Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection

Abstract

Several legal actions brought in federal court by chaplains (and potential chaplains) against the Navy allege violations of the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, and of the Equal Protection Clause of the Fifth Amendment.

In ruling on several motions in two cases already combined for pretrial motions, Judge Ricardo Urbina observed that "the issue of what restrictions the Navy may place on the content of its chaplains' speech is a fascinating one, standing at the intersection of four major jurisprudential roads--free speech, free exercise, establishment, and equal protection." Successful navigation of such an intersection presents several challenges. Some argue Navy chaplains may have to accept some restriction on the content of their speech so that the free exercise rights of all service members can be protected fully. At the same time, one court has suggested the Navy must recognize that some restrictions on speech are impermissible, and that whatever permissible restrictions it seeks to apply must be applied evenly to all or to none.

Part II of this article examines the evolving role of chaplains in American military history, highlighting a shift in official responsibility from providing primarily direct ministry to a priority of protecting free exercise. Part III examines modern recognition of the "Protestant Problem" and the challenges it presents. Part IV seeks to offer some traffic signals or lane markers that fully protect a chaplain's rights to free speech in worship while also protecting other service members' rights to free exercise, avoid further establishment problems, and treat all chaplains equally.

Keywords: free exercise, establishment, free speech, equal protection, prayer, worship, navy, naval, military, armed forces, first amendment