Last Friday, in a brief post titled “MRFF is delighted to report that Rep. Turner’s NDAA amendment to shut us down has backfired BIGLY!!!,” I reported the magnificent news that Christian nationalist GOP Rep. Mike Turner’s attempt to shut down the Military Religious Freedom Foundation (MRFF) had not only failed but completely backfired. Turner’s vindictive and utterly unconstitutional amendment to National Defense Authorization ACT (NDAA) to shut MRFF down had been replaced in the final bill by a Senate amendment that will allow MRFF to be even more effective than ever!
Last Friday’s post was just a quick announcement that President Biden had signed the bill and that it was not just good news but great news for MRFF, and, as I promised I soon would to people who wanted details, I am now very pleased to be posting the details.
There’s a lot to unpack here, and I think the best way to start is with the text of both Turner’s original amendment and what the Senate replaced that with in the final compromise bill. Don’t worry about trying to digest and make sense of the confusing language of the Senate’s amendment (Section 1049 of the final bill) immediately. I’m just posting it in its entirety here to be able to refer back to it as I explain its many advantages to MRFF.
First, this was Rep. Turner’s original amendment, which was Section 1045 of the House’s version of the NDAA:
LIMITATION ON USE OF FUNDS RELATED TO MILITARY RELIGIOUS FREEDOM FOUNDATION.
None of the funds authorized to be appropriated by this Act or otherwise made available for fiscal year 2024 for the Department of Defense may be used—
(1) to communicate with the Military Religious Freedom Foundation, its leadership, or its founder; or
(2) to take any action or make any decision as a result of any claim, objection, or protest made by the Military Religious Freedom Foundation without the authority of the Secretary of Defense.
Next, here is the explanation from the NDAA conference report, stating that the Senate was replacing Turner’s amendment with its alternate amendment:
Sec. 1049 – Establishment of procedure of the Department of Defense to determine certain complaints or requests regarding public displays or public expressions of religion on property of the Department
The House bill contained a provision (sec. 1045) that.would prohibit the Department of Defense from communicating with the Military Religious Freedom Foundation, or acting on complaints or claims by the Foundation or its leadership, without approval of the Secretary of Defense.
The Senate amendment contained no similar provision.
The Senate recedes with an amendment that would require the Secretary of Defense to prescribe regulations establishing a procedure for the timely determination of certain complaints or requests by private entities that concern a public display or public expression of religion on Department property.
And finally, here is the Senate’s replacement amendment from the compromise bill, which was agreed to by both the Senate and the House and signed into law by President Biden last Friday:
SEC. 1049. ESTABLISHMENT OF PROCEDURE OF THE DEPARTMENT OF DEFENSE TO DETERMINE CERTAIN COMPLAINTS OR REQUESTS REGARDING PUBLIC DISPLAYS OR PUBLIC EXPRESSIONS OF RELIGION ON PROPERTY OF THE DEPARTMENT.
(a) Establishment.–Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall prescribe regulations that establish the procedure for the timely determination of a covered complaint or request regarding a public display or public expression of religion on property of the Department of Defense. Such regulations shall ensure that–
(1) the officer or official of the Department who receives such complaint or request forwards the covered complaint or request–
(A) to the individual authorized to make a determination under subsection (b); and
(B) not later than 10 days after such receipt; and
(2) such individual–
(A) makes such determination not later than 30 days after such individual receives such forwarded covered complaint or request; and
(B) timely notifies the individual or entity who made such covered complaint or request, and the officer or official of the Department who received such covered complaint or request, of such determination.
(b) Determinations.–A determination under regulations prescribed under subsection (a) shall be made–
(1) by–
(A) the Secretary of the military department concerned; or
(B) the head of the Defense Agency or Department of Defense Field Activity concerned; and
(2) after consultation with–
(A)(i) in the case of a determination made by the Secretary of the military department concerned, the Chief of Chaplains of the military department concerned; or
(ii) in the case of a determination made by the head of the Defense Agency or Department of Defense Field Activity concerned, the Armed Forces Chaplains Board; and
(B)(i) a civilian attorney under the jurisdiction the Secretary of the military department concerned or the head of the Defense Agency or Department of Defense Field Activity concerned; or
(ii) an officer of the Judge Advocate General's Corps.
(c) Covered Complaint or Request Defined.–In this section, the term “covered complaint or request” means a complaint or request–
(1) regarding a public display or public expression of religion on property of the Department of Defense; and
(2) made by an individual or entity other than–
(A) a member of the Armed Forces;
(B) a civilian employee of the Department of Defense; or
(C) a contractor of the Department of Defense.
Huh? What? Yeah, that was the initial reaction of both Mikey Weinstein and myself, too, upon first seeing this somewhat confusedly-written Senate replacement of the Turner amendment, as I wrote in last Friday’s post. But then it all clicked and we saw what a beautiful thing the section was. So, I will now impart to you, in as understandable a way as I can, what this section actually does.
First and foremost, It changes the edict to the military from the Turner amendment’s ‘You can’t respond to MRFF’ to ‘You HAVE TO respond to MRFF!’
Had the Turner amendment succeeded, it would have made it illegal for a member of the military to communicate with MRFF or to “take any action or make any decision as a result of any claim, objection, or protest made by the Military Religious Freedom Foundation without the authority of the Secretary of Defense.”
Now, seriously, how many commanders were actually going to go to the Secretary of Defense to get his permission to remedy a situation in their command brought to them by MRFF? That’s right — pretty much ZERO. And with no requirement in Turner’s amendment for them to take any action at all, and in fact prohibiting them from even communicating any response to MRFF, MRFF’s complaints and demands would fall upon deaf — and legally hog-tied — ears, even among commanders who would otherwise have supported us and our clients and remedied the given situation.
In contrast, the Senate’s amendment (hereafter referred to as Section 1049) not only mandates that commanders receiving complaints or demands from MRFF take an action but that they do so in a very big and very timely way. They MUST forward MRFF’s complaint or demand to the secretary of their department (I.e. the Secretary of the Army, the Secretary of the Air Force, etc.), and must do so within 10 days. The secretary of the department MUST then make a determination within 30 days, and then must communicate their determination not only to the commander who forwarded the complaint of demand to them but DIRECTLY TO MRFF. That’s right, the days of MRFF CCing department secretaries on our demand letters with the slim to none chance that they might actually pay any attention at all ARE OVER! The department secretaries will now HAVE TO read and respond to MRFF’s complaints and demands!
No appeal process and the “built-in exhaustion feature”
This is one of MRFF’s favorite things about Section 1049. It has no appeal process, creating what one of MRFF’s attorneys has dubbed the “built-in exhaustion feature.” Allow me to explain …
One of the big things that MRFF does is keep our clients anonymous. The overwhelming majority of service members who come to us for help fear retaliation if it were to be found out that they were the one (or ones) making the complaint, since the individual being complained about is most often a superior who has power over them. MRFF’s standard operating procedure is that Mikey goes two levels above the offending officer or NCO with a demand that they remedy the situation, while keeping MRFF’s client or clients anonymous. In most cases, that’s it. The issue or situation gets taken care of. But in some cases, further action is needed, and in those cases our clients must exhaust administrative remedies, typically meaning filing an EO or IG complaint. But filing an EO or IG complaint means blowing their anonymity, which many of our clients are just too afraid to do. With this beautiful new section of the NDAA, and its requirement that any complaint made by MRFF be directly sent all the way up to the department secretary, this problem vanishes. If a complaint has already gone to the top person in the department, administrative remedies have automatically been exhausted, with MRFF’s client(s) still being anonymous! If the outcome is not satisfactory, this “built-in exhaustion feature” means we can go straight to federal court, since that will be the only recourse, in which case we can continue to keep our client or clients anonymous as John or Jane Doe. This is HUGE!
The narrow definition of a “covered complaint or request”
Section 1049 defines the term “covered complaint or request” to exclusively mean “a complaint or request … regarding a public display or public expression of religion on property of the Department of Defense.”
We all know that the Christian nationalists care far more about flaunting displays of their religion than practicing what the personage they claim to follow actually taught. Yes, the “public display” and “public expression” of their religion is tremendously important to the followers of the one who said, “And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.” (Matt. 6:5) Nothing gets their knickers in a twist more than MRFF getting a military installation to move a nativity scene to the chapel grounds or a Bible removed from a missing man table.
But, while MRFF of course has many complaints about the “public displays” and “public expressions” of religion that would fit the definition presumably intended in Section 1049, these are only a fraction of MRFF’s cases. Many of our cases are about superiors coercing or forcing their subordinates to attend or participate in some religious activity, which go beyond the scope of “public displays” and “public expressions” of religion and into the territory of abuses of power and clear violations of service members’ First Amendment right to not have to participate in religious worship or activities.
Two very recent MRFF victories clearly illustrate the above, as well as covering another aspect of what is considered a “covered complaint or request,” so I am going to use those two cases here as examples.
The first is a case I wrote about last month in a post titled “Native American service member told to dress up like an Indian for commander’s Thanksgiving event.” In that case, besides a Native American being told to dress up “like an Indian,” the commander, described by one of MRFF’s clients as “some sort of evangelical Protestant who believes his first priority is to coerce anyone he works with, especially those of us lower in rank, to accept and become baptized into his Christian faith,” was planning to hold a “Puritan” Thanksgiving at which “Puritan Pilgrim Prayers” would be read. This clearly religious event was to be mandatory. In this case, the client was in contact with a MRFF installation representative at their installation and was advised by Mikey, but decided to the commander’s boss himself to make the complaint and was successful in getting his commander’s mandatory “Puritan” Thanksgiving event canceled.
Here we get to the second aspect of what is considered a “covered complaint or request.” A “covered complaint or request,” according to Section 1049, is one …
(2) made by an individual or entity other than–
(A) a member of the Armed Forces;
(B) a civilian employee of the Department of Defense; or
(C) a contractor of the Department of Defense.
In the case of the “Puritan” Thanksgiving, the complaint was made directly by MRFF’s client, who is a member of the Armed Forces. Therefore, the complaint that got the event canceled was not a “covered complaint or request.”
Also note that the MRFF client in the above case went to a MRFF installation representative. The majority of MRFF’s installation representatives are also active duty military, meaning that any complaints they make on behalf of MRFF clients are also exempt from Section 1049’s “covered complaint or request” specifications.
It was also two MRFF installation representatives who made the complaint in the second of my two recent examples, which I reported on earlier this month titled “Commander projects Mikey Weinstein on screen at unit gathering, calls him ‘anti-Christian terrorist,’” writing:
In this story, the commander, who, according to two Military Religious Freedom Foundation (MRFF) installation representatives in the unit, “belongs to a well known Christian proselytizing organization whose express mission is to spread The Gospel of Jesus Christ in the military community,” was planning his annual “Christmas Extravaganza Party.” This “party,” as described by the MRFF reps, who had been at it the two previous years, is “more like a solemn Christmas religious service and less like a party,” with “chaplains who lead sectarian Christian prayers” and only the most religious of Christmas carols sung.
And, of course, attendance was not to be optional, with the commander saying he expected the unit’s “full participation” at “my Christmas Extravaganza Party.”
But this year, 47 members of the unit (36 of whom are Christians, as are the two MRFF reps) decided to put a stop to their commander’s torturous tradition, calling upon the MRFF reps to represent them. With threats of bringing in Mikey Weinstein and the full force of MRFF, the commander at length relented, reluctantly agreeing to the demands of the MRFF reps and their 47 clients to rename the event and make it inclusive of all.
So, in both of the above examples, in a trend that is becoming more and more typical for MRFF, it was the client themselves or the MRFF installation representatives, who, as members of the Armed Forces, are exempt from Section 1049, making the complain. These clients who chose to eschew anonymity and go to their higher-ups to make their complaints themselves all say the same thing: It was their confidence that MRFF would have their backs if they faced retaliation that gave them the courage to openly speak up.
To be a “covered complaint or request,” the “public display or public expression” of religion must occur on Department of Defense (DoD) property
This third criteria for a complaint to be subject to Section 1049 — that the issue complained about must occur on DoD property — eliminates an additional slew of MRFF’s cases.
This would exempt the many, many complaints and demands that MRFF has made regarding military members participating in or endorsing religious events in uniform, current or former military members appearing in uniform in political campaigns, and cases of military public affairs support of religious events.
To again use a real example, in the summer of 2022, MRFF received several requests for help from members of military bands that were scheduled to appear at blatantly religious and Christian nationalist events. These band members, for whom it would be mandatory to play at these events if their band was to play at them, vehemently objected to their bands’ appearances at these events, one of which was to “celebrate our freedom as Americans and our freedom in Christ” and the other billed as “Celebration of the Founding of America as a Christian Nation.” In both cases, MRFF swiftly got these band appearances canceled.
These military band appearances, and any other military participation in religious or Christian nationalist events at civilian churches or other venues that are frequently stopped by MRFF, do not take place on DoD property, and are therefore exempt from Section 1049.
Other miscellaneous violations that MRFF has successfully fought would also be exempt for not occurring on DoD property. Examples would include the use of official DoD emblems to promote religious events and the use of official DoD emblems on products promoting religion, as in the cases of the Bible verse dog tags and the Holman Military Bibles, all of which were in violation of the military’s trademark and licensing regulations. Any cases such as these naturally do not occur on DoD property and, as such, would be exempted under Section 1049’s definition of a “covered complaint or request.”
FOIA requests
Had the Turner amendment succeeded, with its complete prohibition of any communication by the military with MRFF, our ability to make FOIA requests would have ended, as it would have been made illegal for FOIA officers to respond to our FOIA requests.
Under Section 1049, however, our ability to submit FOIA requests and get responses to those requests is unhampered. The word “request” in the term “covered complaint or request” is certainly not meant to comprehend FOIA requests, as that would illegally take away our right as American citizens to obtain information from the government and restrict that right to only the exempt categories of Armed Forces members and DoD civilian employees and contractors.
Veterans
MRFF’s advocacy on behalf of our thousands of veteran clients is not affected because, with extremely few exceptions, our veteran client’s cases and complaints fall under the VA, not the DoD.
And, saving the best for last, we have Mikey’s ingenious plan for approaching commanders with complaints made by MRFF
What commander in their right mind is going to want to go to the secretary of their department and basically say, “Sir or Ma’am, I’ve got this problem that I’ve let happen under my command so I have to bother you with it?” Yeah, they are not going to want to do that. So, Mikey’s very simple plan is not to start off by making a “request or complaint,” which, under the process laid out in Section 1049, a commander would be required to send to their department secretary, but to simply give that commander a friendly call making them aware of the problem, telling them that it’s just an FYI, but reminding them that should the problem not be remedied, MRFF will have no choice but to make a formal complaint and then they will have to go to their department secretary with it. What would you do if you were that commander?
Once again, we at MRFF want to express our deepest gratitude to all of our supporters who wrote to and called their representatives and senators and otherwise supported us during what has been a very long and uncertain six months.
And, to Rep. Mike Turner, MRFF would, with the utmost sincerity, like to say:
NAH-NAH-NA-NAH-NAH!!!!!
