DOD rules take religious freedom to extremes
By CHRIS RODDA | Special to Stars and Stripes | Published: October 1, 2020
Mike Berry’s Sept. 24 op-ed “Religious freedom bolstered for all troops” would more aptly be titled “Trump’s DOD changes religion regs to appease far-right fundamentalist Christian base and allow all manner of shoving unwanted religion down service members’ throats.” Berry, of the fundamentalist Christian legal organization First Liberty Institute, crediting “our commander in chief’s strong stance on religious freedom,” is ecstatic over the changes, and the prospect of completely obliterating the wall of separation between church and state in our military.
The recent action of Trump appointee Matthew P. Donovan, undersecretary of defense for personnel and readiness, in transforming DOD Instruction 1300.17, “Accommodation of Religious Practices Within the Military Services,” a regulation that, as its name implies, made exceptions to the usual regulations to accommodate religious practices, into an all new DOD Instruction 1300.17, even changing the Instruction’s title to “Religious Liberty in the Military Services,” makes the allowing of all manner of otherwise prohibited religious behavior the rule rather than the exception.
Donovan’s far-reaching regulation changes come on the heels of demands from Berry’s allies in Congress, 20 fundamentalist Christian members of the House of Representatives, who wrote a letter to Secretary of Defense Mark Esper attacking the Military Religious Freedom Foundation for successfully stopping a number of unconstitutional promotions of religion by military chaplains and one Air Force officer, and a similar letter to Esper from Sen. Ted Cruz, R-Texas, for which Berry’s First Liberty Institute took credit.
At the core of Donovan’s changes in the revamped and renamed DOD Instruction is the greatly increased prominence of the “Religious Freedom Restoration Act” (RFRA).
In recent years, the 1993 Religious Freedom Restoration Act (RFRA) has become the go-to law for fundamentalist Christian legal organizations such as Berry’s First Liberty Institute in their defense of unconstitutional promotions of religion.
This law is the epitome of the right-wing Christians’ view of the First Amendment’s religion clauses as creating only a one-way wall — that the “Free Exercise” clause is the only religion clause that matters, and that the other direction of the wall, the “Establishment” clause, doesn’t exist.
This preeminence of the “Free Exercise” clause to the exclusion of the “Establishment” clause comes through loud and clear throughout the new regulation, starting with the regulation’s “Purpose” statement. The purpose as it appeared in the old version was:
“Prescribes policy, procedures, and responsibilities for the accommodation of religious practices in the Military Services.”
In Donovan’s new version, the “Purpose” statement begins:
“Establishes DoD policy in furtherance of the Free Exercise Clause of the First Amendment to the Constitution of the United States …”
The purpose also says:
“Implements requirements in Section 2000bb-1 of Title 42, United States Code (U.S.C), also known as ‘The Religious Freedom Restoration Act’ (RFRA), and other laws applicable to the accommodation of religious practices for DoD to provide, in accordance with the RFRA, that DoD Components will normally accommodate practices of a Service member based on a sincerely held religious belief.”
This is what the Religious Freedom Restoration Act says:
(a) IN GENERAL
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
To fundamentalist Christians like Berry, Cruz, and the members of Congress who wrote to Esper, any limit whatsoever on a chaplain’s or service member’s ability to shove their religion down the throats of others is a “substantial burden” on their free exercise of religion. There is no consideration of the “substantial burden” that unfettered proselytizing and promotions of religion by service members whose “conduct motivated by a sincerely held religious belief” puts on the right of other service members to be free from unwanted proselytizing and promotions of religion.
The most deleterious changes in Donovan’s new regulation are the definitions of what a “religious practice” is and what a “substantial burden” is.
Under the old regulation, an accommodation for a “religious practice” was understood to mean things such as a Sikh requesting an accommodation to wear a beard, a service member wearing an item of religious apparel or religious jewelry with their uniform, a service member requesting time off to attend worship services of their religion. In other words, things that a reasonable person would define as a religious practice, and, very importantly, things that wouldn’t have any effect on the religious freedom of others.
In Donovan’s new regulation, however, a “religious practice” has been redefined as:
“An action, behavior, or course of conduct constituting individual expressions of religious beliefs, whether or not compelled by, or central to, the religion concerned.”
And the definition by which a “governmental act is a substantial burden to a Service member’s exercise of religion” now includes anything that:
“Prevents participation in conduct motivated by a sincerely held religious belief”
Behavior and conduct? This could include just about anything. Is God motivating you to proselytize your fellow service members? Go ahead! That’s “conduct motivated by a sincerely held religious belief.” Want to pray out loud at your desk so your subordinates all hear how religious you are? No problem! That’s just behavior “constituting individual expressions” of your religious beliefs!
And, according to Donovan’s new regulation, the burden of proof is now on your commander to show why your conduct or behavior shouldn’t be allowed, and of course your commander can’t turn to DOD Instruction 1300.17 because Donovan’s new fundamentalist-friendly version of this regulation is what’s allowing your hitherto prohibited conduct or behavior.
An outraged Mikey Weinstein, founder and president of the Military Religious Freedom Foundation, has a few words for Under Secretary Donovan and his new regulation:
“These miserably wretched, instantaneous DoD Instruction 1300.17 mauling actions by Trump’s DoD cannot be allowed to tar and feather the Constitution’s clear and incontrovertible, foundational prohibition of allowing the State to ‘establish’ religion!
“MRFF will fight tooth and nail, day and night to stop this new, twisted and perverted version of DoD Instruction 1300.17. Indeed, MRFF will never allow this brand new regulatory provision to illicitly buttress the already repugnant and omnipresent efforts of the fundamentalist Christian religious right from perpetuating its pervasive and pernicious pattern and practice of forcing its weaponized version of the Gospel of Jesus Christ upon otherwise defenseless military subordinates.”
Chris Rodda is senior research director for the Military Religious Freedom Foundation.