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UNIVERSITY OF SAN FRANCISCOSCHOOL OF LAWREV. STEPHEN A. PRIVETT, S.J., B.A., M.A., Ph.D., President of the UniversityJENNIFER E. TURPIN Ph.D., Provost and Vice President for Academic AffairsJOHN D. TRASVIÑA, A.B., J.D., Dean of the School of LawJOSHUA PAUL DAVIS, B.A., J.D., Associate Dean for Academic AffairsMICHELLE TRAVIS, B.A., J.D., Associate Dean for Faculty ScholarshipELIZABETH J. BENHARDT, B.A., Assistant Dean for Academic ServicesERIN DOLLY, B.A., J.D., Assistant Dean for Student AffairsBLAKE GRENIER, B.S., M.Ed., Senior Director for AdministrationFACULTYJOHN M. ADLER, A.B., J.D., Professor of LawSHALANDA BAKER, B.S., J.D.,LL.M., Associate Professor of LawWILLIAM W. BASSETT, A.B., M.A., S.T.L., J.C.D., J.D., Professor of Law EmeritusJEFFREY S. BRAND, A.B., J.D., Professor of Law and Chairman of the Center for Law and GlobalJusticeJOSHUA PAUL DAVIS, A.B., J.D., LL.M., Associate Dean for Academic Affairs, Director of the Centerfor Law and Ethics, and Professor of LawCONSTANCE DE LA VEGA, B.A., J.D., Professor of Law and Academic Director of InternationalProgramsJOHN F. DENVIR, B.A., LL.B.,LL.M., Research Professor of the Law and HumanitiesREZA DIBADJ, S.B., M.B.A., J.D., Professor of LawPETER J. DONNICI, B.A., J.D., LL.M., Professor of Law EmeritusDOLORES A. DONOVAN, B.A., J.D., Research Professor of International Law and DevelopmentH. JAY FOLBERG, B.A., J.D., Professor of Law EmeritusDAVID J. FRANKLYN, B.A., J.D., Professor of Law, Director of the LL.M. Program in IntellectualProperty and Technology Law and Director of the McCarthy Institute for Intellectual Propertyand Technology LawSUSAN A. FREIWALD, B.A., J.D., Professor of LawJACK I. GARVEY, B.A., J.D., Professor of LawTRISTIN GREEN, B.S., M.S.J., J.D., Professor of LawJOSEPH T. HENKE, B.A., J.D., LL.M., Professor of Law EmeritusBILL ONG HING, A.B., J.D., Professor of LawPETER JAN HONIGSBERG, B.A., J.D., Professor of LawDEBORAH M. HUSSEY FREELAND, B.A., Ph.D., J.D., Associate Professor of LawTIM IGLESIAS, B.A., M.A., J.D., Professor of LawALICE KASWAN, B.S., J.D., Professor of LawVIRGINIA KELSH, B.A., M.S.L.S., J.D., Professor of Law Emerita and Director Emerita of the DorraineZief Law LibraryDANIEL LATHROPE, B.S.B.A., J.D., LL.M., E.L. Wiegand Distinguished Professor in TaxRICHARD A. LEO, A.B., M.A., Ph.D., J.D., Professor of LawRHONDA MAGEE, B.A., M.A., J.D., and Professor of LawMAYA MANIAN, B.A., J.D., Professor of LawJ. THOMAS MCCARTHY, B.S., J.D., Senior Professor of Law and Founding Director of the McCarthyInstitute for Intellectual Property and Technology LawPAUL L. MCKASKLE, B.A., J.D., Professor of Law EmeritusSHARON A. MEADOWS, B.A., M.A., J.D., Professor of Law and Director of the Criminal and JuvenileJustice ClinicsRONALD H. MICON, B.A., J.D., Professor of LawSUZANNE E. MOUNTS, B.A., J.D., Professor of LawJULIE NICE, B.S., J.D., Herbst Foundation Professor of LawMARIA LINDA ONTIVEROS, A.B., MILR, J.D., J.S.D., Professor of LawBRUCE M. PRICE, B.A., J.D., Ph.D., Professor of LawC. DELOS PUTZ, B.A., J.D., Professor of Law EmeritusDAVID L. RATNER, A.B., LL.B., Professor of Law EmeritusELDON H. REILEY, B.S., J.D., Professor of Law EmeritusJOSHUA D. ROSENBERG, B.A., Ed.D., J.D., LL.M., Professor of LawSTEVEN F. SHATZ, A.B., J.D., Phillip and Muriel Barnett Professor of Trial AdvocacyROBERT E. TALBOT, B.A., J.D., Professor of Law and Director of the Mediation, Investor Justice, andInternet/Intellectual Property ClinicsMICHELLE TRAVIS, B.A., J.D., Associate Dean for Faculty Scholarship and Professor of LawRONALD E. WHEELER, B.A., J.D., MLIS, Director of the Dorraine Zief Law Library and AssociateProfessor of Lawiv

Not “For God and Country”: AtheistMilitary Chaplains and theFree Exercise ClauseBy ANTONY BARONE KOLENC*IntroductionTHROUGHOUT HISTORY, CHAPLAINS HAVE MINISTERED tothe religious needs of military members. They provide “spiritual careand the opportunity for [military] members, their families, and otherauthorized personnel to exercise their Constitutional right to the freeexercise of religion.”1 The motto of U.S. Army chaplains captures thisfundamental spiritual core: Pro Deo et Patria 2—“For God and Country.”3 But nontheists4 are now demanding their own chaplains as areligious accommodation. Although some quip that an atheist chap-* Antony Barone Kolenc, JD, University of Florida College of Law, is an AssistantProfessor of Law at Florida Coastal School of Law, where he teaches Constitutional Law.He served as a Lieutenant Colonel in the Air Force Judge Advocate General’s Corps beforeretiring in 2012. The views expressed in this Article are those of the author alone and donot reflect the official policy of the Department of Defense (“DOD”) or Florida CoastalSchool of Law. Professor Kolenc also acknowledges Noah B. Benton and Sara L. Goodinfor their keen research assistance and contributions to this paper.1. U.S. DEP’T OF THE AIR FORCE, POLICY DIRECTIVE 52-1, CHAPLAIN SERVICE para. 1(2006) [hereinafter AFPD 52-1].2. U.S. Army Chaplaincy Mission, CHAPNET, / (last visited May 27, 2014).3. Randy Murrey, Army Chaplains Corps: Serving ‘God and Country’ for 234 Years with25,000 Chaplains, U.S. ARMY (July 9, 2009), 00-chaplains/.4. This Article uses the terms atheists, nontheists, and secularists to refer to those “whotake negative or skeptical positions on the existence of superhuman beings and supernatural powers.” Nelson Tebbe, Nonbelievers, 97 VA. L. REV. 1111, 1117 (2011). No disparagement is meant by these terms, which are also used by the group’s own members. Althoughsome argue followers of Eastern religions, such as Buddhism, are also nontheists, this Article, similar to Professor Tebbe, limits the scope of the term to traditional nonbelievers. Seeid. at 1118 (defining nonbelievers as atheists, agnostics, and “most secular humanists, freethinkers, and the like—to the degree that they take negative or skeptical positionson [spiritual] issues”).395

396UNIVERSITY OF SAN FRANCISCO LAW REVIEW[Vol. 48lain is an “oxymoron,”5 the issue is no laughing matter. The quest fornontheist chaplains slices to the core of how religion is defined underthe First Amendment. This Article critically examines whether theFree Exercise Clause6 should be used to accommodate the demandfor atheist military chaplains and proposes an alternative to admittingatheist chaplains into the historically faith-based chaplaincy.The push for atheist military chaplains is of recent vintage,7emerging in 2011 as the latest salvo in the battle of the New Atheists8against a military structure they view as beholden to Christianity.95. 159 CONG. REC. H4936, H4942-43 (daily ed. July 23, 2013) [hereinafter House Debate] (comments of Rep. Jim Bridenstine (R., OK) and Rep. John Fleming (R., LA)); KenKlukowski, Atheists Want Their Own Military Chaplains, BREITBART (June 5, 2013), /Atheists-Want-Their-Own-MilitaryChaplains (“No one has yet offered an explanation of how an atheist chaplain is anythingother than an oxymoron . . . .”).6. U.S. CONST. amend. I. A topic this vast could engender other lengthy articles focusing on related inquiries under the Religious Freedom Restoration Act of 1993, Pub. L.No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb–2000bb-4) or the Establishment Clause, U.S. CONST. amend. I. But I believe the discussion should begin withthe Free Exercise Clause. Thus, I will limit the scope of this Article to that examination.7. See Brad Hirschfield, Why the Military Needs Atheist Chaplains, FAITH STREET (Nov.21, 2011), the-military-needs-atheist-chaplains/10176. The mainstream news media first began to report in earnest on thecall for atheist military chaplains near the end of 2011. Id. The issue garnered furtherattention a month later when National Public Radio ran a major story on one advocacygroup’s efforts to convince the military to authorize atheist chaplains. See All Things Considered: Chaplains Wanted for Atheists in Foxholes, NPR (Dec. 4, 2011) [hereinafter ChaplainsWanted for Atheists in Foxholes], available at wanted-for-atheists-in-foxholes.8. Simon Hooper, The Rise of the ‘New Atheists,’ CNN (Nov. 9, 2006), eism.feature/. Popular authors, such asRichard Dawkins and Christopher Hitchens, were pioneers of the modern movementdubbed “New Atheism.” Id. They shared “a belief that religion should not simply be tolerated but should be countered, criticized and exposed by rational argument wherever itsinfluence arises. . . . Their tone is overtly confrontational rather than gently persuasive.” Id.A subset of this movement, which includes organizations such as the Military Association ofAtheists and Freethinkers (“MAAF”) and the Military Religious Freedom Foundation(“MRFF”), has targeted religion in the military. See MILITARY ASS’N OF ATHEISTS &FREETHINKERS, (last visited Feb. 10, 2014); MILITARY RELIGIOUSFREEDOM FOUND., (last visited Feb. 10, 2014).9. See Letter from Lori Lipman Brown, Director, Secular Coalition for America, toPresident-elect Barack Obama (Nov. 10, 2008) [hereinafter Secular Letter], available at n0m6bcl2r.pdf. In the last decade,nontheists have raised numerous complaints about military life, especially targeting Evangelical Christians. Id. The Secular Coalition for America sent a letter to President-electBarack Obama, asking the military to accommodate nontheistic members and “to preventa minority of some evangelical Christians from perpetuating employment discriminationbased on religion, coercive proselytizing in everyday activity, and an overall culture of religious intolerance against those who do not share the beliefs of this minority.” Id.

Winter 2014]NOT “FOR GOD AND COUNTRY”397Their quest represents an important shift in tactics in the evolvingnontheist struggle against religion in secular institutions.10 It is “partof a broader campaign by atheists to win official acceptance in themilitary,” to “raise money and meet on military bases,” and to “distribute their literature [and] advertise their events.”11 This war is notlimited to the military; it is being waged on all fronts. For instance, inJuly 2012, Stanford University followed Harvard’s lead in allowing anatheist chaplain to serve its campus community.12Under current regulations, nontheists do not meet the minimumqualifications for the chaplain corps because they are not endorsed bya “qualified Religious Organization.”13 The movement to end an exclusively faith-based military chaplaincy came to a head in the summerof 2013 during Congress’s consideration of the 2014 National DefenseAuthorization Act (“NDAA”).14 A proposed amendment would have10. See Chris Carroll, Military Atheists Seeking the Rights and Benefits Offered to ReligiousGroups, STARS & STRIPES (Aug. 24, 2011), 1.153105. From 2010 to 2011, overtwenty new nontheist groups were formed at military bases. Id.11. James Dao, Atheists Seek Chaplain Role in the Military, N.Y. TIMES, Apr. 26, 2011, atA1, available at ml?pagewanted all& r 0; see also Carroll, supra note 10 (discussing the goals of the secular group Atheists ofMeade (“ATOM”)).12. See Nanette Asimov, Stanford Gets a Chaplain for Atheists, S.F. GATE (Dec. 22, DW3B (noting that, even though the independent Humanist Community at Stanford hires the so-called chaplain, the position is entitled to office space in the university’sOffice of Religious Life).13. U.S. DEP’T OF DEF., INSTRUCTION 1304.28, GUIDANCE FOR THE APPOINTMENT OFCHAPLAINS FOR THE MILITARY DEPARTMENTS para. 6.1 (2004) (“To be considered for appointment to serve as a chaplain, an RMP [(Religious Ministry Professional)] shall receivean endorsement from a qualified Religious Organization . . . .”); Richard D. Rosen, Katcoffv. Marsh at Twenty-Two: The Military Chaplaincy and the Separation of Church and State, 38 U.TOL. L. REV. 1137, 1166 n.201 (2007) (“The Armed Forces Chaplain Board decideswhether to accept the religious organization seeking DoD recognition to provide chaplainsfor the military, and the individual or individuals endorsed by the religious organizationmust meet the requirements for a commission.”); In re Navy Chaplaincy, 697 F.3d 1171,1173 (D.C. Cir. 2012) (“In order to become a Navy chaplain, an individual must have anecclesiastical endorsement from a faith group endorsing agency certifying that the individual is professionally qualified to represent that faith group within the Chaplain Corps.”(internal quotation marks omitted)); U.S. DEP’T OF THE ARMY, REGULATION 165-1, ARMYCHAPLAIN CORPS ACTIVITIES para. 3-1(a) (2009) [hereinafter AR 165-1] (“The Chaplain is areligious professional whose educational qualifications and certification by a religious organization meet the appointment requirements of DODD [(Department of Defense Directive)] 1304.19.”); U.S. DEP’T OF THE NAVY, INSTRUCTION 1730.7D, RELIGIOUS MINISTRYWITHIN THE DEPARTMENT OF THE NAVY para. 5(e)(1) (2008) [hereinafter NAVY INSTRUCTION1730.7D].14. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127Stat. 672 (2013).

398UNIVERSITY OF SAN FRANCISCO LAW REVIEW[Vol. 48required the Secretary of Defense to appoint chaplains “who are certified or ordained by non-theistic organizations and institutions, such ashumanist, ethical culturalist, or atheist.”15 The amendment failed,16but it prompted a proposed House counter-amendment in the 2014Department of Defense Appropriations Act17 that would have prevented the Department of Defense (“DOD”) from appointing atheistchaplains in the future.18Can atheists constitutionally be excluded from the military chaplaincy? This Article addresses this question within the context of theFree Exercise Clause. Part I discusses the constitutionality of the chaplain corps and frames the arguments on both sides of the atheist chaplain issue. Part II tackles the issue’s thorniest and most abstractquestion: Should atheism be considered a religion entitled to affirmative protection under the Free Exercise Clause?19 Assuming atheismshould be treated as a religion, Part III examines more concrete features of the debate, including commonly raised arguments by secularists against an exclusively faith-based chaplaincy. Finally, Part IVexplores whether the admission of atheists would fundamentally redefine the nature of the chaplaincy by secularizing its faith-based core.The Article ultimately rejects the demand for atheist chaplains and, asan alternative, suggests creating a specialized position outside the historically faith-based chaplaincy.I.Drawing First Amendment Battle LinesThe First Amendment to the U.S. Constitution states: “Congressshall make no law respecting an establishment of religion, or prohibit15. Amendment to H.R. 1960 Offered by Mr. Andrews of New Jersey, SECULAR COAL. FOR AM.(June 5, 2013), amendment 1.pdf.16. Rick Maze, Mixed Votes from HASC on Military Religious Freedom, NAVY TIMES (June 5,2013), reedom; Eric W. Dolan, Christian Democrat Calls on Congress toRespect Atheists in the Military, RAW STORY (June 16, 2013), e-military/.17. The Department of Defense Appropriations Act of 2014 was eventually passed aspart of the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5, 86–152(2014).18. See House Debate, supra note 5, at H4941–43 (prohibiting the use of funding “toappoint chaplains for the military departments in contravention of” current DOD regulations, which do not recognize atheist chaplains). That amendment did not make the finalconsolidated bill. See Consolidated Appropriations Act, 2014, 128 Stat. 5.19. When I refer to the affirmative protection of the Free Exercise Clause, I meanone’s right to use the Clause to affirmatively seek government accommodations for one’sreligious practices. This is not to deny that the Clause also negatively protects all personsfrom government coercion to religious practice.

Winter 2014]NOT “FOR GOD AND COUNTRY”399ing the free exercise thereof . . . .” 20 This deceptively straightforwardsentence has engendered endless discussion and controversy aboutthe amendment’s two distinct Religion Clauses. This part of the Article briefly discusses how the chaplaincy can constitutionally surviveunder the Establishment Clause and frames the two sides of the atheist chaplain debate as presented under the Free Exercise Clause.A. The Constitutionality of the Chaplain CorpsThe constitutional arguments for and against atheist chaplainsmust be grounded in an understanding of why the existing militarychaplaincy is constitutional in the first place.21 In short, the chaplaincorps exists primarily as a government accommodation so militarymembers can freely exercise their religion. Today, the Second Circuit’s 1985 treatment of the chaplaincy’s constitutionality in Katcoff v.Marsh22 still stands as the definitive case in this area.In Katcoff, two Harvard law students challenged the constitutionality of the U.S. Army’s chaplain corps.23 They argued that government funding of the chaplaincy violated the Establishment Clause andthat a privately funded program would adequately serve any Free Exercise issues raised by military service.24 The Second Circuit rejectedthis argument, finding a private program “inherently impractical” andnoting the unlikelihood that religious denominations in the nationwould “favor, much less financially support, a civilian chaplaincy,” orthat civilian chaplains would submit themselves to the kind of militarydiscipline that “is essential to the efficient operations of the armed20. U.S. CONST. amend. I.21. This Article assumes the chaplaincy’s constitutionality and thus discusses the constitutionality issue only briefly when appropriate. For further discussion on the issue, seeIra C. Lupu & Robert W. Tuttle, Instruments of Accommodation: The Military Chaplaincy and theConstitution, 110 W. VA. L. REV. 89 (2007), for an analysis of the chaplaincy as an accommodation under the Free Exercise Clause; Julie B. Kaplan, Military Mirrors on the Wall: Nonestablishment and the Military Chaplaincy, 95 YALE L.J. 1210 (1986), for a discussion on theconstitutionality of the current chaplaincy program; and Klaus J. Hermann, Some Considerations on the Constitutionality of the United States Military Chaplaincy, 14 AM. U. L. REV. 24(1964), for a discussion of the chaplaincy’s relationship with, and propriety under, the FirstAmendment.22. 755 F.2d 223 (2d Cir. 1985).23. Katcoff v. Marsh, 582 F. Supp. 463, 464 (E.D.N.Y. 1984), aff’d in part, 755 F.2d 223.The district court described the challenge as “more the grist of a moot court competitionthan a case or controversy.” Id. But it found the students had standing under the SupremeCourt’s taxpayer exception in Establishment Clause cases. Id. at 471. The idea for the lawsuit “came to the plaintiffs during one of their law classes.” See IZRAEL DRAZIN & CECIL B.CURREY, FOR GOD AND COUNTRY: THE HISTORY OF A CONSTITUTIONAL CHALLENGE TO THEARMY CHAPLAINCY 2 (1995).24. Katcoff, 755 F.2d at 235.

400UNIVERSITY OF SAN FRANCISCO LAW REVIEW[Vol. 48forces.”25 In the past, limited experimentation with civilian clergy aschaplains had proved to be problematic for the military.26While upholding the military chaplaincy, the Second Circuit decided not to apply the potentially fatal Lemon v. Kurtzman27 test because it did not take into account the judicial deference required inthe military context; nor did it recognize the unique Free Exercisecontext of the chaplaincy issue.28 Instead, the court applied the tradition-based test of Marsh v. Chambers,29 noting “weighty evidence” thatCongress had authorized the military chaplaincy “before and contemporaneous with the adoption of the Establishment Clause,” and that ithad enjoyed an unbroken history for the entirety of the nation’sexistence.3025. Id. at 236. The court explained:This discipline demands willingness to undergo thorough military training exceptin the use of firearms, to remain with an Army unit for a specified period of time,to obey orders to move overnight with that unit to other locations, which mightbe thousands of miles away, and to advance as ordered on the battlefield and risktheir lives in order to minister to the wounded and dying.Id. at 236-37.26. See DRAZIN & CURREY, supra note 23, at 43. Drazin and Currey describe how civilianclergy in Vietnam attempted to minister to the troops in the 1960s and argue that the “taskof escorting such visitors hampered the work of military chaplains” and led to various otherproblems. Id. But see HERMAN A. NORTON, STRUGGLING FOR RECOGNITION: THE UNITEDSTATES ARMY CHAPLAINCY 1791–1865, at 44 (1977). Despite this, prior to 1830, civilianclergy on the frontier “functioned as post chaplains at Fort Brady and Fort Mackinac inMichigan territory; Fort Crawford and Fort Winnebago, Wisconsin territory; Fort Leavenworth, Kansas territory; and Fort Snelling, Minnesota territory, the farthest outposts on theNorthwest frontier [and] [t]he same practice existed at several posts in the East.” Id. Thispractice, however, was phased out.27. 403 U.S. 602 (1971) (establishing a three-prong analysis for Establishment Clausecases). Under Lemon, to meet the requirements of the Establishment Clause: “First, thestatute must have a secular legislative purpose; second, its principal or primary effect mustbe one that neither advances nor inhibits religion; finally, the statute must not foster anexcessive government entanglement with religion.” Id. at 612–13 (internal citation omitted) (internal quotation marks omitted). Analyzing Lemon’s first prong, the Second Circuitacknowledged that the “ultimate objective” of the chaplaincy was to improve the “moraleof our military personnel”; however, the court went on to conclude that the chaplaincy’s“immediate purpose is to promote religion by making it available, albeit on a voluntarybasis, to our armed forces.” Katcoff, 755 F.2d at 232. Regarding Lemon’s second prong, thecourt recognized that the chaplaincy had the effect of “advanc[ing] the practice of religion.” Id. Under the third prong, the court concluded that the chaplaincy’s “arrangementswith many church organizations of different denominations[ ] entangle[d] the government with religious accrediting bodies.” Id.28. Katcoff, 755 F.2d at 235.29. 463 U.S. 783 (1983).30. Katcoff, 755 F.2d at 232 (internal quotation marks omitted) (citing Marsh, 463 792).

Winter 2014]NOT “FOR GOD AND COUNTRY”401The Second Circuit agreed with the government that the FreeExercise Clause required an Army chaplaincy to ensure that soldierswould be able to freely exercise their religion when deployed and inremote locations.31 This was consistent with Army leadership’s beliefthat “free exercise was the raison d’etre of the chaplaincy.”32 However,the Second Circuit was not entirely convinced and partly remandedthe case to determine whether the Constitution would justify the funding of chaplains in large urban areas where civilian churches werefreely available.33 The district court never resolved that question—andthe Supreme Court never had a chance to review the case—becausethe plaintiffs dismissed it after remand.34Today, the Supreme Court would likely uphold the chaplaincy onsimilar grounds, especially in light of its recent decision involving legislative prayer.35 The Supreme Court has often recognized the need todefer to Congress on military matters36 and has previously upheld federal accommodations based on the Free Exercise Clause. For example, in Cutter v. Wilkinson,37 the Court unanimously upheld theReligious Land Use and Institutionalized Persons Act (“RLUIPA”),38which applied strict scrutiny to any government action that placed asubstantial burden on a prisoner’s religion.39 In allowing Congress to31. Id. at 234-35 (“[The Free Exercise Clause] obligates Congress, upon creating anArmy, to make religion available to soldiers who have been moved by the Army to areas ofthe world where religion of their own denominations is not available to them. Otherwisethe effect of compulsory military service could be to violate their rights under both Religion Clauses.”).32. DRAZIN & CURREY, supra note 23, at 115.33. Katcoff, 755 F.2d at 237-38.34. DRAZIN & CURREY, supra note 23, at 203-05 (relating how Katcoff negotiated asettlement to avoid legal fees and costs on appeal); see also Rosen, supra note 13, at 1142(reporting recollections of government litigators in Katcoff).35. See Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014) (reaffirming Marshand noting that “the First Congress provided for the appointment of chaplains only daysafter approving language for the First Amendment”); Lupu & Tuttle, supra note 21, at 9596 (discussing the reasoning of Katcoff); Rosen, supra note 13, at 1143 (arguing that theSupreme Court would be unlikel

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