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Religion in the military: navigating the channel between the religion clauses.

  I. INTRODUCTION
 II. OVERVIEW OF THE ESTABLISHMENT, FREE EXERCISE, AND FREE
     SPEECH CLAUSES
     A. The Establishment Clause
     B. The Free Exercise Clause
        1. Laws Aimed at Religion
        2. Religion-Neutral Laws
           a. Employment Division v. Smith
           b. The Religious Freedom Restoration Act of 1993
              and Challenges
        3. Free Exercise Clause Summary
     C. Tension between the Establishment Clause and the Free
         Exercise Clause
     D. The Free Speech Clause, Religious Speech, and Interplay
        with the Establishment Clause
III. RELIGIOUS SPEECH IN THE MILITARY
     A. Religious Speech and the Free Speech Clause
     B. Religious Speech and the Establishment Clause
 IV. PRAYER IN THE MILITARY
     A. Prayer at Solemn Military Events
        1. Deeply Embedded in History Exception
        2. Remaining Establishment Clause Analysis
     B. Prayer at Routine Military Events
     C. Prayer or Invocation Guidance if Allowable
  V. RELIGIOUS DISPLAYS IN THE MILITARY
     A. Common Areas
     B. Private Areas
     C. Personal Governmental Work Areas
 VI. ACCOMMODATION OF RELIGION IN THE MILITARY
     A. The Free Exercise Standard
     B. Statutory and Regulatory Guidance
VII. CONCLUSION


I. INTRODUCTION

Religion in the military (1) has reached headline proportions: Air Force Sued Over Religion, (2) Air Force Academy Staff Found Promoting Religion, (3) Evangelicals Protest New Air Force Religion Policy, (4) and Naval Academy Urged to Drop Prayer. (5) Behind all the headlines, commanders and military attorneys wrestle with a complex array of constitutional tests in an attempt to navigate the narrow channel between the free exercise of religion (6) by military members and establishment of religion by the military--a feat compared to navigating the narrow channel between the Scylla and Charybdis in Greek mythology. (7)

The narrowness of this channel is striking given the simplicity of the text of the First Amendment's Religion Clauses, which provide that "Congress shall make no law ... respecting an establishment of religion, or prohibiting the free exercise thereof." (8) The simplicity of the language quickly erodes, however, when one considers that in the past ten years (9) the U.S. Supreme Court has decided no fewer than thirteen cases under the Establishment and Free Exercise Clauses. (10) This number of cases is hardly surprising given the profound importance of religion to many people in the United States. (11)

The importance of religion to Americans and the influence that religion can have on people's behavior and attitudes concerning important social issues may explain why the U.S. Supreme Court's cases on religion in the past decade have addressed socially significant or controversial issues. These issues include religious displays (Ten Commandments and a cross) on governmental property; (12) the recital of the Pledge of Allegiance (containing the words "one nation under God") in public elementary schools; (13) governmental provision of "school vouchers" or tuition assistance for children's use at private schools (including religious schools); (14) private organizations' use of governmental property for religious purposes (such as Bible study or worship) when other private organizations are permitted to use the property for non-religious purposes; (15) student-led invocations before football games at public high schools; (16) governmental provision of equipment or other funding to private elementary and secondary schools, including religious schools; (17) federal authority to require accommodation of prisoners' religious practices; (18) and state authority to exempt scholarship money to public university students pursuing studies to become a pastor. (19) In addition to dealing with governmental action that directly or indirectly aids, endorses, or encourages religion, these cases illustrate the four other general contexts in which most religion issues arise: (1) governmental regulation of religious speech, (2) government-sponsored prayer, (3) religious displays on governmental property, and (4) governmental limitation or accommodation of religious practices.

Religious issues in the military also arise in these same four contexts. As difficult as these issues are in American society as a whole, they may be even more difficult in the military. One important reason for this increased difficulty is that the military must not only honor its members' First Amendment religious rights, it must do so in a way that does not materially denigrate its profound first obligation to the nation: "defend[ing] our national interests by preparing for, and when necessary, waging war." (20) Sometimes the military's desire to honor a soldier's request to freely exercise religious rights (e.g., attending a worship service) may conflict with the military's need to accomplish a mission (e.g., participating in an important combat operation).

Ironically, however, the military's real or perceived failure to properly respect its members' religious rights may also detract from the military unit's ability to carry out its mission by marginalizing some members of the unit. (21) A unit is a team with each member having an important role. Top-performing units rely on all their members, but members of the unit who feel marginalized, perhaps due to their perception of their leaders' or fellow soldiers' views toward their religion, will not feel fully a part of the team, and the team's ability to accomplish its mission can suffer. (22) In addition, the military's real or perceived failure to honor its members' rights can result in unfavorable national media attention and even litigation. (23)

For military leaders and organizations to avoid these adverse effects, they must comply with the Religion Clauses and other laws concerning religion. To facilitate such compliance, this article analyzes the law concerning religious issues in the military in four general recurring contexts. Part II provides an overview of the Establishment Clause, the Free Exercise Clause, and Free Speech Clause (particularly as it pertains to religious speech), including the interplay among these clauses. Parts III through VI focus on how these clauses apply in the military in the four common contexts: Part III analyzes general religious speech issues by military members; (24) Part IV specifically analyzes government-sponsored prayer in the military; Part V examines religious displays on military property; and Part VI reviews religious accommodation in the military. Part Vii concludes the article.

While all military services have some existing official guidance on religious issues, (25) the guidance may be rather general, (26) be scattered among several regulations or policy statements, (27) fail to address important issues, (28) or even be of questionable accuracy on some points. (29) This article fills those gaps, provides detailed background and the authors' analysis of key issues of law and religion in the military, and thereby assists military attorneys as they advise commanders and other military members in navigating the narrow channel of religion in the military.

II. OVERVIEW OF THE ESTABLISHMENT, FREE EXERCISE, AND FREE SPEECH CLAUSES

Military attorneys providing advice on religion issues must possess a firm grasp of key principles of the U.S. Supreme Court's jurisprudence concerning the Establishment, Free Exercise, and Free Speech Clauses, as well as key statutory law. Moreover, they must understand the tension between the Free Exercise and Free Speech Clauses on one hand and the Establishment Clause on the other. This Part provides that crucial background.

A. The Establishment Clause

The Establishment Clause by its terms would prevent the government from establishing an official religion, as existed in England with the Church of England in the 1600s (30) and in some American states at the time of the American Revolution. (31) The Establishment Clause, however, provides more protection by prohibiting any governmental action respecting an establishment of religion. Thus, the Court has recognized that a "given law might not establish a state religion but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment." (32)

Establishment Clause challenges typically arise as a result of the government having taken some action perceived to help religion, sometimes even if the governmental help is also conferred on nonreligious organizations. (33) Courts have struggled with determining when governmental action that confers some benefit on religion becomes an unconstitutional "law respecting an establishment of religion." But the over-arching general principle is this: the government must be neutral toward religion, neither favoring a particular religion over other religions nor favoring religion generally over non-religion. (34)

In 1971, the U.S. Supreme Court in Lemon v. Kurtzman announced and applied a three-part test for determining the constitutionality of governmental action challenged under the Establishment Clause. (35) First, the governmental action at issue must have a secular purpose. (36) Second, "its principal or primary effect must be one that neither advances nor inhibits religion." (37) Third, the governmental action "must not foster 'an excessive government entanglement with religion."' (38) When courts use the so-called "Lemon test," the governmental action must pass all three parts of the test to be consistent with the Establishment Clause. (39)

The "purpose prong" of the test requires that the governmental action at issue must have been done for a legitimate non-religious purpose, such as to promote education, health, or safety. Courts determine purpose by looking as an "objective observer" at the text of the statute or governmental action and all the surrounding circumstances, including its history, context, logical effect, and how it was implemented. (40) If there is more than one arguable purpose, the primary purpose must be secular. (41) Courts normally demonstrate a degree of deference to the government's statement of its secular purpose--provided that the stated purpose is "sincere and not a sham." (42) Courts do not presume an intent to advance religion simply because the governmental action is consistent with a particular religion. (43)

When governmental action is taken with the intent (purpose) to promote religion in general or a particular religious belief, however, courts will strike down such action as violating the Establishment Clause. improper governmental purpose is relatively rare in this context; the U.S. Supreme Court has invalidated governmental action for improper purpose in only five cases since Lemon was decided in 1971. (44) In all these cases, the Court determined that "openly available data supported a commonsense conclusion that a religious objective permeated the government's action." (45) The Court views the "purpose prong" as necessary to ensure the "essential Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides." (46)

The "effects prong" is the most significant part of the Lemon test: it is the prong most often at the crux of the issue. This prong recognizes that even though a law was not intended to promote religion (thereby satisfying the "purpose prong"), it may nevertheless have that effect, if the law's "principal or primary effect" advances or inhibits religion, the law is unconstitutional. (47) A mere secondary effect that promotes religion is permissible. Indeed, many laws that provide aid to religious organizations for otherwise valid reasons have an indirect or secondary effect of promoting religion. (48) But such indirect assistance is permissible under the "effects prong," as long as the primary effect of the law is to further some legitimate governmental interest. (49) The primary effect of the law is paramount.

The third and final prong of the Lemon test is that the governmental action at issue "must not foster 'an excessive government entanglement with religion."' (50) To determine whether entanglement is excessive, courts look to "the nature and character of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." (51) This prong may be violated either when government intrudes excessively into church matters (52) or when the government allows the church to intrude excessively into governmental matters. (53)

Although the Lemon test has been criticized by some members of the Court (54) and some writers, (55) the Court has declined to overrule it. (56) Nevertheless, in some Establishment Clause cases the U.S. Supreme Court has not focused on the Lemon test, even totally ignoring it at times (57) or applying other tests. (58) Two of the significant alternative tests used by the Court are the endorsement test and the coercion test.

In County of Allegheny v. ACLU, (59) the Court recognized the endorsement test as a means of analysis for the Establishment Clause. The fundamental question in the endorsement test is whether a reasonable and informed observer would view governmental action or practices as endorsing religion. (60) The reasonable observer embodies "a community ideal of social judgment, as well as rational judgment ... [and] must be deemed aware of the history of the conduct in question, and must understand its place in our Nation's cultural landscape." (61) Endorsement "preclude[s] the government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." (62) Endorsement is also "closely linked to the term 'promotion."' (63) Although some courts have questioned whether or not the endorsement test is just a part of Lemon analysis, (64) courts of appeals usually treat the endorsement test as a separate test altogether. (65)

in addition to the endorsement test, the Court has also utilized the coercion test, most often in the context of prayer in school. (66) When analyzing whether governmental action amounts to coercion, the Court looks at whether the government has coerced "anyone to support or participate in religion or its exercise." (67) In striking down government-sanctioned student-led prayer at an extracurricular high school football game, the Court emphasized adolescents' susceptibility to social pressure to conform when evaluating whether the governmental action was coercive in nature. (68) Thus, courts may find governmental action to be coercive, even if it falls well short of the government mandating a religious practice. (69) The lower courts' concern over coercion lessens as the age and maturity of students increase. (70) The Court of Appeals for the Fourth Circuit transferred this concern for governmental coercion to a military context when holding "voluntary" prayer at the noon meal at the Virginia Military Institute unconstitutional. (71) Although these decisions have been in the prayer context, the coercion test serves as a useful analysis for dealing with the implication of military chain of command issues and the potentially coercive environment for subordinates.

The Court's failure to provide clear guidance on when each of the three tests--Lemon, endorsement, and coercion--should be used makes Establishment Clause cases particularly difficult for practitioners and courts. (72) Because Lemon is still valid precedent (at least as guiding "the general nature of the inquiry in this area" (73)), thorough analysis of Establishment Clause issues should start with applying the Lemon test and then considering the other two tests as necessary. (74)

B. The Free Exercise Clause

The Free Exercise Clause becomes an issue whenever governmental action burdens the free exercise of religion, (75) even if the action falls short of completely "prohibiting the free exercise" of religion. (76) The clause protects both religious beliefs and religious practices (77) ("acts prompted by religious beliefs"). (78) The right to hold religious beliefs is absolute, but the right to engage in religious practices is not. (79)

When determining whether the Free Exercise Clause protects a particular religious practice, a threshold question is whether the governmental action has imposed a "burden" on "religion." If not, no issue exists under the Free Exercise Clause. The Court has suggested, however, that both terms should be construed broadly. (80) A law clearly burdens religion if it imposes criminal or civil sanctions on a religious practice. (81) A law also burdens religion when it forces people "to choose between [practicing] their religious beliefs and receiving a government benefit." (82)

Religious beliefs are "'based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent." (83) They must be sincere, but need not be traditional as long they "occup[y] in the life of its possessor a place parallel to that filled by the God" of traditional religions. (84) A person claiming the protections of the Free Exercise Clause need not be a member of an organized religious denomination or "be responding to the commands of a particular organization." (85) In view of these broad parameters, it may be very difficult to determine whether a particular claim is based on a religious or secular belief and whether the claim is sincere. (86)

If there is doubt about the threshold question of whether a particular governmental action burdens the free exercise of religion, the conservative approach is to give the person claiming the free exercise protection the benefit of the doubt and to proceed with the free exercise analysis. The Court has developed two different tests for evaluating governmental action burdening the free exercise of religion, depending on whether the burdening action targets religion or is neutral toward religion. (87)

1. Laws Aimed at Religion

Governmental action targeting religion is generally prohibited. (88) Governmental action targets religion if its purpose is to suppress religion or religious practice. (89) An example would be a statute prohibiting "the casting of statues that are to be used for worship purposes." (90) To determine whether a law targets religion, courts look first to the language of the statute to ensure that it is neutral on its face with regard to religion. (91) A statute referring to a religious practice, for example, would lack facial neutrality unless the statute also had a clear secular meaning. (92) In determining a governmental intent to discriminate against religion, courts might also look to "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body." (93) In addition, governmental intent to suppress religion or religious practice might be inferred from the actual operation of the statute: a law that does not specifically refer to a religion or religious practice, but in effect serves to regulate that practice exclusively, would evidence such prohibited intent. (94) Courts would view such a law as an improper "religious gerrymander." (95)

Such cases are rare (96) and easy to decide. (97) Governmental action targeting religion is presumptively invalid: (98) it violates the Free Exercise Clause unless it survives the court's strict scrutiny, the most demanding scrutiny known in law. (99) Strict scrutiny requires that the law "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." (100) Courts also use a similar formulation: the law must be "the least restrictive means of achieving some compelling [governmental] interest." (101)

Compelling governmental interests are "interests of the highest order" (102) or vital interests. (103) To be narrowly tailored, the law at issue must be neither underinclusive nor overbroad. (104) A statute is underinclusive when it regulates religious practice but does not regulate other (non-religious) conduct that produces the same harm. (105) Indeed, in a double whammy to the government, courts may view the underinclusiveness of the statute to indicate that the governmental interest is not compelling because "a law cannot be regarded as protecting an interest 'of the highest order' ... when it leaves appreciable damage to that supposedly vital interest unprohibited." (106) A statute is overbroad when it limits religion or religious conduct more than is necessary to achieve the compelling governmental interest. (107) Once a court determines that the law targets religion, the court almost certainly will find that the law fails strict scrutiny and will invalidate it. (108)

2. Religion-Neutral Laws

Governmental action, even though not directed at religion, might nevertheless incidentally limit people's ability to practice their religion by either prohibiting conduct that is required by a religion or compelling conduct that is prohibited by a religion. (109) As long as the law at issue is truly religion-neutral and generally applicable, courts are highly likely to uphold the law. (110) A law is "religion-neutral" when it is not targeted at religion but advances some other legitimate governmental interest. (111) A law is generally applicable when its burden is not limited to only those who engage in the regulated conduct for religious purposes. (112) Although "neutrality" and "general applicability" are technically two separate requirements, they are closely related with substantial overlap. (113) It is difficult to imagine a law that is religion-neutral without being generally applicable and vice-versa.

Once a court determines a law to be religion-neutral and generally applicable, courts will find that the law does not offend the Free Exercise Clause and will uphold it as long as it is "otherwise valid." (114) The "otherwise valid" requirement is unrelated to the First Amendment and would come into issue only rarely. Examples include laws that are not enacted pursuant to proper procedure, (115) those that exceed the legislature's authority, (116) and those that are not rationally related to a legitimate governmental interest. (117)

a. Employment Division v. Smith

The U.S. Supreme Court announced this standard of review regarding religion-neutral laws that nevertheless incidentally burden religious practice in Employment Division, Department of Human Resources v. Smith. (118) Smith, a member of the Native-American Church, used peyote as a sacrament at a church ceremony despite an Oregon criminal law prohibiting use of peyote. (119) Sacramental use of peyote is essential to members of that church. (120) As a result, he was fired from his job at a drug rehabilitation organization. (121) His request to the state for unemployment compensation was denied because he was fired for work-related misconduct. (122) He challenged the denial as a violation of his free exercise rights. The Court upheld the denial.

The Court declined Smith's invitation to apply the strict scrutiny standard of review despite a line of cases applying strict scrutiny to even religion-neutral laws that limited the free exercise of religion. (123) This line of cases also included three cases similar to Smith involving the government's denial of unemployment compensation after a person lost his job for reasons of religion. (124) The Court carefully distinguished those precedents applying strict scrutiny. Regarding the unemployment compensation cases, the Court noted that these cases "stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." (125) Smith, however, did not involve such a system of individual exemptions but rather a neutral, generally applicable criminal prohibition against use of peyote. The Court thus found those precedents inapplicable. (126)

The Court also distinguished other (non-unemployment compensation) cases in which it had used strict scrutiny to invalidate laws limiting the free exercise of religion. (127) The Court noted that these cases involved not only free exercise rights but also some other constitutional right, such as freedom of speech and the press or of the parental right to direct their children's education. (128) Smith, however, involved solely a free exercise claim. The Court's unwillingness to apply strict scrutiny resulted from its fear that doing so "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind" (129) and would permit each person, "by virtue of his beliefs, 'to become a law unto himself.'" (130)

Smith was decided by a bare majority, with five Justices joining the opinion of the Court. The other four Justices would have applied strict scrutiny even though the law was religion-neutral. (131) These Justices believed that the majority misread and inappropriately distinguished the free exercise precedents involving strict scrutiny. (132) More significantly, they believed that strict scrutiny was necessary to give meaning to the First Amendment's guarantee of the right to freely exercise one's religion. (133) Generally applicable criminal laws can limit one's ability to practice religion at least as severely as laws targeting religion; (134) there is no reason to limit strict scrutiny to the relatively few cases where the government enacts a law for the purpose of suppressing religious practice. (135) Furthermore, neutral laws leave accommodation of minority religions to the political process: a religious majority decides whether to prohibit conduct in the first instance and whether to grant an exemption from the law for religious minorities. (136) Such laws impose particular burdens on adherents of minority religions, (137) who must choose between obeying the law or their religion. Leaving such matters to the political process is contrary to the purpose of the Bill of Rights, which removes certain topics--including the free exercise of religion--from the will of the majority. (138) These dissenting Justices would have required the state to grant Smith a religious exemption from the law prohibiting peyote use, (139) just as the federal government and many states have done, (140) unless the state could demonstrate that such an exemption would "unduly interfere with fulfillment of the [compelling] governmental interest." (141)

b. The Religious Freedom Restoration Act of 1993 and Challenges

With Smith, the lines were drawn in the battle concerning the level of scrutiny to be applied in cases where generally applicable, religion-neutral laws burden some religious practice. Congress joined this battle with the passage of the Religious Freedom Restoration Act of 1993 (RFRA). (142) RFRA, enacted as a direct result of Smith, (143) reflects Congress's dissatisfaction with the majority decision in Smith and its intent that courts return to the strict scrutiny standard of review reflected in certain pre-Smith cases. (144) Finding that even religion-neutral laws can substantially burden religious exercise, Congress prohibited the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" (145) unless the government "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." (146) By authorizing individuals to assert a claim or defense for governmental violation of RFRA, (147) Congress required courts to apply the very standard of strict scrutiny rejected by the majority in Smith. When it first enacted RFRA, Congress defined "government" to include both the federal government--including its branches, departments, agencies and individuals acting in an official capacity--and state governments including subdivisions. (148)

The issue of RFRA's constitutionality reached the U.S. Supreme Court in 1997 with City of Boerne v. Flores. (149) A church in Boerne, Texas had applied to the city for a permit allowing the church to expand. (150) The city disapproved the church's application because the church was in a historical district protected for preservation by a city ordinance. (151) The church sued asserting that the ordinance violated RFRA. (152) The city countered that RFRA was unconstitutional. (153) The issue before the Court was whether Congress had the authority to make RFRA applicable to the states. (154)

In making RFRA applicable to the states, Congress relied on its power under [section] 5 of the Fourteenth Amendment (155) "to enforce, by appropriate legislation, the provisions of" that Amendment. (156) The part of the Fourteenth Amendment that Congress purported to enforce with RFRA was [section] 1. (157) Section 1 of the Fourteenth Amendment--which prohibits states from depriving "any person of life, liberty or property, without due process of law" (158)--is the provision the Court has relied on to make the Free Exercise Clause applicable to the states. (159) Congress thus attempted to use the Fourteenth Amendment to give people and entities in states greater free exercise protections than the Court had done in Smith.

In deciding the scope of Congress's enforcement power under [section] 5 of the Fourteenth Amendment, the Court distinguished between "measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law." (160) Congress has the power to take remedial or preventive measures but not to change or determine the scope of constitutional protections. (161) The Court concluded that, in enacting RFRA, Congress had changed the meaning of the Free Exercise Clause rather than merely enforcing it. (162) Such congressional determination of the constitutional protection of the Free Exercise Clause exceeded Congress's power under [section] 5 of the Fourteenth Amendment. (163) Given that Congress lacked authority under [section] 5 of the Fourteenth Amendment, the Court also suggested that Congress' action impermissibly intruded into the province of the judicial branch and offended the separation of powers among the legislative and judicial branches. (164) The Court therefore invalidated RFRA (165) as it applies to states and their subdivisions. (166)

The issue of RFRA's constitutionality as applied to actions by the federal government reached the Court in 2006 in Gonzales v. O Centro Espirita Beneficente Uniao do Vegeta, (167) a case, like Smith, (168) involving religious use of a prohibited hallucinogen. Members of the small O Centro Espirita Beneficente Uniao do Vegeta church (UDV), with origins in Brazil, take communion through a special tea made with two plants from the Amazon region. (169) One of the plants contains a hallucinogen prohibited by Schedule 1 of the federal Controlled Substance Act, (170) a religion-neutral law. Citing RFRA, UDV sought and won an injunction preventing the federal government from enforcing the statute against the church. (171) The U.S. Supreme Court upheld the injunction, holding that the government failed to meet its heavy burden under RFRA. (172)

Gonzales provides insight into how the Court will apply RFRA to the federal government in the future. First, a prima facie case under RFRA exists when a party establishes that the governmental action would "(1) substantially burden (2) a sincere (3) religious exercise." (173) Second, once the challenging party establishes its prima facie case, the government bears the burden both of providing evidence and persuading the court that the law's burden is justified as the least restrictive means of achieving a compelling governmental interest. (174) Third, the government cannot satisfy its burden by arguing the general interests underlying the law, but must demonstrate that it has a compelling interest in not "granting specific exceptions to particular religious claimants." (175) The government in Gonzales asserted that it had a compelling interest in uniform application of the Controlled Substances Act (176) and that no exceptions could be permitted except as provided in that statute. (177) The Court rejected this "categorical approach" (178) and ruled that RFRA requires a "more focused inquiry" (179) into whether the government had a compelling reason for not granting a requested religious exception to the law. The fact that the executive and legislative branches have granted exceptions to the Controlled Substances Act for certain religious use of peyote (180) fatally undercut the government's argument that it had a compelling interest in uniform application of that statute. (181)

Gonzales is thus significant as establishing that RFRA does indeed apply to actions by the federal government that substantially burden a person's free exercise of religion. Courts will apply strict scrutiny to such actions. RFRA applies to the military, (182) as part of the federal government.

3. Free Exercise Clause Summary

The Free Exercise Clause generally prohibits any governmental action aimed at burdening religion. Courts will almost certainly invalidate those rare governmental actions aimed at suppressing religion. Courts apply strict scrutiny to such targeted actions, and it is difficult or impossible to imagine a scenario in which such targeting is the least restrictive means to further a compelling governmental interest. The legal landscape regarding laws that are not aimed at religion--but burden religion only incidentally--is more nuanced. Courts will apply a different standard of review depending primarily on whether the governmental action at issue is federal or state. If federal (including military), courts will apply RFRA's strict scrutiny standard, which in effect requires a religious exemption from the neutral law substantially burdening religion, unless denial of the exemption is the least restrictive means to achieve a compelling governmental interest. If state religion neutral action is at issue, courts usually (183) will apply Smith's standard, which requires only that the law be "otherwise valid."

C. Tension between the Establishment Clause and the Free Exercise Clause

The Establishment Clause requires governmental neutrality toward religion and a degree of "separation of church and state." (184) The Free Exercise Clause requires that the government respect a person's religious beliefs and practices and not unduly interfere with religious practice. (185) The Court has noted that both clauses "are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other." (186) Thus, while both clauses are complementary in protecting freedom of religion, (187) they can create a tension: by attempting to honor one clause, the government may risk violating the other.

This tension sometimes is reflected when the government, attempting to mitigate the effect that even a religion-neutral law may have on a religious practice, accommodates religion by granting an exemption from the law. Accommodation may be legislative in a whole class of cases, as in RFRA's requirement that religion be accommodated (in circumstances to which it applies) unless denial of the accommodation meets strict scrutiny. Accommodation may also occur by legislative grant of a religious exemption to a particular law, such as some state legislatures creating an exemption from controlled substances laws for religious use of peyote. (188) The judiciary may also find that the Free Exercise Clause requires a religious exemption from a law. (189) Finally, the executive branch might grant a religious exemption to requirements imposed by rule or policy. (190)

Governmental accommodations of religion have been challenged on the basis that the accommodation gives preference to religion thereby violating the Establishment Clause. (191) These challenges have been generally unsuccessful. (192) The Court's "decisions recognize that 'there is room for play in the joints' between the Clauses, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause."(193) Thus, as a general principle, the government may accommodate religion by removing burdens on the practice of religion, even when the Free Exercise Clause does not require it, without running afoul of the Establishment Clause. (194)

Under two circumstances, however, governmental accommodation can go so far as to endorse or foster religion and thereby offend the Establishment Clause. The first is if the law favors religion over non-religion by providing an exemption for only religious organizations even though the law does not impose unique burdens on those organizations. (195) An example would be the government exempting only religious organizations from the payment of sales taxes on publications. (196) Such an exemption is not truly an accommodation because the government is not alleviating a special burden that a law imposes on religion. Rather, the government is exempting only religious organizations from a burden that falls on everyone else. Such special treatment impermissibly advances religion by preferring religion over non-religion.

The second suspect circumstance is when governmental accommodations are given or administered in a non-neutral way to some faiths but not others. (197) An example would be the government gerrymandering a school district to correspond to where members of a particular religious sect Jived when there was no assurance that the government would do likewise for other school districts. (198) This special treatment violates the Establishment Clause by favoring a particular religion.

in both of these circumstances, the government has violated the Establishment Clause's underlying principle of neutrality toward religion. Governmental accommodations of religion that do not violate the principle of neutrality, however, are permissible even when such accommodations are not required by the Free Exercise Clause.

D. The Free Speech Clause, Religious Speech, and Interplay with the Establishment Clause

The First Amendment's Free Speech Clause guarantees that government will not abridge "the freedom of speech." (199) This protection, although "not absolute," (200) certainly covers religious speech, such as religious discussion or profession of religious belief, to the same extent as other speech. (201) The freedom of speech also protects expressive conduct (symbolic speech) when the actor intends to convey a message and viewers would likely understand the message, (202) such as wearing visible religious jewelry. Legal analysis under the Free Speech Clause is appropriate when religious speech (speech prompted by religious beliefs, or other discussions about religion) is at issue. Legal analysis under the Free Exercise Clause and, if applicable, RFRA is appropriate when a religious practice (acts prompted by religious beliefs) is at issue. The analysis under both clauses is similar, but not identical. (203)

Several "well-defined and narrowly limited classes of speech" (204)--including obscenity, (205) defamation, (206) and speech that is an incitement to imminent lawlessness (207)--are considered unprotected by the Free Speech Clause. Speech in these categories is considered unprotected because "such utterances are no essential part of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (208) The significance of speech being unprotected is that the government may limit, prohibit, or punish it or allow civil liability. (209) Unprotected speech is particularly important in the context of regulation of speech in the military as discussed in Part Ill of this article.

Governmental restrictions on speech fall into two general categories: content-based and content-neutral. (210) Content-based restrictions are aimed at the content of the message. (211) An example in the context of religious speech would be a law that prohibited professing any religious belief generally or professing a particular religious belief. Like governmental action targeting religion, (212) content-based restrictions on protected speech are subject to strict scrutiny (213) and are "presumptively invalid." (214) This treatment is consistent with the Free Speech Clause's "bedrock principle ... that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (215)

Content-neutral laws are not aimed at any particular message but instead may incidentally restrict speech as the government pursues other important interests unrelated to the content of the speech. (216) They are sometimes referred to as "time, place, or manner restrictions" (217) because they often limit when, where, and how speech is conducted. For example, the government could have a safety prohibition against wearing jewelry or loose clothing on the jobsite while working with machinery. The law, intended to promote safety, also incidentally limits religious symbolic speech (e.g., wearing of religious jewelry). Content-neutral laws limiting speech in a public forum (218) are subjected to a lower degree of judicial scrutiny than content-based laws and are typically upheld. (219) Content-neutral restrictions in a non-public forum, such as a military base, are subjected to even a lower degree of scrutiny and are even more likely to be upheld: such restrictions are valid as long as they are "reasonable in light of the purpose served by the forum." (220) Thus, the government certainly could impose reasonable content-neutral restrictions on its employees' speech in the governmental workplace during work hours.

Governmental employees do not automatically relinquish their free speech rights, (221) but under certain circumstances the Establishment Clause limits the right of governmental employees to engage in religious speech. The Establishment Clause limits only the government, including governmental employees acting in an official capacity. (222) Private individuals (including governmental employees acting in a private capacity) have the right--conferred by the Free Exercise and Free Speech Clauses, and unconstrained by the Establishment Clause-to endorse and favor one religion (or non-religion) over another. (223) Thus, the question of whether the Establishment Clause trumps the Free Speech Clause in a particular situation depends on whether the employee endorsing religion by engaging in the religious speech is reasonably perceived by an objective listener (224) as acting in an individual, private capacity or in an official capacity. (225) The Establishment Clause is violated if it appears to the reasonable observer (226) that the government, through its employee's speech, is coercing or endorsing religion. (227)

The interplay between the Free Speech and Establishment Clauses can also arise in the context of private religious speech by private parties (not working for the government) on governmental property. These cases may involve a private person or organization seeking to place a religious display on governmental property. (228) They may also involve an organization seeking access to governmental facilities, open to non-religious groups, for religious use or speech. (229) Detailed discussion of religious speech on governmental property by private parties is beyond the scope of this article.

III. RELIGIOUS SPEECH IN THE MILITARY

Religious speech is not exempt from the Free Speech Clause's protections. (230) Military members also have free speech rights, although it is well established that the government has greater latitude in restricting military members' speech than would be permissible in the civilian sector. (231) This Part examines the extent to which the military may regulate military members' religious speech, including discussions about religion, expressions of religious belief (or absence of belief), and proselytizing. (232) Prayer in the military and religious displays on governmental property, although usually forms of religious speech, are discussed separately in Parts IV and V. The separate body of case law pertaining to those topics warrants separate discussion, although similar themes apply to all three.

Limitations on military members' religious speech may be justified on one of two grounds: judicial interpretations of either the Free Speech Clause or the Establishment Clause. (233) The military may regulate religious speech that is not protected by the Free Speech Clause ("unprotected speech") (234) and may regulate even "protected speech" if the limitation meets the applicable requirements. (235) Even if religious speech is otherwise protected by the Free Speech Clause, the Establishment Clause may nevertheless limit it. (236) The Establishment Clause is a limitation only when the military member is reasonably perceived as speaking as a representative of the government, (237) but the free speech limitation may apply to any speech whether done in a private or official capacity. (238)

A. Religious Speech and the Free Speech Clause

Judicial interpretations of the Free Speech Clause are one possible source of military authority to limit its members' free speech. (239) Although the Uniform Code of Military Justice (UCMJ) imposes some prohibitions on military members' speech, (240) no specific provision targets religious speech. But Article 134 includes a general prohibition against all conduct by military members, including speech, (241) that is prejudicial to good order and discipline or that is discrediting to the service. (242) Article 133 also contains a general prohibition against all officers' conduct, including speech, (243) that is unbecoming an officer. (244)

The leading U.S. Supreme Court case pertaining to speech in the military is Parker v. Levy. (245) Captain Levy was charged with violating UCMJ Articles 133 (conduct unbecoming an officer) and 134 (conduct prejudicial to good order and discipline) for certain provoking and disloyal statements (non-religious) he made to enlisted soldiers in the course of his duties while the Vietnam War was ongoing. (246) On appeal from his conviction, Levy argued that the First Amendment shielded him from prosecution for his statements. The U.S. Supreme Court disagreed stating: "Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected." (247) The Court of Appeals for the Armed Forces has since clarified that speech that "undermine[s] the effectiveness of response to command" (248) is speech that "interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops." (249) This speech is unprotected, (250) meaning that the military may take adverse action against its members based on the content of the speech no matter where or when the speech occurs, even if off-duty away from a military installation. (251)

This formulation of unprotected speech in the military suggests that most religious speech by military members would be protected under the Free Speech Clause because rarely would the content of such speech interfere with the orderly accomplishment of the mission or present a clear danger to loyalty, discipline, mission, or morale of the troops. A clear example of unprotected religious speech would be a military member inciting other military members to adopt a radical form of Islam calling for traitorous actions against the United States in the name of jihad. Another example would be a military member attempting to persuade other military members to adopt a strictly pacifist religion and immediately refuse to perform any military duties. (252)

Even protected speech (that is, speech that does not fall into any category of "unprotected speech") may be regulated, however. The government's ability to limit protected speech depends on whether its regulation is content-based or content-neutral. (253) Content-based regulations must survive strict scrutiny and are presumptively invalid. (254) Content-neutral laws are subject to a much lower standard of review and are likely to be upheld. (255)

Particularly among willing peers, (256) voluntary private discussions about religion, including proselytizing, are permissible off-duty and on-duty (e.g., during breaks) to the extent that non-religious private speech is permitted. (257) Military superiors certainly have the authority to issue a content-neutral prohibition on all on-duty speech that does not pertain to official business. (258) As a practical matter, however, many military leaders permit some non-duty-related conversations while on duty, so long as those conversations do not unduly interfere with the performance of the mission. Such conversations often contribute to unit effectiveness by fostering interpersonal relationships leading to increased teamwork and cohesiveness. If a supervisor permits some non-duty-related conversations on duty, the supervisor should not single out religion as a prohibited topic. (259) This would be a content-based prohibition targeting religious speech that probably would not survive strict scrutiny if challenged. The justification for the supervisor's excluding religious conversation on duty likely would be that it detracts from military efficiency, which a court likely would view as a compelling governmental interest. But excluding only religious conversation is not closely enough related to achieving that interest if other topics of permitted conversation equally detract from military efficiency. The prohibition of religious speech would be underinclusive. (260)

Unwanted proselytizing of another military member, even when it occurs among peers, (261) can create delicate issues when it continues after the listener has expressed the desire not to hear any more invitations to adopt the speaker's religion. As a general principle, of course, the Free Speech Clause does not require a speaker to cease speaking a message just because others do not like hearing it. (262) A military member complaining to the chain of command about another member's off-duty proselytizing might be advised to avoid, if possible, spending off-duty time with the proselytizer.

When the listener realistically cannot avoid the proselytizer, however, the situation is different. Examples include if the two are assigned as roommates or must work closely together or if the proselytizer is "stalking" the listener. Because of the repeated, unwanted nature of the proselytizing and the listener's inability to avoid it, the proselytizing can affect the listener's morale and ability to do his job and thus interfere with mission accomplishment and unit effectiveness. If it does, the religious speech becomes "unprotected," and superiors should act to stop these adverse effects. (263) Typically this would begin with counseling the proselytizer, emphasizing the religious speech's effect on military efficiency due to its repeated, unwanted nature rather than the content of the speech.

Some religious speech by military members could also be limited under the Free Speech Clause not because of its content but because it violates some valid content-neutral law or order. (264) For example, a regulation prohibiting the routine use of slogans and quotes on official e-mails (265) would also prohibit religious quotations. Similarly, a lawful order to maintain "radio silence" during a mission would also prohibit religious speech. These limitations are certainly permissible, despite their incidental impact on religious speech, because they are not aimed at any particular message and directly further important military interests. (266) Finally, the Joint Ethics Regulation's provision on "'misuse of position" prohibits governmental employees, including military members, from using their official position for "endorsement of any ... enterprise" (267) or "in a manner that could reasonably be construed to imply that ... the Government sanctions or endorses [their] personal activities." (268) This content-neutral regulation limits religious speech in a way similar to the Establishment Clause's limitation on religious speech.

B. Religious Speech and the Establishment Clause

The Establishment Clause is a second, independent limitation on religious speech: speech that may be protected by the Free Speech Clause might nevertheless be prohibited by the Establishment Clause. (269) Although courts often apply the Lemon test to analyze Establishment Clause issues, in the context of religious speech courts are more likely to apply the coercion test or the endorsement test. (270) Under these three tests, religious speech that amounts to governmental action would be unconstitutional if its purpose or primary effect is to advance religion, (271) if it results in excessive entanglement between government and religion, (272) or if it coerces or even endorses (as reasonably viewed by the objective observer) a particular religion or religion generally (over non-religion). (273)

The Establishment Clause does not limit private religious speech. (274) This rule is more easily stated than applied: there is a fuzzy line between permitted private religious speech and prohibited official speech advancing religion. In determining whether religious speech has crossed that line, one must look at the totality of the circumstances surrounding the speech. (275) Three general factors are the status of the speaker, the status of the listener, and the context and characteristics of the speech itself. (276) In attempting to determine whether the actions of a private association are fairly attributable to the government in a context other than religious speech, the U.S. Supreme Court has aptly noted:
   What is fairly attributable [to the State] is a matter of
   normative judgment, and the criteria lack rigid
   simplicity. From the range of circumstances that could
   point toward the State behind an individual face, no one
   fact can function as a necessary condition across the
   board for finding state action; nor is any set of
   circumstances absolutely sufficient, for there may be
   some countervailing reason against attributing activity to
   the government. (277)


The Establishment Clause analysis theoretically follows two steps: (1) determining whether the military member's speech is private or official; and (2) only if the speech is official, determining whether it coerced or endorsed religion or otherwise violated the Establishment Clause. As a practical matter, however, the questions are closely related: the same factors bearing on whether the speech is official are also likely to be relevant to whether the speech coerced or endorsed religion. (278)

The speaker's status at the time of the speech--including rank and position--is important in determining whether the speech is official. The speaker's status in relation to the listener's status is also important in determining whether the religious speech is coercive. Coercion exists when the speaker reasonably appears to be using his superior rank or position over the listener to promote religion. (279) Positions of authority are characterized by the authority of the position-holder to make or influence decisions directly affecting subordinates. Such decisions typically include performance reports and recommendations for promotion but could involve an instructor awarding grades in a military academic setting or a coach awarding "playing time" in a military athletic setting. The higher the speaker's rank--and the greater the disparity between that rank and the listener's rank--the more likely it is that the speech will be perceived as both official (280) and coercive.

The speaker's being in uniform and on duty in the workplace may also suggest the speech is official (281) and possibly coercive if the listener is also in uniform, on duty, and subordinate to the speaker. Related to this is whether the listener is voluntarily present during the religious speech. (282) Listeners who are involuntarily present are almost certainly on duty and are compelled to be present by a superior authority who is also likely on duty and in uniform. A military member required to be at an assembly, meeting, or regular place of duty where another military member (particularly a superior) discusses personal religious beliefs may reasonably perceive the speech as both official and an endorsement or even coercion of religion. (283) As an extreme example, requiring cadets or other military members to attend chapel would violate the Establishment Clause. (284)

Similarly, military members who go to a particular service organization for official purposes (e.g., for dental, personnel, medical, legal, financial, or recreational services) should not be subjected to religious speech while receiving the service. Even though military members may be receiving some of these services as their choice (e.g., recreational or legal services), they have a right to them. Government cannot subject people to practices prohibited by the Establishment Clause as a condition of receiving benefits to which they are entitled. (285) Religious speech is likely to be reasonably perceived as an official endorsement when it is made by military members in the course of their providing official services. An exception, of course, exists when military members voluntarily attend chapel services or seek religious guidance from a military chaplain. The members are voluntarily present with the chaplain for the very purpose of hearing religious speech. Religious speech under these circumstances does not offend the Establishment Clause. (286)

Due to their high rank and positions, some military members might reasonably be perceived as being representatives of the government whenever they speak in public. (287) Thus, even "off-duty" comments made by such military members might reasonably be perceived as official. (288) Indeed, any military member who has been asked to speak because of that person's military affiliation, rank, or position is likely to be perceived as speaking as a military representative, particularly if wearing a uniform. An example might be a religious speech to a substantial crowd by a prominent in-uniform general officer, introduced by his rank and position. (289)

On the other hand, religious comments made by military members off-duty, out of uniform, in private places, to people over whom they hold no superiority in rank or position are likely to be considered permitted private speech. Furthermore, not every religious comment made on duty and in uniform is likely to be perceived as official speech, especially when not made to subordinates or customers. The context and circumstances surrounding the speech itself are a third general factor--in addition to the speaker's and listener's status--in determining whether a military member's religious speech is official and, if so, whether it coerces or endorses religion.

The speaker's intent to be speaking privately might be clear from the speech's context, even if in uniform and on duty. For example, a discussion about religion might occur during break in a designated break or dining area. An even stronger indication of private speech normally would be if the speech occurred completely off duty away from a military installation. (290) In addition, the speaker may purport to speak for himself by speaking in the first person. (291) If all the other topics of the conversation do not relate to duty, the religious speech may also be perceived as the speaker's private views. Conversely, if the entire rest of the discussion is about official matters, the religious portion is more likely to be perceived as official too, particularly if a superior is speaking.

Other circumstances surrounding the speech--such as the nature, extent, and occasion for the speech--may also affect the perception as to whether the religious speech is official or private and whether the speech coerces or endorses. (292) Infrequent, short, nondenominational (293) religious comments made in the context of significant events (294) may be more likely to be viewed as the speaker's private speech, even if the speaker is superior in rank, on duty, and in uniform. An example might be a superior's comment to a subordinate, upon the death of the subordinate's child, that the superior has the subordinate and his family in his prayers. Even if such statements are viewed as official, they may be so innocuous as to not coerce or endorse religion. At the other extreme, repeated or lengthy religious speech--particularly with substantial religious content (295) or invoking beliefs not shared among world religions--during routine occasions is more likely to be viewed as official and as either coercive or an official endorsement of religion, especially if done on duty by a superior in uniform. Proselytizing speech by a superior to a subordinate is likely to be viewed as both official and coercive. But other factors--such as if the superior were merely responding to a subordinate's questions concerning the source of the superior's spirituality and inner strength--could mitigate even this seemingly bright line rule.

Application of these three general factors--the speaker's status, the listener's status, and circumstances and context surrounding the speech--to any particular instance of religious speech by a military member does not provide a flow chart leading inevitably to a conclusion that speech at issue was or was not "government speech" and did or did not violate the Establishment Clause. Rather, these factors provide guideposts for military attorneys and the members they advise. Indeed, not all factors are likely to point to the same conclusion in any given case.

The issue requires judgment, wisdom, maturity, and respect for others' religious beliefs from military members engaging in religious speech as well as careful analysis of the facts and application of complex case law, which is unlikely to be on point, from military attorneys advising members. The U.S. Supreme Court has emphasized that its "Establishment Clause jurisprudence remains a delicate and fact-sensitive one," (296) and this is certainly even more true with the interplay between the Free Speech and Establishment Clauses. If the religious speech, considering the all the circumstances, is more properly characterized as private, the issue should be analyzed under the Free Speech Clause as discussed above in Part IIIA. Conversely, if the speech is more appropriately characterized as official, the issue should be analyzed under the Establishment Clause as discussed in this Part. (297)

IV. PRAYER IN THE MILITARY

Official prayer (298) in the military can occur at a variety of functions from invocations in formal, solemn settings--such as graduations, change-of-command ceremonies, and dining-ins--to more routine functions such as meals (299) and staff meetings. The complexity of legal standards in this area is highlighted by the array of tests used by the U.S. Supreme Court when addressing the issue of prayer in a public setting. The Court has upheld an opening prayer for a legislative session relying on the historical exception (300) but has denied a moment of silence in public schools using the Lemon analysis. (301) In addition, the Court has struck down a high school graduation invocation on the basis of coercion (302) and has struck down a student-led high school football pre-game prayer using a multitude of tests to include: coercion, improper governmental endorsement, and failure under the Lemon test's secular purpose prong. (303) When facing the challenging question of prayer at an official military function, one must navigate through the array of legal opinions deliberately and with a full understanding of the particular context in which the prayer will be given.

A. Prayer at Solemn Military Events

1. Deeply Embedded in History Exception

The Air Force Interim Guidelines rely on a "long-standing military tradition" to authorize a "'brief non-sectarian prayer" at "non-routine military ceremonies or events of special importance." (304) According to these guidelines, the purpose of such a prayer is to add a "heightened sense of seriousness or solemnity" to the events. (305) This reliance on a historical exception to authorize prayer at special military ceremonies stems from the U.S. Supreme Court's decision in Marsh v. Chambers.

The Court in Marsh upheld an opening prayer for the Nebraska legislative session because such a practice is "deeply embedded in the history and tradition of this country." (306) The Court noted that the same week Congress reached agreement on the Bill of Rights' language, the legislative body also authorized paid legislative chaplains, (307) who as part of their duties opened Congressional sessions with a prayer. The Court curtailed the use of this historical exception by noting in a subsequent case that the non-existence of free public education at the adoption of the Constitution prevented using a Marsh-based historical analysis in the context of prayer in public schools. (308) Thus, the Court has limited the historical exception to practices of prayer dating back to the late eighteenth century. In order for the practice of prayer at formal, solemn military events, such as change-of-command ceremonies and dining-ins, to prevail under the Marsh analysis the prayer or invocation at such functions must be "deeply embedded" in our military history.

The critical question about the use of Marsh as justification is this: must the military show specific evidence of prayer at formal military functions that have existed since the late 1700s or can the military rely on the general existence of chaplains and their role in leading prayer in the military? The existence of military chaplains began prior to the adoption of the Constitution. (309) The First Continental Congress authorized the numbers of military chaplains as well as their pay. (310) Military chaplains' duties in the late 1700s included leading prayer services, visiting the troops, and counseling commanders. (311) During the Revolutionary War, General Washington even issued a general order requiring all officers and soldiers to pray and fast on 17 May 1776. (312) This evidence shows that chaplains led troops in prayer since the very beginning of our nation's history.

If, on the other hand, the military must show very specific examples of prayer at formal military functions deeply embedded in our history, the support becomes weaker. For example, arguably a dining-in could be considered an event of special importance falling under the Air Force Interim Guidelines, yet various services differ over how long dining-ins have been a part of military history. The Navy credits the roots of its dining-in tradition to the Revolutionary War, which--if prayer was part thereof (313)--would likely qualify under Marsh's exception. (314) The Army, in contrast, states that the dining-in was not adopted from its British comrades until the World War I and II timeframe. (315) In Marsh, the Court commented that the tradition of prayer at the opening session of Congress has "continued without interruption" since 1789. (316) Given the narrowness of this rule, it remains unclear whether the military could utilize Marsh's deeply embedded historical exception to justify prayer at every non-routine military event or ceremony.

While it remains unclear whether the reliance on historical exception will support the military's continued use of prayer at formal ceremonies, this much does remain clear: the reliance on this historical exception should remain narrow. The U.S. Supreme Court has never relied on this historical exception outside the narrow factual setting of the Marsh case. In fact, the Court has specifically rejected an interpretation of Marsh that would hold "all accepted practices 200 years old and their equivalents ... constitutional today." (317) Given the narrowness of the Marsh decision, judge advocates should be wary of pushing the limits of this historical exception to justify non-sectarian prayer at solemn military events.

2. Remaining Establishment Clause Analysis

Without the historical Marsh exception, justifying prayer at solemn military events becomes much more difficult under the current case law. Although the vast majority of case law deals with prayer in the school setting, the principles and tests used by these cases can be used to analyze prayer at solemn military events. The two major U.S. Supreme Court cases in this regard are Lee v. Weisman (318) and Santa Fe Independent School District v. Doe. (319)

In Lee, a public school principal invited a clergy member to deliver a nonsectarian prayer at the annual graduation ceremony and provided the clergy member a pamphlet of guidelines to control the content of the prayer. (320) The Court held the practice unconstitutional largely under the coercion test because the state was in essence directing the performance of a religious exercise and compelling student attendance. (321) The Court found the school's argument that a high school graduation ceremony was technically voluntary for a student completely unpersuasive given the obligatory nature of such an event. (322)

In Santa Fe, the Court overturned a high school policy that authorized students to vote on whether to hold an invocation at football games. (323) Although the invocation was delivered by a student, the Court rejected the idea that the speech was private. The speech was on school property, at a school-sponsored event, using the school's public address system, under school supervision and "pursuant to a school policy that explicitly and implicitly encourages public prayer." (324) Then, under the Establishment Clause, the Court struck down the speech on three separate grounds. First, the Court found the policy of putting an invocation to a vote and allowing a student to deliver a prayer based on a majority vote involved both perceived and actual endorsement because an objective observer would view the pre-game prayer as possessing the school's seal of approval. (325) Second, the stated secular purpose of the policy was just a sham to continue the school's long practice of prayer before games, (326) thus violating the purpose prong of the Lemon test. Finally, the Court found the pre-game prayer unduly coercive given the "immense social pressure" to attend and the improper effect of the prayer to coerce those present to engage in religious worship. (327)

With Lee and Santa Fe as a backdrop, the determination that must be made is: can an invocation at a formal military event be considered private speech? (328) Since Santa Fe, several courts of appeals' cases have upheld prayer at graduation ceremonies on the basis that the prayer constituted private speech and thus was permissible under the Free Speech and Free Exercise Clauses. (329) In Adler v. Duval, (330) for example, the court upheld a school policy that allowed students to elect whether to have an opening and closing message at graduation given by a student. (331) The school had no role in reviewing the message content and nothing in the policy encouraged or suggested that the message be religious in nature. (332) The court found such student-initiated prayer to be private speech. (333)

Equating a chaplain-led or military member-led prayer to private speech would be difficult. Unlike a school environment, where students can vote on whether or not to have a message and decide what the content of the message should be, (334) the military does not put to a vote whether to have an "opening message" at a change-of-command or dining-in. Instead, a commander typically decides that there will be an invocation and routinely asks a chaplain to perform this duty. This overt governmental involvement, both in the decision making and delivery of an invocation, results in clear governmental speech, thereby compelling Establishment Clause analysis.

If the formal solemn event had both a public and private aspect to the ceremony, the possibility exists for private speech. (335) For example, in a retirement ceremony after the presentation of the orders and award, the remainder of the ceremony could constitute the private part of the ceremony. The moderator could announce that the private portion of the ceremony is about to begin, and any prayer or religious speech that follows would constitute private speech protected under the Free Speech and Free Exercise Clauses. (336)

Next, the invocation at a solemn military event would need to pass the Lemon test. Although the purported purpose of "solemnizing" an event with a prayer was relied upon in two courts of appeals' cases following Lee to justify meeting the purpose and primary effect prongs, (337) such rationale is unlikely to pass muster after Santa Fe. The Court in Santa Fe recognized that the contexts of prayer at a football game differed radically from the graduation ceremony in Lee and indeed questioned the school's rationale for why solemnity was needed at all for a sporting event. (338) The Court, nevertheless, rejected the basis for solemnity arguments by stating that "the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school." (339) Although the Court in Santa Fe did not squarely decide whether the solemnity could ever be used successfully to support governmental prayer, courts of appeals' decisions following Santa Fe have shied away from solemnity arguments and instead relied on distinguishing private and official speech. (340) This analysis shows that the solemnizing justification is unlikely to exempt prayer from scrutiny if the prayer is in fact government-sponsored.

Without a solemnizing justification, the purpose of having an invocation at a formal, non-routine military event falls back to a non-secular and impermissible one. (341) The primary effect of including invocation transforms into conveying a message favoring religion, which clearly violates the effects prong of Lemon (342). In addition, prayer at formal military functions fails the excessive entanglement prong because typically a governmental representative, such as a commander, decides whether to have an invocation and who will deliver it while another governmental representative, such as a chaplain, determines the content and gives the prayer. Courts have found similar levels of involvement in a school or school board setting excessive and in violation of Lemon's third prong. (343) Even if the solemnization argument could be made post-Santa Fe, when so many other aspects of a formal military ceremony can be used to promote the solemnity of the ceremony (e.g., special uniform requirements, posting of colors, standing at attention for various aspects, a speech by a commander), it becomes difficult to justify how the purpose of adding a prayer is truly for solemnity vice religious purposes.

Even if a justification could be made under Lemon supporting prayer at formal military events, the prayer at a formal non-routine military ceremony would have to satisfy the Court's concern of governmental coercion. The Court has made clear that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise." (344) Despite the fact that military members are mature adults and the Court has evaluated coercion only in the context of minors, (345) several aspects of the military environment raise serious coercion concerns paralleling the Court's demonstrated concerns of coercion in the public school system. First, all formal military events are hosted by a superior officer. In addition, during an invocation all military members are expected to stand quietly and demonstrate respect toward the speaker. Finally, attendance at formal military events such as dining-ins and change-of-command ceremonies is essentially obligatory. (346) The Court in Engel v. Vitale (347) likely said it best in its observation that "when the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." (348)

Finally, even if the prayer at a non-routine event was not coercive, such prayer is unlikely to pass scrutiny under the endorsement test. (349) A reasonable observer viewing a formal military function--where the moderator asks the audience to remain standing during the invocation followed by a uniformed member, possibly a chaplain, leading the audience in a nonsectarian prayer--would likely perceive governmental endorsement of religion. The perception of military endorsement of religion would be similar to the stamp of endorsement by the school policy on Santa Fe's student-led invocation. (350)

B. Prayer at Routine Military Events

Consistent with executive guidance and case law, judge advocates should strongly advise against prayer at routine military events, such as staff meetings or meals. Both the Air Force Interim Guidelines (351) and Guidelines on Religious Freedom in the Federal Workplace (352) issued under President William J. Clinton (hereinafter Clinton's Guidelines) advise against the use of prayer or invocation at routine events. The only noted exception is prayer during extraordinary circumstances such as circumstances involving mass casualties, preparation for imminent combat or natural disasters. (353) Such guidance conforms to case law analyzing prayer at more routine events.

In Warnock v. Archer, (354) a public school teacher was required to attend staff meetings at which prayer was conducted and attend in-service training meetings that opened its meetings with prayer. (355) Using the endorsement test, the court held such prayer unconstitutional because the routine prayer in an official, mandatory meeting decisively conveyed the message that the governmental endorsed religion. (356) Similarly, a routine staff meeting that begins with the commander asking a chaplain to pray conveys the same such decisive endorsement of religion. In contrast, a prayer during extraordinary circumstances is more likely to be infrequent and spontaneous, leading an objective observer to reject the idea of governmental endorsement. (357) Thus, the endorsement test confirms executive guidance rejecting prayer at routine events in all but the most extraordinary of circumstances.

In addition to the endorsement test, judge advocates must also analyze the proposed prayer at routine events under a coercion analysis. Although the Warnock decision found that the coercion test was not violated due to the strong-willed nature of the plaintiff and his status as a contractual employee, (358) the result is likely different in a military environment. In Mellen v. Bunting, (359) the court struck down the daily prayer at the Virginia Military Institute's (VMI) evening meal based on both the Lemon and coercion tests. The court emphasized that, even though the students of VMI were mature adults, VMI's military environment still resulted in violation of the coercion test. (360) The court particularly noted that VMI's coercive educational method emphasized "detailed regulation of conduct and indoctrination of a strict moral code." (361) Clearly, the military academies and enlisted basic cadet training environments would fall squarely within this coercion test analysis--thus negating the use of prayer at any routine events in these forums. (362) Even outside of these environments, however, the mere presence of chain-of-command involvement in prayer at routine events leads to inherent concerns of potential coercion. (363) In sum, the coercion test counsels against prayer at routine military events.

Finally, judge advocates' advice should not be swayed by the argument that "no one is actually offended" by prayer at routine events. First and foremost, it is irrelevant to Establishment Clause analysis whether any persons in attendance are actually offended. (364) The impermissible endorsement of religion or coercion by the government does not change just because no one in attendance is offended. (365) In addition, it would be difficult to imagine how such information could be gathered without raising endorsement or coercion issues. Much like the Santa Fe school policy of putting "invocations" at high school football games to a vote led to governmental endorsement of religion, (366) a military policy of asking those in attendance if they are offended or informing those offended that they can leave prior to the prayer would also be impermissible.

C. Prayer or Invocation Guidance if Allowable

If prayer or an invocation is allowed at a military function, the prayer must be non-sectarian and non-proselytizing. (367) In other words, the invocation should not reference or attempt to promote a particular deity or belief system. This stems from the overarching requirement that the government remain neutral between religions. (368) To err on the safe side, judge advocates may advise that a moment of silence be used in place of prayer. A moment of silence does not implicate the same Establishment Clause concerns and is likely constitutional in any setting (369) unless the primary purpose behind using the moment of silence is to promote religion. (370)

V. RELIGIOUS DISPLAYS IN THE MILITARY

Like prayer, religious displays are a form of free speech (371) that the Establishment Clause may nevertheless limit under certain circumstances. As when analyzing governmental prayer, the U.S. Supreme Court has applied an array of tests when determining the constitutionality of various religious displays on governmental property. Although the Court has most often applied the entire Lemon analysis, (372) the Court has also decided the fate of various displays based only on Lemon's purpose prong (373) and on just the endorsement test. (374) The variety of establishment "tests" stems from the Court's "unwillingness to be confined to any single test or criterion in this sensitive area." (375) Instead, the Court scrutinizes the context of the display and then draws upon the most applicable test for analysis.

Similarly, when deciding whether a particular display passes constitutional muster, military attorneys should pay special attention to where the display is located. Religious displays in the military can be categorized generally as falling into three distinct areas: a common area such as a squadron break area or conference room; a "personal" governmental work area such as an office; and a private area where little governmental work occurs, such as a dorm room. The constitutional analysis will vary depending in which of these three areas the religious display resides because the location of the display strongly influences whether the display will be viewed as governmental or private.

A. Common Areas

Common areas in the military require the closest scrutiny when evaluating the validity of a religious display because the perception of governmental action is the highest. Any location of common access considered the "unit's" or "base's" would constitute a common area. Typical examples include customer service areas, squadron break rooms, conference rooms, front offices, and the outdoors. (376) Forms of religious displays in these areas could include the posting of a written document such as the Ten Commandments, a three-dimensional display such as a creche or menorah, or a religious symbol such as a cross. (377)

The first question to resolve when confronted with a display issue is "Is this a religious display at all?" Some objects, such as a creche (378) and the textual display of the Ten Commandments, (379) have been held to clearly communicate a religious message. The message or purpose of a lit "Christmas" tree, however, often depends on the context of the display. A lit tree by itself, with no religious ornaments, may be viewed as a secular depiction of the Christmas holiday. (380) In contrast, the same tree placed next to a menorah may associate the display with the religious connotations of the very same holiday. (381) Thus, although the lighting of a tree on a military installation around the December holiday season will not, by itself, raise Establishment Clause issues, a tree in a more complex setting requires additional analysis. When in doubt as to whether a display communicates a religious message, practitioners should assume such a message and continue with thorough legal analysis.

Although the Court utilizes a variety of tests for religious displays on governmental property, some rules remain constant. First and foremost, the government must remain neutral not only between various religions but also between religion and non-religion. (382) To that end, the government "may not promote or affiliate itself with any religious doctrine or organization." (383) Applying these steadfast principles and then overlaying an appropriate Establishment Clause test will serve military practitioners well when evaluating religious displays in common areas.

Given the steadfast requirement of government neutrality towards religion in combination with the Lemon and endorsement tests, it is difficult to see how the placement of a single distinctively religious item in a common area would meet the Establishment Clause requirements for permissibility. In County of Allegheny v. ACLU, the U.S. Supreme Court held that a creche placed on the "Grand Staircase" of the county courthouse sent a message to any reasonable viewer that the government supported, indeed endorsed, the Christian message of the creche. (384) Surrounding floral decorations and a sign disclosing the ownership of the creche by a Roman Catholic organization did not alter the overriding fact that the creche was the "single element of the display" and thus a clear endorsement by the government of a particular religious belief. (385)

In contrast, a display containing a mixture of religious and nonreligious items meets constitutional muster as long as the purpose of the display is secular. For example, a block from the Allegheny County courthouse stood a different display in front of Pittsburgh's city-county building showcasing a Christmas tree, a Chanukah menorah, and a sign saluting liberty, and, although the Court did not reach consensus as to why this mixture of displays did not violate the Establishment Clause, six Justices agreed that no such constitutional problem existed. (386) Similarly, in Lynch v. Donnelly, a city-sponsored holiday display that included (inter alia) a creche, a Santa Claus house, reindeer pulling a sleigh, carolers, a Christmas tree, hundreds of colored lights, and a banner declaring "Seasons Greetings" passed Establishment Clause scrutiny under Lemon. (387) Looking at the display in context, the Court found a secular purpose by the city in celebrating the Christmas holiday and depicting various origins of the holiday while finding no primary effect of aiding religion or fostering an excessive entanglement between religion and the state. (388) Thus, a display in a common area with a clear secular purpose (389)--such as a display depicting how various religions celebrate important cultural holidays along with a focus on how the military protects Americans' liberty to celebrate various holidays--would likely meet the requirements of the Establishment Clause.

In sum, in common areas, both indoors and outdoors, the military should avoid erecting or allowing private groups to erect solitary religious displays affiliated with one particular religion, as the government would violate the clear Establishment Clause principle of neutrality and would be perceived as endorsing religion. Further, when dealing with displays with a mixture of religious items or displays of religious and non-religious items, the military should exercise extreme caution, ensuring that a reasonable person would not view the display as a governmental endorsement of religion (390) and that the purpose for the display is a secular one. (391)

B. Private Areas

On the opposite end of the spectrum from common areas are private areas owned by the government, yet not associated with governmental work. Dormitory rooms and military housing are the quintessential examples of a private areas owned by the government, yet principally associated with a single person or family where the primary function within the area is not related to governmental work. Examples of religious displays in such private areas include religious posters or pictures, religious books such as the Koran or Bible, and religious symbols such as a cross or Star of David.

In private areas, free exercise and free speech issues, vice establishment concerns, reign supreme for two reasons. (392) First, a reasonable person would not believe that the government is endorsing religion based on religious displays in a private residence just because the government owns the property; (393) thus, Establishment Clause issues are unlikely to be implicated in this setting. Second, when expression by a private individual is made on governmental property where nonreligious speech is generally allowed, the government cannot deny private religious speech under the color of Establishment Clause concern. (394) Although the government does place some content-based limitations on the type of speech and displays permitted in governmental housing and dorm rooms based on good order and discipline concerns, (395) such restrictions are very narrow in scope and would unlikely alter the general prohibition against the military making content-based restrictions on religious speech in such a private setting. (396)

Given the predominance of free exercise and free speech rules in this private area context, any content-based restrictions of religious displays in a dorm room or housing area should be looked upon warily. For example, suppose one roommate in a two-person dormitory room mounts a large atheist (or other religious poster) (397) above her bed advocating her beliefs and the other roommate complains to her first sergeant. The first sergeant should not force the atheist military member to remove the poster unless there is a neutral, consistently applied rule stating that no posters are allowed in dorm rooms. If the first sergeant were to remove the religious display, the government would not be acting neutrally towards matters of religion, in clear contradiction of case law. (398) The government's action would be based on the content of the religious display and likely would violate the atheist member's free exercise and free speech rights. (399) The first sergeant could, however, counsel both members on respecting the other's spiritual values. (400)

In sum, while the military may consistently enforce content-neutral restrictions on religious displays in private governmental areas, the military should stay away from content-based restrictions on such religious displays unless a commander has a compelling governmental reason for such restriction. In addition, when advising military commanders with respect to religious displays in private areas, remember to ensure the government's actions remain neutral between different types of religion and between religion and non-religion.

C. Personal Governmental Work Areas

The Establishment and Free Exercise Clauses begin to converge when evaluating religious displays in a personal governmental work area. By "personal" governmental work area, this article refers to those areas associated with a single person but where the principal activity is governmental work. An office, cubicle, or work station used principally by one military member falls within this category. Religious displays in this area mirror those in the private area discussed earlier such as religious signs, books, or symbols. Both Religion Clauses are raised in this area because the work area generally has a mixture of both governmental work space, such as governmental equipment and furniture, and a member's personal belongings, such as pictures and certificates. Thus, when analyzing religious displays in this mixed area of governmental and personal space, one must examine both Establishment and Free Exercise Clause case law.

Within the Establishment Clause context, first look at the overall context of the display. (401) Such analysis will indicate whether the display is principally for personal private use. (402) if a display is used for purely personal use, the display would equate to private religious speech requiring an evaluation of whether this individual has the right to display a religious item in his or her personal area within governmental workspace under the Free Exercise Clause. Although the military respects military members' free exercise rights, (403) these rights are not unrestricted in the personal areas of a governmental workspace. For example, the Joint Ethics Regulation prohibits governmental employees from using their official position to promote a private agenda. (404) The Air Force Interim Guidelines specifically reinforce this ethics principle in the religious context by cautioning that personal expressions may appear to be official expressions of religion. (405)

If the display looks more like an official expression of religion, such as a display attempting to proselytize to others, Establishment Clause analysis is required. Using the endorsement test, determine if a reasonable observer would think the government is endorsing religion. (406) In addition, analyze whether the display raises any coercion concerns (407) based on who the individual is and the manner in which the display is placed. The more senior-ranking the individual, the more likely that a reasonable person would view the display as governmental endorsement of religion and the more likely coercion concerns would be implicated. (408) Analysis of these principles will help determine whether an Establishment Clause issue exists in the context of personal governmental work space.

The sentiments of these Establishment and Free Exercise principles are echoed in executive guidance discussing the propriety of religious displays in personal work areas. In stark contrast to the lack of executive guidance for religious displays in common areas, the executive branch has provided some guidance for religious displays in personal governmental work areas in both the Clinton Guidelines and the Air Force Interim Guidelines. While other military services have published various other forms of direction in this area, (409) this article will focus its analysis using the two aforementioned executive guidelines.

Under the Clinton Guidelines, an employee may keep a religious item, such as a Bible or Koran, on his or her private desk. (410) Such a display passes muster under the Establishment Clause because a reasonable observer would not interpret a religious book on a private desk facing its owner to equate to governmental endorsement of religion. Instead, the context of such a display would indicate a private religious display used for personal reflection with no implications under the Establishment Clause. (411)

When a superior or commander has such a religious display, the analysis becomes more complex. The Air Force Interim Guidelines cautioned supervisors at every level about their special "responsibility to ensure their words and actions cannot reasonably be construed as ... official endorsement" of religion. (412) Even with this guidance, a religious display within the personal workspace (e.g., desk area) of a leader used for personal reflection does not imply governmental endorsement of religion and thus is likely permissible. If, however, the religious display was outside the supervisor's personal space--for example a religious book on a table between two chairs used to hold conversations or a religious sign facing visitors but not the owner--the message would likely change from one of private expression to that of the superior attempting to share or promote his or her religious faith. This context leads to concerns of a superior's coercion of a subordinate who may be susceptible to pressure inherent in the rank disparity. (413) In addition, using one's official government position to promote one's private religious agenda likely violates the Joint Ethic Regulation. (414) Thus, whether a supervisor can place a religious display in his or her personal governmental workspace depends on the display's context and placement.

The dilemma comes when a low-ranking, non-supervisor places a religious display clearly intended to proselytize and not for personal reflection. For example, an airman in the customer service section at the Military Personal Flight places a cross on his desk facing his customers with a sign stating "Jesus is the Only Way." Under Allegheny's endorsement test, (415) a reasonable person is unlikely to find that a low-ranking airman's personal beliefs lead to governmental endorsement of religion. Further, the analogous concern of coercion falls flat when evaluating the religious display of a non-supervisor. Thus, the airman's free exercise rights will prevail and allow such a display unless content-neutral executive guidance exists to the contrary.

In this case, the Joint Ethics Regulation guidance concerning use of an official governmental position to promote a private agenda may prevent such a display. (416) The critical question becomes: does this display attempt to use one's official position to proselytize? On one hand, when analyzing the context of the display, the commander may not desire customers of this airman to be subjected to a display directed at them. (417) On the other hand, the commander may find that one small sign does not cross the line of using one's official position to promote a private cause. As long as the commander consistently applies this ethics provision in a content-neutral manner, (418) the commander's decision will likely avoid successful challenge. (419) If the military prohibits religious expression under this ethics provision but allows another airman to promote a private organization of his or her choosing, then the military moves from a content-neutral minimum scrutiny test to a content-based strict scrutiny test. (420) Finding a military necessity to prevent such a religious display in a low-ranking, non-supervisor's personal area to justify such content-based restrictions on free exercise of religion would prove extremely challenging.

When analyzing religious displays in personal governmental work areas, one should focus on the context and purpose of the display in combination with the status of the owner to determine if the Establishment Clause prohibits the display. Otherwise, the employee's free exercise and free speech rights will likely validate the religious display unless it runs afoul of the Joint Ethics Regulation.

VI. ACCOMMODATION OF RELIGION IN THE MILITARY

A variety of military laws or activities might limit military members' practice of their religion. For example, a particular mission or routine duty day might fall on a day when a member's religion requires worship, rest, or other religious activity precluded by the duty. Military uniform and appearance regulations might prohibit the wear of articles of clothing (e.g., yarmulke or turban) that are required by certain religions, or might limit how hair (head or facial) is worn in a way inconsistent with certain religions. The military might not consistently serve food that is required by certain religions, might serve food that is prohibited by certain religions, or might not prepare food in the manner prescribed by certain religions. The military might require medical treatments, such as inoculations, that are prohibited by certain religions. in the military, conflicts between military requirements and a service member's religious practices are resolved on a case-by-case basis. The general rule, however, is that the military should provide an exemption whenever possible unless accommodation will adversely affect military readiness. (421) This rule derives not from the Free Exercise Clause itself but from statutory and regulatory requirements described below.

A. The Free Exercise Standard

Goldman v. Weinberger (422) is the leading U.S. Supreme Court case concerning the extent to which the Free Exercise Clause requires the military to accommodate religion by providing an exemption to military regulations. Captain Goldman was an Air Force doctor serving as a clinical psychologist. As an Orthodox Jew and an ordained rabbi, he wore a yarmulke while in uniform, contrary to an Air Force regulation. (423) After Captain Goldman testified as a defense witness in a court-martial while wearing his yarmulke, the military prosecutor reported the uniform violation to Captain Goldman's commander. The commander ordered Captain Goldman to cease wearing the yarmulke in uniform, and Captain Goldman sued. He argued the Free Exercise Clause required the Air Force to grant him an accommodation by permitting him to wear a yarmulke in uniform despite the regulatory prohibition. The Court, in a 5-4 decision with strong dissents, held that no religious accommodation was required by the Free Exercise Clause. (424)

Captain Goldman asked the Court to apply strict scrutiny to the case. (425) The U.S. Supreme Court decided this case in 1986, four years before it decided Employment Division, Department of Human Resources of Oregon v. Smith, (426) at a time when it appeared that the Court was applying strict scrutiny even to free exercise challenges of religion-neutral laws. (427) Under this standard, Captain Goldman sought an exemption unless the yarmulke posed "a 'clear danger' of undermining discipline and esprit de corps." (428) The Court, however, declined to apply strict scrutiny because "the military is, by necessity, a specialized society separate from civilian society." (429) Instead, the Court applied a highly deferential kind of minimum scrutiny, which looked only to whether the regulation was reasonably related to some legitimate military interest. (430)

The Air Force asserted a vital interest in uniformity, which "encourages the subordination of personal preferences and identities in favor of the overall group mission ... [and] encourage[s] a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank." (431) The Court, noting a line of cases in which the Court gave "'great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest," (432) concluded that the military, rather than the courts, must decide the need for uniform regulations. (433) The military's line between permissible and impermissible religious symbols--depending on whether the symbol was visible in uniform or not--was a reasonable way to further the military's stated need for uniformity. (434) The Court upheld the Air Force's regulation and its refusal to provide an exception for Captain Goldman despite the burden on his religious exercise. (435)

The Court's approach to evaluating religion-neutral laws in the military foreshadowed the approach it would take in Employment Division, Department of Human Resources of Oregon v. Smith (436) four years later when evaluating religion-neutral laws in the civilian sector. Courts will uphold such laws when they pass minimum scrutiny and are otherwise valid. (437) In the military context, however, the Court will give even greater deference to the governmental interest underlying the law. (438)

B. Statutory and Regulatory Guidance

Congress reacted quickly to Goldman. (439) In 1987, the year after the Court decided Goldman, Congress enacted a statute generally authorizing military members to wear items of religious apparel while in uniform. (440) The statute authorized service secretaries to make exceptions prohibiting items that would interfere with the performance of duty or that are not neat and conservative. (441) Service secretaries were directed to enact regulations on the wearing of religious apparel in uniform. (442)

In February 1988, the Department of Defense promulgated directive number 1300. (17) entitled Accommodation of Religious Practices Within the Military Services. (443) The directive concerns not only the wear of religious apparel in uniform but also certain other religious accommodation contexts. These other contexts include time off for worship, holy days, and observing the Sabbath; (444) dietary issues; (445) and waiver of required immunizations. (446) The overarching theme of the DoD Directive is reflected in its statement of policy:
   A basic principle of our nation is free exercise of religion. The
   Department of Defense places a high value on the rights of members
   of the Armed Forces to observe the tenets of their respective
   religions. It is DoD policy that requests for accommodation of
   religious practices should be approved by commanders when
   accommodation will not have an adverse impact on military
   readiness, unit cohesion, standards, or discipline. (447)


The DoD Directive establishes goals for the military services in their development of regulations on religious accommodation but emphasizes that these goals do not create a guarantee that the military will always accommodate religion. (448) The military should accommodate requests regarding "[w]orship services, holy days, and Sabbath observances ... except when precluded by military necessity." (449) The military should consider religious dietary limitations when considering military members' requests for separate rations or to bring their own food in a field or sea deployment. (450) The military "should consider religious beliefs as a factor for waiver of immunizations, subject to medical risks to the unit and military requirements." (451)

The directive establishes more guidance regarding wearing religious apparel with the uniform and distinguishes between apparel that is visible and not visible in uniform. (452) Religious apparel is defined as "clothing worn as part of the doctrinal or traditional observance of the religious faith practiced by the member" and explicitly excludes jewelry, hair, and grooming. (453) If visible, apparel must be "neat and conservative" and not interfere with the performance of duties. (454) If not visible, the "neat and conservative" requirement does not apply, but the "non-interference with duty" requirement still applies. (455) Interference with duty would occur when the apparel interferes with the operation of weapons or machinery, poses a health or safety risk, or interferes with the wear of special clothing or protective equipment (e.g., helmet, gas mask). (456) "Neat and conservative" items are those that are discreet, tidy and non-showy, do not replace or interfere with how the uniform is worn, and are not affixed to the uniform. (457) For example, a dark yarmulke would be permissible. (458) Even normally qualifying visible religious apparel may be prohibited when unique circumstances require absolute uniformity, as with an honor guard. (459)

The DoD Directive specifies five factors that military commanders should consider in deciding, on a case-by-case basis, whether to approve a request for religious accommodation. The factors are: (1) "The importance of military requirements in terms of individual and unit readiness, health and safety, discipline, morale, and cohesion"; (2) "The religious importance of the accommodation to the requester"; (3) "The cumulative impact of repeated accommodation of a similar nature"; (4) "Alternative means available to meet the requested accommodation"; and (5) "Previous treatment of the same or similar requests, including treatment of similar requests made for other than religious reasons." (460) The commander may consider other relevant factors as well. (461)

The weightiest factor arguably is the importance of the military requirement: the more important the requirement to be missed (e.g., critical combat operation), the stronger the justification for denying the accommodation. The potential cumulative impact of many people making similar requests also would be a factor against accommodation. The importance of the accommodation to the requester, however, cuts in favor of accommodation. (462) The fourth factor looks to whether the military might accommodate in some way that affects the mission less-for example, postponing a requester's scheduled duty as charge of quarters for one day until after a holy day has passed rather than just excusing the requester from the duty altogether.

The final factor--previous treatment of similar requests, including handling of requests for accommodation for non-religious reasons--bears special emphasis. This factors boils down to two related principles: non-discrimination against religion and consistency in similar circumstances. Non-discrimination and consistency are part of the overarching principle of governmental neutrality toward religion. (463) Denying a request for accommodation cannot be based on discrimination against the religion of the requester. (464) If a commander denies a request for accommodation (e.g., a request to bring supplemental food rations to a field or sea deployment due to dietary constraints) from a person of one religion after granting a similar request from someone of another religion, this could create the appearance of prohibited discrimination against the second religion. Important differences in circumstances, however, might justify accommodating one request while denying a similar one. (465) Similarly, if a commander denies a request for accommodation (e.g., excusal from a particular training) for a non-religious reason (e.g., to attend a wedding), the commander might be hard-pressed to justify denying a request for excusal from attending the same training for observing a holy day. (466) The disapproval--if not based on some difference in circumstance (e.g., differences between the two requesters in terms of their proficiency in the skill being trained)--could reasonably imply discrimination against religion in general or against the particular religion, both of which are prohibited. (467) Under the Court's precedents, discrimination against religion would be presumptively invalid and would almost certainly be invalidated by the courts as violating the Free Exercise Clause. (468)

Each of the military services has regulations (or portions thereof) providing additional guidance on religious accommodation implementing DoD Directive 1300.17. (469) Bonded by DoD Directive 1300.17, all the religious accommodation regulations are generally similar in their policies; however, differences do exist among the service regulations. (470) A detailed discussion of the specifics of each service's regulations concerning religious accommodation is beyond the scope of this article. Military lawyers advising commanders on such issues should consult their service regulations.

In addition, other issues that arguably are a form of accommodation may be governed by separate laws. (471) For example, requests for discharge from the military or reassignment to noncombatant duties as a conscientious objector--when based on religious beliefs (472)--are a form of request for religious accommodation. Conscientious objection is governed by service regulations dedicated to that topic (473) rather than by other religious accommodation regulations.

Ultimately, commanders, rather than lawyers or chaplains, decide whether or not to accommodate. (474) Commanders should consider all the relevant factors from DoD Directive 1300.17. (475) Consistent with the DoD policy, the default presumption is to accommodate the request. (476) A commander may deny a request, however, when accommodation would have an adverse impact on readiness, unit cohesion, standards, discipline, (477) morale, safety, or health. (478) The directive's listing of the five factors strongly implies a balancing: not only must there be some adverse effect on one or more legitimate governmental interests, but the military necessity must be weighed against accommodation of the religious practice. (479) Virtually any accommodation is likely to have at least a small effect on the military, but under the DoD guidance, some de minimis adverse effect should not justify the refusal to accommodate a matter of great importance to the requester.

Military members denied accommodations might sue military officials, as Captain Goldman did. Reviewing courts would apply the "strict scrutiny" standard of the Religious Freedom Restoration Act for military action substantially burdening the free exercise of religion: such action is justified only when supported by a compelling governmental interest and is the least restrictive means to achieve that interest. (480) This is the same standard thought by some to be required in 1986 when Goldman was decided. (481) A reviewing court, however, would probably take an approach similar to the Court's in Goldman: uphold the commander's decision after giving substantial deference to the commander's determination that accommodation would have an adverse impact on valid military interests. (482) This outcome is unlikely to change as a result of either the federal statute pertaining to wear of religious apparel in uniform, (483) DoD Directive 1300.17, or individual service regulations. (484) None of those sources guarantees accommodation; (485) all make accommodation subordinate to military necessity. (486) For the military to get the full benefit of the courts' deferential review, commanders must consider accommodation requests in a consistent, balanced manner that does not discriminate against religion or religious practices. (487) Commanders refusing an accommodation must do so only for reasons that relate to military necessity and should consider documenting their reasons. (488)

VII. CONCLUSION

Legal issues concerning religion in the military are often difficult. One reason is that resolution of a religion issue may require an understanding of the jurisprudence interpreting three constitutional provisions--the Establishment, Free Exercise, and Free Speech Clauses--and their interplay. For many judge advocates, these clauses--unlike, for example, military justice and operational law--are not at the center of their daily practice and core competencies. Furthermore, the Court's decisions surrounding these three clauses are complex even to the point of near unintelligibility regarding the Establishment Clause. (489)

In addition, lines of demarcation may be blurred between what is permitted by the Free Exercise or Free Speech Clauses and what is prohibited by the Establishment Clause. In other legal contexts in which the law is uncertain or the case is close to the line, attorneys are often able to give conservative legal advice, thereby avoiding legal problems. Regarding religion issues, in which two or more constitutional provisions may be in tension with each other, legal advice that is very conservative on one provision may result in an action that runs afoul of another constitutional provision. Allowing a member too much free speech or free exercise latitude may result in a violation of the Establishment Clause. On the other hand, an overly cautious interpretation of the Establishment Clause may result in a violation of a member's free speech or free exercise rights. Sometimes the channel between the clauses is narrow. (490)

Not only are religious issues difficult, they are often emotionally charged. Religion is central to the lives of many military members who often feel passionate about their religious beliefs and about their right or even duty to express and practice them and to bring others to their religious beliefs. Military members may not understand the complexity of the law and may not be receptive to hearing about what they perceive as limits on their religious rights or duties. Into this volatile mix is thrown the overriding and potentially conflicting ingredient of the military's need to preserve good order and discipline and to accomplish the mission.

Despite these challenges, it is imperative that judge advocates and military leaders demonstrate an understanding of legal issues concerning religion in the military. Failure to do so may result in adverse publicity and lawsuits and may even compromise unit effectiveness as some members' morale and sense of belonging to the team are degraded. Ultimately, the result may be an unacceptable denial of important constitutional rights to our military members.

(1) This article addresses religion in the military. Many, but not all, of the principles in this article apply also to Department of Defense civilian employees. But because the military is "a specialized society separate from civilian society," Parker v. Levy, 417 U.S. 733, 743 (1974), the law pertaining to military members is different in some contexts from that applying to civilian employees. Practitioners encountering religion issues involving civilian governmental employees should consult civilian personnel attorneys and specialists.

(2) Air Force Sued Over Religion, CBS NEWS, Oct. 6, 2005.

(3) Laurie Goodstein, Air Force Academy Staff Found Promoting Religion, N.Y. TIMES, June 23, 2005, at A12.

(4) Alan Cooperman, Evangelicals Protest New Air Force Religion Policy, SEATTLE TIMES, Nov. 1, 2005, at A4.

(5) David A. Fahrenthold, Naval Academy Urged to Drop Prayer, WASH. POST, June 25, 2005, at B5.

(6) Freedom of religious speech is closely related to the free exercise of religion. See infra notes 202-203 and accompanying text.

(7) Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 721 (1981) (Rehnquist, J., dissenting) ("By broadly construing both [Religion] Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny."). In Greek mythology, Scylla, a sea monster, lived underneath a dangerous rock on one side of the Strait of Messia and opposite the whirlpool Charybdis. Scylla threatened passing ships and in the Odyssey ate six og Odysseus' companions. Micha F. Lindemans, Scylla (Mar. 3, 1997), http://www.pantheon.org/articles/s/syclla.html.

(8) U.S. CONST. amend. I. These provisions extend also to the states and their subdivisions by incorporation into the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The Religion Clauses also apply to the military and its members. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (Free Exercise Clause); Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972) (per curiam) (Establishment Clause).

(9) The cases were decided from June 1995 through June 2005.

(10) See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (limiting congressional authority to prescribe standard of judicial review of state religion-neutral laws limiting free exercise of religion); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) (reviewing interplay between free speech and Establishment Clause in public university's funding of religious students' newspaper). Another case involving religious speech was decided on free speech grounds. See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Viii. of Stratton, 536 U.S. 150 (2002) (invalidating local ordinance requiring religious group to get a permit before conducting door-to-door proselytizing).

(11) A Gallup poll conducted in May 2005 found that eighty-three percent of Americans polled asserted that religion is either "very important" (55%) or "fairly important" (28%) to them. Linda Lyons, Faith Accompanies Most Americans Through Life, THE GALLUP ORGANIZATION, May 31, 2005, http://poll.gallup.com/content/default.aspx?CI=16522 (last visited Nov. 20, 2006). Religious beliefs can affect adherents' behavior in a variety of ways, such as what they eat, when they eat (or when they fast), what they wear, how they wear their hair, when they worship, and when they pray. See generally MERRtAMWEBSTER'S ENCYCLOPEDIA OF WORLD RELIGIONS (Wendy Doniger ed., 1999). Religious beliefs can also influence believers' attitude towards such important social issues as abortion, the role of women in society, how much education children should have, same-sex marriage, and physician-assisted suicide. See generally WILLIAM A. YOUNG, THE WORLD'S RELIGIONS: WORLDVIEWS AND CONTEMPORARY ISSUES (2nd ed. 2005) (broad perspective on the world view of major religions).

(12) Van Orden v. Perry, 545 U.S. 677 (2005) (Ten Commandments); McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (Ten Commandments); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (cross).

(13) Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (decided on "standing" grounds).

(14) Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

(15) Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).

(16) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

(17) Mitchell v. Helms, 530 U.S. 793 (2000) (funds for equipment): Agostini v. Felton, 521 U.S. 203 (1997) (funds for remedial instruction).

(18) Cutter v. Wilkerson, 544 U.S. 709 (2005).

(19) Locke v. Davey, 540 U.S. 712 (2004).

(20) Sam Nunn, The Fundamental Principles of the Supreme Court's Jurisprudence in Military Cases, 29 WAKE FOREST L. REV. 557, 558 (1994). There are other reasons why religious issues may be more difficult in the military. The close living and working conditions in the military (particularly during deployments) force members with potentially diverse and deep religious convictions into close, prolonged contact. This close contact exacerbates differences in religious practices among military members and increases the possibility of religiously based conflicts. Another complicating factor is that, due to hierarchy of rank and the need for obedience and discipline in the military, senior officers' religious expressions may be perceived by subordinates as endorsing religion or being coercive, raising Establishment Clause issues. See infra notes 279-280 and accompanying text.

(21) Marginalization of citizens due to the government's violation of the Religion Clauses is not unique to the military. Indeed, the Court has noted that one primary purpose of the Religion Clauses is "to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate." McCreary County v. ACLU, 125 S. Ct. 2722, 2742 (2005). Marginalization in the military may have a greater impact, however, due to its potential adverse effect on mission accomplishment.

(22) This kind of marginalization occurred in 2004 at the U.S. Air Force Academy when some military members, primarily cadets, claimed that some other military members did not fully comply with the requirements of the Religion Clauses and other applicable laws, such as improperly using their official positions to promote Christianity. See ROGER A. BRADY, THE REPORT OF THE HEADQUARTERS REVIEW GROUP CONCERNING THE RELIGIOUS CLIMATE AT THE U.S. AIR FORCE ACADEMY 4-13, 35-39 (2005), available at http://www.af:mil/pdf/HQ_Review_Group_Report.pdf (last visited Nov. 20, 2006) (providing the background and chronology of events at the Air Force Academy, with specific findings and recommendations). These allegations and the events that gave rise to them, widely reported in the media, resulted in unfavorable national attention. See, e.g., Patrick O'Driscoll, Air Force Academy Wrestles with Alleged Religious Bias, USA TODAY, May 4, 2005, at 2A; Alan Cooperman. Air Force to Probe Religious Climate at Colorado Academy, WASH. POST, May 4, 2005. at A3; David Kelly, Non-Christian Air Force Cadets Cite Harassment, L.A. TIMES, Apr. 20, 2005, at A l8. As an initial step to address these issues, the Air Force Academy established a 50-minute class on Respecting the Spiritual Values of All People--team-taught by commanders, lawyers, and chaplains--taught to all Academy personnel in Spring 2005. See T.R. Reid, Religious Differences Part of Cadet Training: Air Force Academy's Program Urges Respect, WASH. POST, June 1, 2005, at A3.

(23) See supra notes 2-5 and accompanying text and note 22.

(24) One general context in which cases arise under the Religion Clause broadly includes all other governmental action that aids or endorses religion. In the civilian context, this aid is usually in the form of money or resources. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Agostini v. Felton, 521 U.S. 203 (1997). In the military, the issue arises more commonly in the context of religious speech by military members. Part III of the article will focus on that issue. This article does not address in detail governmental funding of chaplains and their programs. But see infra notes 286 and 471 (commenting on chaplaincy).

(25) See infra note 469. For an earlier legal analysis of religion issues in the Army, see Major Michael J. Benjamin, Justice, Justice Shall You Pursue: Legal Analysis of Religion Issues in the Army, ARMY LAW., Nov. 1998, at 1.

(26) For example, in August 2005 the Air Force published interim religious guidelines, consisting of four pages, which were necessarily rather general. See Message from Headquarters U.S. Air Force (Personnel Division) regarding Interim Guidelines Concerning Free Exercise of Religion in the Air Force (Aug. 2005) [hereinafter Air Force Interim Guidelines], available at http://www.usafa.af.mil/superintendent/pa/ religious.cfm (last visited Nov. 20, 2006). In February 2006, the Air Force guidelines became even more general and less useful when the Air Force published its revised interim guidelines, consisting of a single page. See Memorandum from the Secretary of the Air Force and the Chief of Staff of the Air Force to All Major Commands on Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force (Feb. 2006) [hereinafter Air Force Revised Interim Guidelines], available at http://www.af.mil/library/guidelines.pdf (last visited Nov. 20, 2006).

(27) See infra note 469.

(28) For example, most service regulations or guidelines entirely fail to address religious displays on military property or religious speech by military members.

(29) See, e.g., infra Part IV (analyzing the jurisprudence of governmental prayer and comparing it the Air Force Interim Guidelines).

(30) Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1421 (1990).

(31) ld. at 1436-37.

(32) Lemon v. Kutzman, 403 U.S. 602, 612 (1971).

(33) See, e.g, Mitchell v. Helms, 530 U.S. 793 (2000) (unsuccessfully challenging government's lending equipment such as computers to both public and private schools, including religious schools).

(34) See McCreary County v. ACLU, 125 S. Ct. 2722, 2733 (2005) ("The touchstone for our [Establishment Clause] analysis is the principle that the "First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.'" (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). Some disagreement exists on the Court, however, concerning even this general principle. There appears to be consensus that government may not favor a particular sect over other religions. See Larson v. Valente, 456 U.S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."). At least some Justices believe--based on historical statutes, proclamations, and practices--that the Establishment Clause permits the government to favor religion generally over non-religion. See, e.g., McCreary, 125 S. Ct. at 2748-57 (2005) (Scalia, J., dissenting).

(35) Lemon, 403 U.S. 602.

(36) ld. at 612.

(37) ld. (citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968)).

(38) ld. at 613 (quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 674 (1970)).

(39) See, e.g., Lemon, 403 U.S. at 613-14.

(40) McCreary County v. ACLU, 125 S. Ct. 2722, 2734 (2005).

(41) See, e.g., id. at 2735 (noting that governmental acts unconstitutionally when it acts "with the predominant purpose of advancing religion").

(42) Edwards v. Aguillard, 482 U.S. 578, 586 (1987).

(43) Harris v. McRae, 448 U.S. 297, 319 (1980).

(44) McCreary, 125 S. Ct. at 2733 n.9. See Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (Ten Commandments posted in public schools): Wallace v. Jaffree, 472 U.S. 38 (1985) (period of silence at the beginning of the school day in public schools for meditation or voluntary prayer): Edwards v. Aguillard, 482 U.S. 578 (1987) (prohibition against teaching evolution in public schools unless accompanied by teaching of creation science); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (prayer before public school football game); McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (Ten Commandments posted in a courthouse). Before Lemon, the Court invalidated statutes due to an improper purpose in two other cases. See Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (Bible readings in public schools); Epperson v. Arkansas, 393 U.S. 97 (1968) (prohibition against teaching evolution in public schools).

(45) McCreary, 125 S. Ct. at 2735.

(46) Id. at 2733.

(47) Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Although the language of the effects prong of the Lemon test is "neither advances nor inhibits religion," laws that inhibit religion are more appropriately challenged under the Free Exercise Clause: those that advance religion fall more squarely under the Establishment Clause.

(48) For example, a law that provides computers to all schools (including private religious schools) based on student enrollment may indirectly promote religion by allowing religious schools to spend money on religious materials that they otherwise would have spent on computers. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

(49) See, e.g., Zelman v. Simmons-Harris. 536 U.S. 639 (2002) (finding a legitimate governmental interest in furthering education and computer literacy).

(50) Lemon, 403 U.S. at 613 (1971) (quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 674 (1970)).

(51) Id. at 615.

(52) See, e.g., Lemon v. Kurtzman. 403 U.S. 602, 612 (1971) (invalidating a state law authorizing salary supplements to teachers in private schools, including religious schools, due to excessive entanglement). The Court found the following restrictions of the law amounted to excessive governmental entanglement in religious affairs: (1) requirement that private school spend less per pupil on secular education than the average spent per pupil in public schools, id. at 607-08: (2) requirement that teachers receiving the salary supplements could teach only courses taught at public schools, could use only book titles also used in public schools, and could not teach any religious course, id. at 607-08; (3) requirement for governmental examination of the church's finances to determine eligibility for salary supplements, id. at 615-20; and (4) requirement for continual governmental surveillance to ensure compliance with the limitations on teachers, id. at 615-20.

(53) See, e.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (finding a state statute permitting the governing body of any church within 500 feet of a place applying for a liquor license to essentially deny the application as violating the excessive entanglement prong of Lemon).

(54) See, e.g., McCreary County v. ACLU, 125 S. Ct. 2722, 2757 (2005) (Scalia, J., dissenting); Santa Fe. Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (Rehnquist, C.J., dissenting); Bd. of Educ. of Kiryas Joel Viii. Sch. Dist. v. Grumet, 512 U.S. 687, 718-21 (1994) (O'Connor, J., concurring); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (collecting criticisms of Lemon test).

(55) See, e.g., Thomas C. Marks, Jr. & Michael Bertolini, Lemon Is a Lemon: Toward a Rational Interpretation of the Establishment Clause, 12 BYU J. PUB. L. I (1997); Kristin M. Engstrom, Establishment Clause Jurisprudence: The Souring of Lemon and the Search for a New Test, 27 PAC. L.J. 121 (1995); Paul Brickner, The Lemon Test and Subjective Intent in Establishment Clause Analysis: The Case for Abandoning the Purpose Prong, 76 KY. L.J. 1061 (1988).

(56) See McCreary County v. ACLU, 125 S. Ct. 2722 (2005). In McCreary, the Court had an opportunity to jettison Lemon and develop a new test. Indeed, two of the questions on which the Court granted certiorari were "[w]hether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence" and "[w]hether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion." Id. Nevertheless, the Court cited and applied Lemon (particularly the "purpose prong") to uphold an injunction ordering the removal of a display of the Ten Commandments from a courthouse. Yet on the same day, in Van Orden v. Perry, 125 S. Ct. 2854 (2005), the Court in a plurality opinion-consisting of the four dissenters in McCreary--upheld the display of a monument containing the text of the Ten Commandments on public property, but specifically declined to apply Lemon, writing, "[w]hatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument" at issue in this case. Van Orden, 125 S. Ct. at 2861. Although the Court in McCreary and Van Orden declined to overrule Lemon, significant questions about the Lemon test remain. The future of Lemon is likely to depend on the future composition of the Court.

(57) See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002): Zobrest v. Catalina Foothills Sch. Dist. 509 U.S. 1 (1993); Lee v. Weisman, 505 U.S. 577 (1992); Marsh v. Chambers, 463 U.S. 783 (1983); Larson v. Valente, 456 U.S. 228 (1982).

(58) See infra notes 59-71 and accompanying text.

(59) 492 U.S. 573 (1989).

(60) See Lynch v. Donnelly, 465 U.S. 668, 690-93 (1984) (O'Connor, J., concurring). This test was adopted by the majority in Allegheny, 492 U.S. at 592-94.

(61) Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35 (2004) (O'Connor, J., concurring).

(62) Allegheny, 492 U.S. at 593 (emphasis added) (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J.. concurring in judgment)).

(63) Id. (quoting Lynch, 465 U.S. at 691 (O'Connor, J.. concurring)).

(64) See ACLU v. Black Horse Pike Reg'l Bd. of Ed., 84 F.3d 1471. 1486-87 (3d Cir. 1996): see also infra notes 72-74 and accompanying text.

(65) See, e.g., Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Mellen v. Bunting, 327 F.3d 355. 370 (4th Cir. 2003).

(66) See, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992) (finding nonsectarian prayer at secondary school graduation ceremony unconstitutional). The Court in Lee specifically declined to reconsider the Lemon test and instead used the coercion analysis to strike down the prayer, Id. at 587, 592.

(67) Id.; See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

(68) Santa Fe, 530 U.S. at 312.

(69) An example of a government-mandated religious practice would be a law requiring people to attend church. See Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972) (per curiam) (invalidating mandatory chapel attendance at U.S. military academies). Some members of the Court have advocated requiring "actual legal coercion" before finding that the Establishment Clause has been violated. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 52 (Thomas, J., concurring); Lee, 505 U.S. at 642 (Scalia, J., dissenting). But this view is not shared by a majority of the Court.

(70) See Chaudhuri v. Tennessee, 130 F.3d 232, 238-39 (6th Cir. 1997).

(71) Mellen v. Bunting, 327 F.3d 355, 371-72 (4th Cir. 2003).

(72) See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring) (noting that "our Establishment Clause jurisprudence is in hopeless disarray"). Indeed, the Court's inconsistent application of the Lemon test and its use of other tests has given rise to the criticism that the Court is manipulating Establishment Clause jurisprudence to reach the results it wants in any particular case. See McCreary County v. ACLU, 125 S. Ct. 2722, 2757 (2005) (Scalia, J., dissenting) ("Lemon[']s ... seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve.").

(73) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (quoting Mueller v. Allen, 463 U.S. 388, 394 (1983)).

(74) Governmental action that endorses or coerces religion is unlikely to pass the effects prong of the Lemon test, because government endorsement or coercion likely will have a principal effect of advancing religion.

(75) See, e.g., Church of the kukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532 (1993) ("Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.").

(76) U.S. CONST. amend. 1.

(77) See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

(78) Sherbert v. Verner, 374 U.S. 398, 403 (1963).

(79) See Cantwell, 310 U.S. at 303-04.

(80) See infra text accompanying notes 81-86.

(81) See Locke v. Davey, 540 U.S. 712. 720 (2004).

(82) Locke, 540 U.S. at 720-21 (citing, inter alia, Sherbert v. Verner, 374 U.S. 398 (1963)).

(83) United States v. Seeger. 380 U.S. 163, 176 (1965) (interpreting a provision of a selective service act that granted an exemption from military service persons who were conscientiously opposed to war because of "'their religious training and belief"). In its regulation requiring certain accommodation of religion, the Air Force defines religion as "'[a] personal set or institutionalized system of attitudes, moral or ethical beliefs and practices held with the strength of traditional religious views, characterized by ardor and faith and generally evidenced through specific religious observances." U.S. DEP'T OF AIR FORCE, INSTR. 36-2706, MILITARY EQUAL OPPORTUNITY PROGRAM Attachment I. at 69-70 (29 July 2004) [hereinafter AFI 36-2706].

(84) Seeger, 380 U.S. at 176: see also United States v. Ballard, 322 U.S. 78 (1944) (noting that while juries should not inquire into the truth or falsity of a criminal defendant's religious claim, inquiry into to whether the defendant honestly and in good faith believed the claim is permissible).

(85) Frazee v. 111. Dep't of Employment Sec., 489 U.S. 829, 834 (1989).

(86) Id.

(87) See, e.g., Church of the Kukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (law targeting religion); Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 877-78 (1990) (law neutral toward religion).

(88) See infra notes 96-101 and accompanying text.

(89) Lukumi Babalu Aye, 508 U.S. at 533.

(90) Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 877-78 (1990) (dicta).

(91) See Lukumi Babalu Aye, 508 U.S. at 533. But even a law that is not neutral on its face could pass muster if it does not evince "hostility toward religion." See Locke v. Davey, 540 U.S. 712, 724 (2004) (upholding a state program refusing college scholarship money to students seeking a degree in theology, based on the state's interest under the Establishment Clause in not using taxpayer money to educate people in theology). Laws that single out religion, yet evince no hostility toward religion, will be very rare.

(92) Lukumi Babalu Aye, 508 U.S. at 533.

(93) Id. at 540 (opinion of Kennedy, J.).

(94) Id. at 535 (majority opinion).

(95) Id. (quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)).

(96) Id. at 564 (1993) (Souter, J., concurring in part and in the judgment) ("[T]he Hialeah City Council has provided a rare example of a law actually aimed at suppressing religious exercise...."); Employment Div., Dep't of Human Res. v. Smith. 494 U.S. 872, 894 (1990) (O'Conner, J., concurring in the judgment) ("[F]ew States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.").

(97) Lukumi Babalu Aye, 508 U.S. at 580 (1993) (Blackmun, J., concurring in the judgment) ("Because respondent here does single out religion in this way, the present case is an easy one to decide.").

(98) See Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 888 (1990) (declining to apply strict scrutiny to religion-neutral laws, which would make them "presumptively invalid").

(99) Lukumi Babalu Aye, 508 U.S. at 546 ("the most rigorous of scrutiny"); City of Boerne v. Flores, 521 U.S. 507, 534 (1997) ("Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.").

(100) Lukumi Babalu Aye, 508 U.S. at 531-32.

(101) Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); see also United States v. Lee, 455 U.S. 252, 257 (1982) ("essential to accomplish an overriding governmental interest").

(102) Lukumi Babalu Aye, 508 U.S. at 546 (1993) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).

(103) See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (prison security): United States v. Lee, 455 U.S. 252, 258-59 (1982) (maintaining a system of social security); Hernandez v. Commissioner, 490 U.S. 680, 699-700 (1989) (collecting income tax).

(104) See Lukumi Babalu Aye, 508 U.S. at 546.

(105) Id. at 546-47.

(106) Id. at 547 (quoting Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J., concurring in part and concurring in the judgment)).

(107) See id. at 546.

(108) The United States Supreme Court has never upheld a law, against a Free Exercise challenge, that discriminated against religion. Indeed, some Justices have argued that a law that discriminates against religion automatically fails strict scrutiny "because a law that targets religious practice for disfavored treatment both burdens the free exercise of religion and, by definition, is not precisely tailored to a compelling governmental interest." Id. at 579 (Blackmun, J., concurring in the judgment).

(109) See Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 879 (1990). For example, a law prohibiting polygamy limits the religious practice of those whose religion commands polygamy. See United States v. Reynolds, 98 U.S. 145 (1879). Similarly, a law requiring payment of Social Security taxes limits the religious practice of those whose religion eschews participation in such governmentally-sponsored support programs. See United States v. Lee, 455 U.S. 252 (1982).

(110) See infra notes 114-117 and accompanying text.

(111) See supra notes 89-95 and accompanying text.

(112) See Lukumi Babalu Aye, 508 U.S. at 542-43.

(113) Id. at 557 (Scalia, J., concurring in part and concurring in the judgment).

(114) Smith, 494 U.S. at 878.

(115) See. e.g., Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (invalidating "legislative veto" that violated constitutionally-mandated "bicameralism" and "presentment" requirements).

(116) See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (discussed infra at text accompanying notes 149-166).

(117) See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (invalidating zoning ordinance that was not rationally related to any legitimate governmental interest).

(118) 494 U.S. 872 (1990).

(119) Id. at 874. The federal Controlled Substance Act classifies peyote as a Schedule l controlled substance. 21 U.S.C.S. [section] 812(c)(12) (2006). Possession of peyote, a hallucinogen, was prohibited by Oregon statute. Smith, 494 U.S. at 874.

(120) Smith, 494 U.S. at 903 (O'Connor, J., concurring in the judgment) (citing O. STEWART, PEYOTE RELIGION: A HISTORY 327-36 (1987) and other sources).

(121) Id. at 874 (majority opinion).

(122) Id.

(123) See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940); but see Reynolds v. United States, 98 U.S. 145. 167 (1879).

(124) See Hobble v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987): Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S 707 (1981): Sherbert v. Verner, 374 U.S. 398 (1963).

(125) Smith, 494 U.S. at 884 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)).

(126) Id.

(127) See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating a state law requiting school attendance until a particular age, as applied to Amish parents who objected on religious grounds to their children attending school past a certain grade).

(128) Smith, 494 U.S. at 881.

(129) Id. at 888.

(130) Id at 885 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1879)).

(131) Justice O'Connor, concurring in the judgment, argued that strict scrutiny was required, but satisfied. She found the law was essential to achieve Oregon's compelling interest in preventing the physical harm and health effects from use of a Schedule F controlled substance such as peyote. Id. at 891-907 (O'Connor, J., concurring in the judgment). Justice Blackmun, along with Justices Brennan and Marshall, joined parts of Justice O'Connor's concurrence, agreeing that strict scrutiny was required, id.. at 909 (Blackmun, J., dissenting), but wrote a separate dissent to voice his view that strict scrutiny was not satisfied. He felt Oregon failed to demonstrate a compelling interest in refusing a religious exemption from the law prohibiting peyote use, evidenced by its lack of interest in prosecuting religious use of peyote. Id. at 907-21.

(132) Smith, 494 U.S. at 892-903 (O'Connor, J., concurring in the judgment).

(133) Id. at 893-903.

(134) Id. at 901. Indeed, a religion-neutral criminal law can burden religious practice "'in the severest manner possible, for it 'results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.'" Id. at 898 (quoting Braunfeld v. Brown, 366 U.S. 599, 605 (1961) (plurality opinion)).

(135) Id. at 894 ("If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.").

(136) Id. at 890 (majority opinion).

(137) Id. at 902 (O'Connor. J., concurring in the judgment) (noting that an effect of religion-neutral laws can be "the disfavoring of minority religions").

(138) Id. at 902-03.

(139) See id. at 905.

(140) See id. at 890 (majority opinion) (citing several state statutes granting a statutory exemption for religious use peyote); id. at 912 n.5 (Blackmun, J., dissenting) (citing 21 C.F.R. [section] 1307.31 (1989)) (excluding peyote from the list of controlled substances when used in religious ceremonies of the Native American Church).

(141) Id. at 905 (O'Connor, J., concurring in the judgment); id. at 909 (Blackmun. J., dissenting) (both quoting United States v. Lee, 455 U.S. 252, 259 (1982)).

(142) 42 U.S.C.S. [section] 2000bb (LEXIS 2005).

(143) See City of Boerne v. Flores, 521 U.S. 507, 512 (1997).

(144) 42 U.S.C.S. [section] 2000bb(a) (LEXIS 2005). RFRA specifically mentions Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) as examples of cases applying proper strict scrutiny. 42 U.S.C.S. [section] 2000bb(b) (LEXIS 2005).

(145) 42 U.S.C.S. [section] 2000bb-1(a) (LEXIS 2005). Congress prohibited a "'substantial burden" but tailed to define the term. The Court has not yet construed the phrase. If the Court found that a governmental action imposed some burden or religion, but not a substantial one, in a case where RFRA would have otherwise applied, presumably the Court would decline to apply RFRA and would instead apply the tests from its free exercise jurisprudence.

(146) 42 U.S.C.S. [section] 2000bb-1(b) (LEXIS 2005).

(147) Id. [section] 2000bb-1(c).

(148) See City of Boerne v. Flores, 521 U.S. 507, 516 (1997) (citing 42 U.S.C. [section] 2000bb-2(1) (1994)). After City of Boerne, Congress amended the definition of "government" to exclude state governments and their subdivisions. See 42 U.S.C.S. [section] 2000bb-2(1) (LEXIS 2005).

(149) 521 U.S. 507 (1997).

(150) Id. at 512.

(151) Id.

(152) Flores v. City of Boerne, 73 F.3d 1352, 1354 (5th Cir. 1996). Although not disclosed in any of the opinions in the case, the church's argument likely was that RFRA required the city to grant an exemption from the ordinance unless denying the exemption was the least restrictive means for the city to further a compelling interest.

(153) Id.

(154) City of Boerne, 521 U.S. at 511.

(155) Id. at 516 (1997) (relying upon S. REP. No. 103-111, at. 13-14 (1993) and H. R. REP. No. 103-88, at 9 (1993)).

(156) U.S. CONST. amend. XIV. [section] 5.

(157) See City of Boerne, 521 U.S. at 517.

(158) U.S. CONST. amend. XIV, [section] 1.

(159) See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying Religion Clauses to states).

(160) City of Boerne, 521 U.S. at 519.

(161) Id.

(162) Id. at 532.

(163) Id. at 536.

(164) See id. ("RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.").

(165) See id.

(166) Three years alter the Court in City of Boerne invalidated RFRA as applied to state governments and their subdivisions, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). 42 U.S.C.S. [section] 2000cc (LEXIS 2005). RLUIPA is similar to RFRA in that it prevents governmental action that substantially burdens the free exercise of religion of certain persons unless the governmental action passes strict scrutiny: it is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C.S. [section][section] 2000cc and 2000cc-1 (LEXIS 2005). RLUIPA differs from RFRA in three aspects. First, it limits primarily state governments. 42 U.S.C.S. [section] 2000cc-5(4) (LEXIS 2005) (defining "government"). Second, it confers rights only upon two categories of people or organizations whose free exercise of religion has been substantially burdened by state government: (a) persons or organizations (e.g., churches) burdened by a land use regulation (e.g., zoning law) and (b) institutionalized persons (e.g., prisoners). 42 U.S.C.S. [section][section] 2000cc and 2000cc-1 (LEXIS 2005). Third, and most significantly, it was enacted pursuant to Congress's powers under the Spending Clause, U.S. CONST. art. I, [section] 8, el. l., and Commerce Clause, U.S. CONST. art. I, [section] 8, cl. 3., meaning that its application is limited to state activities receiving federal funds or to state-imposed burdens on religion that affect interstate commerce or commerce with foreign nations or Indian tribes. 42 U.S.C.S. [section][section] 2000cc(a)(2) and 2000cc-1(b) (LEXIS 2005). This third difference circumvents the infirmity that led to the Court's invalidation of RFRA as it applies to state governments in City of Boerne. The Court noted this difference approvingly in Cutter v. Wilkinson, 544 U.S. 709, 715 (2005), upholding section 3 of RLUIPA (pertaining to institutionalized persons) against a challenge by the state that it violated the Establishment Clause by impermissibly advancing religion. The defendant prison officials in Cutter also argued in lower courts that in enacting RLUIPA Congress exceeded its authority under the Spending and Commerce Clause, and that RLUIPA violates the Tenth Amendment. The Supreme Court. however, declined to address these arguments. Id. at 718, n.7. The claim that accommodation of religion under the Free Exercise Clause may violate the Establishment Clause will be addressed in the Part VI of this article.

(167) 126 S. Ct. 1211, 163 L.Ed.2d 1017 (2006).

(168) See supra notes 118-141 and accompanying text.

(169) Gonzales, 163 L.Ed.2d at 1028.

(170) Id. (citing 21 U.S.C.S. [section] 812(c) (LEXIS 2005) (prohibiting the hallucinogen dimethyltryptamine)).

(171) Id. at 1028-29.

(172) Id. at 1037.

(173) Id. at 1030. In Gonzales, the government conceded UDV's prima facie case. Id.

(174) Id. at 1030-31. The government's burden applies not only at the trial on the merits, but also at any preliminary injunction hearing. Id.

(175) Id. at 1031.

(176) Id. at 1027.

(177) Id. at 1031.

(178) Id.

(179) Id. at 1032.

(180) Id. at 1033 (citing 21 C.F.R. [section] 1307.31 (2005) (exempting use of peyote by members of the Native American Church in religious ceremonies) and 42 U.S.C. [section] 1996a(b)(l) (2005) (extending peyote exemption to any Indian during any traditional Indian religious ceremony)).

(181) The government in Gonzales apparently did not dispute RFRA's applicability to the federal government, so the Court did not explain why it believed RFRA was constitutional as to the federal government, despite City of Boerne's ruling that it was unconstitutional as to state governments. Federal Courts of Appeal addressing the issue have explained the distinction. See O'Bryan v. Bureau of Prisons, 349 F.3d 399, 400-01 (7th Cir. 2003); Guam v. Guerrero. 290 F.3d 1210, 1220-22 (9th Cir. 2002): Kikumura v. Hurley, 242 F.3d 950, 958-60 (10th Cir. 2001): Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001); In re Young, 141 F.3d 854, 858-63 (8th Cir. 1998). These courts have held that Congress has authority, under the Constitution's "necessary and proper clause," U.S. CONST. art. 1, [section] 8, cl. 18, to enact laws concerning the federal government's operations. This power is distinct from Congress's power under [section] 5 of the Fourteenth Amendment upon which Congress relied to make RFRA applicable to the states and which the Court ruled in City of Boerne that Congress had exceeded. The separation of powers concerns the Court raised in City of Boerne do not apply when Congress is acting pursuant to its constitutional authority. See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001).

(182) See, e.g., Air Force Interim Guidelines, supra note 26, para. 2B (citing RFRA in context of the guideline to accommodate religious practices and free speech, except as limited by military necessity).

(183) If the state religion-neutral law falls under RLUIPA courts will again apply the same strict scrutiny standard reflected in RFRA and RLUIPA. RLUIPA applies to state action substantially burdening the religion of institutionalized person and state land use regulation that substantially burdens religion, provided the state action is federally funded or the burden (or its removal) affects certain commerce. See supra note 166.

(184) See Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).

(185) See id.

(186) Walz v. Tax Comm'n of New York City, 397 U.S. 664, 668-69 (1970).

(187) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) ("Indeed, the common purpose of the Religion Clauses is "to secure religious liberty.'") (quoting Engel v. Vitale, 370, U.S. 421, 430 (1962)).

(188) See Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 917 (1990) (Blackmun, J., dissenting) ("Almost half the States, and the Federal Government, have maintained an exemption for religious peyote use....").

(189) See Wisconsin v. Yoder. 406 U.S. 205 (1972) (exempting Amish children from a portion of a state compulsory-education law). Such judicially recognized exemptions will be rare since the Court in Smith decided to apply only minimum scrutiny to religion-neutral laws burdening religion in cases to which RFRA does not apply.

(190) See, e.g., U.S. DEP'T OF DEFENSE, DIR. 1300.17. ACCOMMODATION OF RELIGIOUS PRACTICES WITHIN THE MILITARY SERVICES (21 Nov. 2003) [hereinafter DoD Din. 1300.17] (authorizing greater accommodation of religious practices in the military than required by the Constitution or statute).

(191) See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (Establishment Clause does not prevent federal government from exempting religious organizations from statutory prohibition against religious discrimination in employment): Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (Section 3 of RLUIPA "qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.") (emphasis omitted).

(192) See, e.g., Cutter, 544 U.S. at 720: Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).

(193) Cutter, 544 U.S. 709 at 719 (quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 669 (1970) (internal citation omitted)).

(194) See County of Allegheny v. ACLU, 492 U.S. 573, 601 n.51 (citing Presiding Bishop, 483 U.S. at 348 (1987).

(195) See, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).

(196) See id.

(197) See Cutter, 544 U.S. at 720 (citing Bd. of Ed. of Kiryas Joel School Dist. v. Grumet, 512 U.S. 687 (1994)); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711 (1985) (O'Connor, J., concurring) ("The statute [impermissibly] singles out Sabbath observers for special ... protection without according similar accommodation to ethical and religious beliefs and practices of other private employees.").

(198) See Bd. of Ed. of Kiryas Joel School Dist. v. Grumet, 512 U.S. 687 (1994).

(199) U.S. CONST. amend. I. The First Amendment's language limits only Congress, but the Supreme Court has applied the prohibition against the federal government as a whole and against the States. See, e.g., Gitlow v. New York. 268 U.S. 652, 666 (1925) (assuming Free Speech Clause applies to state governments).

(200) Virginia v. Black, 538 U.S. 343, 358 (2003) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).

(201) See. e.g., Widmar v. Vincent, 454 U.S. 263, 269 (1981) ("[R]eligious worship and discussion ... are forms of speech and association protected by the First Amendment.").

(202) See. e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v. Washington, 418 U.S. 405, 409 (1974)) (burning a U.S. flag during a political demonstration was expressive conduct).

(203) For example, both clauses distinguish between laws aimed at either religion (Free Exercise Clause) or the content of the speech (Free Speech Clause), and laws that are neutral toward either religion or the content of the speech, providing much greater latitude to the government in regulating the latter. Legal analysis of neutral laws involves different tests under the Free Exercise Clause, RFRA, and the Free Speech Clause. For further details, compare the analysis in Part II.B to the analysis in Part II.D. Some expressive conduct (symbolic speech), such as worship or religious displays, could be protected under both clauses.

(204) Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

(205) Miller v. California. 413 U.S. 15 (1973).

(206) Gertz v. Robert Welch. 418 U.S. 323 (1974): New York Times v. Sullivan, 376 U.S. 254 (1964).

(207) Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).

(208) Chaplinsky, 315 U.S. at 572.

(209) See cases cited supra notes 204-207.

(210) See, e.g., Boos v. Barry, 485 U.S. 312 (1988) (content-based law prohibiting displaying signs critical of a foreign government within 500 feet of a foreign embassy violates Free Speech Clause): Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (content-neutral law limiting speech by prohibiting certain activities in a particular public park upheld).

(211) See Boos, 485 U.S. at 321.

(212) See supra notes 88-108 and accompanying text.

(213) See, e.g., Boos, 485 U.S. at 321 ("[A] content-based restriction ... must be subjected to the most exacting scrutiny."): Widmar v. Vincent, 454 U.S. 263, 270 (1981) (noting that content-based restrictions require "a compelling state interest and... [must be] narrowly drawn to achieve that end").

(214) R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (citing Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)).

(215) Texas v. Johnson, 491 U.S. 397, 414 (1989).

(216) Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (defining content-neutral restrictions as those "justified without reference to the content of the regulated speech").

(217) See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) ("place" restriction).

(218) Public forums are "places which by long tradition or by government fiat have been devoted to assembly and debate" such as public parks and streets. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

(219) Courts will uphold content-neutral laws restricting speech in a public forum provided "that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark, 468 U.S. at 293. The Religious Freedom Restoration Act, discussed supra at notes 142-146 and accompanying text, requires strict scrutiny of religion-neutral laws that substantially burden the free exercise of religion. See 42 U.S.C.S. [section] 2000bb-1(a) (LEXIS 2005). Its provisions do not apply to content-neutral laws that limit religious speech.

(220) Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985).

(221) See. e.g., Picketing v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that a governmental employee has a right as a citizen to comment on matters of public concern, which must be balanced against the government's interest in "promoting the efficiency of the public service it performs through its employees").

(222) See, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992) (attributing actions of a high school principal to the state).

(223) See Michael W. McConnell, State Action and the Supreme Court's Emerging Consensus on the Line Between Establishment and Private Religious Expression, 28 PEEP. L. REV. 681,682 (2001).

(224) See Santa Fe lndep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (noting the importance of the perceptions of an objective observer).

(225) See Bd. of Ed. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion) ("[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.").

(226) See supra note 61 and accompanying text.

(227) The Court has applied the endorsement test or the coercion test most frequently in the context of prayer and religious displays, both forms of religious speech. See supra text accompanying notes 59-71. The Court therefore would likely apply one of those tests to other religious speech by governmental employees, although the Court has not had occasion to do so yet.

(228) See, e.g., Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).

(229) See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

(230) See, e.g., Mergens, 496 U.S. at 250 (plurality opinion) ("[P]rivate speech endorsing religion ... [is protected by] the Free Speech and Free Exercise Clauses ....").

(231) See Parker v. Levy, 417 U.S. 733, 758 (1974) ("While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."). For an excellent overview of free speech in the military, see Captain John A. Carr, Free Speech in the Military Community: Striking a Balance Between Personal Rights and Military Necessity, 45 A.F.L. REV. 303 (1998).

(232) "Proselytizing" is used in the sense of inducing or recruiting (attempting to induce) someone to convert to one's religious faith. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 937 (10th ed. 1998). Proselytizing is a form of religious speech that is protected to the same degree as other religious speech. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) ("[W]e have not excluded from free-speech protections religious proselytizing ....") (citing Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 647 (1981)).

(233) See infra Part III.A-B.

(234) See infra notes 245-252 and accompanying text.

(235) See supra notes 210-220 and accompanying text.

(236) See infra Part III.B.

(237) See infra notes 223-227 and accompanying text.

(238) See infra note 251 and accompanying text.

(239) See, e.g., Parker v. Levy, 417 U.S 733 (1974).

(240) See, e.g., UNIFORM CODE OF MILITARY JUSTICE (UCMJ) arts. 89, 91 (2005) (prohibiting use of disrespectful language to military superiors) and UCMJ art. 88 (2005) (prohibiting commissioned officers from using contemptuous words toward certain civil officials).

(241) See generally Parker v. Levy, 417 U.S 733 (1974).

(242) UCMJ art. 134 (2005).

(243) See generally Parker v. Levy, 417 U.S 733 (1974).

(244) UCMJ art. 133 (2005).

(245) See generally Parker v. Levy, 417 U.S 733 (1974).

(246) Among the statements that Captain Levy was charged with making are the following: "The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent 1 would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children." Id. at 736-37. Captain Levy was also charged under Article 90, UCMJ for disobeying a superior's order to establish a training program.

(247) Levy, 417 U.S. at 759 (quoting United States v. Gray, 42 C.M.R. 255 (1970)).

(248) Id.

(249) United States v. Brown, 45 M.J. 389, 395 (1996).

(250) Analytically, unprotected speech in military is similar to the "dangerous speech" civilian category of unprotected speech. See Schenck v. United States, 249 U.S. 47 (1919); Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). In the civilian sector, dangerous speech means "'speech that is directed to inciting or producing imminent lawless action... [and that] is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). Due to the military's responsibility for the nation's security, dangerous speech in the military has a lower threshold than in the civilian sector, requiring neither "intent to incite" nor "imminent" danger. See United States v. Brown, 45 M.J. 389, 395 (1996). Another possible analytical model--not adopted by the courts--to reach the same result (allowing prosecution in the military for words that present a clear danger to loyalty, discipline, mission, or morale of the troops) would be to view these as compelling governmental interests justifying narrowly tailored means to achieve them. The advantage to the military in the courts' current approach (unprotected speech) versus the alternative (compelling governmental interest) is that under the current approach the military does not have to prove that its action was the least restrictive means to achieve the compelling governmental interest.

(251) Solorio v. United States, 483 U.S. 435 (1987) (holding that military jurisdiction depends only on military status of accused).

(252) All branches within the Department of Defense have provisions by which members can apply for conscientious objector status, but members must continue to perform military duties until their application is processed. See infra notes 472-473.

(253) See supra notes 210-220 and accompanying text.

(254) See supra notes 213-214 and accompanying text.

(255) See supra notes 218-220 and accompanying text.

(256) Truly voluntary religious discussions between a superior and subordinate may also be protected under the Free Exercise Clause, but the disparity in rank and position may raise Establishment Clause issues. See infra notes 279-280 and accompanying text.

(257) See Air Force Interim Guidelines, supra note 26, [paragraph] 3C(3) ("Nothing in this guidance should be understood to limit voluntary, peer to peer discussions."); see also OFFICE OF THE WHITE HOUSE PRESS SECRETARY, GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE, [section][section] 1A(2)-(3) (Aug. 14, 1997), available at http://clinton2.nara.gov/WH/New/html/19970819-3275.html (last visited Dec. 8, 2006). President Clinton directed federal executive departments and agencies to comply with the guidelines. William J. Clinton, Memorandum on Religious Exercise and Religious Expression in the Federal Workplace, Public Papers of the Presidents, 33 WEEKLY COMP. PRES. DOC. 1246 (Aug. 14, 1997). The authors have found no evidence that the guidelines currently have force of law. The Clinton guidelines by their terms applied only to "civilian executive branch agencies," specifically excluding "uniformed military personnel." OFFICE OF THE WHITE HOUSE PRESS SECRETARY. GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE 1 (Aug. 14, 1997). Moreover, they were not intended to create any new rights. Id. Rather, they apparently were intended to serve as a summary of how existing law applies to religious exercise and expression the federal workplace. Nevertheless, although the guidelines are not law and were never intended to apply to military personnel, they may serve as at least persuasive authority for religious exercise and speech (including prayer and religious displays) in the military, to the extent that uniquely military considerations do not suggest a different result in a particular circumstance. For example, [section] IA(2), pertaining to religious expression among fellow employees, and [section] 1A(3), pertaining to proselytizing of fellow employees, could be accurately applied to military personnel.

(258) A content-neutral order prohibiting all non-duty-related speech while on duty would almost certainly survive judicial scrutiny: the order likely would be reasonably related to purpose of the governmental workplace, a non-public thrum. Even if the workplace were considered a public forum, the content-neutral restriction would likely be upheld as being narrowly tailored to furthering an important governmental interest (military efficiency) and would leave open alternatives for military members to discuss religion (off duty). See supra notes 218-220.

(259) See OFFICE OF THE WHITE HOUSE PRESS SECRETARY, GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE [section] 1A(2) (Aug. 14, 1997).

(260) See supra notes 104-108 and accompanying text (free exercise context). The same analysis would apply under the Free Speech Clause. The military could restrict on-duty religious speech if, under the particular circumstances of that workplace, the religious speech detracted more from military efficiency than other kinds of on-duty speech. Religious speech in the workplace under these circumstances, which would be very rare, could be prohibited as unprotected speech. See supra notes 247-251 and accompanying text. Any such prohibition should not discriminate among religions. See supra notes 88-108 and accompanying text.

(261) This paragraph presumes peer-to-peer proselytizing with no governmental coercion (e.g., rank or position). Coercive proselytizing would implicate the Establishment Clause. See infra Part III.B.

(262) See Terminiello v. Chicago, 337 U.S. 1, 4 (1949) ("[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.").

(263) See Air Force Interim Guidelines, supra note 26. [paragraph] 3F ("Nothing in these guidelines relieves commanders of the responsibility to maintain good order and discipline in their commands.").

(264) See supra notes 216-220 and accompanying text.

(265) See, e.g., U.S. DEP'T OF AIR FORCE, INSTR. 33-119, [paragraph] 3.7, AIR FORCE MESSAGING (24 Jan. 2005) ("Users will not add slogans, quotes, special backgrounds, special stationeries, digital images, unusual fonts, etc., routinely to their official or individual electronic messages. Users must consider professional image and conservation of Air Force network resources (bandwidth).").

(266) See supra notes 218-220 and accompanying text.

(267) 5 C.F.R. [section] 2635.702 (2005). See infra note 404 for additional explanation of this Joint Ethics Regulation (J.E.R.) provision.

(268) C.F.R. [section] 2635.702(b) (2005).

(269) See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (invalidating official speech that would have been permitted by the Free Speech Clause if it had been private speech).

(270) See supra notes 59-71.

(271) See supra notes 40-49 and accompanying text.

(272) See supra notes 50-53 and accompanying text.

(273) See supra notes 59-71 and accompanying text.

(274) See supra notes 223-225 and accompanying text.

(275) See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (looking at the entire context before concluding that "[t]he delivery of such a message [prayer]--over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer--is not properly characterized as 'private' speech"). Courts have not formally announced a "totality of the circumstances" test in this context.

(276) These factors represent the authors' judgment on appropriate general factors to consider in attempting to distinguish private from official religious speech in contexts other than prayer or official displays. See infra text accompanying note 277. There is no Court precedent on point. The case law distinguishing private from governmental religious speech arises in the contexts of prayer and religious displays on governmental property. See infra Parts IV and V. Prayers and displays may be pursuant to official government policy permitting them, while religious speech by military members typically is not. Thus, the considerations in prayer and display cases may be somewhat different. Other religious speech is apparently more likely to be challenged through an official complaint. See, e.g., BRADY, supra note 22.

(277) Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295-96 (2001) (citing Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 193, 196 (1988): Polk County v. Dodson, 454 U.S. 312 (1981) (private athletic association's actions amounted to governmental actions for purposes of suit under 42 U.S.C. [section] 1983)).

(278) The Court has developed tests and a body of case law for determining when an individual's action becomes governmental action. See Richard J. Ansson, Jr., Drawing Lines in the Shifting Sand. Where Should the Establishment Wall Stand? Recent Developments in Establishment Clause Theory: Accommodation, State Action, The Public Forum, and Private Religious Speech, 8 TEMP. POL. & CIV. RTS. L. REV. 1, 33-39 (1998) (explaining "nexus approach" and "public function doctrine" used by courts to determine whether private conduct constitutes state action). In most areas of constitutional law, the "governmental action" inquiry is viewed as a threshold question that courts address before reaching the substantive merits of the issue. John Fee, The Formal State Action Doctrine and Free Speech Analysis, 83 N.C.L. REV. 569, 582 (2005). But in Establishment Clause cases, the Court does not use the typical "governmental action" threshold tests. See id. at 588. Instead, the Court essentially treats the "'governmental action" issue as part of the substantive test. Id.

(279) Military courts have recognized "the effect of superior rank or official position upon one subject to military law'" in the context of the requirement to provide rights advisements under Article 31, UCMJ before official questioning of a suspect or accused. United States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981). The court in Duga also recognized that coercion to confess does not exist in voluntary "casual conversation between comrades." Id. at 211. The court's observations logically also apply to the context of religious speech: see also Air Force Interim Guidelines, supra note 26, [paragraph] 2E ("Supervisors, commanders, and leaders at every level, bear a special responsibility to ensure their words and actions cannot reasonably be construed as either official endorsement or disapproval of the decisions of individuals to hold particular religious beliefs or to hold no religious beliefs.").

(280) Air Force Interim Guidelines, supra note 26, [paragraph] 3C(2).

(281) See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n. 13 (2000) (suggesting that speech in a public forum is more likely to be viewed as private, rather than governmental, speech).

(282) See Air Force Interim Guidelines, supra note 26, [paragraph] 3C(1) (noting the particular danger that religious speech will be perceived as official speech when listeners are obliged to hear the message as part of their duties): see also infra notes 322, 346 and accompanying text (elaborating on idea of voluntary presence).

(283) Air Force Interim Guidelines, supra note 26, [paragraph] 3C(1).

(284) Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972) (per curiam).

(285) Lee v. Weisman, 505 U.S. 577, 596 (1992) ("It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.").

(286) Although the constitutionality of the chaplaincy has not reached the Supreme Court, a Court of Appeals has upheld the chaplaincy, including its meeting of spiritual needs of military members, against an Establishment Clause challenge. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1984). When chaplains engage in religious speech with people who have sought them for that purpose, they are meeting the spiritual needs of military members, as permitted by Katcoff But chaplains' uninvited proselytizing religious speech to military members poses a different practical and legal issue. On one hand, persuading others to adopt their beliefs is central to some major religious. See, e.g., Matthew 28:19 (quoting Jesus' exhortation to "go and make disciples of all nations") (New International Version). Chaplains of such religions likely would feel a strong calling to proselytize. On the other hand, the military's permitting its chaplains to proselytize members--without the members' explicit or implicit invitation--would likely violate the Establishment Clause. The court in Katcoffnoted that "[n]o chaplain is authorized to proselytize soldiers or their families," id. at 228, and that "'[t]he primary function of the military chaplain is to engage in activities designed to meet the religious needs of a pluralistic military community, including military personnel and their dependents," id. at 226. A chaplaincy that meets the religious need of military personnel, who may be deployed in remote locations away from their own churches, is permitted (and arguably mandated) by the Free Exercise Clause and does not violate the Establishment Clause. See id. at 232. Similarly, chaplains who provide spiritual insight to those who have sought it are also meeting the religious needs of military members. But chaplains who, without invitation, actively proselytize are not meeting the Free Exercise needs of military members. They are essentially creating new religious needs by promoting religion. Thus, attempts by chaplains in their capacity as governmental representatives to persuade military members to adopt a particular religion likely violate the Establishment Clause under Katcoff's rationale. Sometimes chaplains distinguish between evangelizing (attempting to convert people who have no religious affiliation) and proselytizing (attempting to convert people who already have religious beliefs), permitting the former but not the latter. See Laurie Goodstein, Air Force Rule on Chaplains Was Revoked, N.Y. TIMES. Oct. 12, 2005, at A16. This is a distinction without First Amendment significance. Under Katcoff's rationale, both activities by chaplains would be impermissible when applied to personnel not seeking to be converted. The Air Force's interim religious guidelines state that chaplains "should respect the rights of others to their own religious beliefs, including the right to hold no beliefs" and "must be as sensitive to those who do not welcome offerings of faith, as they are generous in sharing their faith with those who do." Air Force Interim Guidelines, supra note 26, [paragraph] 3D(2).

(287) See, e.g., MANUAL FOR COURTS-MARTIAL, UNITED STATES, pt. IV, [paragraph] 36c(2) (2005) (certain commanders are constantly on duty for purposes of the Article 112, Uniform Code of Military Justice, prohibition against drunk on duty).

(288) See Air Force Interim Guidelines, supra note 26, [paragraph] 3C(2) ("The more senior the individual, the more likely that personal expressions may be perceived to be official statements."). In effect, one responsibility of senior leadership is accepting that one's free speech rights may be further constrained by the Establishment Clause.

(289) Editorial, The General Who Roared, N.Y. TIMES, Oct. 22, 2003, at A22 (opining that a deputy under-secretary of defense for intelligence, a lieutenant general, who spoke in uniform from a church pulpit calling on the United States to defeat the terrorists "in the name of Jesus," "was not exercising the free speech rights of a private citizen"). For further details on the general's statements, see Reuters, Rumsfeld Praises Army General Who Ridicules Islam as 'Satan,' N.Y. TIMES, Oct. 17, 2003, at A7.

(290) See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.13 (2000) (suggesting that speech in a public forum is more likely to be viewed as private speech, rather than governmental speech, than speech made on governmental property that was not a public thrum).

(291) See, e.g., Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 612-13 (8th Cir. 2003) (noting school board member's use of "1" in the religious part of his speech at a public high school graduation as one factor indicating that the speech was private).

(292) Some of these factors are adapted from Justice O'Connor's concurring opinion in Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37-43 (O'Connor, J., concurring in the judgment). Justice O'Connor would look to the following factors to determine whether religious speech constitutes "ceremonial deism," which she believes the Establishment Clause permits: the "history and ubiquity" of the practice or speech, the "absence of worship or prayer," the "absence of reference to particular religion," and "minimal religious content." Id.

(293) Id. at 42 ("While general acknowledgments of religion need not be viewed by reasonable observers as denigrating the nonreligious, the same cannot be said of instances "where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.'" (quoting Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting)). See infra notes 367-368 and accompanying text discussing nonsectarian prayer.

(294) Some courts have distinguished invocations at a "significant, once-in-a-lifetime event" such as a high school graduation. See. e.g., Doe v. Duncanville Indep. Sch. Dist, 70 F.3d 402, 406-07 (5th Cir. 1995). Other courts have distinguished invocations at less significant, recurring events, such as before high school football games. See. e.g., Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 822-23 (5th Cir. 1999), aff'd on other grounds, Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). For discussion on validity of "solemnization" argument for significant events, see infra notes 337-340 and accompanying text.

(295) See Newdow, 542 U.S. at 42-43 (O'Connor, J., concurring in the judgment) (arguing that "minimal religious content" is one factor negating governmental endorsement).

(296) Lee v. Weisman, 505 U.S. 577, 597 (1992).

(297) Theoretically, official religious speech could be analyzed under the Free Speech Clause too. But it is difficult to imagine official speech being prohibited by the Free Speech Clause if it was not prohibited by the Establishment Clause.

(298) This Part will locus only on official prayer at official functions. Private prayer by an individual would be analyzed using free speech and free exercise principles. See supra Part III. Prayer by chaplains during a worship service does not raise any Establishment Clause issues. See supra note 286 and accompanying text.

(299) The U.S. Naval Academy holds a nondenominational prayer led by a chaplain prior to lunch. David A. Fahrenthold, Naval Academy Urged to Drop Prayer, WASH. Posy, June 25, 2005, at B5.

(300) Marsh v. Chambers, 463 U.S. 783 (1983).

(301) Wallace v. Jaffree, 472 U.S. 38 (1985) (striking down mandatory time of silence in public schools, where unique facts indicated that the primary purpose was to promote prayer). Most "moments of silence" do not violate the Establishment Clause. See infra text accompanying notes 369-370.

(302) Lee v. Weisman, 505 U.S. 577, 587 (1992).

(303) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

(304) Air Force interim Guidelines, supra note 26. [paragraph] 3B(3). The Air Force Revised Interim Guidelines also allow for non-denominational prayer at "'military ceremonies or events of special importance" as long as its primary purpose is "not the advancement of religious beliefs." ld. [paragraph] 6.

(305) Id. [paragraph] 3B(3).

(306) Marsh v. Chambers, 463 U.S. 783, 786 (1983).

(307) Id. at 788.

(308) Edwards v. Aguillard, 484 U.S. 578, 583 n.4 (1987) (citing Wallace v. Jaffree, 472 U.S. 38, 80 (1985) (O'Connor, J. concurring in judgment)); see also Jager v. Douglas County Sch. Dist., 862 F.2d 824, 829 n.9 (11th Cir. 1989) (refusing to use Marsh historical exception in evaluating invocations at high school football games because the practice did not date from the time of the Constitution); but see Tanford v. Brand, 104 F.3d 982, 986 (7th Cir. 1997) (relying on Marsh historical exception in upholding prayer at university graduation when historical practice dated back 155 years).

(309) Katcoff v. Marsh, 755 F.2d 223, 225 (2d Cir. 1984) (citations omitted).

(310) Id. (citations omitted).

(311) ROY J. HONEYWELL, COL (RET.) (USAR), CHAPLAINS OF THE UNITED STATES ARMY 21-23 (describing chaplains' role in the French-Indian War), 30-74 (describing chaplains' role in the Revolutionary War) (1958).

(312) JAMES P. MOORE, JR., ONE NATION UNDER GOD: THE HISTORY OF PRAYER IN AMERICA 51 (2005).

(313) Although the authors have found documented evidence of formal functions in the military dating from the 1700s, they have been unable to determine what, if any, role prayer played in such functions.

(314) See U.S. DEP'T OF NAVY, NAVAL HISTORICAL CENTER, DINING IN/DINING OUT: A NAVY TRADITION (10 Dec. 2002), available at http://www.history.navy.mil/faqs/faq89-1.htm (last visited Dec. 6, 2006).

(315) See U.S. DEP'T OF ARMY, RECRUITING COMMAND, PAM. 600-15, DINING-IN AND DINING-OUT HANDBOOK [paragraph] 4 (4 May 1994).

(316) Marsh v. Chambers, 463 U.S. 783, 788 (1983).

(317) County of Allegheny v. ACLU, 492 U.S. 573,603 (1989).

(318) 505 U.S. 577 (1992).

(319) 530 U.S. 290 (2000).

(320) Lee, 505 U.S. at 581.

(321) Id. at 586-88 (coercion holding limited to minors).

(322) Id. at 594-95.

(323) Santa Fe, 530 U.S. at 297-98.

(324) Id. at 310.

(325) Id. at 307-08.

(326) Id. at 308-09.

(327) Id. at 310-12.

(328) See supra notes 274-278 and accompanying text.

(329) See, e.g., Doe v. Sch. Dist. Of Norfolk. 340 F.3d 605 (8th Cir. 2003) (upholding school board member and parent's graduation message as private speech); Adler v. Duval County Sch. Bd., 250 F.3d 1330 (11th Cir. 2001); Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000) (finding genuinely initiated student prayer equates to private speech).

(330) 250 F.3d 1330 (11th Cir. 2001).

(331) Id. at 1331-32.

(332) Id. at 1332-33.

(333) Id. at 1333.

(334) The vote struck down by Santa Fe involved the school putting prayer to a vote by students, whereas the votes upheld by various Circuits allowed students to decide whether to have a student-led message with no governmental involvement as to the message's content. See supra notes 323-324 and 329-333 and accompanying text.

(335) See supra notes 274-278 and accompanying text.

(336) After the reading of the retirement order, it is clear from the circumstances that the retiree no longer holds any position of authority over his or her listeners. Further, a disclaimer that the private portion of the ceremony is about to begin makes clear to the audience that any religious statements thereafter are the retirees' personal beliefs and thus are less likely to be construed as official governmental speech. See supra notes 279-280, 291 and accompanying text.

(337) See Chaudhuri v. Tennessee. 130 F.3d 232 (6th Cir. 1997); Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992).

(338) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000).

(339) Id. at 309.

(340) Compare Tanford v. Brand, 104 F.3d 982, 986 (7th Cir. 1997) and Chaudhuri, 130 F.3d at 236 (both upholding university graduation prayer in part on its purpose of solemnizing the ceremony in a case pre-Santa Fe) with Cole v. Oroville Union High Sch., 228 F.3d 1092 (9th Cir. 2000) and Doe v. Sch. Dist. of Norfolk, 340 F.3d 605 (8th Cir. 2003) (analyzing high school graduation prayer based on private speech grounds versus solemnizing arguments in a case post-Santa Fe). Further support for the decrease in validity of the "solemnizing justification" is apparent from the 11th Circuit's handling of Adler v. Duval Count. v School Board upon remand from the Supreme Court in light of its Santa Fe decision. Compare Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1085 (11th Cir. 2000) (finding high school graduation prayer passed Lemon's secular purpose prong based on purpose of solemnizing the graduation ceremony) with Adler v. Duval County Sch. Bd., 250 F.3d 1330, 1342 (11th Cir. 2001) (minimizing its prior reliance on the solemnization argument and distinguishing Santa Fe because it dealt with school sponsored prayer versus the private speech in Adler).

(341) See Mellen v. Bunting, 327 F.3d 355, 373 (4th Cir. 2003) ("When a state-sponsored activity has an overtly religious character, courts have consistently rejected efforts to assert a secular purpose for that activity.").

(342) See Coles v. Cleveland Bd. of Ed., 171 F.3d 369, 384 (6th Cir. 1999); ACLU v. Black Horse Pike Reg'l Bd. of Ed., 84 F.3d 1471, 1484-85 (3d Cir. 1996).

(343) See Coles, 171 F.3d at 385; Ingebretson v. Jackson Pub. Sch. Dist., 88 F.3d 274, 279 (5th Cir. 1996).

(344) Lee v. Weisman, 505 U.S. 577, 587 (1992).

(345) Id. at 593; Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310-11 (2000).

(346) Although one could argue that such events are "technically" voluntary, the Court has shot down such an argument where the social or peer pressure to attend an event essentially makes attendance obligatory. See supra note 322 and accompanying text.

(347) 370 U.S. 421 (1962).

(348) Id. at 430-32 (striking down a law prescribing that public school students begin each school day with a "denominationally neutral" prayer to "Almighty God").

(349) See supra notes 384-385 and accompanying text (explaining endorsement test).

(350) See supra note 325 and accompanying text.

(351) Air Force Interim Guidelines, supra note 26, [paragraph] 3B(1)" see accord Op. THE AIR FORCE JUDGE ADVOCATE GENERAL. PRAYER AT STAFF MEETINGS, No. 1998/76 (14 July 1998).

(352) OFFICE OF THE WHITE HOUSE PRESS SECRETARY. GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE [section] l(D)(a) (Aug. 14, 1997).

(353) Air Force Interim Guidelines, supra note 26, [paragraph] 3B(2).

(354) 380 F.3d 1076 (8th Cir. 2004).

(355) Id. at 1079 (public school employee being forced to attend training held at a denominational college posed an Establishment Clause problem).

(356) Id. at 1080-81.

(357) See id. at 1081 (comparing facts of routine prayer at staff meetings to those sporadic and spontaneous prayers upheld in Brown v. Polk Count, 61 F.2d. 650 (8th Cir. 1995)). The Air Force Interim Guidelines allow for application of "common sense" in extraordinary circumstances, such as mass casualties, preparation for imminent combat, and natural disasters, to enable prayer to occur in informal settings. Air Force Interim Guidelines, supra note 26, [paragraph] 3B(2). The Air Force Revised Interim Guidelines allow for the consideration of "unusual circumstances and the needs of the command." Id. [paragraph] 6. This policy appears to empower commanders to direct prayer in extraordinary or unusual circumstances. Such direction may not equate to the spontaneous prayer upheld in Brown. No case law exists on this point and courts may give deference to the military, especially in a time of national crisis. See infra notes 432-433 and accompanying text. Legal practitioners should be aware of the fine line commanders tread with respect to the endorsement test even during times of "extraordinary" or "unusual" circumstances.

(358) Warnock, 380 F.3d at 1080.

(359) 327 F.3d 355 (4th Cir. 2003).

(360) Id. at 371-72.

(361) Id. at 371.

(362) See, e.g., supra note 299 (referencing article citing U.S. Naval Academy officials' decision to continue prayer prior to each lunch).

(363) See supra notes 344-348 and accompanying text.

(364) Warnock v. Archer, 380 F.3d 1076, 1081-82 (8th Cir. 2004).

(365) Id. at 1081.

(366) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 295. 305 (2000).

(367) See Marsh v. Chambers, 463 U.S. 783, 794 (1983).

(368) See infra notes 382-383 and accompanying text (outlining neutrality principles): but see Engel v. Vitale, 370 U.S. 421, 422 (1962) (striking down a non-denominational prayer to "Almighty God").

(369) See Chaudhuri v. Tennessee, 130 F.3d 232, 240 (6th Cir. 1997).

(370) See Wallace v. Jaffree, 472 U.S. 38, 59-60 (1985) (holding a moment of silence unconstitutional based on the statute's clear religious purpose).

(371) Religious displays are expressive conduct (symbolic speech) when the display is intended to convey a message and viewers would likely understand the message. See supra note 202.

(372) e.g., Lynch v. Donnelly, 465 U.S. 668 (1984): Stone v. Graham, 449 U.S. 39 (1980).

(373) See McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (utilizing only the purpose prong of the Lemon test to reject religious display).

(374) See County of Allegheny v. ACLU, 492 U.S. 573 (1989); see also supra notes 59-65 and accompanying text.

(375) Lynch, 465 U.S. at 679. Justice Breyer used an altogether different test when casting the deciding vote in the plurality decision of Van Orden, focusing on whether the display passed "legal judgment." Van Orden v. Perry, 125 S. Ct. 2854, 2869 (2005) (Breyer, J. concurring).

(376) Note that a restricted or classified location does not lose its "common area" classification just because of its decreased public or military access.

(377) When discussing the permissibility of religious displays, this article excludes any displays within a military chapel itself: Given that the courts have recognized the constitutionality of chaplaincy programs, a reasonable person would not consider displays within a chapel as the government's endorsement of a particular religion, but rather as the beliefs of the members/participants of that chapel. See Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985).

(378) See Allegheny, 492 U.S. at 598 (citing Lynch, 465 U.S. at 685).

(379) See Stone v. Graham, 449 U.S. 39. 41 (1980); McCreary, 125 S. Ct. at 2737.

(380) See Allegheny. 492 U.S. at 616 (Blackmun, J.) (opining that a Christmas tree is not itself a religious symbol): Id. at 633 (O'Connor, J., concurring) (finding a Christmas tree is not regarded as a religious symbol regardless of origin); id. at 655 (Kennedy. Rehnquist, White. Scalia, dissenting in part, concurring in judgment in part) (finding that none of the displays at issue violated the Establishment Clause).

(381) See Allegheny, 492 U.S. at 617 n.66 (Blackmun, J.) (agreeing with concurrence by Brennan and Stevens that association of Christmas tree with menorah may impact whether tree viewed as religious display).

(382) McCreary. 125 S. Ct. at 2733.

(383) Allegheny, 492 U.S. at 591.

(384) Id. at 600.

(385) Id. at 598-601: see also McCreary, 125 S. Ct. at 2745 (holding that a display that evolved from a single display of the Ten Commandments to a multitude of documents highlighting religion's role in government violated the purpose prong of Lemon).

(386) See Allegheny, 492 U.S. at 620 (Blackmun, J.) (finding menorah and Christmas tree display to not have effect of endorsing religious faith): id. at 632-33 (O'Connor, J., concurring) (finding for different reasons than Blackmun that combined display did not convey endorsement of religion): id. at 655 (Kennedy, Rehnquist, White, Scalia, dissenting in part, concurring in judgment in part) (finding that none of the displays at issue violated the Establishment Clause).

(387) Lynch v. Donnelly, 465 U.S. 668, 671 (1984).

(388) Id. at 681-84: see also Van Orden v. Perry, 125 S. Ct. 2854, 2858 (2005) (holding, via plurality opinion, statue depicting Ten Commandments among seventeen other monuments and twenty-one historical markers on twenty-two acres surrounding the Texas state capital constitutional).

(389) For clear example of case violating purpose prong, see McCreary, supra note 385, at 2745.

(390) See supra notes 59-65 and accompanying text.

(391) See supra notes 40-46 and accompanying text.

(392) See supra Part III for general analysis of religious speech issues in the military.

(393) See Allegheny. 492 U.S. at 600.

(394) See Capital Square v. Pinette, 515 U.S. 753, 762-63 (1995) (holding Establishment clause concerns did not justify Ohio's denial of Ku Klux Klan's request to place a cross on public property routinely used for public speech): see also Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

(395) See, e.g., U.S. DEP'T OF AIR FORCE, INSTR. 51-902, POLITICAL ACTIVITIES BY MEMBERS OF THE U.S. AIR FORCE (1 Jan. 2006) (prohibiting some types of political speech): U.S. DEP'T OF AIR FORCE, INSTR. 51-903, DISSIDENT AND PROTEST ACTIVITIES (1 Feb. 1998) (prohibiting various dissident activities such as active membership in hate groups).

(396) See supra note 254 and accompanying text.

(397) See AFI 36-2706. supra note 83, attachment 1 (defining religion as "[a] personal set or institutionalized system of attitudes, moral or ethical beliefs and practices held with the strength of traditional religious views, characterized by ardor and faith and generally evidenced through specific religious observances"). This expansive definition includes groups such as Atheists and Secular Humanists.

(398) McCreary, 125 S. Ct. at 2733 (2005); see also supra notes 382-383 and accompanying text.

(399) Content-based restrictions in the military would be justified only if the regulated speech was unprotected (e.g.. interfered with the mission or presented a clear danger to loyalty, discipline, mission, or morale) or the restriction was necessary to achieve some other compelling governmental interest. See supra notes 247-254 and accompanying text.

(400) See Sight Picture, U.S. Air Force Chief of Staff, Airmen, Spiritual Strength and Core Values (28 June 2005).

(401) See, e.g., Van Orden, 125 S. Ct. at 2869 (2005) (Breyer, J., concurring) (determining the message of the Ten Commandment display by examining "how the text is used"). Justice Breyer cast the deciding vote in the case after determining that the Ten Commandment display conveyed a secular moral message in addition to a religious one. Justice Breyer analyzed the physical setting of the monument, the donating group and its purpose for selecting the display, the length of time the monument was standing, and how the text was chosen for the display. Id. at 2870. The overarching context of a display can make the difference in the outcome of the case under Establishment Clause analysis. Compare Van Orden, 125 S. Ct. at 2869-71 (Breyer, J., concurring) (upholding the long-standing Ten Commandments display on grounds of Texas State Capital given that the display focused on civic morality and was part of a larger grouping of monuments), with McCreary, 125 S. Ct. at 2737-41 (striking down Ten Commandments display where evolution of display clearly indicated government's religious purpose to promote religion).

(402) See supra notes 274-278 and accompanying text.

(403) DoD DIR. 1300.17. supra note 190. at 2.

(404) 5 C.F.R. [section] 2635.702(b) (2006) (stating "an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another"); see also U.S. OFFICE OF GOVERNMENT ETHICS. LETTER TO THE ACTING DEPUTY DIRECTOR OF AN AGENCY, ETHICS LETTER 98 X 14 (31 Aug. 1998) (applying aforementioned J.E.R. provision to employee's use of Government title to advocate attendance at non-Federally sponsored meeting): U.S. OFFICE OF GOVERNMENT ETHICS, LETTER TO A DESIGNATED AGENCY ETHICS OFFICIAL, ETHICS LETTER 99 X 15 (28 July 1999) (clarifying that this J.E.R. provision includes improper use of public office to promote private gain of nonprofit organizations as well as use that could reasonably be construed to imply Government sanction or endorsement).

(405) Air Force Interim Guidelines, supra note 26, [paragraph] 3C(1); see also Air Force Revised Interim Guidelines, supra note 26, [paragraph] 4.

(406) County of Allegheny v. ACLU, 492 U.S. 573, 600 (1989); see also supra note 384 and accompanying text.

(407) See supra notes 66-71 and accompanying text.

(408) Air Force Interim Guidelines, supra note 26, [paragraph] 3C(2): see also Air Force Revised Interim Guidelines, supra note 26, [paragraph] 4.

(409) See, e.g., U.S. DEP'T OF ARMY, PAM. 600-75, ACCOMMODATING RELIGIOUS PRACTICES (22 Sep. 1993); U.S. DEP'T OF NAVY, SEC'Y OF THE NAVY INSTR. 1730.8A, ACCOMMODATION OF RELIGIOUS PRACTICES (31 Dec. 1997).

(410) OFFICE OF THE WHITE HOUSE PRESS SECRETARY, GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE [section] 1A(1)(a) (Aug. 14, 1997).

(411) See supra notes 275-277 and accompanying text for factors to consider when determining whether speech should be considered private or official. See generally, Brown v. Polk County, 61 F.3d 650, 658-59 (8th Cir. 1995) (upholding employee's right to display religious items on personal desk based on the Free Exercise Clause).

(412) Air Force Interim Guidelines, supra note 26, [paragraph] 2E: see also Air Force Revised Interim Guidelines, supra note 26, [paragraph] 4.

(413) See supra notes 344-348 and accompanying text.

(414) 5 C.F.R. [section] 2635.702(b) (2006). See supra note 404 explaining J.E.R. provision in more detail; see also Air Force Interim Guidelines, supra note 26, [paragraph] 3C(1-2) (cautioning superiors to be sensitive that personal expressions of religious faith may appear to be official expressions); Air Force Revised Interim Guidelines, supra note 26, [paragraph] 4.

(415) See supra notes 59-65 and accompanying text: see also supra notes 279-280 and 289 and accompanying text for discussion on how position, rank and expression of personal beliefs factor into an analysis of whether such speech is more likely private or official governmental speech.

(416) C.F.R. [section] 2635.702 (2006). See supra note 404 explaining J.E.R. provision in more detail.

(417) See supra note 285 and accompanying text.

(418) See supra notes 264-268 and accompanying text.

(419) See infra notes 432-433 and accompanying text.

(420) See supra notes 253-255 and accompanying text.

(421) See generally DOD Din. 1300.17, supra note 190 (discussed infra at text accompanying notes 443-468).

(422) 475 U.S. 503 (1986).

(423) Id. at 505 (citing U.S. DEP'T OF AIR FORCE, REGULATION 35-10, [paragraph] 1-6h(2)(f) (1980) (obsolete)). The regulation generally prohibited the wear of headgear indoors, subject to some exceptions that did not apply to Goldman. Id. at 508-09.

(424) Goldman, 475 U.S. at 510.

(425) See id. at 506.

(426) Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990) (discussed supra at text accompanying notes 118-141).

(427) See Smith. 494 U.S. at 891-907 (O'Connor, J., concurring in the judgment) and at 907-921 (Blackmun, J., dissenting); see also supra notes 123-124 and accompanying text.

(428) Goldman, 475 U.S. at 509.

(429) Id. at 506 (quoting Parker v. Levy, 417 U.S. 733, 743 (1974)); see also Chappell v. Wallace, 462 U.S. 296, 300 (1983); Schlesinger v. Councilman, 420 U.S. 738, 757 (1975): Orloff v. Willoughby, 345 U.S. 83, 94 (1953).

(430) Goldman, 475 U.S. at 508-10.

(431) Id. at 508.

(432) Id. at 507 (citing Chappell v. Wallace. 462 U.S. 296, 305 (1983); Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953)); see also Rostker v. Goldberg, 453 U.S. 57, 70 (1981).

(433) Goldman, 475 U.S. at 509. The great deference that the Court gave to the military, without requiring the military to demonstrate any harm likely to occur if it accommodated Goldman, prompted one dissenter to criticize the majority's approach as "'a subrational-basis standard." Id. at 515 (Brennan, J., dissenting).

(434) Id. at 510 (majority opinion).

(435) Id.

(436) 494 U.S. 872 (1990).

(437) See supra notes 114-117 and accompanying text.

(438) See supra notes 432-433 and accompanying text.

(439) See First Lieutenant Dwight Sullivan. The Congressional Response To Goldman v. Weinberger, 121 MIL. L. REV. 125, 140-47 (1988).

(440) 10 U.S.C. [section] 774(a) (2005). Congress's action in response to Goldman foreshadowed Congress's action--enactment of the Religious Freedom Restoration Act--in response to Smith. In both cases, the Court arguably interpreted the Free Exercise Clause in a narrow, restrictive way. In response to each of those decisions, Congress enacted a statute granting greater free exercise rights than the Court held was required by the Free Exercise Clause itself.

(441) 10 U.S.C. [section] 774(b) (2005).

(442) Id. [section] 774(e).

(443) DoD DIR. 1300.17, supra note 190.

(444) Id. [paragraph] 3.2.1.

(445) Id. [paragraph] 3.2.2.

(446) Id. [paragraph] 3.2.3.

(447) Id. [paragraph] 3.1.

(448) DoD DIR. 1300.17, supra note 190, [paragraph] 3.2.

(449) Id. [paragraph] 3.2.1.

(450) Id. [paragraph] 3.2.2.

(451) Id. [paragraph] 3.2.3.

(452) Id. [paragraph] [paragraph] 3.2.6, 3.2.7.

(453) Id. [paragraph] 3.2.7.1.

(454) Id. [paragraph] 3.2.7.

(455) Id. [paragraph] 3.2.6.

(456) DoD DIR. 1300.17. supra note 190, [paragraph] 3.2.7.5.

(457) Id. [paragraph] 3.2.7.2.

(458) Id. [paragraph] 3.2.7.3.

(459) Id. [paragraph] 3.2.7.6.

(460) Id. [paragraph] 4. 1. 1-4.1.5.

(461) Id. [paragraph] 4.1.

(462) That this factor is even present is interesting. Courts have viewed consideration of the importance of religious practices to be outside the judicial realm. See, e.g., Employment Div., Dep't of Human Res. v. Smith. 494 U.S. 872, 886-87 (1990) (refusing to apply strict scrutiny even when the requested accommodation is asserted to be "central" to a religion). Arguably, the executive or legislative branches might appropriately consider the importance of the requested accommodation in deciding whether to grant an accommodation that is not constitutionally required.

(463) See supra note 34 and accompanying text.

(464) See supra notes 88-108 and accompanying text.

(465) For example, if one religious accommodation request required a large amount of perishable special food, while another required only a small amount of non-perishable food, the commander might be able to grant the latter request while denying the first, due, for example, to limited storage or refrigeration space.

(466) See supra note 125 and accompanying text.

(467) See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); see also U.S. DEP'T OF DEFENSE, DIR. 1350.2, DEPARTMENT OF DEFENSE MILITARY EQUAL OPPORTUNITY PROGRAM [paragraph] 4.2 (21 Nov. 2003) ("Unlawful discrimination against persons or groups based on race, color, religion, sex, or national origin is contrary to good order and discipline and is counterproductive to combat readiness and mission accomplishment. Unlawful discrimination shall not be condoned.").

(468) See Lukumi Babalu Aye, 508 U.S. at 520; see also supra notes 88-108 and accompanying text.

(469) The Navy and the Marine Corps share a Secretary of the Navy instruction. See U.S. DEP'T OF NAVY, SEC'Y OF THE NAVY INSTR. 1730.8A, ACCOMMODATION OF RELIGIOUS PRACTICES (31 Dee. 1997) [hereinafter SECNAVINST 1730.8A]. Unlike the Navy/Marine Corps, neither the Air Force nor the Army has a regulation solely dedicated to religious accommodation, but each has a section on religious accommodation in another regulation. Most of the Army's regulatory guidance is consolidated into a lengthy paragraph, entitled "Accommodating religious practices," of its "Army Command Policy" regulation. See U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY [paragraph] 5-6 (13 May 2002) [hereinafter AR 600-20]. Most of the Air Force's regulatory guidance is in Chapter 8 ("Accommodation of Religious Practices") of its instruction on "Military Equal Opportunity Program." See AFI 36-2706, supra note 83. But the Air Force instruction concerning dress and appearance also contains interspersed guidance concerning accommodation for religious items and apparel and personal grooming (e.g., hair). See U.S. DEP'T OF AIR FORCE, INSTR. 36-2903, DRESS AND PERSONAL APPEARANCE OF AIR FORCE PERSONNEL tables 1-4, 2-6, 2-9 (2 Aug. 2006) [hereinafter AFI 36-2903]. Air Force policy regarding accommodation is summarized in the Air Force Revised Interim Guidelines, supra note 26. All the services share a joint regulation on "'Immunizations and Chemoprophylaxis," which has a paragraph on requests for religious accommodation from required immunizations. See U.S. DEP'T OF AIR FORCE, JOINT INSTRUCTION 48-110. IMMUNIZATIONS AND CHEMOPROPHYLAXIS [paragraph] 13.5 (12 May 2004).

(470) For example, the Army regulation expressly precludes commanders from granting exceptions to their uniform regulations for religious apparel (subject to limited exceptions specified in the regulation). See AR 600-20, supra note 469, [paragraph] 5-6h(1). But the Air Force and the joint Navy/Marine Corps instructions allow such accommodations. See AFI 36-2903, supra note 469, table 2-9: SECNAVINST 1730.8A, supra note 469, [paragraph] 9.

(471) The military chaplaincy itself might be viewed as a form of accommodation. The military provides and pays for chaplains, who are required to hold religious services. The military also provides logistical support for chaplains, such as buildings, to help them perform their religious duties. See 10 U.S.C.S. [section] 3547 (LEXIS 2006). Arguably, this support advances religion generally (over non-religion) and therefore violates the Establishment Clause. This argument was made and rejected in Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985). The court noted that the chaplaincy might be seen as violating the Establishment Clause, since it violates one or more prongs of the Lemon test. Nevertheless, the court ruled that the chaplaincy is constitutional under the Free Exercise Clause: Congress deemed the chaplaincy necessary to respect the free exercise rights of service members who may be deployed to distant lands. The U.S. Supreme Court has never ruled on the constitutionality of the chaplaincy, although it noted Katcoff in Cutter v. Wilkerson, 544 U.S. 709, 722 (2005). For a note suggesting changes to the chaplaincy program to better avoid Establishment Clause issues, see Julie B. Kaplan. Military Mirrors on the Wall: Nonestablishment and the Military Chaplaincy, 95 YALE L.J. 1210 (1986).

(472) The governing DoD Directive defines conscientious objection as "A firm, fixed and sincere objection to participation in war in any form or the bearing of arms, by reason of religious training and belief." U.S. DEP'T OF DEFENSE, DIRECTIVE 1300.6, CONSCIENTIOUS OBJECTORS [paragraph] 3.1 (20 Aug. 1971) (emphasis added). But "religious training and belief' is broadly defined and includes not only traditional religious beliefs but also deeply held moral or ethical beliefs, Id. [paragraph] 3.2.

(473) See U.S. DEP'T OF AIR FORCE. INSTR. 36-3204, PROCEDURES FOR APPLYING, AS A CONSCIENTIOUS OBJECTOR (15 July 1994): U.S. DEP'T OF ARMY, REG. 600-43, CONSCIENTIOUS OBJECTION (21 Aug. 2006); U.S. DEP'T OF NAVY, NAVAL MILITARY PERSONNEL MANUAL art. 1900-020 (22 Aug. 2002): U.S. MARINE CORPS, ORDER 1306.16 E, CONSCIENTIOUS OBJECTORS (21 Nov. 1986). Detailed discussion of conscientious objection is beyond the scope of this article. For an overview of conscientious objector cases and an interesting argument that granting an accommodation for conscientious objectors violates the Establishment Clause, see Matthew G. Lindenbaum, Religious Conscientious Objection and the Establishment Clause in the Rehnquist Court: Seeger, Welsh, Gillette, and [section] 6(j) Revisited, 36 COLUM. J.L. & SOC. PROBS. 237 (2003).

(474) See DoD DIR. 1300.17, supra note 190, [paragraph] 3.2.

(475) See id. [paragraph] 4.1. The Army regulation, unlike those of the other services, does not specifically mention the five factors from DoD DIR. 1300-17. See AR 600-20, supra note 469, [paragraph] 5-6. Army lawyers, however, can assist commanders in their decision-making by alerting them to these factors.

(476) See DoD DIR. 1300.17, supra note 190, [paragraph] 3.1.

(477) See id. [paragraph] 3.1.

(478) Although not specifically listed in DoD DIR. 1300.17. morale, safety, and health are specifically listed in AR 600-20. supra note 469, [paragraph] 5-6a and certainly could justify refusal of a requested accommodation.

(479) See AR 600-20, supra note 469, [paragraph] 5-6a ("Accommodation of a soldier's religion must be examined against military necessity...."').

(480) 42 U.S.C.S. [section] 2000bb(a)(3) (Lexis 2006); see also Air Force Interim Guidelines, supra note 26, [paragraph] 2B (restating RFRA's strict scrutiny standard pertaining to religious accommodation in the military).

(481) See Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872. 891-907 (1990) (O'Connor, J., concurring in the judgment); 907-21 (Blackmun, J., dissenting); see also supra notes 123-124 and accompanying text.

(482) See supra text accompanying notes 432-433.

(483) 10 U.S.C. [section] 774 (2005).

(484) See supra note 469.

(485) See, e.g. DoD DIR. 1300.17. supra note 190. [paragraph] 3.2 ("Nothing in these goals or in the implementing rules of the Military Departments (except when expressly provided therein) shall be interpreted as requiring a specific form of accommodation in individual circumstances.").

(486) See, e.g., id. [paragraph] 3.1.

(487) See supra notes 463-468 and accompanying text.

(488) Service regulations may require the commander refusing a requested accommodation to provide written reasons to the requester. See, e.g., AR 600-20, supra note 469, [paragraph] 5-6f.

(489) See supra note 72 and accompanying text.

(490) See supra note 7 and accompanying text.

Major (U.S, Army, retired) David E. Fitzkee (B.A. and M.S., University of Pennsylvania (1975): J.D., Dickinson School of Law (1983): LL.M., The Judge Advocate General's School, Charlottesville, Virginia (1988)) is an associate professor of law at the U.S, Air Force Academy. He is a member of the Colorado Bar. Captain Linell A. Letendre (B.S., Astronautical Engineering, U.S, Air Force Academy, Distinguished Graduate (1996); J.D., University of Washington with highest honors (2001)) is an assistant professor of law at the U.S. Air Force Academy. She is a member of the Washington Bar.
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Publication:Air Force Law Review
Date:Mar 22, 2007
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