First Amendment Religious Privileges

By Rabbi Harold Robinson, Rear Admiral CHC USN Ret.

Anyone familiar with the US military knows that our chaplains services are unique in all the world. Chaplains must provide worship to those of their own faith, facilitate the worship of all those of other faiths and care for the emotional well being of all. Moreover, chaplains have actual rank and are supervised by and report to more senior chaplains often of entirely different faiths then their own. How did that happen?

Our US Constitution ensures majority rule and minority rights. On religion the First Amendment enshrines governmental neutrality. The framers of our constitution were but two generations removed from the turmoil of England’s religious conflicts. For them, the First Amendment was a necessary bulwark protecting individuals against the tyranny of a majority, preventing the establishment of a state religion and ensuring free exercise for the individual. Nowhere in American life is the interplay of these principals more poignant or more difficult than in our highly regimented armed forces which exercises a unique level of “authoritarian control” over those who serve. The courts have confronted the tension of free exercise verses non-establishment in military service. In the military everything is GI, Government issue. We eat the food provided, live in assigned quarters, wear required clothes. Moreover when OCONUS members are not always free to attend the religious services of their choice unless provided by the military. So, when military ‘establishes chapels and provides clergy for the exercise of religion is it violating the establishment clause? The courts have ruled NO, the military provision of clergy through the military chaplain corps is constitutional since it is the necessary means to ensure free exercise.

The courts have ruled chaplaincy exists to ensure the right of free exercise to everyone. They have also ruled that as an agent of the government, there are limits on the chaplain’s personal free exercise. These limit the chaplain’s activities in the larger command context not the chaplain’s activities within his or her own faith tradition. My right to swing my arm, ends at the tip of your nose. And consequently, the chaplain’s personal free exercise ends where it impinges on others’ ability to observe their faiths or limit the chaplain’s care for those of no faith.

Thus the chaplaincy embodies the constitutional tension between free exercise and non-establishment. Every military chaplain is ordained (or licensed) clergy, a representative of that ordaining community’s beliefs and teachings. Simultaneously, every chaplain is a commissioned officer; even the most junior chaplain outranks well over 90 percent of military personnel, has access to the decision makers in the command and often represents the commander. It is a precarious balance. What about free exercise of the individual chaplain? Is the chaplain free to exercise his or her religion if that religion requires the conversion of others? How can the ever present chaplain with direct access to the commander and the “invoker” at mandated functions provide free exercise without becoming an establishment of religion? One response is the Navy’s guidance; the chaplain must provide the rites, and rituals of the chaplains’ faith to co-religionists; must facilitate the perceived needs for other faiths and care for all service members, even those of no faith. Note our military chaplains facilitate the free exercise of religion for all, including rites and rituals anathema to the chaplain’s own faith. Our rabbis may know Judaism is the only expression of the one true God; but in the US military they are not free to signal to Christians, Muslims, Buddhists and those of no faith that they are wrong. We expect non-Jewish Chaplains to reciprocate with the same equanimity.

Even a commanding officer’s personal free exercise of religion may be limited as he or she represents the government. How this applies to all members of the military varies with differing realities and circumstances. For example, a ship can accommodate a Muslim’s religious free exercise by ensuring a Muslim sailor has suitable pork-free rations. However it need not employ a cook (culinary specialist) who can never have contact with pork or pork products, nor need the entire ship be pork free.

George Washington’s, letter to the Jewish community of Newport, Rhode Island is a tribute to American religious pluralism. He wrote:

“It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent rights, for happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.”

Washington moved beyond tolerance to an acceptance, respect and inherent mutual, rights. American exceptionalism was born in the union of two principals—governmental neutrality on matters of personal faith, and in all other matters, majority rule limited by minority rights. This balancing act never requires an evangelical Christian to abandon belief in evangelism only its practice because in the authoritarian military context minority faiths experience evangelism as coercive. Chaplaincy is not for all clergy. A great civilian rabbi might never want to learn about other faiths, nor intone a prayer outside a strictly Jewish context. This may not limit him as a rabbi but it does indicate the rabbi is not called to military service. Not all who are willing are called.

So here we are, America is exertional blessed by chaplain services like no other nation and here we are the Jews, not just tolerated but part and parcel of America’s greatness.

Rear Admiral Harold Robinson was born and raised in Boston and Newton, Massachusetts. In 1970, he married Miriam Gariani of Holon, Israel. They have two children, Yair, the Senior Rabbi of Congregation Beth Emeth; and Dori, a director, playwright, and educator. Rear Admiral Robinson graduated Coe College in 1968 and attended the Master of Arts Program at Hebrew University in Jerusalem, Israel. In 1999, the College-Institute awarded him a Doctor of Divinity and in 2005 he received a Doctor of Humane Letters degree from Coe. Following ordination, Rear Admiral Robinson was Rabbi of numerous synagogues. Elected in 2006, he continues to serve as President of the Naval Chaplains Foundation. Rabbi Robinson is an avid sailor and a veteran runner, having completed over fifty marathons including twenty-nine consecutive Boston Marathons.

Volume 77. Number 3. 2023