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Federal judge: Military violated chaplains’ rights

WASHINGTON (BP)–The U.S. Department of Defense violated the First Amendment rights of military chaplains when it barred them last year from preaching in favor of legislation banning partial-birth abortions and from encouraging congregational members to urge Congress to support the bill, a federal judge has ruled.

In a recent opinion, District of Columbia Judge Stanley Sporkin wrote the government’s directive “clearly interferes with military chaplains’ free exercise and free speech rights, as well as those of their congregants.”

“The chaplains in this case seek to preach only what they would tell their non-military congregants. There is no need for heavy-handed censorship, and any attempt to impinge on the plaintiffs’ constitutional and legal rights is not acceptable.”

Sporkin granted a preliminary injunction preventing the Pentagon from blocking chaplains from urging parishioners to contact members of Congress seeking passage of the Partial-birth Abortion Ban Act. As of mid-April, the House of Representatives had approved the bill, but the Senate had yet to vote on it.

The Department of Justice has not announced if it will appeal the decision.

“The Pentagon’s gag order was the first time in U.S. history that the government dared to dictate the content of chaplains’ sermons. The court has made sure it will be the last,” said Becket Fund President Kevin Hasson in a written statement. The Becket Fund represented the chaplains in their suit.

Will Dodson, the Southern Baptist Christian Life Commission’s director of government relations, said, “Judge Sporkin’s decision is very encouraging. It is refreshing to see a judge who recognizes that the free exercise of religion is an important and cherished principle in our society and that the government should not be able to interfere with this precious liberty without an articulable and compelling interest in doing so. Increasingly, the government has adopted the attitude that any reason is good enough. This attitude has got to end.

“It is the government which has a duty to accommodate itself to the free exercise of religion, not vice versa. It is not people of faith who must be expected to accommodate themselves to the government, but just the opposite.”

The controversy began in 1996 when the Roman Catholic Church initiated a campaign seeking a congressional override of President Clinton’s April veto of the Partial-birth Abortion Ban Act. The procedure involves the delivery of an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the baby’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull enables easier removal of the dead child. The method normally is used in the fifth or sixth month of pregnancy.

The Catholic church encouraged its priests, including military chaplains, to preach against the procedure and to urge their parishioners to sign postcards urging members of Congress to vote to override the veto. The Army, Navy and Air Force informed their chaplains Department of Defense directives and/or anti-lobbying laws prohibited them from participating in the campaign and from urging others to take part in it.

A group of Catholic, Jewish, Muslim and Protestant chaplains, military personnel and their families brought suit, citing the Department of Defense’s action as a violation not only of the free exercise of religion and free speech clauses of the First Amendment but of the Religious Freedom Restoration Act as well. RFRA requires the government to show it has a compelling interest before restricting religious exercise.

In its oral arguments before the court, the Pentagon acknowledged the anti-lobbying law it previously had cited did not apply. It relied on a DOD directive for justification of its actions.

In ruling in the chaplains’ favor, Sporkin rejected arguments the chaplains’ participation in the campaign would be direct solicitation of voters and might be viewed as an order by lower-ranking members of the military.

The DOD “inappropriately equate(s) a military chaplains’ official conduct with his religious activities …,” Sporkin wrote in his April 7 opinion. “While military chaplains may be employed by the military to perform religious duties, it does not follow that every word they utter bears the imprimatur of official military authority; if anything, the content of their services and counseling bears the imprimatur of the religious ministries to which they belong.

“In sum, when chaplains are conducting worship, when they are surrounded by all the accouterments of religion, they are acting in their religious capacity, not as representatives of” the Pentagon, Sporkin wrote.

The DOD’s action is a “muzzling of religious guidance” as a direct result of its “viewpoint discrimination,” he wrote.