After making good on his Twitter threats to veto the National Defense Authorization Act (NDAA) — first over renaming military bases named for Confederates, then over his demand that this bill repeal Section 230 (the completely unrelated law making social media platforms not liable for content posted by users), then over something or other to do with China — our soon-to-be-former-president’s NDAA veto was overridden by Congress, and this annual military bill, which most people have never paid any attention to before, became law on New Year’s Day.
The NDAA, the annual military funding and policy bill, is also the bill where fundamentalist Christian members of Congress typically try to sneak in provisions that subvert the First Amendment’s guarantee of religious freedom for our troops, and this year was no exception. Fortunately, the effort failed to make it into the final bill.
As I wrote back in July, a particularly crafty section, which mandated so-called “religious accommodation” training, was introduced in the Senate’s version of the NDAA. The only “accommodation” this training would have provided, however, was the accommodation of unconstitutional proselytizing by Christian zealots in our military.
The introduction of this section came after Senator Ted Cruz — the same Senator Ted Cruz who is now among the traitorous Trump sycophant senators poised to object to Congress’s certification of Joe Biden’s election —wrote a letter to now-deposed Secretary of Defense Mark Esper decrying the success of the Military Religious Freedom Foundation (MRFF) in protecting the fundamental right of our men and women in uniform to be free from unwanted religious proselytizing.
What all of this revolves around is a law called the “Religious Freedom Restoration Act” (RFRA). From the name of this law, it sounds like a good thing, right? Well, it isn’t, as advocates of real religious freedom like MRFF well know. In recent years, this 1993 act has become the go-to law for fundamentalist Christian legal organizations in their defense of completely unconstitutional promotions of religion in the civilian sphere, and now it is becoming the go-to law for defending unconstitutional religious proselytizing in the military.
RFRA is the epitome of the right-wing Christians’ view that the First Amendment’s religion clauses create only a one-way wall — that the “Free Exercise” clause is the only religion clause that matters, and that the other direction of the wall, the “Establishment” clause, doesn’t exist.
RFRA was actually declared unconstitutional by the Supreme Court in 1997, but was reenacted anyway by Congress in 2000.
For an excellent article on the history, insidiousness, and misuse of RFRA, see this piece by Marci A. Hamilton, which I quote from here:
“Conservative believers moved the boundary line from First Amendment-based legitimate religious liberty to religiously-motivated control of others significantly during the Trump Administration with one Executive Order after another; the seeds were planted with the misleadingly named Religious Freedom Restoration Act, or RFRA, in 1993. It is RFRA that has been cited one time after another by the outgoing Trump administration. This law, held unconstitutional, because a majority of the Court found it was so far removed from actual First Amendment doctrine in 1997 in Boerne v. Flores, is intended to give believers a sword against fellow Americans. From 1997 to 2000, the First Amendment once again held sway. The drive to use religious liberty as a mechanism for control was so strong, however, RFRA was re-enacted in 2000. The primary target was Title VII. This was how conservative believers could defeat civil rights.
“Shame on the Democrats in 2000 who blinked and let RFRA be raised from the dead through the indefensible ‘unanimous consent’ procedure. The RFRA hoax has been perpetuated by its misleading title and the intentional verbal slippage by religious advocates between First Amendment and statutory rights.
“RFRA swords are particularly cruel, because the statute does not require the courts to consider the harm to third parties. It’s all about the believer.”
This is what the Religious Freedom Restoration Act says:
(a) IN GENERAL
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
To fundamentalist Christians in the military, any limit whatsoever on a commander’s, chaplain’s, or other service member’s ability to shove their religion down the throats of others is a “substantial burden” on their free exercise of religion.
Had the Senate’s amendment to the NDAA been incorporated into the final bill, via the section titled “Training on Religious Accommodation for Members of the Armed Forces,” the law would have mandated that all commanders, chaplains, and judge advocates be trained to invoke RFRA and use the same tactic used by civilian fundamentalist Christian legal organizations to allow and justify all manner of foisting religion on unwilling service members. In other words, there would have been mandatory military training in how to fight like a “fundie.”
The good news and the bad news
The failure of the Senate’s RFRA training NDAA amendment was the good news, but, unfortunately, there is also bad news for military religious freedom from 2020.
In September, while the NDAA was being crafted by Congress, a core Department of Defense Instruction on religion was completely transformed by Trump Defense Department appointee Matthew P. Donovan, the Under Secretary of Defense for Personnel and Readiness.
DoD Instruction 1300.17, a long-standing regulation previously titled “Accommodation of Religious Practices Within the Military Services,” was a regulation that, as its name implies, made exceptions to the usual regulations to accommodate religious practices. Under Secretary Donovan’s new DoD Instruction 1300.17, with its title changed to “Religious Liberty in the Military Services,” with RFRA as its centerpiece, is designed to allow all manner of otherwise prohibited and unconstitutional religious behavior in the military.
Under the old regulation, an accommodation for a “religious practice” was understood to mean things such as a Sikh requesting an accommodation to wear a beard, a service member wearing an item of religious apparel or religious jewelry with their uniform, a service member requesting time off to attend worship services of their religion. In other words, things that a reasonable person would define as a religious practice, and, very importantly, things that wouldn’t have any effect on the religious freedom of others.
In Under Secretary Donovan’s new regulation, however, a “religious practice” has been redefined as (emphasis added):
“An action, behavior, or course of conduct constituting individual expressions of religious beliefs, whether or not compelled by, or central to, the religion concerned.”
And the definition by which a “governmental act is a substantial burden to a Service member’s exercise of religion” now includes anything that (emphasis added):
“Prevents participation in conduct motivated by a sincerely held religious belief”
Behavior and conduct? This could include just about anything. Is God motivating you to proselytize your fellow service members? Go ahead! That’s “conduct motivated by a sincerely held religious belief.” Want to pray loudly at your desk? No problem! That’s just behavior“constituting individual expressions” of your religious beliefs!
In the short time since this regulation change was implemented, MRFF has already seen its effects, with a service member being told that their proselytizing commander’s violation of other regulations was just fine and dandy because this new RFRA-based DoDI 1300.17 trumped all previous regulations.
It should be well noted that applying RFRA to the military flies in the face of the 1974 Supreme Court decision in Parker v. Levy, in which ultra-conservative justice William Rehnquist made it clear that the military is different from civilian society, and that because of “compelling governmental interests,” the free speech of military members is NOT constitutionally protected as it is for civilians (emphasis added):
“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 it ... Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.” 417 U.S.733 (1974)
But, just like they act as if the “Establishment” clause of the First Amendment doesn’t exist, and all that matters is the “Free Exercise” clause, fundamentalist Christians bent on proselytizing completely ignore the part of RFRA that, in keeping with Parker v. Levy, says (emphasis added):
“Government may substantially burden a person’s exercise of religion … in furtherance of a compelling governmental interest.”
There is hope under a new administration and new Congress
Under a new administration, and if Democrats gain control of the Senate, they could do away with RFRA, and with a repeal of this “sword against fellow Americans,” as Marci A. Hamilton called this law in her excellent article, necessitating a revision of the Trump Defense Department’s new RFRA-based DoDI 1300.17.
As Ms. Hamilton wrote:
“Depending on the makeup of the Senate, Democrats now may have an opportunity to roll back the cruelty they unleashed with RFRA in 2000. … There is no need for RFRA, period. Repeal the whole thing … if Democrats want to rein in the conservative will to power that now threatens public health, women, LGBTQ, and people of color. … The question is how much longer some religious actors can wield a mere statute to destroy the lives of fellow Americans.”