the Navy (DON) benefits
from having personnel and family members who trust chaplains. The
institution profits from the pastoral care given to its people. Pastoral
care can only be done properly under the protection of confidential
communications.


* * *

The term "confidential communications" includes the legal recognition of
the clergy-penitent privilege, all communications between Navy chaplains
and those who confide in them as an act of religion, a matter of
conscience, or in their role as spiritual advisors. Commanders and
chaplains are required to honor the confidential relationship between
service personnel and chaplains. This protection extends to all authorized
personnel and this obligation extends to all Navy chaplains.


* * *

The unique role of Navy chaplains includes a sacred trust of maintaining
absolute confidentiality. Therefore, chaplains are bound by this inviolable
trust. Neither the holding of additional professional credentials, nor
requirements imposed by state law, relieve the chaplain of this
responsibility. Any person authorized to use chaplain services is covered
by this policy.



Although they may be out there, I'm not aware of any formal challenge to
the policy on the grounds that communications to chaplains by members of
other faiths or non-religious persons shouldn't be protected.

  -- Bill Wildhack

Teaching Elder, Presbyterian Church (U.S.A.); Navy Chaplain; Member of the
Florida Bar
*Needs updating, but for some earlier thoughts I had on some of the other
issues in this particular part of the intersection:  *

Wildhack, William A, Navy Chaplains at the Crossroads: Navigating the
Intersection of Free Speech, Free Exercise, Establishment, and Equal
Protection. Naval Law Review, Vol. 51, p. 217, 2005. Available at SSRN:
http://ssrn.com/abstract=918901




On Thu, Dec 5, 2013 at 9:26 PM,  wrote:

> No question.  They can be helped just as believers might not be!   But
> that is separate from whether, as a legal matter, a privilege attaches.
>
>
>  Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> http://sol-reform.com
>     
> 
>
>
>
> -Original Message-
> From: Steven Jamar 
> To: Law Religion & Law List 
> Sent: Thu, Dec 5, 2013 10:09 pm
> Subject: Re: The clergy-penitent privilege and burdens on third parties
>
>  Sandy and Marci,
>

RE: Impact of same-sex marriage rulings on strict scrutiny in religious exemption cases

[W. A. Wildhack III]

Some possibly disjointed thoughts from my minister/chaplain/lawyer brain . .
. 

 

Several in this discussion have used the phrase "withdraw the power to
solemnize civil marriages from churches" or similar language.  I think a
more accurate-even if cumbersome-phrase might be "the power to perform
legally binding civil marriages in the context of a religious ceremony" or
something along those lines.  Many churches have for generations had
liturgies for solemnizing civil marriages or services "for those previously
married in a civil ceremony."  I've officiated at several religious wedding
ceremonies over the years for those who were first married by a state
official (notary public, justice of the peace, etc.) for one reason or
another but who also wanted a "Christian" wedding in a church.  

 

Taking away the "power" to officiate at a legally binding civil marriage
from clergy has absolutely no effect on any authority conferred by a
religious organization on one of its leaders to perform a religious liturgy
that solemnizes a civil commitment between members of that organization or
anyone else who seeks recognition of their commitment to each other from
that religious organization.  The fact that states have chosen to recognize
such ceremonies as legally binding when those relationships comport with
state law is a different matter.

 

Similarly, while the state may apparently be able to compel equal access to
a public accommodation-even if the owners declared it a religious facility
despite its usage (was it an amphitheater in NJ? it's late here
tonight!)-for ceremonies to which the owners object on religious grounds, or
a pharmacist to dispense medication to which the pharmacist objects on
religious grounds, the state cannot compel a religious organization to
conduct one of its religious ceremonies/rites for someone who does not meet
that organization's standards.

 

In other words, I don't share the fear that the state will be compelling
clergy to perform **religious** wedding ceremonies for partnerships not
recognized as marriages by those churches or clergy-even *if* the state
continues to permit clergy to perform legally binding civil marriages in the
context of a religious ceremony.

 

On a personal note, when I was the command chaplain for the U.S. Navy base
at the south end of the Panama Canal I really enjoyed the freedom that came
from not being permitted to perform legally binding wedding ceremonies in
the Republic of Panama.  Any service member who wanted to get married in
Panama had to be married by the civil authorities.  For me, that meant that
people who came to me for a religious ceremony to solemnize their civil
wedding came to me FOR A RELIGIOUS CEREMONY because they wanted one and not
merely as a means to a change in their legal status (and the increased
monetary allowances that came with having a family).  

 

Although I may well be in a minority on this one, I don't think I'll miss
the authority/power to perform a legally binding marriage at all if it goes
away some day, because I've always found the discussions and celebration
with those who sought a religious ceremony-because they thought it was
important to their life of faith and their life in a community of faith-to
be much more meaningful and enjoyable than discussions with couples who
wanted a "church wedding" just because "that's what people do, isn't it?"  

 

Bill Wildhack

 

Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 

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RE: Virginia ban on state troopers mentioning Jesus Christ in public prayers

[W. A. Wildhack III]

The latest suit by the Military Religious Freedom Foundation on these issues
was filed this week in Kansas (I got a copy of the complaint at 
http://www.militaryreligiousfreedom.org/urgent%20_issues/complain_sept08.pdf

About ten pages of the complaint look like a repeat of the broader
allegations catalogued in the earlier case involving Spc. Jeremy Hall.
However, the specific allegations in this action as I read them on the first
and last few pages are directed at sectarian (specifically Christian)
prayers offered by chaplains at mandatory command events.

With that shift in focus, do any of you think this argument will get more
traction than some of MRFF's earlier filings?

Bill Wildhack
--Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
--Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
--Commander, Chaplain Corps, U.S. Navy Reserve 

**Disclaimer:  Any views expressed below are my own and do not necessarily
reflect the official position of the Department of the Navy or the Navy
Chaplain Corps.**

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Ira (Chip) Lupu
Sent: Friday, September 26, 2008 12:45 PM
To: Law & Religion issues for Law Academics
Subject: Re: Virginia ban on state troopers mentioning Jesus Christ in
public prayers

Chaplains speaking at public events are not ministering to the particular
religious needs of state troopers (in that private context, chaplains can
pray in ways that accommodate and facilitate the beliefs of those to whom
they are ministering).  At public events, open to all (and sometimes
mandatory) chaplains are the voices of the state, and should be limited to
ceremonial, non-sectarian prayer. 

Bob Tuttle and I discuss this question in our paper on the military
chaplaincy, 110 W. Va. L. Rev. 89, 148-159 (2007).

There is lurking here a prior question of whether the government should be
free to appoint chaplains in the first place for police officers,
firefighters, or public employees generally (as Indiana recently did, only
to back down in the face of a lawsuit).  Police officers and firefighters,
unlike prisoners and members of the armed forces, are not under the care and
control of the government.  Why is government ministering to police officers
and firefighters, who are free to seek their own private, spiritual counsel?


 Original message 
>Date: Fri, 26 Sep 2008 11:21:42 -0500
>From: "Christopher Lund" <[EMAIL PROTECTED]>  
>Subject: Re: Virginia ban on state troopers mentioning Jesus Christ in
public prayers  
>To: 
>
>   A necessary travesty?  More proof that religious
>   liberty and legislative prayer are like Harry Potter
>   and Voldemort - neither can live while the other
>   survives?
>   Best,
>   Chris
>
>   __
>   Christopher C. Lund
>   Assistant Professor of Law
>   Mississippi College School of Law
>   151 E. Griffith St.
>   Jackson, MS  39201
>   (601) 925-7141 (office)
>   (601) 925-7113 (fax)
>   Papers:
>   http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>   >>> [EMAIL PROTECTED] 9/26/2008 10:08 AM >>>
>   Thoughts?
>
>
http://www.washingtonpost.com/wp-dyn/content/article/2008/09/24/AR2008092403
471.html?hpid=sec-religion
>
>   --
>   Prof. Steven Jamar
>   Howard University School of Law
>   Associate Director, Institute of Intellectual
>   Property and Social Justice (IIPSJ) Inc.
>
>___
>To post, send message to Religionlaw@lists.ucla.edu
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private.  Anyone can subscribe to the list and read messages that are
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
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RE: Suing God (honest, it's a lawsuit that has really been filed)

[W. A. Wildhack III]

Some of the rest of the story is that Sen. Chambers is apparently Nebraska's
longest serving state senator, and the AP story includes this info:

 

Chambers, who skips morning prayers during the legislative session and often
criticizes Christians, said he filed the lawsuit to show that anybody can
file a lawsuit against anybody.

That, he said, was recently illustrated by a federal lawsuit he said
triggered his lawsuit against God.

Tory Bowen, 24, sued a state judge who barred the words "rape" and "victim,"
among other terms, in the trial of Pamir Safi, who Bowen says sexually
assaulted her. Bowen said Lancaster District Judge Jeffre Cheuvront violated
her free speech rights.

Chambers said Bowen's lawsuit is inappropriate because the Nebraska Supreme
Court has already considered the case and federal courts follow the
decisions of state supreme courts on state matters.

So, while the religious aspect is getting all the attention-no surprise
there!-it may really not be about that at all.  

 

Sure is going to be fun to watch though!

 

Bill Wildhack

 

Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 

 

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, September 18, 2007 11:14
To: religionlaw@lists.ucla.edu
Subject: Re: Suing God (honest, it's a lawsuit that has really been filed)

 

  I don't know Chambers reasons for the lawsuit. But just to temper the
reaction that he must be mad, Chambers, if I remember correctly, is a wily
politician with a good reputation for fighting for his community.

Bobby



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RE: Recent Threads / True Mental Health...

[W. A. Wildhack III]

Ironically/coincidentally/providentially (your choice!), the quote of the
day on my iGoogle home page today is this from Bertrand Russell:

 

If a man is offered a fact which goes against his instincts, he will
scrutinize it closely, and unless the evidence is overwhelming, he will
refuse to believe it. If, on the other hand, he is offered something which
affords a reason for acting in accordance to his instincts, he will accept
it even on the slightest evidence. The origin of myths is explained in this
way.

 

That would seem consistent with David Masci's new piece from the Pew Forum
on Religion and American Life dealing with "How the Public Resolves
Conflicts Between Faith and Science" (available at
http://pewforum.org/docs/?DocID=243).  At a glance, it looks like Pew's
research backs up Russell's assertions to some extent (except maybe for the
comment about myths at the end of the quote), though it also suggests that
even overwhelming evidence may not be enough for some folks.  Oh, well.

 

Anyway, maybe it's time to move on from parsing
proselytize/evangelize/whatever and get back to "Law & Religion issues for
Law Academics."

 

Bill Wildhack

Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 

 
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RE: CFR for conscientious objectors removed

[W. A. Wildhack III]

Removal from CFR does not mean the regulations no longer exist-just that
they're now found only in the DoD documents this part of CFR was based on.

 

I'm not so sure that this action counts as "something that affects religious
liberty so mightily" since the Conscientious Objector regs do still exist
and do still apply to DoD personnel.

 

Bill Wildhack

 

Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 

 

Disclaimer:  Any views expressed below are my own and do not necessarily
reflect the official position of the Department of the Navy or the Navy
Chaplain Corps.

 

 

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Ed Darrell
Sent: Wednesday, July 11, 2007 05:40
To: Law & Religion issues for Law Academics
Subject: Re: CFR for conscientious objectors removed

 

I don't practice in the area, but it seems to me this would severely limit
the ability of lawyers to advise clients on CO status.  Odd that something
that affects religious liberty so mightily would be changed with no public
comment.  Do we have any counselors to Jehovah's Witnesses on the list who
could explain why there's little effect, if that's the case?

 

Ed Darrell

Dallas

[EMAIL PROTECTED] wrote:


Just an informational item.

The Department of Defense on June 19 withdrew from publication in the 
CFR the regulations concerning conscientious objection, previously 
found at 32 CFR 75.

The rationale, at 72 FR 33677, is as follows:

"This document removes part 75, 'Conscientious Objectors' presently in 
Title 32 of the Code of Federal Regulations. The document on which 
this part was based has been revised and is limited only to DoD 
personnel management matters, affects only DoD military personnel, and 
has no impact on the public."

I must say that, from a research standpoint, this is rather 
frustrating, although that is just my own view.

In any case, I thought this list might be interested in this 
development.

Scott Idleman
Marquette University Law School

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RE: Military strips Wiccan of chaplainacy

[W. A. Wildhack III]

Disclaimer:  Any views expressed below are my own and do not necessarily
reflect the official position of the Department of the Defense, any of its
components, or the Navy Chaplain Corps.
 
For those who are interested in exploring the question of latitude Prof.
Jamar raised below, two of the key regulations that appear to be involved
are:
 
Department of Defense Directive 1304.19, "Appointment of Chaplains for
the Military Departments"
Link:  http://www.dtic.mil/whs/directives/corres/html/130419.htm

Department of Defense Instruction 1304.28, "Guidance for the Appointment
of Chaplains for the Military Departments"
Link:  http://www.dtic.mil/whs/directives/corres/html/130428.htm


I'll leave "compelling interest" to others!
 
Very respectfully,
 
Bill Wildhack
Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 


 
  _  

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Monday, February 19, 2007 6:54 AM
To: Law Religion & Law List
Subject: Military strips Wiccan of chaplainacy


A Pentacostal chaplain lost his ability to be a military chaplain when he
converted to wiccan. 

Is there a compelling interest supporting this removal? Or is the military
given this much latitude over chaplains merely as a matter of discretion?

Article in the Washington Post. 


http://www.washingtonpost.com/wp-dyn/content/article/2007/02/18/AR2007021801
396.html

http://www.tiny.cc/jscdn

-- 

Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://iipsj.com/SDJ/


"Any intelligent fool can make things bigger, more complex, and more
violent. It takes a touch of genius - and a lot of courage - to move in the
opposite direction."




Albert Einstein



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RE: Victory for Military Chaplains Who Pray "In Jesus Name"

[W. A. Wildhack III]

Disclaimer:  Any views expressed below are my own and 
do not necessarily reflect the official position of the Department of the Navy 
or the Navy Chaplain Corps.
Professor Guinn has called attention to something I've 
been wondering about since I first saw this particular line of argument 
made in Chaplain Klingenschmitt's "War Against Christians" presentation 
(available on his website at http://www.persuade.tv/frenzy2/WACspeech.ppt 
).  In the quoted passage from my paper, I reported on questions asked of 
the Secretary of the Navy by the Speaker of the House in 1859 regarding whether 
there were any requirements for chaplains to literally *read* prayers, follow 
any partcular liturgy, or whether "non-Episcopal chaplains had to follow the 
Episcopal liturgy."  I did not describe, nor do I recall finding, any 
evidence that official Navy policy at the time actually included such 
requirements.  
 
As quoted below, I did report that the Secretary 
explained in his reply to the Speaker that "he was not aware that the 
instruction to 'read' had ever been construed to require a literal reading from 
a particular prayer book . . . ."  In other words, even if there had been a 
policy requiring "non-Episcopal chaplains . . . to follow the Episcopal 
liturgy," much less a mandatory requirement that prayers be read from the 
Episcopal Book of Common Prayer, the Secretary didn't know about it.  Just 
to make sure there would be no misunderstanding in the future, he issued 
orders clarifying that there was no such policy and a chaplain could "conduct 
public worship according to the manner and forms of the church of which he may 
be a member."  
 

Even so, my article is cited in apparent support of the 
proposition that use of the Episcopal Book of Common Prayer "was once seen as 
'mandatory' for all chaplains."  I do not, however, think 
what I wrote supports that conclusion, and I do not recall finding support for 
it in any of the materials I reviewed or cited.  Of course, other historical sources may have more information on 
this particular point, but I don't.
 
By the way, while the quoted passage from page 226 of 
my paper is reproduced accurately enough below, in context it is 
followed immediately by these words beginning at the bottom of that 
page:

  While conducting worship has always been one of a 
  military chaplain's duties, protecting the rights of others to freely exercise 
  their faith also predates the Constitution and Bill of Rights. [FN59] The 
  earliest chaplains, like their modern-day counterparts, served a military 
  population representing a variety of faith groups or no faith at all. [FN60] 
  One author asserts that the "pattern for chaplain ministry to soldiers of 
  different religious backgrounds was set in the seventeenth century, from the 
  time the first militia units drilled at Jamestown, Plymouth, Boston and New 
  York." [FN61]
Very respectfully,
 
    Bill Wildhack

Member, Florida Bar and bar of the U.S. 
District Court for the Middle District of FloridaMinister of Word and 
Sacrament, Presbyterian Church (U.S.A.)Commander, Chaplain Corps, U.S. Navy 
Reserve 
P.S.  For those who might be interested 
in seeing more of my paper for the larger context of the quoted 
section and the content of the footnotes, the rest of the cite is: Navy 
Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free 
Exercise, Establishment, and Equal Protection, 51 Naval L. Rev. 217 
(2005). 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of David E. 
GuinnSent: Sunday, October 01, 2006 11:57 AMTo: Law & 
Religion issues for Law AcademicsSubject: Re: Victory for Military 
Chaplains Who Pray "In Jesus Name"

I am appalled by the selfishness of this line of 
argument -- that the only point of concern is to "protect the chaplain" -- 
as opposed to serve the religious needs and interest of our armed 
forces.
 
Not only are these interpretations of history and 
law enormously biased and inaccurate, they are offensive.  If the 
chaplaincy's purpose is solely to promote Chaplain Klingenschmitt's sectarian 
faith than perhaps Madison was correct in arguing that Congress' decision to 
hire chaplains was wrong and should now be recended.
 
David


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Gordon James 
KlingenschmittSent: Saturday, September 30, 2006 9:16 
PMTo: Law & Religion issues for Law AcademicsSubject: 
RE: Victory for Military Chaplains Who Pray "In Jesus Name"

Excellent comment Professor Scarberry, 
 
But now that the policy is rescinded, so is any distinction between "public 
worship at divine services" and "public worship at command ceremonies" and so 
the law (once again) protects the chaplain at all events whenever he 
prays...prayer itself is restored as an act of "public worship" the same way 
it always had been since 1860.
 
The origins of the 1860 law were described recently by our new friend 
CDR Wildhack, who wrote in the N

RE: Victory for Military Chaplains Who Pray "In Jesus Name"

[W. A. Wildhack III]

Disclaimer:  Any views expressed below are my 
own and do not necessarily reflect the official position of the Department of 
the Navy or the Navy Chaplain Corps.
 
Professors,
 
If the agreement to remove the "Military Chaplains 
Prayer Law" from the National Defense Authorization Act resulted somehow in 
language being inserted that would have the effect of rescinding the cited 
instructions and reinstating earlier directives --- and I did see the note asserting that the action 
has no operative legal effect --- far more may be rescinded than just the 
language described as limiting prayer.  I am not familiar with Air 
Force Instructions, but rescinding the Navy's 19-page instruction and reinstating the earlier, 4-page instruction --- 
in addition to rescinding the section apparently at issue --- may 
also throw the following other 
provisions of the newer 
instruction into 
question:

  
  the position of Deputy Chief of Chaplains for Reserve 
  Affairs
  
  express language requiring chaplains to "strive to 
  avoid the establishment of religion to ensure that free exercise rights are 
  protected for all authorized personnel" and to "provide ministry to those of 
  their own faith, facilitate ministry to those of other faiths, and care for 
  all service members."
  
  a requirement for chaplains to "respect the rights of 
  others to their own religious beliefs, including the right to hold no 
  beliefs."
  
  a prohibition against chaplains obtaining and wearing 
  weapons or warfare qualifications
  
  an express prohibition against compelling chaplains 
  "to participate in religious activities inconsistent with their beliefls" 
  (suggesting, perhaps, that they can be so compelled?)
  
  a 3 1/2 page Department of the Navy policy on 
  confidentiality of communications made to chaplains and religious program 
  specialists, including broad new protections for servicemembers and chaplains 
  that exceed even the rules on privileged communications in the 
  UCMJ
  
  a 6 1/2 page Department of the Navy policy on 
  accommodation of religious practices within the Navy apparently designed to 
  protect the rights of both chaplains and other 
  servicemembers.
For your convenience and some context, since my guess 
is that few have had the time to review the text of SECNAVINST 1730.7C, the key 
provisions at issue in all this appear to be in paragraphs 5.d. and 
6. of the instruction.  Paragraph 5.d. includes the following 
provisions (among others):

  (2) As a condition of appointment, every [Religious 
  Ministry Professional (RMP)] must be willing to function in a pluralistic 
  environment in the military, where diverse religious traditions exist 
  side-by-side with tolerance and respect. Every RMP must be willing to support 
  directly and indirectly the free exercise of religion by all military members 
  of the DON, their family members, and other, persons authorized to be served, 
  in cooperation with other chaplains and RMPs. Chaplains are trained to 
  minister within the specialized demands of the military environment without 
  compromising the tenets of their own religious tradition.
   
  (3) In providing religious ministry, chaplains shall 
  strive to avoid the establishment of religion to ensure that free exercise 
  rights are protected for all authorized personnel.
   
  (4) Chaplains will provide ministry to those of their 
  own faith, facilitate ministry to those of other faiths, and care for all 
  service members, including those who claim no religious faith. Chaplains shall 
  respect the rights of others to their own religious beliefs, including the 
  right to hold no beliefs.
Paragraph 6 includes the following provisions among 
others:

  b. Chaplains will not be compelled to participate in 
  religious activities inconsistent with their beliefs. 
   
  c. Commanders retain the responsibility to provide 
  guidance for all command functions. In planning command functions, commanders 
  shall determine whether a religious element is appropriate. In considering the 
  appropriateness for including a religious element, commanders, with 
  appropriate advice from a chaplain, should assess the setting and context of 
  the function, the diversity of faith that may be represented among the 
  participants; and whether the function is mandatory for all hands. Other than 
  Divine/Religious Services, religious elements for a command function, absent 
  extraordinary circumstances, should be non-sectarian in nature. Neither the 
  participation of a chaplain, nor the inclusion of a religious element, in and 
  of themselves, renders a command function a Divine Service or, public worship. 
  Once a commander determines a religious element is appropriate, the chaplain 
  may choose to participate based on his or her faith constraints. If the 
  chaplain chooses not to participate, he or she may do so with no adverse 
  consequences. Anyone accepting a commander's invitation to pr