GetReligion Commandante Mattingly and I have have been having a bit of a
back-and-forth about chaplains in the military post-DADT over on Cathy Grossman’s Facebook page, and I thought the issue worth venting a bit more publicly. (Here’s his official review of the coverage.)

TMatt’s
view seems to be that it’s a question of (as Kierkegaard might say)
Either/Or: “You either have no discrimination and equality, or you have
no chaplains.” He believes that the current regime, which restricts what
military chaplains can say, is intolerable, and seems to prefer
something on the order of “equal access” for all clergy.

My own
view is more along the lines of the closest thing we have to a
definitive legal standard: the Second Circuit Court of Appeal’s 1985
ruling in Katcoff v. Marsh. (The plaintiffs, who lost, chose not to appeal to the Supreme Court.) Katcoff makes
clear that the reason hiring chaplains doesn’t violate the
Establishment Clause is that the military must provide for the religious
needs of its personnel. It’s not, in other words, the chaplains’ free
exercise rights that count, but those of the people they have been hired
to serve. And the chaplains are under an obligation to provide those
services to all military personnel.

TMatt believes that this adds
up to “a state-mandated and funded theology.” In my view, what it adds
up to is some real restrictions on what military chaplains can do and
say. For example, it is and should be against the rules for a
fundamentalist Protestant minister to tell a Jewish soldier dying on the
battlefield that this is his last chance to accept Jesus as his Lord
and Savior and thereby avoid being damned for all eternity. And it
should be against the rules for a gay Lutheran serviceman who comes to a
Catholic priest for counseling to be told that he must spend the rest
of his days celibate or be guilty of a mortal sin. These are things that
clergy in civilian life can do, exercising their free exercise rights.

At
the same time, it must be recognized that making religious services
available to military personnel means giving them access to the bona
fide teachings of their own traditions. Let’s suppose, for example, that
a conservative evangelical comes to a conservative evangelical chaplain
looking for guidance on how to square his own convictions about the
immorality of homosexual activity with the military’s post-DADT policies
(to say nothing of civil society, where it is unconstitutional to pass
laws against homosexual activity). The chaplain should be able to talk
about how their common religious tradition teaches that such activity is
immoral while the larger society (including the army community) sees it
as licit.

Bottom line: Military chaplaincy cannot be ruled by
Either/Or. Like our First Amendment jurisprudence generally, there needs
to be a balancing of free exercise rights with bans on religious
establishments. Just as military personnel need to be able to have
access to the religious services of their choice, so military chaplains
need to see themselves as government employees, rendering unto Caesar
according to Caesar’s rules.