The “Religious Freedom Restoration Act” — sounds like a good thing, right? Well, it isn’t, as religious freedom advocates 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.
This law is the epitome of the right-wing Christians’ view of the First Amendment’s religion clauses as creating only a one-way wall — that the “Free Exercise” clause is only religion clause that matters, and that the other direction of the wall, the “Establishment” clause, doesn’t exist.
Recently, twenty fundamentalist Christian members of the House of Representatives wrote a letter to Secretary of Defense Mark Esper attacking the Military Religious Freedom Foundation (MRFF) for successfully stopping a number of unconstitutional promotions of religion by military chaplains and one Air Force officer.
The Department of the Army, on behalf of Secretary Esper, wrote back to the twenty members of Congress, saying that it was standing behind the decisions its commanders made in favor of MRFF’s demands, prompting an incensed Rep. Doug Collins (R-GA) and Rep Doug Lamborn (R-CO) to write a second letter to Esper, demanding, among other things, to know what training concerning religious freedom the Army was doing.
The letter from the congress members to Secretary Esper was followed by a similar letter to Secretary Esper from Sen. Ted Cruz (R-TX). Taking credit for Cruz’s letter was the fundamentalist Christian legal organization First Liberty Institute, an organization that jumps in to fight virtually every success that MRFF has in protecting the religious liberty of our service members. Cruz’s letter, in keeping with First Liberty’s tactics, did two things — distorting the facts and invoking the Religious Freedom Restoration Act.
And now, in the Senate version of the National Defense Authorization Act for Fiscal Year 2021 (NDAA), in a section titled “Training on Religious Accommodation for Members of the Armed Forces,” the invoking of the Religious Freedom Restoration Act will be taught to all commanders, chaplains, and judge advocates, training them to use the same tactic as fundamentalist Christian legal organizations like First Liberty to allow and justify all manner of foisting religion on unwilling service members. In other words — military training in how to fight like a “fundie.”
Are we to believe that this call for the military to be trained on the Religious Freedom Restoration Act was inserted in the Senate version of the NDAA right on the heels of the Congress members’ letter and Sen. Cruz’s similar First-Liberty-Institute-inspired letter attacking MRFF is merely a coincidence?
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 like the First Liberty Institute and the Congress members who wrote to Secretary Esper, any limit whatsoever on a chaplain’s or service member’s ability to shove their religion down the throats of others is a “substantial burden” on their free exercise of religion.
To use as an example one of MRFF’s victories highlighted in Sen. Cruz’s letter, every Sunday morning during the COVID lockdown at a military base in Germany, an Air Force officer (not a chaplain) was holding Christian worship services from the balcony of his apartment in a military housing area, complete with singing from song sheets left on the doorsteps of all the other residents. Twenty-eight families, twenty-two of them Christian, not wanting to be effectively forced to attend these worship services by having no escape from them, came to MRFF for help. MRFF successfully got the problem solved. The officer apologized to his neighbors, and moved his worship services to an area away from the apartment complex, where he and those who want to attend could have the services without infringing on the rights of those who did not want to attend. To Sen. Cruz and the First Liberty Institute, this “porch preaching” officer was “substantially burdened” in the free exercise of his religion because he is not “free” to disturb his neighbors and compel others to listen to his worship services.
Another example in Sen. Cruz’s letter was MRFF’s string of successes in getting proselytizing COVID-19 chaplain videos removed from command Facebook pages. The situation here was chaplains taking advantage of the COVID crisis to proselytize to as large an audience as they could by posting their videos on their command Facebook pages, which have thousand or tens of thousands of followers, instead of their chapel pages, which are lucky to have a few hundred followers. MRFF’s position was that these religious videos should only be posted on chapel pages, and new social media guidelines from the Army Chief of Chaplain’s office agree with MRFF’s position. But to First Liberty Institute and Sen. Cruz, these chaplains not being able to take advantage of the larger audience of their commands’ Facebook pages to preach to people who don’t want to hear them are “substantially burdened” in the free exercise of their religion. Sure, they can still make their videos and post them on their chapel pages, but they’re not “free” to foist them on the people who don’t want to hear them.
If Section 541 of Senate’s National Defense Authorization Act is passed, every commander and chaplain bent on foisting their religion on everybody in any way at any time will be trained to cry “substantial burden” if anyone complains about it.
Applying the Religious Freedom Restoration Act 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 like First Liberty Institute ignore the part of the Religious Freedom Restoration Act 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.”
MRFF, as it has done for the last 15 years, will continue to hold the military accountable to the absolutely “compelling governmental interest” of protecting the rights of all service members to be free from the unwanted proselytizing of those chaplains, commanders, and other service members who see the military as a Christian mission field.