United States Military Chaplaincy Program: Another Seam in the Fabric of Our Society

Notre Dame Law Review, Dec 1983

By William T. Cavanaugh, Published on 12/01/83

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United States Military Chaplaincy Program: Another Seam in the Fabric of Our Society

Recommended Citation William T. Cavanaugh, United States Military Chaplaincy Program: Another Seam in the Fabric of Our Society United States Militar y Chaplainc y Program: Another Seam in the Fabric of Our Society William T. Cavanaugh - The United States Military Chaplaincy Program: Another Seam in the Fabric of our Society? The military chaplaincy' may present the ultimate confrontation 2 between the establishment clause and the free exercise clause of the first amendment.3 By employing military chaplains, the government directly subsidizes religion, apparently in direct contravention of the establishment clause. Yet, transporting military personnel to isolated locations without providing them access to religious services might effectively deprive soldiers of the right to practice their religion as guaranteed by the free exercise clause. Thus, the chaplaincy promotes an "accomodation" between the two clauses, with sufficient religion being supplied to satisfy the free exercise clause, but not so much as to run afoul of the establishment clause's restriction against excessive government aid to religion. 4 The precise contours of such an "accomodation," however, are pure speculation. While the past thirty-five years have seen many traditional areas of church-state cooperation subjected to judicial scrutiny,5 the constitutionality of the United States military chaplaincy program6 has yet to be considered under traditional 7 establishment clause analysis. 8 In recent years, however, the military chaplaincy seems more vulnerable to constitutional attack than ever before. 9 challenging payment of salaries and certain expenses for the chaplains of the Senate and House of Representatives dismissed because plaintiffs lacked standing and the claim presented a nonjusticiable political question). However, in 1982, relying on Flast v. Cohen, 392 U.S. 83 (1968), the United States Court of Appeals for the Eighth Circuit held, in Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982), that a taxpayer (who was also a member of the legislature) clearly had standing to challenge the Nebraska legislature's practice of compensating a chaplain to open each legislative session with a prayer and to periodically collect and publish the prayers in book-form. The court ruled that the plaintiff had demonstrated a sufficient "nexus" between his taxpayer status and the establishment clause claim. Id at 231. The Court of Appeals went on to find that the Nebraska legislature's practice, taken as a whole, was an unconstitutional violation of the establishment clause of the first amendment. The Supreme Court disagreed, and reversed. Marsh v. Chambers, 103 S. Ct. 3330 (1983). The Court believed that compensation of legislative chaplains has become "part of the fabric of our society," and is merely a "tolerable acknowledgement" of the beliefs widely held among the people of the United States. Id. at 3336. See notes 23-26 and accompanying text infra. Accord Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 392 N.E.2d 1195 (1979). Despite Marsh, the standing requirement poses a potential barrier for plaintiffs attempting to challenge the military chaplaincy program. See note 8 inZra. The constitutional status of prison chaplains is not as clear. In Cruz V.Beto, 405 U.S. 319 (1972), the Supreme Court may have implicitly approved government funding of prison chaplains and chapels by ignoring a challenge of the state's subsidization of religion. Morever, the Fifth Circuit has rejected a contention that employment of chaplains in federal prisons violates the establishment clause. This contention, said the court, "overlooks the balancing between the Free Exercise and Establishment clauses .... " Theriault v. Silber, 547 F.2d 1279, 1280 (5th Cir.),cert. denied, 434 U.S. 871,reh'g denied, 434 U.S. 943 (1977). Presumably, these programs are reasonably necessary to permit those in custody to practice their religion. 7 As used in this Note, "traditional establishment clause analysis" refers to application of the triparte test adopted by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 61213 (1971). 8 Very few individuals have sued to enjoin governmental expenditures for military and other chaplaincies. Until recently, such actions have been routinely dismissed for lack of taxpayer standing. See, e.g., Elliot v. White, 23 F.2d 997 (D.C. Cir. 1928); Hughes v. Priest, Civ. No. 4681-55 (D.D.C.) (argument) (case dismissed Jan. 12, 1956), Appeal No. 13,293 (D.C. Cir.) (dismissed May 16, 1956). Thus, attempts to complain in court against government expenditures for chaplains have historically encountered rebuff. See Herrmann, Some Considerations on the Constitutionality of the Military Chaplaincy, 14 AM. U.L. REv. 24, 31-32 (1964). However, lack of standing may no longer bar taxpayer challenges of the military chaplaincy. A district court recently denied a motion to dismiss a complaint filed by two federal taxpayers seeking both declaratory and inju (...truncated)


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William T. Cavanaugh. United States Military Chaplaincy Program: Another Seam in the Fabric of Our Society, Notre Dame Law Review, 1983, Volume 59, Issue 1,