Religious Speech in the Military: Freedoms and Limitations

Abstract

Introduction The freedom to speak and to freely exercise one's religion are two central guarantees of the First Amendment of the US Constitution. Military members retain these foundational rights, (1) which the courts broadly protect. But there are characteristics of the military--including its rank structure and the need for good order and discipline essential to accomplishing the military's crucial mission--that justify constraints on the religious speech of all military members beyond what would be constitutionally tolerable in the civilian context. Moreover, additional constraints are imposed on military leaders' religious speech by virtue of their rank and position. This article addresses what military leaders (2) need to know about rights and limitations on religious speech, (3) both their subordinates' and their own. After examining the freedom of religious speech and three constitutional limitations, the article highlights three selected religious speech issues: proselytizing, official prayer, and religious displays. It concludes by providing leaders ten guiding principles on religious (4) It is crucial that military leaders understand and respect the scope of religious speech rights. Honoring the constitutional rights of subordinates is inherently the right thing to do in a society and military governed by the rule of law, particularly when all military leaders take an oath to support the Constitution. Infringing subordinates' rights--for example, by the leader's own improper religious speech or by failing to allow subordinates to exercise their religious rights--may adversely affect the unit's ability to execute its mission. Ours is a military characterized by many kinds of diversity, including religious beliefs. Effective leaders leverage that diversity by bringing together the backgrounds, skills, perspectives, and talents of the members in a way that maximizes the unit's ability to perform. Members whose religious rights and beliefs are not honored may feel alienated and marginalized. If a superior's religious speech has created a climate of perceived favoritism toward subordinates who share the superior's beliefs, subordinates with different beliefs might reasonably question whether they will get a fair shake when it comes time for performance reports and other opportunities. All of this can affect their morale and contribution to the team effort. Failure to understand the rights and limits concerning religious speech can adversely affect the mission in other important ways. It can result in internal investigations into allegations of violations or even lawsuits against the military, both of which entail substantial time, effort, and distraction from the mission. These investigations and lawsuits also may result in adverse media attention, which can undermine public confidence and support of the military. At its worst, failure to understand the parameters of permissible religious speech can jeopardize the United States' strategic interests abroad, for example, by providing fodder for our enemies' claims that we are engaged in a holy war against Islam. These lapses, occasioned by religious speech that exceeds permissible limits, can also harm the stature of leaders. Unfortunately, examples of these leadership lapses abound? This article aspires to help reduce the number of future examples. Religious Speech and the Free Speech Clause The Free Speech Clause of the First Amendment prohibits the government, (6) including the military, from abridging the freedom of speech. Speech is construed broadly and includes both oral and written speech, as well as expressive conduct and displays when intended to convey a message that is likely to be understood. (7) Religious speech is certainly included. As a bedrock constitutional right, freedom of speech has enjoyed great protection from the courts, particularly when the government suppresses speech because it does not like its content. …