[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]

                         [H.A.S.C. No. 113-129]




                               BEFORE THE


                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES


                             SECOND SESSION


                              HEARING HELD

                           NOVEMBER 19, 2014



                         U.S. GOVERNMENT PUBLISHING OFFICE 

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                          Washington, DC 20402-0001


                  JOE WILSON, South Carolina, Chairman

WALTER B. JONES, North Carolina      SUSAN A. DAVIS, California
JOSEPH J. HECK, Nevada               ROBERT A. BRADY, Pennsylvania
AUSTIN SCOTT, Georgia                MADELEINE Z. BORDALLO, Guam
BRAD R. WENSTRUP, Ohio               DAVID LOEBSACK, Iowa
JACKIE WALORSKI, Indiana             NIKI TSONGAS, Massachusetts
KRISTI L. NOEM, South Dakota
               Dave Giachetti, Professional Staff Member
                Craig Greene, Professional Staff Member
                           Colin Bosse, Clerk
                            C O N T E N T S





Wednesday, November 19, 2014, Religious Accommodations in the 
  Armed Services.................................................     1


Wednesday, November 19, 2014.....................................    27

                      WEDNESDAY, NOVEMBER 19, 2014

Davis, Hon. Susan A., a Representative from California, Ranking 
  Member, Subcommittee on Military Personnel.....................     2
Wilson, Hon. Joe, a Representative from South Carolina, Chairman, 
  Subcommittee on Military Personnel.............................     1


Berry, Michael, Senior Counsel, Director of Military Affairs, 
  Liberty Institute..............................................     3
Crews, Ron, Chaplain Colonel, USA (Ret.), Executive Director, 
  Chaplain Alliance for Religious Liberty........................     4
Kahn, Rabbi Bruce, D.D., Captain, USN (Ret.).....................     5
Weber, Travis, Director, Center for Religious Liberty, Family 
  Research Council...............................................     6
Weinstein, Michael, President, Military Religious Freedom 
  Foundation.....................................................     8


Prepared Statements:

    Berry, Michael...............................................    32
    Crews, Ron...................................................    55
    Kahn, Rabbi Bruce............................................    71
    Weber, Travis................................................    82
    Weinstein, Michael...........................................    93
    Wilson, Hon. Joe.............................................    31

Documents Submitted for the Record:

    Military Leadership Diversity Commission issue paper #22, 
      ``Religious Diversity in the U.S. Military''...............   169
    Rabbi Bruce Kahn, Supplemental Statement for the Record......   164
    Statements for the Record:...................................
      American Civil Liberties Union.............................   144
      American Humanist Association..............................   121
      Americans United for Separation of Church and State........   137
      Anti-Defamation League.....................................   153
      Associated Gospel Churches.................................   123
      Collins, Hon. Doug, a Representative from Georgia..........   111
      Freedom from Religion Foundation...........................   130
      Forum on the Military Chaplaincy...........................   115
      Military Association of Atheists & Freethinkers............   117
      Religious Action Center of Reform Judaism..................   134

Witness Responses to Questions Asked During the Hearing:

    [There were no Questions submitted during the hearing.]

Questions Submitted by Members Post Hearing:

    Dr. Fleming..................................................   183
    Mr. Forbes...................................................   179


                  House of Representatives,
                       Committee on Armed Services,
                        Subcommittee on Military Personnel,
                      Washington, DC, Wednesday, November 19, 2014.
    The subcommittee met, pursuant to call, at 2:01 p.m., in 
room 2118, Rayburn House Office Building, Hon. Joe Wilson 
(chairman of the subcommittee) presiding.


    Mr. Wilson. Ladies and gentlemen, welcome to a meeting of 
the Subcommittee on Military Personnel of the House Armed 
Services Committee. The hearing will come to order.
    Today, the subcommittee will hear from several 
nongovernmental witnesses on their view of the Department of 
Defense's and services' enactment and enforcement of religious 
accommodation statutory and regulatory guidance and its impact 
on the rights of religious expression of our service members.
    Historically, the Armed Forces have supported religious 
freedom and accommodated service members' religious beliefs and 
practices when possible. I believe we can maintain a proper 
balance between religious accommodations and military 
readiness, unit cohesion, and good order and discipline.
    One of the strengths of our military is its diversity of 
belief and mutual respect. As such, it has been important for 
Congress to ensure that the appropriate statutory and 
regulatory guidance is in place and that DOD [Department of 
Defense] and the military services are implementing such 
guidance in order for the services to meet important spiritual 
and religious needs of the troops.
    Recognizing that there have been challenges to 
accommodating religious practices and beliefs, we have engaged 
in various efforts to clarify the role of religion in the 
military, prevent religious discrimination, and provide 
appropriate religious accommodations for those service members 
who seek it.
    Our goal today is to better understand the perception from 
outside of the Department of Defense on its implementation of 
the religious accommodations policy and the effect on service 
    Before I introduce our panel, let me offer our ranking 
member, Congresswoman Susan Davis from California, an 
opportunity to make her opening remarks.
    [The prepared statement of Mr. Wilson can be found in the 
Appendix on page 31.]


    Mrs. Davis. Thank you. Thank you, Mr. Chairman.
    Let me also welcome our witnesses here today.
    Our hearing on religious accommodation in the armed 
services provides us an opportunity to hear from 
nongovernmental witnesses, some of whom have military 
backgrounds, on their views of the Department of Defense's 
implementation and enforcement of laws and policies on 
religious accommodation.
    The balance of the accommodation of religious beliefs of 
service members and chaplains with the need for commanders to 
establish and maintain good order, discipline, and readiness 
has been a topic of concern for this committee over the past 
several years.
    Military chaplains face the unique challenge of providing 
spiritual care for all of those who serve in the military, 
regardless of their particular faith or beliefs, and this often 
requires military chaplains to provide counsel or spiritual 
support to those of a different faith from themselves. This 
challenge has often created the perception that the Department 
is prohibiting chaplains and service members from practicing 
the tenets of their faith.
    Often, in these discussions, what is lost is the 
recognition that a military chaplain's responsibility is not 
just to his or her faith and those that follow that specific 
faith, but it is instead to provide nondenominational and 
inclusive spiritual support to all those in uniform and their 
families, regardless of their specific religious belief.
    Our Nation, as we all know, is home to individuals who 
practice every religion the world over, including those who 
have no belief or religion at all. Our diversity is what makes 
our country stronger, and our ability to respect different 
cultures and beliefs, including religious beliefs, is a bedrock 
of American values. And our Armed Forces is a reflection of our 
country, and we need to ensure that these values are upheld and 
protected for all service members and military clergy alike.
    So I want to thank you, Mr. Chairman, for having this 
hearing. I look forward to hearing from our witnesses today.
    And, again, welcome to all of you, and thank you for your 
presence here.
    Mr. Wilson. Thank you, Mrs. Davis.
    I would like to welcome our distinguished witnesses: Mr. 
Michael Berry, Senior Counsel, Director of Military Affairs of 
the Liberty Institute; Dr. Ron Crews, Chaplain, Colonel, U.S. 
Army, retired, Executive Director of the Chaplain Alliance for 
Religious Liberty; Rabbi Bruce H. Kahn, D.D., Captain, U.S. 
Navy, retired; Mr. Travis Weber, Director, Center for Religious 
Liberty of the Family Research Council; Mr. Michael Weinstein, 
President, Military Religious Freedom Foundation.
    I now ask unanimous consent that Congressman Dr. John 
Fleming from Louisiana, Congresswoman Vicky Hartzler of 
Missouri, Congressman Randy Forbes of Virginia, Congressman Tim 
Huelskamp of Kansas, and Congressman Doug Collins of Georgia be 
allowed to participate and ask questions after all Members from 
the subcommittee have had an opportunity to question the 
    Without objection, so ordered.
    In addition, I ask unanimous consent to enter the following 
statements into the record: from the Forum on the Military 
Chaplaincy; from the Military Association of Atheists and 
Freethinkers; from the American Humanist Association; from the 
Associated Gospel Churches; from the Sikh Coalition; from the 
Freedom from Religion Foundation; from the Religious Action 
Center of Reform Judaism; from the Americans United for 
Separation of Church and State; and from the American Civil 
Liberties Union.
    Without objection, so ordered.
    [The information referred to can be found in the Appendix 
beginning on page 115.] 
     The Sikh Coalition statement can be found at http://
    Mr. Wilson. Mr. Berry, we will begin with your opening 
statement. We will then have statements from Dr. Crews, Rabbi 
Kahn, Mr. Weber, and Mr. Weinstein.
    As a reminder, please keep your statements to 3 minutes or 
less. We have your written testimony for the record. Following 
your testimony, each Member will participate with questions in 
rounds of 5 minutes each until adjournment.
    And, additionally, you need to be aware that votes could be 
called virtually anytime, and when the votes are called, if 
there is any opportunity to break, we will. We will recess, and 
then come back. But that is always quite up in the air.
    Mr. Berry.


    Mr. Berry. Thank you. Chairman Wilson, Ranking Member 
Davis, and committee members, good morning. And on behalf of 
Liberty Institute, thank you for the opportunity to testify on 
this important issue.
    Liberty Institute is a national religious liberties law 
firm whose mission is to defend and restore religious liberty 
in accordance with the principles of America's Founders. As 
Liberty Institute's senior counsel and director of military 
affairs, I have the privilege of working on religious liberties 
issues affecting our Armed Forces.
    Our military's most formidable weapon is not a high-tech 
vehicle or a new aircraft carrier; it is the American service 
member and his or her selfless service and sacrifice to this 
Nation. Often, it is that service member's faith that enables 
him or her to endure the rigors of military life and, indeed, 
the horrors of combat. We must, therefore, ensure that those 
who sacrificed so much for our religious freedom do not lose 
    Recent events, however, demonstrate an alarming increase in 
incidents of religious hostility within our military, both in 
frequency and severity. Within the past year alone, Liberty 
Institute represented or advised multiple service members who 
experienced religious hostility by military superiors.
    The following example serves as a sample of such cases. A 
19-year Air Force veteran was relieved of his duties and 
transferred to a different unit because his religious beliefs 
conflicted with those of his commander. A 24-year Army veteran 
and commanding officer was threatened with career-ending 
punishment because he expressed his religious beliefs in 
response to an Army policy directive that he believed treated 
soldiers unfairly.
    Soldiers at separate bases were instructed that certain 
religious ministries, including evangelical Christians and Tea 
Party supporters, were to be considered domestic hate groups 
and/or terror threats. In each of these incidents, Liberty 
Institute took action to defend the religious freedom of our 
service members. Nevertheless, each of our clients and their 
families experienced fear, intimidation, and a sense of 
betrayal by their service. On a broader scale, the result was a 
chilling effect on religious freedom and expression that harms 
our entire military.
    Despite this committee's laudable efforts to protect 
religious freedom in the military, there is still much work to 
be done. I am confident that our military commanders genuinely 
seek to do what is right and what is lawful. The problem, 
however, is that we now have a military culture of fear and 
confusion when it comes to the law.
    To combat this, we respectfully recommend directing our 
military to dedicate resources toward training and educating 
our current and future leaders on our most sacred rights as 
Americans. That would be a significant first step toward 
reversing the disturbing trend we have observed and 
strengthening our military.
    I conclude by quoting an excerpt from a report delivered to 
President Truman as the United States emerged from World War II 
and faced a new kind of enemy: ``If we expect our Armed Forces 
to be physically prepared, we must also expect them to be 
ideologically prepared.''
    I thank the committee for this opportunity.
    [The prepared statement of Mr. Berry can be found in the 
Appendix on page 32.]
    Mr. Wilson. Thank you very much, Mr. Berry.
    And we now proceed to Dr. Crews.
    And I want to thank Dave Giachetti on our staff of the 
Military Personnel Subcommittee. He is above reproach on 
keeping time.
    And, Mr. Berry, you were remarkable. This is unheard of.
    But, no, so that everybody has an opportunity. And Mr. 
Giachetti will be the arbiter. Thank you.
    Dr. Crews.


    Dr. Crews. Chairman Wilson, Ranking Member Davis, and 
committee members, the Chaplain Alliance for Religious Liberty 
exists to protect the religious liberty of chaplains and those 
they serve. We speak on behalf of almost 50 percent of 
chaplains currently serving in the military. Further, all of 
our members are military veterans, and we bring that wealth of 
experience to bear in this public comment.
    The military is a unique institution of the state that may 
make uniquely comprehensive demands of individual service 
members that it cannot make of any other free member of 
society. Our Nation has a history, though, of working hard to 
protect and accommodate military religious liberty--a tradition 
that has limited restrictions on service members' ability to 
live their faiths.
    Certainly, no American, especially those serving in the 
Armed Forces, should be forced to abandon their religious 
beliefs. Accordingly, the military chaplaincy was established 
before the founding of our Nation to ensure the free exercise 
of faith for all service members and their families. Thus, in 
keeping with the best of our national traditions, our military 
has long been a place where citizens could, as the Army 
Chaplain Corps motto states, serve pro deo et patria, for God 
and country.
    But, over the past few years, our government has been 
retreating from that history of accommodation, enacting new 
policies without considering their dangerous effect on 
religious liberty and sometimes taking overtly hostile actions 
toward faith.
    We have reported to you many concerns, including an Ohio 
National Guard removing an article from a Wing newsletter that 
mentioned the words ``faith'' and ``Jesus Christ'' while Moody 
Air Force officials allowed an article about atheism to remain. 
We believe the atheist airman has the liberty to write about 
the merits of atheism, and we believe the Christian airman has 
the liberty to write about the value of his faith in Jesus 
Christ. This double standard must stop.
    An Air Force Academy cadet was required to remove a Bible 
verse from his personal whiteboard outside his living quarters. 
An equal-opportunity officer gave a PowerPoint training 
presentation that listed evangelical Christians, Catholics, 
Orthodox Jews as religious extremists.
    Although the military may, when necessary to its mission, 
diminish some aspects of religious liberty, it may not and must 
not extinguish it. These attacks on religious liberty may be 
abated somewhat by the passage of section 533 of the NDAA 
[National Defense Authorization Act], but as long as military 
officials are labeling orthodox religious believers as domestic 
hate groups, the military will be abandoning its duty to 
protect religious liberty for service members.
    General Patton once said, ``It is the spirit of the men who 
follow and lead that gain the victory.'' To attack the 
religious beliefs of our service personnel is to attack their 
spirits--the very spirits who are ensuring the safety of our 
    Thank you for your work on this issue, and we stand ready 
to help you.
    [The prepared statement of Dr. Crews can be found in the 
Appendix on page 55.]
    Mr. Wilson. Thank you very much, Dr. Crews.
    Rabbi Kahn.


    Rabbi Kahn. Good afternoon, Chairman Wilson, Ranking Member 
Davis, and esteemed members of the committee. Thank you for 
inviting me to offer this testimony. It is an honor to 
    I was commissioned an ensign in 1970, retired as a Navy 
captain in June 2002, was called back and served for a short 
time in the Iraqi theater in 2003. I have served in a wide 
array of commands afloat and ashore with the Navy, Marines, and 
Coast Guard.
    Navy Chief of Chaplains Rear Admiral Margaret Kibben wrote, 
``Chaplains are a safe place, a sanctuary where our people can 
come to regain a sense of wholeness and hope.'' I think 
everyone can agree with that conviction, but what does it take 
to be that sanctuary providing a path to wholeness and hope? We 
take a step when we serve everyone.
    Over the decades, at least 95 percent of the troops to whom 
I provided ministry were not Jewish. They were from numerous 
faiths and included those with no interest in religion at all. 
That amazing diversity is just one reason why the military 
chaplaincy is necessarily a far different ministry from that in 
the civilian denominational setting.
    For example, as a Jewish chaplain, I don't pray in Hebrew 
or Aramaic when doing so defeats the point of my presence. I 
don't counsel by citing the Talmud when I know the people with 
me have no awareness of or affection for that source. I would 
not avoid passages in the Quran when conducting a Bible class 
that Muslims would like to attend.
    When someone, perhaps a constituent of yours who may be 20 
years old or so, needs me to pray with him or her before 
heading into a firefight or needs me to say the right words 
when, God forbid, he or she is dying from one's wounds, I will 
do so as your constituent in crisis requires. And I will do so 
every time. I am a U.S. Navy chaplain.
    We must always put first the spiritual and moral wellbeing 
of the troops. Their religious freedom is not to be sacrificed 
at the altar of our own. No one forced us to become chaplains. 
This is the ministry we volunteered for, and we must accept the 
expectations of flexibility that come with it.
    That is why, depending on the religious composition of the 
troops present, we adjust what we say and do to embrace as many 
of them as possible, rather than set them apart one from the 
other. Let's remember that when troops go into battle they must 
have each other's backs. The enemy tries to divide and conquer. 
In service with one another, we unite and win.
    When we follow Chaplain Kibben's advice, we enhance unit 
cohesion, readiness, and mission accomplishment in service to 
God and country. I believe that. I am a U.S. Navy chaplain.
    Thank you for providing me this opportunity to submit my 
testimony to you.
    [The prepared statement of Rabbi Kahn can be found in the 
Appendix on page 71.]
    Mr. Wilson. Thank you, Rabbi Kahn.
    We now proceed with Mr. Weber.
    And I want to commend each of you. You have been within 2 
seconds of 3 minutes. This is unheard of. Thank you.


    Mr. Weber. Chairman Wilson, Ranking Member Davis, and 
members of the committee, thank you for convening this hearing 
and the opportunity to testify regarding religious freedom in 
our military.
    I am a graduate of the U.S. Naval Academy, a former Navy 
pilot, and now director of the Center for Religious Liberty at 
the Family Research Council, where we have grown increasingly 
concerned about restrictions on service members' religious 
expression over the past several years.
    Despite congressional efforts to address these restrictions 
and DOD assertions that the problems are modest, religious 
expression continues to be stifled in our military, as we saw 
earlier this year when Bibles were removed from Navy lodges due 
to fears they were causing offense and when an Air Force 
Academy cadet's religious expression was singled out and 
targeted for removal from his own whiteboard.
    Even if later corrected, such accounts, as others are 
documented in my written testimony, create a chilling effect 
and bolster the perception that religion beliefs must be hidden 
to maintain one's standing in the military.
    Such censorship reveals a misunderstanding of a very basic 
truth: Religion simply cannot be sectioned off into neat little 
compartments in our lives. It is essential to all aspects of 
the human experience, including how we approach the issues of 
death and danger so essential to military service. How can we 
ask service men and women to do a job which is so incredibly 
difficult while at the same time divorcing them from the very 
spiritual resources they need to do that job?
    These resources go beyond the confines of the mind and find 
expression in one's conversations and public affirmations. 
Consider the example of Jeff Struecker, an Army Ranger who was 
sent into a firefight on the streets of Mogadishu to rescue 
fallen comrades during the ``Black Hawk Down'' incident. In a 
short film titled ``Return to Mogadishu,'' Jeff explains how he 
relied on God for strength in his ordeal. Are we prepared to 
tell him that God has no part in his story? I hope not. Why 
should others be treated any differently?
    Let me be clear: We do not support coercing anyone into 
religious practice, but religious freedom, including the 
ability to speak of one's religion, must be protected. Jeff 
Struecker and many others like him must have the freedom to 
tell how their lives and their faith drive their careers. If we 
deny them that, we will be suffocating their military service 
at its very heart.
    When considering how to approach these issues, we would do 
well to be informed by the Supreme Court's articulation earlier 
this year in another case, Town of Greece v. Galloway, which 
also dealt with the role of religion in public life, in which 
the Court said that, quote, ``offense does not equate to 
coercion,'' unquote.
    But what is to be done? We recommend that this committee 
ensure that DOD abides by congressional intent in the last two 
defense bills to protect religious expression, including 
religious speech; ensure that branch regulations reflect these 
protections; and ensure that military leaders, like commanders, 
chaplains, and JAG [Judge Advocate General] officers, receive 
the proper training on these protections.
    Our service men and women do not give up their religious 
freedom and constitutional rights simply because they join our 
Nation's military. Their rights must be protected, too, and we 
are confident this committee will continue to play an important 
role in seeing that happen.
    Thank you.
    [The prepared statement of Mr. Weber can be found in the 
Appendix on page 82.]
    Mr. Wilson. Thank you very much, Mr. Weber.
    We now proceed to Mr. Weinstein.

                       FREEDOM FOUNDATION

    Mr. Weinstein. Mr. Chairman, Ranking Member Davis, 
distinguished members of the subcommittee, thank you profoundly 
for the gracious invitation to speak with you today.
    I am the president and founder of the Military Religious 
Freedom Foundation, which is a civil rights organization 
representing nearly 40,000 military members and veterans, 96 
percent of whom are practicing Christians, who are gravely 
concerned about their religious freedom.
    They ask this Congress to protect their right to remain 
free from those commanders and other superiors who wrongly 
believe that the First Amendment gives leaders an unrestricted 
right to proselytize or witness to their subordinates. Whether 
the subordinate agrees or finds the message unwelcome does not 
matter; the subordinate must listen respectfully and 
differentially or risk being punished under the Uniform Code of 
Military Justice for showing disrespect to a superior, which is 
a violation of Articles 89 and 91. Unlike their civilian 
counterparts, a military subordinate does not have the ability 
to walk away if they would prefer not to listen.
    The patriots we represent ask this committee for a simple 
thing that won't cost the Nation one red cent: the right to 
make their own choice regarding religious belief, including the 
right not to believe in a deity, and to be free from the 
interference of their leaders when making those religious 
    Freedom of religion is the ultimate liberty of every 
citizen. It is the highest expression of the freedom to think, 
to follow one's conscience without interference from the 
government and, for military members, without pressure from a 
commander or other superior.
    Military life has no civilian equivalent, so regardless of 
your thoughts about private-sector employers' rights to 
proselytize or witness to their employees, the Supreme Court 
has correctly held that the unique military environment 
requires greater limits on certain freedoms of expression.
    Writing for an overwhelming six-to-two majority 40 years 
ago in the 1974 decision of Parker v. Levy, the uber-
conservative Chief Justice William Rehnquist said, quote, 
``This court has long recognized that the military is, by 
necessity, a specialized society separate from civilian 
society. 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 of it. Speech, to 
include religious speech, that is protected in the the civil 
population may nonetheless undermine the effectiveness of 
response to command. If it does, it is constitutionally 
    Now, 40 years later, Parker v. Levy remains the absolute 
and appropriate law of the land. The Air Force captured the 
Supreme Court's guidance correctly in Air Force Instruction 1-
1, amended only a few days ago. It states that ``Air Force 
leaders at all levels must ensure their words and actions 
cannot reasonably be construed to officially endorse or 
disapprove of or extend preferential treatment for any faith, 
belief, or absence of belief.''
    Ultimately, at the end of the day, the thing that we have 
to keep in mind is very, very simple, and that is that we can 
never be in a situation where to weigh religious beliefs as a 
necessary, sufficient condition for honorary military service 
is allowable, because it is patently and wrongfully in every 
possible way unconstitutional. We ask the committee's support.
    Thank you for the chance to speak today.
    [The prepared statement of Mr. Weinstein can be found in 
the Appendix on page 93.] 
     Enclosures additional to Mr. Weinstein's statement can be 
found at http://docs.house.gov/meetings/as/as02/20141119/102755/hhrg-
    Mr. Wilson. Thank you very much, Mr. Weinstein.
    This is an important hearing. These are important issues 
that are being discussed. An indication of that, we have been 
joined by two more Members of Congress. I am very grateful that 
Congressman Doug Lamborn of Colorado, Congressman Trent Franks 
of Arizona--and I would move unanimous consent that both, in 
the order of their appearance, be allowed to participate in the 
    Without any objection, we shall proceed.
    And, again, we could be in recess any moment. And so I just 
want to thank each one of you. This is going to go down in 
history as a record of people within the 3-minute limit, much 
less the 5-minute limit. As we proceed, again, beginning 5 
minutes with each of us, and Mr. Giachetti will keep us in 
    Dr. Crews, both the 2013 and 2014 National Defense 
Authorization Acts require religious belief and expression to 
be accommodated unless such expression could have an adverse 
impact on good order and discipline.
    In your view, what impact has this had on policy on 
chaplains and service members with diverse religious 
    Dr. Crews. First, let me say we are most grateful for this 
committee's work and the passage of section 533 and amended by 
532 last year.
    We believe that, statutorily, the protections exist, not 
only for chaplains but those they serve, to be able to serve 
without fear of recrimination for actions they may take.
    However, the Department of Defense has been slow in 
providing implementing guidance on section 533 and 532 and just 
recently have issued some guidance that will go to the field. 
Our concern now is how that guidance is going to be interpreted 
by those on the field, particularly on the wing level, the 
brigade level, and their JAGs, and how they will interpret 
    Case in point is this wing commander and his JAG who made 
the decision that Colonel Marquinez could not write about his 
faith in Christ, while yet another wing commander said, yes, 
this atheist could write about his atheism. And the last time I 
checked, this article is still on the Air Force Web site, 
whereas this one was removed within an hour of it being posted 
in the newsletter.
    So it is how the 533 and 532 is being interpreted in the 
field; that is the concern. And that is where we ask your help 
in keeping DOD's feet to the fire, that they obey the intent of 
    Mr. Wilson. Thank you very much.
    And, Mr. Berry, in your view, how has the Department of 
Defense combated the perception that there could be career 
consequences for speaking out about one's moral or religious 
    Mr. Berry. Chairman Wilson, the Department of Defense has, 
obviously, in January of this year, with the revision to 
Instruction 1300.17, has taken great steps forward in trying to 
ensure that service members' religious liberties are protected.
    However, as Dr. Crews alluded to, those are the first steps 
necessary, and I honestly believe that more needs to be done 
to, in essence, follow up on simply a Department of Defense 
instruction and to put meat on the bones, if you will. Namely, 
what I am referring to is there needs to be some formal 
education done both at the command level and then for the 
subject-matter experts to deal with these issues.
    The military has demonstrated great capability at devoting 
the resources it has available to it to combat issues--social 
issues and societal issues that it faces, even on controversial 
topics such as suicide awareness, PTSD, et cetera. If the 
military can do the great job that it has in addressing those 
issues, then certainly it can also do so with the perception or 
the actual religious hostility that service members are 
    Mr. Wilson. Thank you.
    And, Rabbi Kahn, you and I both began our military careers 
about the same year. So thank you for your Navy service. And as 
a Navy dad, I actually appreciate your service.
    Rabbi Kahn. Sir, thank you. And I, yours.
    Mr. Wilson. Well, thank you very much. I was Army, but, 
hey, this is good.
    With the National Defense Authorization Act requirements on 
religious belief, back again to what I asked about to Dr. 
Crews, in your view, what impact has this policy had on 
chaplains and service members with diverse religious 
    Rabbi Kahn. Sir, I believe that varies considerably 
depending on the individual that is involved.
    For those people who are thoroughly understanding of the 
idea that we need to have religious freedom but without using 
it to coerce others, especially when you are in a position of 
authority over those individuals, if you have people who are 
devout in their faith but who at the same time want to use that 
in order to protect the rights of choices, faith choices, that 
others make in their command, then it is no problem whatever. 
It is wonderful.
    But where you have individuals who believe that they are on 
a mission to bring others to their point of view and they want 
to use every opportunity that they have available in order to 
pursue that course, then you have cracks in unit cohesion and 
you have real problems with maintaining readiness and being 
prepared for going to war.
    So I believe it depends greatly on who you are talking 
about and what that person's approach to those regs happens to 
    Mr. Wilson. Thank you very much.
    And in strict accordance with the 5 minutes, we now proceed 
to Mrs. Davis.
    Mrs. Davis. Thank you, Mr. Chairman.
    And this is really following up and perhaps another way of 
stating the question and to all of you, have you seen that the 
recent changes actually clarified or enhanced religious 
accommodation for service members?
    Mr. Weinstein. Is that for----
    Mrs. Davis. And are they aware--and are they, you know, 
aware of them, as well? I think chaplains certainly are aware 
of the changes, but I am just wondering, what do you think? Has 
it clarified it for them, or has it enhanced their religious 
accommodation for our service members?
    Mr. Weinstein. Madam Ranking Member, if I may, I think that 
there is a tsunami of confusion out there. But there is also a 
lot of willful confusion. And from the perspective of the 
Military Religious Freedom Foundation, the excuse of ``I am 
sorry, I just don't understand'' seems very specious.
    The fact that we represent a little over 13.5 percent of 
every Muslim American in the U.S. military, 865 LGBT [lesbian, 
gay, bisexual, transgender] members of the military, mostly 
Protestants and Roman Catholics but people of every faith, it 
gets a little old after a while when a superior says, ``I am 
sorry, I just didn't know.''
    I think they know very well. There is a very purposeful 
attempt to witness and proselytize irrespective of Department 
of Defense directives, instructions, and regulations. And that 
needs to be combated, with people that violate the law being 
visibly and aggressively disciplined.
    Thank you.
    Dr. Crews. Mrs. Davis, let the record show that Chaplain 
Crews agrees with Mikey Weinstein that there is a tsunami of 
confusion in the field.
    And one of the problems that we are hearing about is that 
the 533 instruction has not yet made it down into the JAG corps 
schools or even in some levels of chaplain schools, and that is 
a concern, that the intent of Congress be now implemented and 
taught to those who are providing subject-matter experts to 
commanders as they have to make really important decisions 
about religious liberty for the service men and women.
    Mrs. Davis. Uh-huh.
    Rabbi, did you----
    Rabbi Kahn. Yes, ma'am. I don't know that you can legislate 
this matter so finely that you can eliminate, through the 
legislation, the confusion that exists in the minds of our 
members of our Armed Forces.
    I think what is more important is that if we can find some 
principles of what we are going to--how we are going to 
approach religion in the Armed Forces that are then trained to 
members of the Armed Forces from the top down, we would be 
doing ourselves a big favor.
    Absolutely, the importance of religious expression in the 
Armed Forces, it can't be--in my view, it can't be overstated. 
At the same time, there is a danger that if it is not used 
appropriately, taking into account the special conditions in 
the Armed Forces, it can be damaging.
    So I must say that most of the time I have seen religious 
freedom exercised in such a way as to enhance mission 
accomplishment. But that happens when commanding officers and 
their senior leadership teams, both officer and enlisted, seek 
to address the religious needs and sensibilities of all their 
    If we could agree on that, that we are all going to address 
the religious needs and sensibilities of all our troops, I 
think we would take a giant step forward. And I could certainly 
see that coming to pass in the right environment of 
conversation and training in the military itself. I am not sure 
how you could actually find the language to legislate that 
    Mrs. Davis. Uh-huh. Thank you.
    Mr. Berry.
    Mr. Berry. Yes, thank you, Madam Ranking Member.
    Just from my own experience, having been a student at Naval 
Justice School and having taught law at the U.S. Naval Academy, 
I would just like to offer my own anecdotal experience, that 
there is a fundamental misunderstanding of the interplay 
between the First Amendment and the military at all levels, 
both in the educational institutions and within the force 
    By way of example, at Naval Justice School, which is a 10-
week-long course, roughly 1 to 2 hours was devoted to covering 
the entire First Amendment, not just the Free Exercise and 
Establishment Clauses but the entire First Amendment. And that 
is nowhere near enough to even begin to scrape the surface of 
the body of law that is out there that needs to be covered.
    Thank you.
    Mrs. Davis. Thank you.
    I think, Mr. Weber, did you want to----
    Mr. Weber. Ranking Member Davis, thank you for your 
    I will just quickly note that the language is pretty clear: 
sincerely held conscience, moral principles, and religious 
beliefs. However, as has been noted already, that needs to be 
made clear throughout the services at all levels and supported 
by a culture of understanding of the intent of what that is 
trying to get at.
    So I think the language is clear, but it needs to be made 
clear throughout the services.
    Mrs. Davis. Okay. Thank you.
    Thank you, Mr. Chairman.
    Mr. Wilson. Thank you, Ms. Davis.
    And we are voting on the floor now. We have three votes. 
The estimate is we will be back by 3:10. We will recess and 
begin immediately with Congressman Walter Jones of North 
    We are in recess.
    Mr. Wilson. Ladies and gentlemen, I would like to call the 
subcommittee back to order, the Military Personnel of the House 
Armed Services Committee.
    We had the recess for votes. And, at this time, the 
minority members are in a separate caucus, but we have been 
advised that we can proceed. And we will with Congressman 
Walter Jones of North Carolina.
    Mr. Jones. Mr. Chairman, thank you very much.
    And I, in 2005, was notified by an Army chaplain in Iraq 
who was asked by the company commander to conduct a service for 
a young Army soldier who had been killed in action. In that 
particular unit, the Army chaplain needed to email his prayer 
to the divisional chaplain. And let me make it clear that this 
was taking place outside the chapel in Iraq.
    And Jonathan Stertzbach emailed his divisional chaplain, 
who emailed back and struck through the words, which was the 
close of this chaplain, ``in the name of our Lord and Savior, 
Jesus Christ, amen.'' He was removed from his chapel.
    If that is the American military, then I am sure George 
Washington would be very disappointed, because only until the 
mid-nineties did our chaplains have any restriction, whether 
they be Jewish, Muslim, Christian--no restriction at all. I do 
not know how we in America can think that we should have 
control over the conscience of a man of faith, whether they be 
Jewish, Muslim, or Christian. That is not America, military or 
    We in the House Armed Services Committee this past year got 
into the NDAA bill--I am going to read this, and I wanted to 
ask each one of you to give me a short sentence--``the 
religious freedom of military chaplains to close a prayer 
outside of a religious service according to the dictates of the 
chaplain's conscience''--``conscience.'' I don't think any 
government should dictate the conscience of any human being, be 
it a minister or a chaplain. That is not what God intended.
    And for us to say that because I am Jewish that I have to 
close a prayer in a certain way or because I am a Christian or 
an Imam, it doesn't matter, it is America.
    And these kids are giving their life in Muslim countries so 
that the Muslim imams can have freedom to pray as they see fit, 
but yet in America, where they came from to give their life, 
our chaplains are being challenged on how to close a prayer? It 
is a sad day for America when that is happening. It is a sad 
day for the military.
    I talked to one of the chaplains for General Schwarzkopf. 
Desert Storm, he said, I had no restriction. The general would 
say we need to have prayer before battle, we need to have 
prayer after battle. He never said to me, You be conscious of 
how you close your prayer.
    If we are starting to dictate the conscience of our 
ministers and our chaplains, then, America, God forgive us 
because we are not protecting freedom in America. That is a sad 
    How can anyone--and I want you to quick answer because of 
the time. I have 1 minute and 32 seconds. I want each one of 
you to say ``this is fair'' or ``this is not fair.'' Just give 
me that, ``fair'' or ``not fair.''
    The religious freedom of military chaplains to close a 
prayer outside of a religious service--outside of a religious 
service according to the dictates of the chaplain's conscience, 
is that fair or unfair?
    And I will start with you, Mr. Berry. Just give me ``yes'' 
or ``no.''
    Mr. Berry. Yes, sir.
    Dr. Crews. I think that is a fair statement, yes, sir.
    Rabbi Kahn. No, sir, it is not fair at all.
    Mr. Jones. Okay. Then you believe that, as anyone, you have 
a right to believe that the government should dictate how your 
conscience functions? Then it is a sad day. And I would fight 
for a Jewish rabbi chaplain's right to close the prayer they 
see fit. And if we are going to start challenging people of 
different faiths and religions, we are headed toward the end of 
the world.
    Yes, sir. Please. Next.
    Mr. Weber. It is fair, Congressman.
    Mr. Weinstein. Congressman Jones, it is a beautiful day for 
America when we have a situation----
    Mr. Jones. Just----
    Mr. Weinstein. Excuse me. No, I want to answer your 
    Mr. Jones. No, sir.
    Mr. Weinstein. No, no, no. I want to answer your question. 
It is an unfair question you are asking.
    Mr. Jones. Fair or unfair? Fair or unfair is all I am 
    Mr. Weinstein. I don't even understand your question. What 
I am saying is, in the military, Congressman, you can----
    Mr. Jones. Answer the question.
    Mr. Weinstein. No. You can have either religious formations 
or mandatory formations. You can't have mandatory religious 
formations. You cannot have mandatory religious formations.
    Mr. Jones. That is my time.
    Mr. Wilson. And, at this time, thank you very much, Mr. 
    We will be proceeding to Congressman Dr. Joe Heck of 
    Dr. Heck. Thank you, Mr. Chairman.
    Thank you all for being here today for the hearing.
    You know, obviously, a very emotionally charged topic, and 
rightfully so, I believe. I have served for over 24 years 
through various levels of command and have had a chaplain as a 
personal staff officer assigned to me through all levels of 
    As many of you probably know, in Army FM [Field Manual] 6-
0, the chaplain is personal staff assigned to the commander to 
provide for the free expression of religion and the religious, 
moral, and ethical leadership. He has a dual role--or she--has 
a dual role as a religious leader and as a staff advisor.
    My concern is that we seem to be getting so wrapped around 
the axle that we are actually going to infringe upon the 
ability of a chaplain to do the job that they are charged to 
do, which is not just be a religious leader and minister to the 
needs of the service members, but to be that staff advisor on 
religious issues, moral and ethical issues to the commander.
    I relied heavily on my chaplains during difficult times. I 
was in Al Asad for a year, taking care of dying soldiers every 
day in a CSH [Combat Support Hospital]. And to go up to the 
chaplain and ask to pray for me or to pray with me, regardless 
of the denomination of that chaplain, was one of the things 
that helped me get through that deployment as we cared for our 
service men and women.
    And I say, Mr. Weinstein, I take exception with the comment 
you made that you believe commanders are willfully 
proselytizing because of this specious argument of ``I just 
didn't know.'' I think the problem is that we have to define 
what coercion is. We use that word, but if I speak to my 
formation in an informal setting and I want to end that with 
saying ``may God bless you,'' am I violating--in your opinions, 
am I violating their civil liberties? Am I coercing them to 
follow a specific religious dictum because that is how I choose 
to end a talk with my troops?
    Those are the issues that trouble me, is that we are truly 
going to make it so difficult for chaplains--I mean, Rabbi, you 
said in your statement, when you were referring to ministering 
to those dying of wounds, you used the phrase, quote, ``God 
forbid,'' end quote. If I use that phrase, ``God forbid,'' in a 
statement or in a talk before my formation, am I proselytizing 
because I have invoked a deity higher than mine that perhaps 
some other religious background does not believe in?
    So not only do I believe we are making this more difficult 
for our chaplains, we are making it more difficult for our 
commanders. And that is why there is so much confusion.
    We are getting so afraid of what we can and can't say, to 
be politically correct, as opposed to speaking from the heart 
to the men and women that we are leading into battle. How can I 
expect men and women to follow me and put their lives on the 
line if I have to spend more time worrying about how I am going 
to phrase something than getting the job done?
    So, again, I only got a minute, 45 left. So, I mean, in 
your opinions--and I will go down the line--is saying things--I 
mean, because I am looking for input. I mean, I know what my 
chaplain, my staff chaplain, tells me now, but I would like to 
get some outside expertise.
    Closing a talk with the formation, again, not in formation, 
if we are gathered around, even if it is a mandatory meeting, 
and at the end of it I say, you know, ``God bless you,'' am I 
proselytizing? Am I violating their rights?
    Mr. Berry.
    Mr. Berry. Dr. Heck, not only is that position consistent 
with, it is actually supported by, our Federal courts. There is 
case law on that that actually says--and I will just give one 
brief quote--military chaplains do not invoke the official 
imprimatur of the military when they give a sermon or are 
acting in a religious capacity. And, therefore, it is wholly 
appropriate for them to advance their religious beliefs in that 
    Dr. Heck. But not as a chaplain. I am saying as a 
commander. Not as a man of the cloth, but as a commander using 
that phrase.
    Mr. Berry. Yes, sir.
    Dr. Heck. That is part of the thing that Mr. Weinstein 
brought up, that commanders are willfully proselytizing.
    Dr. Crews. Sir, Dr. Heck, thank you for your service.
    Just because you are a commander does not mean that you 
give up your religious liberties. I believe your religious 
liberties remain, just as every other service member's, that 
you are able to exercise your religious liberties.
    Dr. Heck. Rabbi.
    Rabbi Kahn. God bless you. I really would like to explain 
my answer to both of you.
    Dr. Heck. If you can in 15 seconds.
    Rabbi Kahn. But I can't do it in 15 seconds----
    Dr. Heck. All right. So let's get together after----
    Rabbi Kahn [continuing]. But I very much want to respond.
    Dr. Heck. Let's get together afterwards, or perhaps you can 
respond for the record, if we could, or have a discussion 
    [The information referred to can be found in Appendix on 
page 164.]
    Dr. Heck. Mr. Weber.
    Mr. Weber. Congressman, Dr. Heck, I definitely agree with 
the sentiment expressed, that the oversensitivity to making a 
comment, a religious reference, and the reaction to that is a 
severe problem. I think that is what we are here to address 
today. And it is not coercion every time a deity is mentioned 
or a religious reference is made.
    Dr. Heck. My time is up, but, Mr. Chairman, may I have your 
indulgence just to get Mr. Weinstein?
    Mr. Wilson. Yes.
    Dr. Heck. Okay.
    Mr. Weinstein. Congressman Jones, actually, it is 
pronounced ``Weinstein.''
    Dr. Heck. Sorry.
    Mr. Weinstein. God bless you.
    Yeah, I just wanted to say that, look, the bottom line here 
is that we are talking about a unity--there is a large number, 
some people say as many as a quarter, of our military that 
shares no faith whatsoever. Obviously, if someone sneezes and 
you say ``God bless you'' or you say ``God bless you'' and it 
is not a Tourette's Syndrome thing--but to say it from a 
purposeful perspective right before you go into a combat 
mission, the question I have for you, sir--and I thank you for 
your service--why would you want to say something that could 
possibly be divisive and not unifying for your men and women as 
you go into combat?
    Dr. Heck. Well, I mean, perhaps we can have that 
conversation offline, as well. I don't want to impose on the 
chairman anymore than I already have.
    Thank you, Mr. Chair.
    Mr. Wilson. Thank you, Dr. Heck.
    We now proceed to Congressman Dr. John Fleming of 
    Dr. Fleming. Thank you, Mr. Chairman.
    And thank you, panel, for being here.
    We had a hearing just like this several months ago, where 
we had chaplains from the military, the highest-ranking 
chaplains. And that hearing and previous hearings, whenever we 
posed a question, particularly from this Clear and Present 
Danger, it really catalogs the many instances. Basically, their 
response was, there has never been a problem, those things 
didn't happen, or they were misinterpreted, or so forth.
    So I challenged them. I said, you take this back and give 
us a report on it. And we have it in the notes, and I would 
like to submit it for the record.
    [The information referred to was not available at the time 
of printing.]
    Dr. Fleming. But, for many cases, they conceded that there 
was a problem, it just hadn't been properly addressed. In other 
cases, they just didn't address it at all.
    But, you know, what was interesting is, right after the 
meeting, I am walking down the hallway, and a military officer 
who was in that meeting came up to me and said, ``Sir, you need 
to realize this is a huge problem in the military. What these 
gentlemen are telling you is not really reflective of the 
reality that is going on in the military.'' And so that 
certainly spoke to my heart on this.
    Now, I hear the word ``proselytizing'' bandying back. We 
have discussed this many times. I have yet to hear one Member 
of Congress say that we should have a law that allows or 
promotes in any way proselytizing. No one has an interest in 
that, and that becomes simply a strawman argument, something to 
argue against that really doesn't exist in fact.
    So I think that we need to be sure that we are talking 
about the right thing here. The important thing that happened 
in 533 that we changed in fiscal year 2014 from the NDAA was--
the prior language said that military members were allowed to 
believe what they wanted to believe. Well, that is not what the 
First Amendment says. The First Amendment talks about speech, 
it talks about expression. The government can't keep you from 
believing anything anyway; you can always believe what you want 
to believe. The crux of the matter, where the rubber meets the 
road, if you will, is always in expression, religious 
    And, you know, it is interesting, the courts have given a 
wide swath on the First Amendment. For instance, we see things 
on TV and in movies now that were unthinkable a few years ago. 
Why? Because the courts say it is your First Amendment right. 
It doesn't matter if it offends someone. And yet we hear in the 
military where someone has a Bible on their desk or they write 
something on a whiteboard and all of a sudden it offends people 
and it has to be taken down. So there is clearly a double 
standard being applied.
    But for Dr. Crews, I would like to ask you this. Does the 
Chaplain Alliance continue to receive complaints from chaplains 
restricting their religious expressions?
    Dr. Crews. We have received complaints, Dr. Fleming, of a 
chaplain that Congressman Jones made reference to, but, more 
recently, a chaplain who was told to preach two sermons, one on 
Sunday morning and one on Sunday night, the same message in two 
different services, and he preached that message on a Sunday 
morning, and then immediately following that service he was 
visited by his supervisory chaplain and told he could not 
preach that same message in a chapel service that night.
    Dr. Fleming. Well, could I interrupt you just for a second?
    Dr. Crews. Yes.
    Dr. Fleming. It states very clearly under 533, it says, no 
member of the armed services may, number one, require a 
chaplain to perform any rite, ritual, or ceremony that is 
contrary to the conscience, moral principles, or religious 
beliefs of the chaplain.
    Dr. Crews. Yes, sir.
    Dr. Fleming. Wouldn't that be--to require a chaplain to do 
that, wouldn't that be a violation of----
    Dr. Crews. It would be a violation, yes, sir. And this 
chaplain was instructed not to preach that message because of 
the content of that particular text that he was reading from 
and how he was interpreting that text.
    But my understanding is the role of the chaplain, that we 
represent the faith groups who sent us there. And this chaplain 
was being totally in accord with the faith group that had sent 
him to be a chaplain. And we believe that that supervisory 
chaplain was totally out of line in trying to monitor or change 
that chaplain's sermon material. To me, that was a gross 
violation of what Congress intended in section 533.
    And there are other examples, as well.
    Dr. Fleming. Sure.
    Mr. Berry, if we impinge the rights of those who express 
themselves of conscience and religious beliefs, does that not 
also endanger those who may have atheistic, agnostic, or 
humanistic perspectives?
    Mr. Berry. That is absolutely correct, Dr. Fleming. In 
fact, religious freedom should be of concern to all Americans, 
regardless of what faith they hold or no faith at all.
    And, in fact, even one instance of religious hostility will 
have and does have a chilling effect across the entire 
military, from the senior most general to the lowliest private. 
Just one incident is all it takes. And that message is sent 
very clearly, that if you do something that is considered to be 
out of line or politically incorrect, you will be punished.
    And, in fact, there are actual Air Force JAG memorandums 
expressing that opinion, as we alluded to earlier, that, 
although beliefs are protected in the Air Force, actions and 
speech stemming from those beliefs are still punishable. Well, 
that sends a very clear message: If you have a religious belief 
or no belief at all, you have to keep it within your own--
within yourself. You cannot express it or speak on it.
    Dr. Fleming. Right.
    I yield back.
    Mr. Wilson. Thank you, Dr. Fleming.
    We now proceed to Chairman Randy Forbes of Virginia.
    Mr. Forbes. Thank you, Mr. Chairman.
    And thank you, gentlemen, for being here. I am sorry I only 
have 5 minutes. I have to make my questions short and ask your 
answers to be even shorter.
    Mr. Weinstein, in a Washington Post article on July 16th, 
2006, they attributed a quote to you that said, ``We have 
created this foundation to be a weapon. We are going to lay 
down a withering field of fire and leave sucking chest 
wounds.'' Was that an accurate quote?
    Mr. Weinstein. By the way, it is pronounced ``Weinstein.''
    Mr. Forbes. ``Weinstein.'' I apologize.
    Mr. Weinstein. I said it earlier.
    Mr. Forbes. I just need to know whether you made----
    Mr. Weinstein. What I was saying was, I said it earlier, it 
is ``Weinstein,'' and maybe you weren't listening.
    Mr. Forbes. No, what I want to know about is your quote.
    Mr. Weinstein. Yeah, I wanted to make it very clear that we 
realize that what we are facing is a tsunami of fundamentalist 
    Mr. Forbes. Did you make that quote or not? And I know you 
want to----
    Mr. Weinstein. I am going to get to your--can I answer your 
    Mr. Forbes. No, sir, because I don't have but 4 minutes 
    Mr. Weinstein. Yeah, I will answer it in 5 seconds.
    Mr. Forbes. ``Yes'' or ``no''?
    Mr. Weinstein. I am trying to explain what I said. We are 
facing a tsunami of fundamentalist Christian exceptionalism----
    Mr. Forbes. Did you say those words?
    Mr. Weinstein [continuing]. And supremacy. And----
    Mr. Forbes. Let me ask you another one, then, if you are 
not going to answer that one.
    Mr. Weinstein. No, I will be happy to tell you. Yes, of 
course I said those words, and proudly.
    Mr. Forbes. Okay.
    The second one, on June 16, 2013, you said, ``Today we face 
incredibly well-funded gangs of fundamentalist Christian 
monsters who terrorize their fellow Americans by forcing their 
weaponized and twisted version of Christianity upon their 
helpless subordinates in our Nation's Armed Forces.''
    Did you make that quote?
    Mr. Weinstein. I did.
    Mr. Forbes. Okay. Then here is what I want to just say to 
you guys. That, to me, is the definition of coercion.
    And, Rabbi, when you gave your statement earlier--and I 
don't think you meant this. But if I came to you with a 
marriage problem or financial problem or thoughts of suicide, I 
am looking for authenticity, you know? And I almost got from 
you the fact that you felt that if you weren't telling me what 
I wanted to hear that somehow or the other that you were 
coercing me. And I just don't think that is the definition that 
we want to put on our men and women in uniform.
    And so, Mr. Weber, I want to ask you, based on----
    Rabbi Kahn. That was not what I meant, sir.
    Mr. Forbes [continuing]. Based on Town of Greece v. 
Galloway, can you explain what the difference is between 
coercion, by that court decision, and being offended?
    Mr. Weber. I can, Congressman. You know, in that case, the 
Court said that, quote, ``offense does not equate to 
coercion.'' That was Justice Kennedy in a concurring opinion.
    Now, in that case, the Court was dealing with prayer in a 
public setting, a local government gathering. But what it had 
to confront was whether the offense towards people who 
disagreed with the prayer of a certain speaker who was coming 
and praying according to the dictates of a certain religion was 
sufficient to justify an establishment clause claim.
    And, actually, if you look at the dissent, the majority and 
concurring opinions, the Supreme Court unanimously agreed that 
religion had a role in public life. So none of the justices 
said religion can't be here, has no place here. They just 
disagreed on--they differed over what lengths the government 
had to go to to accommodate minority beliefs. But they roundly 
repudiated the notion that offense equated with coercion.
    And this is a recent decision, the Supreme Court's ruling 
on an establishment clause case. You know, and this isn't the 
only case. I use that as an example because I think it is 
pretty clear what they mean by ``coercion'' and ``offense.''
    Mr. Forbes. Mr. Berry, how about you? I mean, I just can't 
comprehend--our guys in the military are pretty tough. They get 
a lot of stuff thrown at them. I can't comprehend how a cadet 
writing a scripture verse on a whiteboard is defined as 
coercion versus, you know, just even offending somebody.
    How do you look at Town of Greece v. Galloway and the 
difference between ``offense'' and between ``coercion''?
    Mr. Berry. I agree with Mr. Weber's assessment.
    And to go back to the Air Force Academy whiteboard 
incident, I actually had the opportunity to meet with the 
senior attorney at the Air Force Academy to ask why they held 
the position that the verse would have to be removed. And the 
position that they took was that, because that cadet held a 
position of leadership and under Air Force Instruction 1-1, as 
a leader within his cadet squadron, it may cause other cadets 
who were subordinate to that cadet to feel that they had to 
share his belief in order to curry favor or gain favorable 
treatment or it somehow was a barrier to access to that cadet.
    Mr. Forbes. And, see, I only have 30 seconds, but that is 
exactly what Dr. Fleming is saying. I haven't heard any people 
of faith calling atheists monsters or saying they want to put 
sucking wounds in them.
    I mean, you are basically looking at a situation here where 
these individuals are stating what they believe and, based on 
that, we are calling that coercion, and then we are starting to 
restrict that kind of freedom of expression and belief.
    Nobody is defending individuals trying to proselytize or 
coerce. We are simply trying to say, we need a protection. Just 
because you wear a uniform doesn't mean that you no longer have 
your right to express your freedom of your faith.
    And, Mr. Chairman, my time is out, so I yield back.
    Mr. Wilson. Thank you, Chairman Forbes.
    We now proceed to Congresswoman Vicky Hartzler of Missouri.
    Mrs. Hartzler. Thank you, Mr. Chairman.
    Thank you, gentlemen, for being here on this very, very 
important topic.
    Chaplain Crews, I would like to visit with you first. Do 
you feel like that the chaplains represented by the Chaplain 
Alliance are fully confident in their ability to teach, 
express, and counsel based on the tenets of their faith without 
repercussions from the chain of command?
    Dr. Crews. That is our sincere hope, that that has been the 
longstanding policy for chaplains, that chaplains, as I 
mentioned earlier, represent the faith that sent them to be 
chaplains. We fully expect a rabbi to be a rabbi and a Baptist 
to be a Baptist, a Catholic to be a priest.
    Where we have experienced difficulty is in a few areas now 
of some supervisory chaplains wanting to step in to monitor 
sermons, monitor prayers, monitor teachings, which has caused 
us to come to you to ask for the section 533, for which we are 
    Thank you, Congresswoman.
    Mrs. Hartzler. Since we have passed section 533, have you 
seen a change in how that has been supervised, how chaplains 
have been supervised?
    Dr. Crews. Unfortunately, I have to say ``not yet.''
    Now, we know that Department of Defense just earlier this 
year finally issued some implementing guidance, for which we 
are grateful. But we are still waiting to see how that 
implementing guidance is going to be carried out and how it is 
going to be taught, both at JAG schools and chaplain schools 
    Mrs. Hartzler. So, as you know, DOD policy rightly calls on 
chaplains to serve individuals of all faiths----
    Dr. Crews. Correct.
    Mrs. Hartzler [continuing]. And no faith, and yet they are 
also held accountable to their faith traditions from their 
various denominations that support them.
    So, as a chaplain, how do you balance these two aspects of 
your job? Must you be nonsectarian in all the duties that you 
    Dr. Crews. I tell the chaplains that I endorse, you serve 
everyone who walks through your door or you meet in the motor 
pool with grace and dignity. You are there to support them. And 
you are there to either perform the duties that you can perform 
according to your faith conscience, or if you cannot, then you 
are to provide for them, you are to find someone who can do 
    And, by and large, chaplains have been doing that 
successfully since 1775, providing and performing those 
religious ministries.
    And so, yes, our chaplains today are great men and women of 
the cloth who are serving all who come to them, without any 
discrimination as to who they are, with the understanding that 
I tell our chaplains, you have to be clear, that if someone is 
coming to you for counsel, you have to be clear upfront, I am 
going to counsel you from a biblical perspective. If that is a 
problem, then let me find another chaplain that you may be more 
comfortable with. That has been working well, and we trust that 
it is going to continue to work well.
    Mrs. Hartzler. I certainly hope so. I certainly hope so, as 
    Mr. Weber, I just wanted to follow up on something you said 
earlier. In light of the recent Supreme Court precedent, if I 
am offended at something someone else has said about their 
faith, does that mean it was a violation of the establishment 
    Mr. Weber. Congresswoman, it does not mean there was a 
violation of the establishment clause.
    Now, as I mentioned, that case dealt with a specific 
context. But the Court was very clear; in dealing with the 
context in that case, it noted that American citizens can deal 
with offense. As part of a free democracy, we engage in robust 
debate and come into conflict with opinions with which we 
disagree all the time. Therefore, you are going to have to live 
with being offended.
    Now, it was a local government context, but, you know, I 
think we can trust service men and women who are facing battle 
conditions and the dangers of war and all sorts of other 
offending circumstances, that a viewpoint with which they 
disagree is not going to be a problem.
    Mrs. Hartzler. Good. We certainly hope not. We want to 
protect our religious freedoms.
    Thank you. I yield back.
    Mr. Wilson. Thank you, Ms. Hartzler.
    We now proceed to Congressman Doug Lamborn of Colorado.
    Mr. Lamborn. Thank you, Mr. Chairman, and thanks for having 
this hearing.
    And I first want to say God bless each one of you for your 
    I have the honor of representing the Air Force Academy. 
And, after the whiteboard incident, I went over there to see 
what the whiteboards looked like, and they are actually real 
small. They are about the size of this piece of paper, right 
outside the dormitory doors that each person has.
    Mr. Berry, was anything wrong with a cadet, whatever his 
role or position, writing an inspirational Bible verse on his 
    Mr. Berry. No. And, in fact, Mr. Lamborn, that was really 
the issue that I raised with the attorney there, was that they 
had stopped reading Air Force Instruction 1-1, at least the 
version that existed at the time--it has been since revised--
but they stopped reading it at paragraph 2-11, which says that 
the requirement of government neutrality toward religion.
    And I said, what about the very next paragraph, which says 
that airmen are able to freely practice their own beliefs? And 
what about the protections that exist in DOD Instruction 
    And the response, unfortunately, I received was, well, this 
is not, you know, my policy, this is Air Force policy coming 
from the Pentagon. So it was a very unsatisfactory answer.
    But you are absolutely right, Mr. Lamborn, that that cadet 
had every right under our Constitution to express his religious 
belief or no belief at all.
    Mr. Lamborn. And we have talked a little bit about 
leadership. And my concern is that, if taken to an extreme, 
someone who is a leader and has a religious component to his or 
her life of any of a multitude of religions, and to not be able 
to ever discuss that would be dishonest with other people. Do 
you agree with that?
    Mr. Berry. Yes, sir. And, in fact, that reminds me of the 
very last thing that my commanding officer said to our unit in 
Afghanistan before we departed friendly confines, and that was 
that we had been physically prepared to fight the enemy but 
that it was up to each of us to make sure that we were mentally 
and spiritually prepared to fight, that we were to fight with a 
clean heart and a clean conscience.
    Mr. Lamborn. Dr. Crews, I offered an amendment to the NDAA 
this last summer, which was accepted by the whole House, and it 
required the Air Force to rewrite its religious liberty 
    What is your opinion on the new Air Force regulation 
    Dr. Crews. We are very grateful for the new language. We 
believe that it brings that Air Force policy more closely in 
line with the intent of your committee with 533.
    I am not an attorney and don't play one on TV, but my 
reading of it, I understand it to be more in line with Federal 
law, RFRA [Religious Freedom Restoration Act]. It uses some of 
the RFRA language that I think helps--will help commanders and 
JAGs to be better able to make decisions like the whiteboard 
incident, like this dear colonel's article, that there is no 
reason why people of faith, regardless of their rank, cannot be 
able to express that faith while they are wearing the uniform.
    Mr. Lamborn. Okay. Thank you.
    And, Mr. Weber, you gave us a quote in your testimony to 
the effect that being offended doesn't mean being coerced.
    If someone like Mr. Weinstein is offended by an evangelical 
Christian, whether it is a chaplain or an airman or an officer, 
talking about his faith, does that translate into being 
    Mr. Weber. Congressman, it does not. You know, as I 
mentioned--and this comes from the Supreme Court this year--
offense itself does not mean there is coercion. And, you know, 
I think that is a policy and a principle that can be easily 
applied to uphold the right of all to live out their lives in 
accordance with conscience and beliefs.
    Mr. Lamborn. Well, I am going to yield back, but, once 
again, I thank all five of you for your service.
    Mr. Chairman, I yield back.
    Mr. Wilson. Thank you, Mr. Lamborn.
    And we now will be concluding with Congressman Tim 
Huelskamp of Kansas.
    Mr. Huelskamp. Well, thank you, Mr. Chairman, for allowing 
me to participate in this hearing. And I would like to thank 
the members of the committee that have done a superb job on 
protecting religious liberty.
    And this issue means a lot to me personally, Mr. Chairman. 
In our family, we just buried my uncle, who had served 30 years 
as a U.S. Army chaplain, at age 97, and served many tours of 
duty. And so this means a lot to me.
    And I would like to first ask Dr. Crews a question.
    And, as you know, DOD policy calls on chaplains to serve 
individuals of all faith and no faith, and yet they are also 
held accountable to the faith traditions that support their 
endorsements. As a chaplain, how do you balance these two 
aspects of the job?
    Dr. Crews. That is a good question. And, as I said, 
chaplains wear two hats. We are chaplains, we are ministers or 
rabbis or people of the cloth, as we say, that represent the 
faith group from which we come. We are also staff officers at 
whatever level that we are serving. And we are to be that 
advisor to the commander on morale and the welfare of the 
military persons that we are serving.
    Historically, chaplains have done a great job, I think, of 
balancing that fine line of being true to their convictions, 
being true to their conscience, and yet serving a broad 
multitude of faiths or no faiths.
    I know in my last assignment at Fort Campbell, we had a 
group of pagans, and they wanted to have a space to do what 
they do. And it was part of my job as the chaplain to provide 
that space and also to provide any funds that they may need to 
carry out so that they could practice their faith, or non-
    And I think chaplains, by and large, have done an excellent 
job of that. And we want to make sure that chaplains are 
continued to be encouraged, that they can be representatives of 
their faith group without fear of recrimination, particularly 
in this politicized society and culture we live in right now.
    Mr. Huelskamp. Yeah, Dr. Crews. And I do hear from 
chaplains, not only in my district but elsewhere in the 
country, that are worried. They fear for their rights of 
conscience, their ability to serve men and women who are 
putting their lives on the line.
    And do you think the DOD is adequately protecting their 
conscience as well as the members are that they try to serve?
    Dr. Crews. These are challenging days. It is a different 
day. Rabbi Kahn and I were talking before the hearing about how 
it is a different day now than when we were serving on Active 
Duty. And it is particularly because of the cultural climate 
change that has taken place in our country and in our military. 
And it is making it difficult for some who particularly come 
from an orthodox--and that is with a little ``o''--faith 
background understanding of biblical values and morals, that 
they may not be in the politically accepted camp right now.
    And so, for them to be able to continue to serve and be 
seen as a team player, to be able to do the marriage retreats 
that they want to do but yet they cannot because they are told 
that they would have to violate their conscience in order to do 
those marriage retreats, that is a growing concern. And how 
that is solved is--I don't think we have found the answers yet 
in any of the branches.
    But we are hopeful that the chiefs of chaplains understand 
and believe that they do and want to support--we believe that 
they want to support the chaplains that they are supervising to 
be able to be faithful to their faith group and yet to be able 
to serve all of the service members of their units and 
    Mr. Huelskamp. Yeah. And I appreciate, particularly work on 
the committee and in certain traditions, particularly Roman 
Catholic traditions, the ability to find enough priests to 
serve our Catholic men and women is extremely limited. And 
there are things we can do as Congress to make that easier. 
And, certainly, protecting their conscience is definitely one 
of those that rates very highly.
    Mr. Weber, if we might finalize, if you could talk a little 
bit about, just quickly, a dynamic that makes it important for 
the Armed Forces to protect the religious expression of our 
    Mr. Weber. Absolutely, Congressman. You know, I think as 
Dr. Crews has already pointed out, what we are interested in 
seeing is chaplains' ability to act and live out their 
conscience and faith according to their deeply held beliefs in 
their role as a chaplain, just as the rest of us may seek to 
live out certain beliefs in our lives or at work or as we go 
about our daily business.
    You know, so, to that extent, you know, we are pleased that 
the language protecting chaplains is in place, you know, the 
way that has worked out in practice. And how it looks going 
forward, in terms of how it is practiced at all levels of the 
military, is going to be continually important. But like the 
protection of religious expression for service men and women, 
we obviously care about it being in place for chaplains, too, 
you know. And I concur with everything that Dr. Crews has said 
    Mr. Huelskamp. Okay.
    Well, Mr. Chairman, thank you. I yield back.
    Mr. Wilson. Thank you, Congressman Huelskamp.
    And I recognize Congressman Dr. John Fleming for a 
unanimous-consent request.
    Dr. Fleming. Mr. Chairman, I ask unanimous consent--the 
question was brought up about a survey showing that 25 percent 
of the military, when it came to religious diversity, were--I 
am not sure if I recall correctly the word used--atheist or 
nonbelievers or something like that.
    And I refer back to, and I would like to submit for the 
record, from the Military Leadership Diversity Commission a 
religious diversity in the U.S. military study that was done, 
pretty large study. What it actually showed was 4 percent 
humanist, which is the closest it came to atheist; 12.1 percent 
were no religious affiliation reported. That is to say, they 
didn't necessarily affiliate with one denomination or another, 
which is a trend in the evangelical world. I am a Baptist, and 
many people now say that they are evangelical or they are not 
attached to any specific denomination.
    So that is really a misrepresentation of what the real 
percentages are in that. And I wanted to be sure and submit 
this study. It is a pretty good study from 2009.
    Mr. Wilson. Is there any objection?
    Without objection, so ordered.
    [The information referred to can be found in the Appendix 
on page 169.]
    Mr. Wilson. I would like to thank Ms. Davis again for her 
role as the ranking member of the committee.
    We appreciate each of the witnesses being here today.
    I particularly want to thank the Military Personnel 
Subcommittee professional staff, led by Jeanette James, David 
Giachetti, Colin Bosse, additionally Craig Greene. And we have 
been very fortunate to pick up recently assigned Darreisha 
    If there is nothing further, we shall be adjourned.
    [Whereupon, at 4:07 p.m., the subcommittee was adjourned.]


                            A P P E N D I X

                           November 19, 2014



                           November 19, 2014




                           November 19, 2014




                           November 19, 2014



    Mr. Forbes. During your testimony, you discussed that a chaplain's 
job is both to perform and to provide for men and women in uniform. Can 
you elaborate on the meaning of this mission, both with respect to 
supporting service members of all faiths, as well as to the ways in 
which a chaplain is responsible to his or her endorser? As a retired 
chaplain and an endorser yourself, how do you advise the chaplains that 
you endorse in navigating these two complimentary missions?
    Dr. Crews. The terms ``perform or provide'' come from Army 
Chaplaincy training materials. The other services have similar 
designations, the Air Force says, ``provide or provide for''. What this 
means is that chaplains are expected to perform those ministries for 
service members from a similar faith background. For instance, as an 
Evangelical Presbyterian chaplain I could baptize both infants and 
adults either by sprinkling or emersion as long as the parents met the 
spiritual qualifications according to the Book of Government. That is 
``performing''. However, if a Catholic soldier requested baptism for 
his child I would connect them to a Catholic chaplain or contract 
priest to perform that rite. That is ``provide''.
    I encourage the chaplains I endorse to be faithful to our chaplain 
guidelines, to be true to their own consciences, and to minister with 
grace to those they are not able to serve directly. I encourage my 
chaplains to be clear up front that they provide counseling from a 
Biblical perspective and if a service member is not comfortable with 
that they should graciously offer to refer them to another chaplain or 
    Mr. Forbes. Can you provide a brief history of how and why George 
Washington formed the chaplaincy in 1775?
    Dr. Crews. At a time when preaching non-Anglican beliefs was 
punished by law in Virginia, then Colonel George Washington made sure 
the non-Anglicans under his command had a chaplain who shared their 
specific religious faith and could meet their spiritual needs.
    In 1758, during the French and Indian War, the state of Virginia 
created and provided regimental chaplains at the request of Colonel 
George Washington. See Anson Phelps Stokes, Church and State in the 
United States, Vol. 1 at 268 (1950). These chaplains were not forced to 
suppress their distinct denominational or sectarian beliefs and 
practices. Rather, it was known and welcomed that they represented not 
only the official Church of England, but also minority religions 
including Congregationalists, Anglicans, Presbyterians, and Baptists. 
Id.; see also William J. Hourihan, Pro Deo et Patria: A Brief History 
of the United States Chaplain Corps at 3 (2004).
    This spirit of accommodation and pluralism continued in the 
Revolutionary War. See Stokes at 268 (noting that on August 16, 1775, 
the Virginia Convention required that commanding officers ``permit 
Dissenting clergymen to celebrate divine worship, and to preach to the 
soldiers''). On July 29, 1775, the Continental Congress authorized pay 
for chaplains and soon thereafter General George Washington ordered 
that chaplains be procured for the Continental Army. Katcoff, 755 F.2d 
at 225 (citations omitted).
    Mr. Forbes. In your testimony before the committee, you discussed 
the recent Supreme Court case of Town of Greece vs. Galloway. Can you 
please elaborate that testimony based on the following questions:
    Are there any court rulings indicating that ``offense'' in the 
military context should be grounds for restrictions on religious 
    Mr. Weber. No--``offense'' alone cannot serve as a reason to 
restrict speech. Even in the military, with its concerns for good order 
and discipline, ``we must be sensitive to protection of `the principle 
of free thought--not free thought for those who agree with us but 
freedom for the thought that we hate.' '' United States v. Priest, 21 
U.S.C.M.A. 564, 570 (C.M.A. 1972) (quoting United States v. Schwimmer, 
279 U.S. 644, 654-655 (1929)).
    Moreover, even in the military, ``[t]he Establishment Clause 
clearly forbids that there should be any official judgments about the 
correctness of religious beliefs.'' Veitch v. Danzig, 135 F. Supp. 2d 
32, 35 (D.D.C. 2001) (noting that any ``religious orthodoxy mandated by 
the Navy--even one officially sanctioned as appropriate for a military 
population of diverse religious beliefs,'' such as requiring chaplains 
to ``preach `pluralism among religions' and/or `inclusiveness,' '' 
would cause serious First Amendment problems). Thus, ``offense'' at 
religious speech cannot justify government modification of such speech.
    It is clear that speech which affects uniformity and order by 
directly attacking the military's mission can be regulated. Priest, 21 
U.S.C.M.A. at 566, 571-72 (publishing an underground newspaper 
denouncing the foreign policy of the United States in Vietnam and 
``calling for violent and revolutionary action''); United States v. 
Gray, 20 U.S.C.M.A. 63, 65, 68-69 (C.M.A. 1970) (public statement in 
logbook denouncing the United States and its policies and indicating 
intent to leave the country).
    But even ``offensive'' speech must impact military readiness in 
some way before it can be regulated; the claim that it has offended an 
individual or group is insufficient to proscribe it. United States v. 
Wilcox, 66 M.J. 442, 448-49 (C.A.A.F. 2008) (finding that even racist 
speech made on the internet, though offensive, was protected by the 
First Amendment).
    For example, purely religiously-motivated speech cannot be 
regulated absent a clear showing of how it affects military readiness. 
See Rigdon v. Perry, 962 F. Supp. 150, 161-62 (D.D.C. 1997). This is 
even the case when the government's interest is arguably higher--such 
as when the speech touches on political matters. See id.
    In Rigdon, the court ruled that chaplains' speech urging 
parishioners to contact Congress in support of the Partial Birth 
Abortion Ban Act is protected by the Religious Freedom Restoration Act 
and the First Amendment and may not be restricted by the military. Id. 
While ``military readiness and national defense'' are compelling 
government interests, restricting chaplain speech--even ``political'' 
and possibly offensive speech--did not advance these interests, which 
``are outweighed by the military chaplains' right to autonomy in 
determining the religious content of their sermons.'' Id.
    If advocating from the pulpit on a political issue does not disrupt 
military order, then advocating from the pulpit on a variety of other 
religious issues should also be protected.
    Mr. Forbes. The military must simultaneously protect free exercise 
and freedom of expression for service members, while also preserving 
good order and discipline. How is this balance maintained?
    Mr. Weber. This balance is maintained carefully, by ensuring that 
constitutional rights are vigorously protected within the military as 
long as their exercise is not aimed at undermining the good order and 
discipline of the military. The Supreme Court has said that ``[t]he 
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.'' Parker 
v. Levy, 417 U.S. 733, 758 (1974). Thus, ``[t]he test in the military 
is whether the speech interferes with or prevents the orderly 
accomplishment of the mission or presents a clear danger to loyalty, 
discipline, mission, or morale of the troops.'' United States v. Brown, 
45 M.J. 389, 395 (C.A.A.F. 1996). ``Servicemembers as well as the 
public in general have a right to voice their views so long as it does 
not impact on discipline, morale, esprit de corps, and civilian 
supremacy.'' Id. at 396.
    Speech protected by the First Amendment outside the military can 
only be regulated in the military (1) when the government can show ``a 
reasonably direct and palpable connection between the speech and the 
military mission or military environment,'' and (2) when the military's 
interests in regulating the speech outweigh First Amendment concerns. 
United States v. Wilcox, 66 M.J. 442, 448-49 (C.A.A.F. 2008). For ``in 
speech cases, our national reluctance to inhibit free expression 
dictates that the connection between the statements or publications 
involved and their effect on military discipline be closely examined.'' 
United States v. Priest, 21 U.S.C.M.A. 564, 569-70 (C.M.A. 1972) 
(emphasis added).
    For instance, organizing a strike of Louisiana National Guard 
working conditions during a time of on-going military operations in 
Iraq constitutes unprotected speech because of its direct effect on 
military operations. Brown, 45 M.J. at 395-96. Because such actions--
despite being protected in the civilian context--directly undermine 
military order, they can be proscribed.
    On the other hand, online postings involving racist speech, though 
vile and offensive to many, are protected under the First Amendment 
even for servicemembers--when they are not directed at or connected the 
military mission. Wilcox, 66 M.J. at 448-49.
    Recent restrictions of religious expression in the military cannot 
be justified under the legal framework outlined above. An Air Force 
Academy cadet sharing a religious saying on his whiteboard does not 
``interfere[] with or prevent[] the orderly accomplishment of the 
mission.'' Brown, 45 M.J. at 395. Neither does it ``present[] a clear 
danger to loyalty, discipline, mission, or morale of the troops.'' Id. 
Personally sharing how faith has impacted one's life also does not 
disrupt unit morale or cohesion--whether the person sharing is an 
officer or enlisted servicemember. These matters do not threaten unit 
cohesion in the same way organizing a strike, see Brown, 45 M.J. at 
395-96, or urging servicemembers not to fight in an on-going war would. 
See Parker, 417 U.S. at 758. Nor are they like a commander forcing 
subordinates to listen to a sermon--such a scenario would be coercive 
and would disrupt unit cohesion. The type of speech which has been 
suppressed by the military in the past year--such as an Ohio Air 
National Guard commander's personal story in a base newsletter--is the 
type of entirely innocuous speech that no one would even question as 
coming close to disrupting military discipline. Yet the government has 
allowed such restrictions to occur, despite the clear legal requirement 
to show that military order and discipline is affected before speech 
can be suppressed.
    Chaplains are entitled to these same protections. When chaplains' 
messages are censored, violations of the Religious Freedom Restoration 
Act, see Rigdon, 962 F. Supp. at 161-62, and the First Amendment occur. 
See Veitch, 135 F. Supp. 2d at 35. Additionally, censorship puts the 
government in the unacceptable position of pronouncing ``what shall be 
orthodox in . . . religion'' and ``force[s] citizens to confess by word 
or act their faith therein.'' West Virginia Bd. of Education v. 
Barnette, 319 U.S. 624, 642 (1943). No government body--civilian or 
military--should be making such pronouncements.
    Mr. Forbes. How is protecting the ability of a service member to 
freely practice their faith particularly important in the context of 
military service, and how does it contribute to military readiness and 
    Mr. Weber. When Americans join our nation's military, they give up 
certain liberties. Yet, they retain Free Exercise rights under the 
First Amendment to the Constitution. Thus, the military has a 
responsibility to provide them the means of Free Exercise--this 
includes in part, providing access to the chaplaincy. Katcoff v. Marsh, 
755 F.2d 223, 234 (2d Cir. 1985) (``Unless the Army provided a 
chaplaincy it would deprive the soldier of his right under the 
Establishment Clause not to have religion inhibited and of his right 
under the Free Exercise Clause to practice his freely chosen 
religion.''). Chaplains meet spiritual needs of soldiers by providing 
counsel and teaching troops how to live one's life in accordance with 
one's religious beliefs. In so doing, chaplains ensure that readiness 
and morale do not suffer by lack of access to religious services.
    However, providing access to chaplains is only part of the 
military's responsibility to provide for Free Exercise rights. The 
military must also ensure that servicemembers can practice their faith 
outside of a military chapel by being free to speak about their faith 
in conversation and daily life. To limit the expression of spirituality 
to a chapel service or private conversation with a chaplain is to 
ignore the all-encompassing nature of religious belief. Indeed, it is 
specifically the expression of religious beliefs that Congress sought 
to protect in enacting language in the Fiscal Year 2013 and Fiscal Year 
2014 National Defense Authorization Acts that reiterate the freedom 
chaplains and servicemembers alike have to speak about and practice 
their faith.
    Notable military leaders have relied on religious faith to survive 
the ordeals of war. For instance, President Roosevelt recognized the 
importance of spiritual matters in considering military readiness when 
he penned an introduction to a Bible to be issued to troops as they 
headed off to fight in World War II. The introduction commended the 
reading of the Bible to all in the Armed Forces as a source of 
``wisdom, counsel and inspiration'' and as a ``fountain of strength.''
    During the Vietnam War, when he was held for years by the North 
Vietnamese as a prisoner-of-war, Naval officer and pilot Jeremiah 
Denton relied on a deep Christian faith to help him endure his ordeal. 
Similarly, Jeff Struecker, an Army ranger who was sent back into a 
fire-fight in the streets of Mogadishu to rescue fallen comrades during 
the ``Black Hawk Down'' incident, has discussed his dependence on God 
for strength during that operation.
    Yet when military leaders today seek to reference a reliance on 
faith, they face career consequences. Just this fall, Colonel Florencio 
Marquinez of the Ohio Air National Guard wrote about the important role 
his religious beliefs played in his personal life in a unit newsletter. 
For mentioning God, his story was censored and removed from 
    Such actions by misinformed commanders deny servicemembers the 
ability to confidently practice their own faith, removing a key source 
of strength and resiliency for many men and women. The uncertainty 
created by command actions that stifle religious speech contributes to 
a climate of distrust and fear. In an environment in which military 
morale is at a new alarming low,\1\ military leadership must not 
alienate religious servicemembers in actions that violate 
constitutional and statutory requirements to accommodate religious 
    \1\ Andrew Tilghman, McCain: Military Times report on low morale 
should spur Congress to act, Military Times, Dec. 9, 2014, http://
    Additionally, limiting the ability of servicemembers to express 
religious faith can risk undermining the legitimacy of many 
servicemembers' ethical standards. A sense of accountability to God 
leads many servicemembers to behave with self-discipline, empowering 
many servicemembers to live up to military ideals of service. For ``[a] 
Soldier seriously committed to his or her personal morality, whether 
grounded in a religious faith or not, is prone more than he or she 
would otherwise be to live up to the high ethical ideals of the Army 
Profession not in spite of, but because of his or her personal 
convictions.'' \2\ Yet these same soldiers are in danger of leaving a 
military they see as ``increasingly hostile toward religious 
expression.'' \3\
    \2\ A Soldier's Morality, Religion, and Our Professional Ethic: 
Does the Army's Culture Facilitate Integration, Character Development, 
and Trust in the Profession?, Don M. Snider and Alexander P. Shine, 
U.S. Army War College Strategic Studies Institute, Professional 
Military Ethics Monograph Series, Volume 6, Apr. 2014, page 29, 
available at http://www.strategicstudiesinstitute .army.mil/pubs/
    \3\ Id.
    Mr. Forbes. Does fixating on ``offense'' rather than coercion as a 
standard for maintaining order potentially undermine larger goals for 
cultivating respect and tolerance for diverse viewpoints in the 
    Mr. Weber. Yes. Using ``offense'' alone as the standard for 
censoring speech or viewpoints would result in an unworkable standard 
given the disagreements inherent in human interactions and any exchange 
of ideas. More importantly, limiting speech due to potential or actual 
threats of ``offense'' would produce a forum of uniform views, or at 
the very least, a forum where nothing of substance or controversy is 
ever discussed. Such a possibility should be alarming since it is only 
in a context of diverse opinions that the opportunity to practice true 
tolerance and respect occurs. Furthermore, regulation of speech based 
on its particular religious content constitutes viewpoint 
discrimination--an unlawful and even more ``egregious form of content 
discrimination.'' Rosenberger v. Rector & Visitors of the Univ. of 
Virginia, 515 U.S. 819, 829 (1995).
    The inability to tolerate different views due to the slightest 
``offense'' already infects certain sectors of academia but in 
particular should alarm those charged with oversight of our nation's 
military academies. Having been a Naval officer, I can testify to the 
need for mental resilience--a characteristic developed in part by 
learning to tolerate different views, to be disciplined in reactions, 
and to be secure in one's own convictions so as not to be threatened by 
another's. Though physical abilities undergird military readiness, 
mental toughness is also necessary for an effective fighting force. 
It's that mental grit which is threatened when today's soldiers learn 
to be quick to claim ``offense'' at ideas and opinions they don't like.
    Such reflexive intolerance cannot produce the type of well-rounded 
citizens necessary for representing American democracy and defending 
her interests overseas. Furthermore, training servicemembers to be 
divisive by seeking the suppression of views different from their own 
threatens to undermine the ability to be unified in battle with their 
fellow soldiers--who no doubt have different views on at least some 
    Our military men and women must learn to tolerate the different 
views of their fellow soldiers on things such as religion so that they 
then can be unified in the pressing, important business of warfighting. 
We do no service to our future military leaders by acceding to demands 
for suppression of religious speech out of a desire to promote a veneer 
of ``unity.'' True unit cohesion involves building and retaining trust 
and confidence in one's fellow soldier to perform the core duties of 
military service, even when a fellow soldier may disagree with one's 
personal beliefs. Indeed, future officers being trained at our elite 
military institutions are better served when they understand that part 
of living in a pluralistic society is encountering different opinions.
    The Supreme Court touched on this point in Town of Greece when it 
stated that in a democracy ``[a]dults often encounter speech they find 
disagreeable; and an Establishment Clause violation is not made out any 
time a person experiences a sense of affront from the expression of 
contrary religious views.'' Town of Greece, 134 S. Ct. at 1826. The 
Court was referring to a legislative forum in that case. But if this is 
expected of American citizens, we can and should expect that our tough 
men and women in the armed services, who we ask to bear the trials of 
war, will also be able to bear hearing different views. Indeed, it 
would be insulting to them to suggest they could not.
    Dr. Fleming. During your testimony, you mentioned your own personal 
experience as an example of the lack of training in First Amendment law 
that military attorneys receive. What key categories of First Amendment 
law are missing in current military legal education programs, and what 
steps do you recommend the various branches take to correct this?
    Mr. Berry. The greatest deficiency in First Amendment training is 
with respect to the Establishment and Free Exercise Clauses; issues 
regarding freedom of the press and assembly are exceedingly rare in the 
military context. This is a convoluted area of the law that requires a 
degree of subject-matter expertise to avoid legal issues. The fact that 
there are nuances specific to the military compounds this. I recommend 
the military institute formal First Amendment training for the 3 most 
critical audiences: military attorneys (``JAGs''), chaplains, and 
commanders. If this is not feasible, at the very minimum, military 
attorneys should receive this training. This could be accomplished at 
the service JAG schools with minimal impact to their existing academic 
calendars. Military attorneys currently receive substantial legal 
training in many areas of the law in which they are expected to possess 
competence (e.g., criminal law, fiscal law, ethics, etc.). The only 
logistical issue might be the lack of military attorneys with this 
subject-matter expertise. A possible solution might be to allow expert 
practitioners to provide this instruction.
    Dr. Fleming. During your testimony, you mentioned that military 
case law supports the concept that ``offense does not equal coercion.'' 
Can you offer specific examples or an explanation of this concept?
    Mr. Berry. Under existing Supreme Court and military case law, the 
critical inquiry is not whether someone is offended by religious 
expression, but rather it is whether there is actual or implied 
coercion. Town of Greece v. Galloway, 134 S. Ct. 1811, 1826 (2014); Elk 
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 44 (2004).
    In 1972, the highest military court recognized that ``we must be 
sensitive to protection of `the principle of free thought--not free 
thought for those who agree with us but freedom for the thought that we 
hate.''' United States v. Priest, 21 U.S.C.M.A. 564 (C.M.A. 1972). The 
court went on to explain that service member expression is protected 
unless it undermines the effectiveness of response to command. One of 
my fellow witnesses, Mr. Weinstein, frequently cites the case of Parker 
v. Levy for the proposition that the military is a different, 
specialized society, and therefore the rules of free speech and 
religious expression are different. But Parker was not about religious 
expression. Parker involved a soldier who protested the Vietnam War by 
encouraging others to refuse to serve for political reasons. Indeed, 
nearly every case in which a court upheld the right of the military to 
censor or restrict speech involved political--not religious--
expression. Religious expression, on the other hand, has historically 
enjoyed substantial protection in our courts.
    In 1985, the United States Court of Appeals for the Second Circuit 
decided the case of Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985). In 
Katcoff, two Harvard Law School students challenged the 
constitutionality of the U.S. Army's chaplaincy, arguing that 
government provision and funding of chaplains in order to provide for 
religious practice violated the Establishment Clause. The court 
rejected that argument, reasoning that, because of the rigors of 
military life, a service member's ability to freely practice their 
religion would be stifled unless the military provided chaplains. 
Importantly, the court held that the Constitution ``obligates Congress, 
upon creating an Army, to make religion available to soldiers who have 
been moved by the Army to areas of the world where religion of their 
own denominations is not available to them.''
    Therefore, religious expression by service members is not only 
permitted, but it is constitutionally protected. The only time the 
military can lawfully censor or prohibit it is when it prejudices good 
order and discipline, or degrades the ability to accomplish the 
mission. But it is insufficient to allege that religious expression 
undermines good order and discipline or unit morale merely because it 
offends someone. As stated, the critical inquiry is whether there is 
religious coercion, which the Establishment Clause of the First 
Amendment forbids. In the context of the Establishment Clause the 
United States Supreme Court has repeatedly, and recently, stated that, 
offense does not equal coercion. Moreover, in United States v. Wilcox, 
66 M.J. 442 (C.A.A.F. 2008), the Court of Appeals for the Armed Forces 
stated that even racist or supremacist speech is not punishable under 
the Uniform Code of Military Justice (UCMJ) because it is protected by 
the First Amendment. If the First Amendment protects racist or 
supremacist speech, then it certainly protects religious speech.
    Dr. Fleming. During your testimony, you described that the 
perception of religious hostility will result in a ``chilling effect'' 
on religious expression in the military. What can our military leaders 
do to reverse the perception of religious hostility?
    Mr. Berry. Our military leaders must address this issue in the same 
manner they have been trained to accomplish any military mission. 
First, we must acknowledge that a problem exists. If our senior 
military officials fail to recognize the moral injuries that depriving 
and chilling religious expression has on our service members, nothing 
will be accomplished. Second, there must be an understanding that 
protecting religious freedom is a positive attribute. Stated 
differently, our military leaders must recognize the intrinsic benefits 
that religious freedom imbues. By all measures, America's military has 
always been, and continues to be, a religious force. If people of 
faith--any faith--do not feel free to live out their faith free from 
fear of harassment, punishment, or disapproval, we will see our force 
strength dwindle. Eventually, this degradation may lead to retention 
and recruitment issues, which in turn may become a national security 
issue. Finally, we must dedicate resources: time, energy, manpower, and 
money, to the problem. Our military has shown a remarkable ability to 
use the existing resources to tackle some of the most contentious 
social issues of our time: sexual assault, drug use, gang violence, 
etc. And although these issues continue to present, that is merely a 
reflection of our society as a whole, and not a lack of success or 
effort within our military.
    Dr. Fleming. During your testimony, you mentioned that military 
case law supports the concept that ``offense does not equal coercion.'' 
Can you offer specific examples or an explanation of this concept?
    Mr. Weber. When, in Town of Greece v. Galloway, 134 S. Ct. 1811, 
1826 (2014), the Supreme Court stated that ``[o]ffense . . . does not 
equate to coercion,'' it was saying that merely feeling affronted by 
others' views or speech (``offense'') is not the same thing as being 
forced to act in accordance with another's beliefs under threat of 
punishment (``coercion''). As Justice Kennedy also explained in that 
opinion, ``impermissible coercion'' does not occur ``merely by exposing 
constituents to prayer they would rather not hear and in which they 
need not participate.'' Town of Greece, 134 S. Ct. at 1827.
    Offense is not a sufficient basis for an Establishment Clause 
claim. Lee v. Weisman, 505 U.S. 577, 597 (1992) (``People may take 
offense at all manner of religious as well as nonreligious messages, 
but offense alone does not in every case show a violation.''); see also 
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 44 (2004) 
(O'Connor, J., concurring) (``[T]he Constitution does not guarantee 
citizens a right entirely to avoid ideas with which they disagree. It 
would betray its own principles if it did; no robust democracy 
insulates its citizens from views that they might find novel or even 
inflammatory.''). ``Town of Greece made obvious'' that feeling angry, 
upset, or offended at indications of religion ``is insufficient to 
state an Establishment Clause violation.'' Elmbrook Sch. Dist. v. Doe, 
134 S. Ct. 2283, 2285 (2014) (Scalia, J., dissenting from denial of 
    On the other hand, coercion--defined as ``coercion of religious 
orthodoxy and of financial support by force of law and threat of 
penalty,'' Town of Greece, 134 S. Ct. at 1837 (Thomas, J., concurring) 
(quoting Lee, 505 U.S. at 640 (Scalia, J., dissenting))--is a 
sufficient basis for an Establishment Clause claim.
    Similarly, in the military ``offense'' is not a principle upon 
which one can object to other views. For even in the military, ``we 
must be sensitive to protection of `the principle of free thought--not 
free thought for those who agree with us but freedom for the thought 
that we hate.' '' United States v. Priest, 21 U.S.C.M.A. 564, 570 
(C.M.A. 1972) (quoting United States v. Schwimmer, 279 U.S. 644, 654-
655 (1929)). It is clear that speech which affects uniformity and order 
by directly attacking the military's mission can be regulated. Priest, 
21 U.S.C.M.A. at 566, 571-72 (publishing underground newspaper 
denouncing the foreign policy of the United States in Vietnam and 
``calling for violent and revolutionary action''); United States v. 
Gray, 20 U.S.C.M.A. 63, 65, 68-69 (C.M.A. 1970) (public statement in 
logbook denouncing the United States and its policies and indicating 
intent to leave the country). But where speech does not have a close 
connection to the military or military mission or environment, the 
military's interest in regulating the speech is lower. United States v. 
Wilcox, 66 M.J. 442, 448-49 (C.A.A.F. 2008). In addition, the speech's 
offensive nature alone is an insufficient basis to outlaw it under the 
Uniform Code of Military Justice. Id. (finding that even racist speech 
made on the internet, though offensive, was protected by the First 
    Just as servicemembers' Free Speech rights cannot be sacrificed to 
avoid ``offense,'' neither can their Free Exercise rights--nor can they 
be diminished in subjugation to a reading of the Establishment Clause 
requiring the government to scrub all religious expression from any 
program remotely associated with it. See Katcoff v. Marsh, 755 F.2d 
223, 234 (2d Cir. 1985) (``Unless the Army provided a chaplaincy it 
would deprive the soldier of his right under the Establishment Clause 
not to have religion inhibited and of his right under the Free Exercise 
Clause to practice his freely chosen religion.''). Thus, both in and 
outside of the military context, when First Amendment rights are at 
issue, ``offense'' alone entitles no one to a legal remedy.