(RNS) The House and Senate agreed this week on the annual defense spending bill. Tucked in the bill are important changes to how the military may treat religion. Social conservatives won big in the House version of the bill, but the final law weakened gains social conservatives made a year ago. The new language should also make it easier for military leaders to protect the rights of gays and lesbians in the military.

 

Military chaplain

By Photographer’s Mate 2nd Class Eric Powell (http://www.news.navy.mil/view_single.asp?id=16655) [Public domain], via Wikimedia Commons


This image is available for Web publication. For questions, contact Sally Morrow.

Last year, social conservatives pushed and won protections for the religious beliefs of military personnel. The fear–real or imagined–was that the full acceptance of gays and lesbians in the military could lead to actions against service-members whose religious beliefs included opposition to homosexuality or same-sex marriage. Conservatives won. Last year’s National Defense Authorization Act (NDAA) included the following broad provision:

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.

However, there was this caveat:  This did not include anything that violated the Uniform Code of Military Justice “including actions and speech that threaten good order and discipline.”

When President Obama signed the bill into law, he included a signing statement to guide how this provision was to be implemented. Obama called the provision “unnecessary.”  He said that the act would not be allowed to “permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct.” 

This year, social conservatives pushed back. Rep. John Fleming (R-LA) successfully included language in the House NDAA. Fleming’s amendment protected not only the beliefs but the “actions and speech” reflecting religious beliefs. The only exceptions were in cases of “military necessity.”  Actions and speech would need to do more than “threaten” good order and discipline; they would need “actually harm” in order to be sanctioned. In other words, the military would not be able to act because a service-member’s actions might be harmful or discriminatory. The military would need to show that actual damage was done.

The White House objected, saying that, “by limiting the discretion of commanders to address potentially problematic speech and actions within their units, [the new language] would have a significant adverse effect on good order, discipline, morale, and mission accomplishment.”  The American Civil Liberties Union (ACLU) raised similar objections to the House bill.

Social conservatives roundly condemned the administration’s position. FRC’s Ken Klukowski said that if administration objection meant that officers could tell chaplains how to pray. Senator Ted Cruz (R-TX) called the president’s position a threat to religious liberty.

Two days later, the Senate Armed Services Committee followed the administration’s advice and passed its version of the NDAA. Unlike the strict House version, the Senate NDAA gave the military more latitude. Where the House said the military couldn’t act except in cases of “military necessity” and “actual harm”, the Senate relaxed current law. In place of last year’s blanket coverage of religious belief, the new Senate language said that the military can act against religious-based actions if they “could have an adverse impact on military readiness, unit cohesion, and good order and discipline.”  Gone was the Fleming requirement that the actions actually harm the military’s mission.

The White House had no objection to the new Senate language. The ACLU was also mum on the Senate’s actions.

But here is where it gets interesting: The Senators who led the changes weren’t Democratic leaders. The changes came from the Republicans on the committee. The new Senate language was backed by Senate Republicans on the committee–including Senator Cruz–along with with some of the Democrats.

This put social conservatives were in a tough spot. Officially, they said “told by Senate Republicans that the Senate Armed Services Committee” that the language was “similar” to the House version. They called on Congress to have the Fleming amendment put back in, but they refrained from calling out Senate Republicans. They blasted Obama even as they ignored Republicans who gave the president exactly what he wanted. Even months later, the Family Research Council, ignored the role of Republicans in the Senate and the lack of further objection to the NDAA. The FRC still made Obama out to be the bad guy. The FRC said that the administration’s objection was part of a broader “war on religious freedom in the military — against Christianity in particular.” 

In short, social conservatives acted more as partisans than as advocates for religious liberty. Instead of having Cruz and other allies stake out objections, social conservatives said with their silence that they were willing to live with less religious freedom rather. What mattered wasn’t pressuring Republican allies but keeping Obama central to their fundraising efforts.

This week, the Republican-led House went along with the Senate. Rather than further tying the hands of the military, the new NDAA gives the military far more latitude. The new language says that the military can act if officers believe that there is the mere possibility that actions could threaten good order and discipline.

So far, social conservatives have remained silent. Just as the compromise between the House and Senate was announced, the Restore Military Religious Freedom coalition announced a petition against the White House and Defense Secretary Chuck Hagel.

Categories: Politics

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Tobin Grant

Tobin Grant

@TobinGrant blogs for Religion News Service at Corner of Church and State, a data-driven conversation on religion and politics. He is a political science professor at Southern Illinois University and associate editor of the Journal for the Scientific Study of Religion.

14 Comments

  1. Given the overt proselytizing efforts at academies and bases, the marginalizing of atheists/humanists, and increasing attempts to alienate women in the military, it is safe to say social conservatives were never interested in religious liberty in the first place. They merely wanted to subvert the military towards a greater acceptance of fundamentalist Christianity. Religious liberty to the social conservative merely means “For Christians only”.

    • I don’t see much of a change in policy. Military members have never been free to say or do things which were “to the prejudice of good order and discipline in the armed forces.” See Article 134, UCMJ, 10 U.S.C. Sec. 934 (1956). This prohibition has always applied to anti-homosexual speech and conduct if, under the circumstances, it would harm good order and discipline in the service. Basically, even when the service could administratively discharge homosexual military members, speech or actions that would cause discord among members of a unit was never permitted – and, actually, was always potentially criminal. Even when words or actions are protected by the First Amendment, a military member can be punished for speaking or doing them, although then the language or conduct can only be punished if there is a “reasonably direct and palpable connection” between an accused’s actions or statements and the military mission. United States v. Priest, 45 CMR 338 (CMA 1972). That being said a “palpable connection” has never meant that commanders have to wait until speech actually harms good order and discipline to put a stop to it. Basically, the same rules apply now as always applied… if you’re on active duty, you’d better watch what you say and do and make sure it does nothing to disturb the orderly operation and cohesion of your unit. Essentially, Congress’ power to govern and regulate the land and naval forces under Article 1 Section 8 of the constitution trumps individual service members’ constitutional rights in many areas (freedom of movement, right to a jury trial, right to grand jury indictment), and where those rights are not eradicated, they are greatly reduced (due process of law, speech, religious expression, right to politically assemble, etc). Basically, the conservatives in the Senate just affirmed what has been status quo for centuries – now, as always, the military remains a society apart, one with significantly curtailed liberty: a dictatorship defending a republic.

    • Re: “Religious liberty to the social conservative merely means ‘For Christians only’.”

      That’s true. And a lot of us have been aware of it for a long time. But it wasn’t public knowledge until just a short time ago, when Bryan Fischer of the AFA let it slip: http://www.rawstory.com/rs/2013/12/11/right-wing-radio-host-bryan-fischer-says-first-amendment-only-protects-christians/

      The Religious Right talks about “religious freedom” a lot, but they don’t actually want it. They want “religious freedom” only for themselves, and their dour version of Christianity imposed on everyone else. Make no mistake about it: That’s want compulsory fundamentalist Christianity and will tolerate nothing else.

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