The Army Lawyer | Issue 2 2021View PDF

null Religious Freedom

A Service member wears religious headgear during a menorah lighting ceremony in December 2020 on Camp Arifjan, Kuwait. The ceremony was made available for all Service members in recognition of the Jewish holiday Hanukkah. (Credit: SGT Khylee Woodford)

Practice Notes

Religious Freedom

An Overview of Religious Accommodation Policies in the Army


While serving in the Army, a Soldier’s ability to practice their faith is an important element of personal and institutional readiness. The Army has a robust and comprehensive religious accommodation program that “places a high value on the rights of its Soldiers to observe tenets of their respective religions or to observe no religion at all.”1 It is essential that commanders and Soldiers know and understand the Army’s policies on religious accommodations. This ensures Soldiers can practice their faith, consistent with law and policy, while safeguarding the command’s ability to maintain readiness. This article provides an overview of the Army’s current policies for religious accommodations, and provides practice tips for command teams to consider when evaluating the accommodation of religious practices.2

Religious Accommodation

Within the Army, religious accommodations enable a Soldier to exercise tenets of their religion, while continuing to serve. Common phrases that may be associated with religious accommodations are “religious liberty” and “religious freedom.” Commanders are responsible for religious programs within the Army, so it is important they understand the policies that will drive their decisions regarding religious accommodations.3 It is equally important for commanders to utilize their chaplains and judge advocates (JAs) when making decisions concerning religious accommodations. Chaplains and religious affairs specialists can assist the commander in an advisory role and through formal interviews for religious accommodations. Judge advocates can assist by ensuring a commander’s decision to approve or deny a religious accommodation is consistent with policy and the U.S. Constitution.

Constitutional and Statutory Basis of Religious Freedom

The foundation of religious freedom in our country is grounded in the First Amendment, which provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”4 The concept behind religious freedom is that people have a right to their religious beliefs, and may generally practice their religious beliefs, with minimal Government intervention. This idea of the right to believe in something versus the right to take some action or abstain from action, based on those beliefs, was first examined by the U.S. Supreme Court in the late 19th century;5 and the Court’s opinion of what constitutes “religious freedom,” and to what degree the Government can promote or control that freedom, has varied over the decades.6 Congress passed the Religious Freedom Restoration Act (RFRA)7 in an effort to provide a more formulaic interpretation and application of Government intervention into religious freedom. The RFRA provides “broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”8 The RFRA, which applies to “‘every branch, department[,] agency, instrumentality, and official (or other person acting under color of law) of the United States’ . . . also applies in the military context.”9

Religious Accommodation Policies Within DoD

As a Government institution, all religious accommodation policies within the Department of Defense (DoD) must abide by the First Amendment’s Free Exercise Clause and Establishment Clause,10 while still providing equal protection under the law. The DoD implements RFRA through DoD Instruction (DoDI) 1300.17.11 It is DoD policy that, “[p]ursuant to the Free Exercise Clause of the First Amendment to the United States Constitution, Service members have the right to observe the tenets of their religion or to observe no religion at all.”12 The DoDI mandates that if “a military policy, practice, or duty substantially burdens a Service member’s exercise of religion, accommodation can only be denied if: 1) The military policy, practice, or duty is in furtherance of a compelling government interest[, and] 2) It is the least restrictive means of furthering that compelling government interest.”13

The Army’s Religious Accommodation Policies

The Army implements DoDI 1300.17 through Army Regulation (AR) 600-20, AR 670-1,14 AR 165-1, Army Techniques Publication 1-05.04,15 and Field Manual 1-05.16 Pursuant to AR 600-20, “the Army places a high value on the rights of its Soldiers to observe the tenets of their respective religions or to observe no religion at all; while protecting the civil liberties of its personnel to the greatest extent possible, consistent with its military requirement.”17

Accordingly,

“requests for religious accommodations from a military policy, practice, or duty that substantially burdens a Soldier’s (to include military prisoner’s) exercise of religion may be denied only when the military policy, practice, or duty furthers a compelling government interest and is the least restrictive means of furthering that compelling government interest.”18

When evaluating requests for religious accommodations, it is helpful for the commander to know how the Army categorizes various forms of religious practices.

Types of Religious Practices Within the Army

The Army divides religious practices into five categories: 1) worship practices; 2) dietary practices; 3) medical care/immunizations; 4) wear and appearance of the uniform; and 5) personal appearance and grooming practices.19 Worship practices generally involve a religious practice that conflicts with a Soldier’s normal availability for duty,20 e.g., worshipping on a weekday during duty hours. Accommodations for a Soldier’s worship practice can typically be approved informally at the company level.21 Dietary practices involve beliefs that may prohibit the consumption of certain foods or require food to be prepared in a certain manner,22 (e.g., Kosher foods). Medical practices typically involve exemptions from immunizations or declining certain medical procedures.23 Religious wear and uniform or grooming practices that are based on religious beliefs generally fall into three sub-categories: accommodation requests that require a policy waiver, accommodation requests that require General Court-Martial Convening Authority (GCMCA) approval, and accommodations currently authorized in policy. Religious jewelry, apparel, and articles that are authorized accommodations to wear are prescribed in AR 670-1, paragraph 3-15.24

Religious Accommodations Requiring a Policy Waiver or GCMCA Approval

Requests that require a waiver include growing beards that cannot be rolled or tied to 2 inches or less, body modifications, teeth modifications, carrying concealed weapons on an installation (when not part of an official duty), growing dreadlocks, and wearing kufis that do not comply with AR 670-1.25 Requests that require GCMCA approval are wearing hijabs, headscarves, turbans, and growing beards (up to 2 inches rolled or tied).26

Procedural and Substantive Requirements

Army Regulation 600-20, Appendix P-3, details the procedural process to submit a religious accommodation request to uniform and grooming standards that require a waiver or GCMCA/first designated GO in the chain of command approval. A complete religious accommodation packet that is submitted to the GCMCA or to the Deputy Chief of Staff (DCS), G-1, must have the chain of command’s recommendations, the Soldier’s religious accommodation request, a legal review completed by the GCMCA’s servicing legal office, and a chaplain’s interview.27 Prior to the GCMCA acting on the completed packet, the GCMCA’s staff must consult with certain offices at Headquarters, Department of the Army (HQDA): the DCS, G-1, the Office of the Chief of Chaplains (OCCH), and the Office of the Judge Advocate General (OTJAG) Administrative Law Division. For military prisoner requests, the GCMCA staff must also consult with Army Corrections Command.28 The GCMCA can determine who on their staff completes the consultation; but one way to divide the tasks is to have the installation or senior chaplain consult with OCCH, the GCMCA’s administrative law attorney consult with OTJAG, and the requester’s higher headquarter’s S/G-1 consult with the DCS, G-1.

The command team will most likely use the compelling government interest standard for religious accommodation requests that require a waiver or GCMCA approval. The first step in determining whether the compelling government interest standard applies is to determine if the policy poses a substantial burden on the Soldier’s ability to exercise their sincerely held religious belief. As a reminder, policies, practices, and duties that substantially burden a Soldier’s ability to exercise their religion can only be denied when the policy, practice, or duty furthers a compelling government interest and is the least restrictive means to further that interest.29

Substantial Burden

The Soldier making the religious accommodation request bears the burden to demonstrate that the Army’s policy or action is a substantial burden on their ability to exercise their religious belief. A substantial burden exists “if it bans an aspect of the person’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.”30 However, “no court interpreting RFRA has deemed that any interference with or limitation upon a religious conduct is a substantial interference with the exercise of religion.”31

A fact-specific inquiry into each case is necessary to determine if a substantial burden exists. For example, if a Soldier says the practice in question is unimportant to them, there is likely no substantial burden being imposed on the Soldier. If a substantial burden is not imposed on the Soldier, the command is not required to complete a compelling government interest analysis. Instead, “commanders are only required to balance the needs of the Soldier against the needs of mission accomplishment.”32 If, however, a substantial burden is imposed on the Soldier’s religious practice, the command can impose that burden only if it is the least restrictive means of achieving a compelling government interest. “This analysis requires the government to show that it cannot accommodate the religious adherent while achieving its interest through a viable alternative.”33

Assuming the Soldier has made their request for a religious accommodation and has shown that the policy in question is a substantial burden on their ability to exercise their belief, the chaplain can conduct their interview. The purpose of the Chaplain’s interview with the Soldier is to determine whether the Soldier has a sincerely held religious belief. The chaplains are charged with this task because “RFRA only protects actions that are ‘sincerely based on a religious belief,’”34 and chaplains are in the best position to make this assessment. This assessment can be divided into determining “sincerity” of the belief and determining the “religious basis” for the belief.

Sincerity

Determining sincerity can be a challenging task because there is no formula a chaplain can use to make that determination. But there are a variety of factors a chaplain can consider to assist in their analysis. Chaplains can ask how long the Soldier has been practicing the faith; whether the Soldier has been affiliated with other religions in the past; whether the Soldier meets with a religious group; how often and where the group meets; whether the Soldier practices any of the tenets of the religion in question (e.g., abstaining from alcohol); and whether the Soldier has the religion reflected on their personnel records.

Commanders should be cautious of the idea that a Soldier lacks sincerity if the Soldier cannot recite scripture or if the Soldier’s concept of the faith is not aligned with the mainstream concept of faith. The inability of a Soldier to accurately recite scripture does not per se make the belief insincere. Courts have previously found “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.”35 Once the chaplain has assessed sincerity, they can assess the religious basis.

Religious Basis

Determining the “religious basis” of a request means determining whether the request is based on religion, as opposed to being a social movement, political belief, or a post hoc justification to excuse misconduct. While AR 600-20 provides a definition for “religion,” unit level chaplains and JAs should refrain from making a definitive finding that a belief that could be religious is not a religion. Commanders and JAs should consult with HQDA prior to stating that a “belief” or “faith” is not a religion—unless it is completely clear it is not. Political parties, capitalism, labor movements, and utilitarianism are examples of political and social beliefs that are not religious beliefs in and of themselves.

Within the context of religious belief, another issue to consider is whether a religious exercise must be mandated by some religious belief. The answer is no, and AR 600-20, paragraph 5-6a(4), illustrates this point by noting, “[a] religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”36 For example, Norse Paganism does not require its adherents to grow a beard; however, growth of a beard is seen throughout Norse tradition as an element of their faith and is a permissible religious exercise. The regulation’s provision should not be interpreted to mean every conceivable practice is a religious practice. Judge advocates and command teams must work together to make a sound assessment based on individual facts. Once the chaplains have assessed there is a sincerely held religious belief, the command must show it has compelling government interest for its policy and is applying the least restrictive means to achieve that interest.

Compelling Government Interest and Least Restrictive Means

Army Regulation 600-20, paragraph 5-6a(4), provides examples of some of the DoD’s and Army’s compelling government interests. These potentially include: safety, health, good order, uniformity, national security, and mission accomplishment. It is important to remember the compelling government interest is applied to the specific accommodation of the individual Soldier. For example, Sergeant (SGT) John Doe requests a religious accommodation to grow a beard. The command intends to deny the request based on a belief that beards adversely impact good order and discipline. In order to deny the request, the command must show how SGT Doe’s beard adversely impacts good order and discipline within the commander’s organization. The command cannot make an overly broad generalization that any deviation from uniform standards inherently undermines good order and discipline. Another important note for commanders is that “uniformity” will rarely be sufficient grounds to justify denying a religious accommodation, if it is the only basis for denial. Uniformity may be a justifiable ground for denial with ceremonial units and events—for example, an assignment with the 3d Infantry Regiment.

Another area that commanders must remember to address is whether they are applying the least restrictive means to further the compelling government interest. If a commander does not explain or demonstrate how the least restrictive means is being employed, they have not met the statutory burden of RFRA. The case Singh v. McHugh,37 illustrates this point. In Singh, a Sikh college student requested a religious accommodation to enroll in Army ROTC with his turban and beard. The Army denied his request, arguing that granting the accommodation would undermine unit cohesion, good order and discipline, and adversely impact health and safety.38 At trial, the Army acknowledged that its denial of Singh’s accommodation substantially burdened his religious exercise.39 The court ultimately determined the Army failed to articulate how denying Singh’s specific accommodation request furthered the compelling government interest; and they failed to show how a complete denial was the least restrictive means to achieve the compelling government interest.40 Commanders will recommend approval or denial of a request upon completion of the analysis regarding a compelling government interest and application of the least restrictive means. The commanders will then route the packet to the GCMCA.

Consultation Requirement

Pursuant to AR 600-20, Appendix P-3a(7), prior to the GCMCA acting on a religious accommodation request for a uniform or grooming standard, the GCMCA’s staff must complete consultation with OCCH, DCS, G-1, and OTJAG’s Administrative Law Division.41 While OCCH and OTJAG’s assessments are not binding on the GCMCA, the purpose of the consultation is to provide guidance and assistance from the offices best positioned to see Army-wide trends and understand policy objectives and priorities. The GCMCA’s staff can complete the consultation, or the subordinate unit’s staff (S1, unit chaplain, and brigade judge advocate) may on behalf of the GCMCA’s staff. Consultation with OTJAG consists of sending the chain of command recommendations, GCMCA draft legal review, and Soldier’s request to OTJAG’s email inbox that is provided in AR 600-20, Appendix P-3a(7)(a).42 The Office of the Judge Advocate General will then respond via email with their consulting comments, which provides an assessment of the legal permissibility of the Soldier’s request and the packet. The GCMCA’s staff sends OCCH the chain of command recommendations and the Soldier’s request, as part of the OCCH consultation requirement. The OCCH will provide their opinion regarding the Soldier’s sincerely-held religious belief. The DCS, G-1 reviews the approval or disapproval memorandums to check for consistent standards in processing religious accommodation requests. The GCMCA must also consult with Army Corrections Command if the requestor is a military prisoner.

Legal Review

The JA is responsible for ensuring the packet is legally sufficient. This includes ensuring the packet is complete, procedural processes were properly followed, and substantive requirements were met. The consultation with OTJAG does not constitute the GCMCA legal review; OTJAG only assists the GCMCA’s staff. The JA at the GCMCA’s level reviews the accommodation packet to ensure the proper approval authority is acting on the request. The JA reviews the chaplain’s interview to ensure the chaplain addresses religious basis and sincerity; but, as a reminder, the chaplain does not have to make a recommendation to approve or deny the accommodation. The JA reviews each chain of command recommendation to ensure the memorandums are signed, each recommendation addresses the correct Soldier and their religion, and that commanders provide a rationale when recommending denial of a request. Judge advocates should also be on the lookout for commanders and chaplains citing accurate and up-to-date policies. Upon completion of the legal review, the GCMCA approves or denies the religious accommodation request. Alternatively, the GCMCA elevates the request to the DCS, G-1, with a recommendation to approve or deny the request, if the request is for a waiver or the GCMCA determines the accommodation warrants HQDA final disposition.

Approval Authorities

The Chaplain Corps has devised a helpful informal “category” breakdown to assist their chaplains with understanding the different approval authorities for accommodation requests.43 Under the OCCH category system, a Category 1 request is a routine request where no waiver or command approval is required (e.g., wear of yarmulke); a Category 2 request is a routine request where local command approval is required (e.g., adjustment to the duty day); a Category 3 request involves uniform and grooming requests that require GCMCA approval (e.g., wear of the hijab); and a Category 4 request requires HQDA decision (e.g., beard longer than 2 inches or immunization exemptions). This may be a helpful way to explain the various approval levels to a commander or Soldiers. Commanders and approval authorities should also be familiar with time constraints for processing religious accommodation requests.

Timeline

Pursuant to DoDI 1300.17, Table 1, religious accommodation requests originating from within the United States must be reviewed, final action completed, and written notification provided to the requestor (or pre-accession recruit) no later than thirty business days from the requestor’s submission. For requests originating outside of the United States or for Reserve Component Service members not on Active Duty, requests must be reviewed, final action completed, and written notification provided to the requestor no later than sixty calendar days from the requestor’s submission. These deadlines include GCMCA consultation with HQDA.

Accommodations to worship and dietary practices are temporary accommodations and are subject to modification or revocation, in accordance with AR 600-20, paragraph 5-6f. Religious accommodations approved by a GCMCA; The Surgeon General; DCS, G-1; Assistant Secretary of the Army (Manpower and Reserve Affairs); or the Secretary of the Army are permanent accommodations lasting the duration of the Soldier’s career. Only the Secretary of the Army, or their designee, may permanently revoke or modify a previously approved accommodation; although, there are limited circumstances when a GCMCA may temporarily suspend an accommodation for health and safety reasons.44

Command Considerations

There are a variety of factors commanders can consider when determining whether to approve or deny a religious accommodation request. Army Regulation 600-20, paragraph 5-6e(2), lists the factors: how will it impact the mission; how will it impact the safety of the Soldier making the request or others around them; what is the religious importance of the accommodation to the Soldier; what is the cumulative impact of repeated accommodations of a similar nature; would granting the accommodation result in the sanctioned discrimination of another Soldier; are there alternative means available to meet the requested accommodation; and how have previous requests for the same accommodation been disposed of.45 Religious accommodations related to uniform and grooming standards are the types of accommodations judge advocates are most likely to encounter. However, there are other forms of religious accommodations a judge advocate may encounter that the following paragraph provides a few practice tips to consider.

Practice Recommendations for Less Common Religious Accommodations

Commanders may encounter situations where a chaplain’s religious practice or abstention from some practice could be perceived as discriminatory. Prior to initiating an administrative investigation against a chaplain for issues pertaining to conduct related to religious support, it can be helpful for commanders to notify OCCH and OTJAG for their awareness. If an investigation is initiated against a chaplain for these types of issues, it may also be helpful for the appointing authority to appoint a senior chaplain to serve as a subject matter expert to advise the investigating officer.46 There are issues internal to the Chaplain Corps that the investigating officer and JA may not be aware of that a chaplain subject matter expert can assist with. All personnel should be aware that AR 165-1, paragraph 8-10, requires notification to OCCH for chaplains who may be pending command adverse action.47 Appointing authorities can consult with their servicing legal office to determine what information and documents should be released to the Chaplain Corps to facilitate compliance with AR 165-1.48

Immunizations

The Army Surgeon General is the decision authority for immunization exemptions, waivers, and appeals. Army Regulation 40-562, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases, prescribes immunization requirements for Soldiers.49 While AR 40-562 provides a list of some mandatory immunizations, commanders should be cognizant that, depending on the theater of operation, Combatant Commanders may have additional immunization requirements for their Soldiers. Army Regulation 600-20, Appendix P-2b, prescribes the procedures for immunization exemption requests.50 When providing training to Soldiers or advising commanders about immunizations, JAs and medical personnel should articulate how immunizations are an essential element of Soldier readiness and safety. Dating back to George Washington, who “ordered the inoculation of all men in the Continental Army against smallpox,” the U.S. military has long recognized the need to vaccinate Soldiers.51 The Army’s vaccination efforts have continued throughout history to keep Soldiers—and populations coming in contact with Soldiers—safe.

Common Religious Issues on the Installation

Strong Bonds

Strong Bonds is an equal access program aimed at building and maintaining strong family structures and resilient Soldiers.52 There are cases where a chaplain’s religious belief may discourage them from conducting Strong Bonds with specific personnel—same-sex couples, for example. In these cases, a different chaplain should be used to conduct the event. Chaplains who elect not to participate in Strong Bonds, due to their own religious views, cannot receive adverse actions solely for their personal beliefs or for declining to host an event themselves.53 Soldiers cannot be denied access to Strong Bonds based on the religious views of the chaplain. Army policy supports the idea that religious freedom should not be used to justify discrimination against a fellow Soldier.54 Discrimination based on a Soldier’s race, gender, sexual orientation, and other protected classes, undermines the very values the military stands for and erodes readiness and trust within the formation.

Letters from Non-Federal Entities (NFEs) Related to Religious Support

An installation or command may receive a letter from an NFE stating the command is suppressing religious rights or the command is in violation of the Establishment Clause. Units may encounter NFE letters when units have religious displays on an installation (or a perception that the displays are religious) and religious messages or anti-religious messages on a unit’s official social media page. In these cases, it may be helpful to delay taking action until the unit has an accurate picture of the situation and has consulted with the servicing legal office and senior chaplain on the installation. The key is to prevent any “knee-jerk reactions” until the complaint has been assessed and the command or organization has analyzed the situation. The unit will also want to ensure the proper authority is responding to the letter and account for any publicity the response may bring to the unit or Army; be sure to keep the public affairs office informed. Some cases may need to be raised to HQDA for visibility and input.

Social Media Posts of Chaplains in an Official Capacity

Soldiers generally enjoy a certain level of free speech for social media postings.55 One area of social media use that commands and chaplains should be cognizant of is posting religiously-motivated content on official government social media platforms (when doing so in their official capacity as government employees). Fortunately, OCCH published an information paper on 4 May 2020, which outlines the appropriate use of social media for religious-type messages posted by chaplains in their official capacity.56 In addition to the OCCH information paper, chaplains and commanders should refer to public affairs policies, AR 600-20, and the Army’s social media use website57 for additional information regarding the appropriate use of social media. If the information paper does not address a unit’s specific issue, the unit should consult with the senior chaplain and servicing legal office, who can then seek assistance from OTJAG and OCCH.

Commanders can use a similar analysis when evaluating religiously-motivated social media posts of Army personnel who are not chaplains. First Amendment factors that may impact the permissibility of a post include, but are not limited to: whether the post was made in the Soldier’s personal or official capacity; whether the post has a political overture tied into the religious content; what forum and on what platform the post is made (official unit page versus Soldier’s personal page); whether the post public or private; whether the post intended to incite imminent lawless action;58 whether the content constitutes obscenity; and whether the content is a form of harassment or a “true threat.”59

Religious Displays on Government Property

The U.S. Supreme Court has applied the Establishment Clause in varying ways to assess the permissibility of a religious display on government property.60 Generally speaking, if—by a reasonable person standard—the religious display does not appear to endorse a religion, it is permissible. For example, a religious scene that also includes secular decor, such as a Santa Claus figurine and a snowman, is permissible to display on government property. However, displaying just the religious scene on government property may raise Establishment Clause issues. In addition to the type of display emplaced, commanders and JAs must be cognizant of who is emplacing the display. Non-Federal Entities authorized to operate on the installation are subject to the same religious endorsement analysis as the command. Their status as an NFE, even a religious NFE, is irrelevant. The display is still on government property, authorized by a government representative, and could be perceived as an endorsement by the government.

Evangelizing and Proselytizing

Evangelizing is generally defined as the attempt to convert an individual to Christianity,61 while proselytizing is generally defined as trying to induce someone to convert to their faith.62 Soldiers can, for the most part, talk about their faith; tell others about their faith; and tell others why their faith may be good to convert to. However, there are instances where evangelizing and proselytizing is or can be prohibited. Examples include: improperly using government resources to engage in evangelizing or proselytizing, engaging in unwanted evangelizing or proselytizing after being asked to cease, or evangelizing or proselytizing in front a mandatory unit formation. Chaplains explaining what services they specifically offer, or what services are generally offered by the Chaplaincy, is permissible.

COVID-19 (Pandemics)

Commanders can limit in-person religious services for health and safety concerns, and recent U.S. Supreme Court actions tend to support this premise.63 However, if religious services are limited, the limitations should apply equally to other social events or large gatherings that are not in furtherance of essential military duties. Religious support can be a crucial aspect of maintaining readiness during times of difficulty, so it can prove very beneficial for commanders to facilitate Soldiers’ ability to receive religious support.

Religious Accommodations and Military Justice

Extremist Groups

If a command team believes a Soldier is involved in a religious extremist group or that a religious accommodation request is tied to extremist ideology, it is essential for the command to consult with their servicing legal office and review AR 600-20’s policy regarding extremism.64 Installation legal offices can work through their technical chain and consult with OTJAG’s Criminal Law Division and Administrative Law Division for additional assistance. The accommodation request should be stayed until the issues regarding participation in extremist activities or groups is addressed. Command teams should refrain from making overly broad assertions that an entire religion is “extremist” based on the views of a few practitioners.

Military Prisoner Requests

The Army’s religious support policies apply to all military prisoners in Army confinement facilities, regardless of what Service they belong to or their discharge status.65 For example, a Navy prisoner at U.S. Disciplinary Barracks (USDB) must follow Army policies while in the USDB, to include the Army’s religious support policies. It is essential to identify the correct GCMCA for the military prisoner. The JA should also check to see if the prisoner’s accommodation request is annotated on a Military Corrections Command Form 510, Inmate Request Slip.

Peyote and Other Illicit Substances

Soldiers who want to use peyote or other illicit substances as part of a religious practice must forward their request to the DCS, G-1. Requests submitted to the DCS, G-1 will be evaluated consistent with DoDI 1300.17, paragraph 3.4.66

When in Doubt, Phone a Friend

Judge advocates who have questions or issues related to religious support should consult with their technical chain for assistance. There are also religious support subject matter experts at OTJAG Administrative Law Division who can provide additional assistance. TAL


LTC Koon is an attorney in the Administrative Law Division, Office of The Judge Advocate General, at the Pentagon in Washington, D.C.

MAJ Ford is the Brigade Judge Advocate for the 210th Field Artillery Brigade, 2d Infantry Division at Camp Casey, Korea.


Notes

1. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy para. 5-6a(1) (24 July 2020) [hereinafter AR 600-20].

2. This article does not provide an overview of religious accommodation policies directly applicable to Department of the Army (DA) Civilians. The authors recommend consultation with the servicing Labor and Employment Law attorney for any religious accommodation issues raised by DA Civilians.

3. U.S. Dep’t of Army, Reg. 165-1, Army Chaplain Corps Activities para. 1-10 (23 June 2015) [hereinafter AR 165-1] (“The religious program for the Army is the commanders program.”). For purposes of this article, the term “Commander” includes Directors, Commandants, and Superintendents when referring to oversight of religious support programs.

4. U.S. Const. amend. I.

5. Reynolds v. United States, 98 U.S. 145, 164 (1878) (“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”).

6. See Am. Legion v. Am. Humanist Ass’n 139 S. Ct. 2067, 2080 (2019) (“After grappling with such cases for more than [twenty] years, Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decision making.”).

7. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993). See also Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (refining the definition of religious exercise).

8. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 696 (2014) (quoting 42 U.S.C. § 2000cc-3(g)).

9. United States v. Sterling, 75 M.J. 407, 410, 415 (C.A.A.F. 2016) (“To establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds.”).

10. The Establishment Clause prohibits policies and actions respecting the establishment of religion. There are numerous tests the Supreme Court has applied to determine if a law, policy, or action violates the Establishment Clause. The tests are the “Lemon Test,” the “Endorsement Test,” the “Coercion Test,” the “Historical/Monuments Test,” and the “Neutrality Test.” See Lemon v. Kurtzman, 403 U.S. 602 (1971); Lynch v. Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU, 492 U.S. 573 (1989); Lee v. Weisman, 505 U.S. 577 (1992); Town of Greece v. Galloway, 572 U.S. 565 (2014); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019); Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Applicability for one or more of these tests depends on the specific facts of an individual case.

11. U.S. Dep’t of Def., Instr. 1300.17, Religious Liberty in the Military Services (1 Sept. 2020) [hereinafter DoDI 1300.17].

12. Id. para. 1.2a.

13. Id. para. 1.2e.

14. U.S. Dep’t of Army, Reg. 670-1, Wear and Appearance of Army Uniform and Insignia (26 Jan. 2021) [hereinafter AR 670-1].

15. U.S. Dep’t of Army, Techniques Publication 1-05.04, Religious Support and Internal Advisement (23 Mar. 2017).

16. U.S. Dep’t of Army, Field Manual 1-05, Religious Support (21 Jan. 2019).

17. AR 600-20, supra note 1, para. 5-6a(1).

18. See id. para. 5-6a(2).

19. Id. para. 5-6d.

20. Id. para. 5-6d(1).

21. Id. para. 5-6d(1), app. P-1.

22. Id. para. 5-6d(2).

23. Id. para. 5-6d(3), app. P-2.

24. AR 670-1, supra note 14, para. 3-15.

25. AR 600-20, supra note 1, app. P-3b.

26. Id. app. P-3a.

27. Id. app. P-3.

28. Id. app. P-3a(7).

29. Id. para. 5-6a(2).

30. Memorandum from U.S. Att’y Gen. to all Exec. Dep’ts & Agencies, subject: Federal Law Protections for Religious Liberty 4 (Oct. 6, 2017).

31. United States v. Sterling, 75 M.J. 407, 417 (C.A.A.F. 2016).

32. AR 600-20, supra note 1, para. 5-6a(3).

33. See Memorandum from U.S. Att’y Gen. to all Exec. Dep’ts & Agencies, subject: Federal Law Protections for Religious Liberty 5 (Oct. 6, 2017).

34. Sterling, 75 M.J. at 416.

35. Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981).

36. AR 600-20, supra note 1, para. 5-6a(4).

37. 109 F. Supp. 3d 72 (D.D.C. 2015).

38. Id. at 82–84.

39. Id. at 87–88.

40. Id. at 99–103.

41. AR 600-20, supra note 1, app. P-3a(7).

42. Id. app. P-3a(7)(a).

43. Major Rob Belton, Chaplain, PowerPoint Presentation at the U.S. Army Chaplain Ctr. & Sch.: Free Exercise: Advise the Command on Religious Accommodation (24 Sept. 2020).

44. AR 600-20, supra note 1, para. 5-6f(2)-(3).

45. Id. para. 5-6e(2).

46. U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative Investigations and Boards of Officers (1 Apr. 2016) (authorizes the appointment of assistant investigating officers for administrative investigations). To be clear, the authors do not advocate for any permanent changes to AR 15-6 to incorporate this TTP.

47. AR 165-1, supra note 3, para. 8-10.

48. Id. (requiring the senior chaplain to notify OCCH of impending command adverse action. In cases where adverse action results from an investigation, OCCH may request the information or relevant portions of the investigation that lead to the adverse action. The judge advocate can assist the appointing authority with providing the relevant portions of the investigation or information to OCCH.).

49. U.S. Dep’t of Army, Reg. 40-562, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases app. D (7 Oct. 2013).

50. AR 600-20, supra note 1, app. P-2b.

51. Dan Liebowitz, Smallpox Vaccination: An Early Start of Modern Medicine in America, 7 J. Cmty. Hosp. Internal Med. Persps. 61, 62 (2017).

52. See 10 U.S.C. § 1789 (authorizes the Secretary of the Army to provide support services to Soldiers and their families, which are led by chaplains).

53. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 532, 127 Stat. 672, 759 (offers protection to chaplains from having to perform rites, rituals, or ceremonies that may be contrary to their religious beliefs).

54. See AR 600-20, supra note 1, para. 5-6e(2)(d) (commanders should consider whether an accommodation will result in the sanctioned discrimination of other Soldiers).

55. See U.S. v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) (examining the free speech rights of military members, but noting the free speech rights of military members may not be as robust as civilian counter-parts).

56. Off. of Chief of Chaplains, Information Paper, subject: Chaplain Corps’ Official Use of Social Media to Advise and Provide Religious/Spiritual Content (1 May 2020) (on file with author).

57. Army Social Media: Soldiers and Families, U.S. Army, https://www.army.mil/socialmedia/soldiers/ (last visited Mar. 8, 2021).

58. See Schenck v. United States, 249 U.S. 47 (1919) (establishing the Clear and Present Danger Test); Brandenburg v. Ohio, 395 U.S. 444 (1969) (establishing the Brandenburg Test).

59. See Virginia v. Black, 538 U.S. 343 (2003).

60. See Stone v. Graham, 449 U.S. 39 (1980); Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny Cnty. v. ACLU, 492 U.S. 573 (1989); Van Orden v. Perry, 545 U.S. 677 (2005); Salazar v. Buono, 559 U.S. 700 (2010).

61. Evangelize, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/evangelize (last visited Mar. 8, 2021).

62. Proselytize, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/proselytize (last visited Mar. 8, 2021).

63. See South Bay United Pentecostal Church v. Gavin Newsom, 140 S. Ct. 1613 (2020) (denying injunctive relief to church groups seeking to enjoin Governor Newsom’s order emplacing numerical restrictions on public gatherings who were prohibited from conducting church services). See also Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (denying injunctive relief to a church group over similar public gathering restrictions).

64. AR 600-20, supra note 1, para. 4-12.

65. U.S. Dep’t of Def., Dir. 1325.04, Confinement of Military Prisoners and Administration of Military Correctional Programs and Facilities para. 4.7 (17 Aug. 2001) (“Prisoners confined in military correctional facilities shall be subject to the rules and regulations of the confining facility, regardless of the Service affiliation of the prisoner.”).

66. DoDI 1300.17, supra note 11, para 3.4.

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