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Military Bans Pulpit Politicking

Lawsuit challenges gag order as unconstitutional

By Binyamin L. JolkovskySpecial to The Christian Science Monitor / October 16, 1996



BOSTON

The Pentagon has issued new orders to its chaplains: the pulpit is no place for politicking.

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A gag order placed on military chaplains this summer - forbidding the discussion of legislation during sermons or counseling - is being challenged in a lawsuit filed by a coalition of Catholic, Jewish, and Muslim chaplains, and military personnel.

The case, slated to be heard in Washington federal district court next month, pits the rights of free speech and religious liberty against a federal law that forbids lobbying by government employees.

It also marks the first time that military chaplains have been told under threat of prosecution what they can preach.

The gag order was prompted by the Roman Catholic Church's "Project Life Postcard Campaign." During June 29 and 30, priests nationwide implored parishioners to petition Congress to override President Clinton's veto of the now defeated so-called partial birth abortion ban.

To head off the campaign within the military, each armed services branch issued memoranda in May setting limitations for appropriate speech and political activities for its employees. The memo cited the anti-abortion effort as an example of forbidden activity.

"There is no more chilling instance of government infringement on religious liberty than the government censoring what can or cannot be said from the pulpit," says Kevin Hasson, general counsel of the Washington-based Becket Fund, a bipartisan, ecumenical public interest law firm, that is representing the plaintiffs.

Observers note that previous cases involving the role of religion in public life turned on interpretations of the Constitution's Establishment Clause, which outlaws the mixing of church and state.

But in a 1985 case before the Second Court of Appeals in New York, Katcoff v. Department of Defense, the constitutionality of chaplains in the military was challenged and upheld. The court ruled that given the duties and often remote locations service members find themselves in, without chaplains, it would be almost impossible - especially during war - for service members to have access to religious mentoring, a situation that would impinge on their Free Exercise right.

"In ruling that service members are entitled to have chaplains," argues Mr. Hasson, "the court was saying that they are entitled to real chaplains, not tamed, muzzled ones: real homilies not censored ones."

But Pentagon spokeswoman Lt. Col. Deborah Bosick says that employees are not being denied freedom of speech and religious expression. While chaplains may not "directly or indirectly influence congressional action on pending legislation because of a rule forbidding lobbying in the military," they may, she says, "discuss the morality of current issues."

"Chaplains and other service members," adds a Navy spokesman, "may involve themselves in political issues as long as they are out of uniform."

In a directive, the Air Force's Judge Advocate General stated that military chaplaincy "carries with it unique responsibilities and limitations that have been imposed by Congress to ensure the separation of our military forces from political issues."

FIRST Amendment expert Nat Hentoff says the military's action amounts to "thinly veiled censorship.... We're talking about the basic right to receive unadulterated spiritual direction and, more importantly, instruction on how to apply that direction."

University of Chicago Law School professor Michael McConnel says that "the government has put into effect a policy to prevent criticism of itself. I would be willing to wager that those chaplains who thunder against more politically correct issues wouldn't be treated in this manner."

Describing the issue as "far from being cut and dry," a spokesman for Americans United for Separation of Church and State, Robert Boston, says that the military's move "underscores the inherent problem of government-funded chaplaincy." He says "the entire issue of chaplaincy" should be reexamined by the Supreme Court. When a chaplain takes money from the government, he argues, "he is automatically forgoing his otherwise constitutionally protected rights. After all, he who pays the piper calls the tune."