U.S. Army Chaplaincy
Constitutional Defense

[History of the Army Chaplaincy (Separate Page)]

1.  Proposed Civilianization of the Chaplaincy

2.  Futurism

3.  The Constitutional Challenge

4.  The Argumentation

5.  Rulings 1980-1984

6.  Plaintiff’s Appeal, 1984

7.  Conclusion with Prejudice

8.  Chaplaincy Goals

Introduction

The following is from:  John W. Brinsfield, Jr., Encouraging Faith, Supporting Soldiers:  The United States Army Chaplaincy, 1975-1995 (Office of the Chief of Chaplains, Department of the Army, Department of the Army, Washington, D.C.:  1997).  Click Here for more on the history of the United States Army Chaplaincy.

1.  Proposed Civilianization of the Chaplaincy ~
    [from chap. III, p. 83ff]   

In 1976, there was a limited movement aimed at changing the Chaplaincy from military chaplains to civilian chaplains.  The movement was initiated by the United Church of Christ in response to its unhappiness with the war in Vietnam.  Other denominations, such as the United Methodist Church, also raised the issue at a later date.  The Chief of Chaplains did not perceive this as a major threat since it would have been economically impossible for churches to bear the expense of a civilian chaplaincy, The Wisconsin Evangelical Lutheran Synod had tried using civilian chaplains in Vietnam and in Europe with very limited success.  Transportation, logistics, access to military personnel and personal support needs made it almost impossible to provide effective ministry, particularly in a combat environment.  This issue arose again in 1979 in a court case questioning the Constitutionality of the Army Chaplaincy.

2.  Futurism ~ [from chap. III, p. 83ff]  

Planning ministry for the future became a high interest item for the chaplaincy.  The world was changing at a rapid pace and it was necessary to think about how ministry would look ten to twenty-five years later.  Several workshops were held in the late 1970s to help chaplain leadership plan for changes.

From May 9 to 11, 1977, a “Future Ministries Workshop” was held at Newark, New Jersey.  The concept for the conference originated with the Chief of Chaplains, but the sessions were conducted by the Chaplain Board under the supervision of Chaplain Wendell Wright.  The goal of the workshop was “identifying and planning for future ministries in the military chaplaincy.”  Five modules were presented by guest resource leaders:

Ethnic Pluralism and Future Forms of Ministry - 
Dr. Grant Shockley

Parish Pluralism and Future Forms of Ministry - 
Bishop Paul Moore

Social Issues and Future Forms of Ministry - 
Sister Rosemary Duncan

The Religioning Process and Future Forms of Ministry - 
Dr. Earl D. C. Brewer

Spiritual Discipline and Future Forms of Ministry - 
Dr. John E. Biersdorf

The data gained from the workshops often became a part of The Chief of Chaplains Goals and Objectives.

3.  A Constitutional Challenge ~
      [all of the following is from chap. IV, p. 120ff]

The relative calm of the Army Chaplaincy was abruptly disturbed on November 23, 1979, when two Harvard University law students filed a lawsuit challenging the constitutionality of the Chaplaincy as an establishment of religion.^[1]  The action producing this disruption caused the Chaplain Corps to look deeply into its soul.  A questioning of the constitutionality of the Army's religious program affected the Chaplaincy for several years.  In many fundamental ways the Army's spiritual care system would never again be the same.

The two Harvard Law School seniors, Joel Katcoff and Allen M. Wieder, filed suit in theDistrict Court for the Eastern District, in Brooklyn, New York.  Their suit against the Army named Clifford L. Alexander, then Secretary of the Army et. al., as the defendants.  The suit alleged that the Chaplaincy violated the First Amendment to the Constitution of the United States.  The shock waves of this lawsuit quickly reached the most remote military outposts and caused chaplains at every level of the Army to scrutinize all religious programs and activities, as well as their own motivation for ministry in the military.

This was the first time the constitutionality of the military's religious program was questioned in a formal legal procedure.  In the middle of the 19th century some Southern states had petitioned Congress to eliminate chaplains.  These “Memorials,” were not acted upon favorably by the Congress;  consequently they were never introduced as cases to be heard in court.  Other challenges dealing with state support for religion in general arose periodically and were decided in a series of court cases ranging from local state to Supreme Court levels.^[2]

Initially the motivation of the students for filing their suit was unclear.  Some legal officials felt the suit was initiated to impress a law professor or to get classroom credit.  In the November 30, 1979 issue of The Hanvard Crimson both Katcoff and Wieder commented on the case but aside from observing that “The state should not take money from its citizens to support religion,” they had no comment on why they filed the suit.^[3]  Joel Katcoff wrote later:

As best I can recall, the issue first came up after Allen Wieder and I took Constitutional Law as 2L’s.  The existence of a governmentally financed Chaplaincy appeared to us to be inconsistent with the principles we had just learned in Constitutional Law.  We raised the topic with a number of law professors, but did not get a satisfactory justification for taxpayer financing of religious practice.  Coincidentally, Allen and I were doing some research and brief-writing (on non­constitutional issues) for a public interest organization whose director was a visiting professor at the Law School.  Perhaps this is what gave us enough confidence to try to be litigators despite our dearth of experience.  In addition, the topic itself was sufficiently interesting to drive us forward during the third year of law school and beyond, notwithstanding the considerable amount of work involved.^[4]

There may have been one other factor more clearly tied to the Harvard Law School.  In order to graduate from Harvard with a Doctor of Jurisprudence (J. D.) Degree rather than a Bachelor of Laws (LL. B.) degree, third year law students (3L’s) had to present a research paper or brief to the faculty demonstrating their ability to contribute to the academic study of the law.  According to The Harvard Crimson (November 30, 1979) and the Harvard Law Record (December 7, 1979), Katcoff and Wieder had begun research on the Army Constitutionality issue in the Spring of 1979.^[5]  They reviewed cases and opinions by Justices William Brennan and William O.  Douglas who was “on the record as saying the Chaplaincy is unconstitutional.”^[6]  They corresponded with Chaplain Cliff Weathers, Director of Plans, Programs and Policies, Office of the Army Chief of Chaplains, early in the Summer requesting the number of chaplains then on duty and other seemingly innocuous information.  By November 23 they had prepared their brief and filed the case.  Two weeks later, in December, they secured approval by the Harvard faculty granting “third-year paper credit for the brief.”^[7]

While there may have been many motives for challenging the constitutionality of the Army Chaplaincy, including intellectual curiosity, there was at least one clear benefit for Joel Katcoff and Allen Wieder.  Both graduated from Harvard with J. D. degrees which were awarded in part for approved work on the Army case.  One might wonder if the status of the students as “aggrieved taxpayers” was not overstated.  One might also wonder if the students’ legal ethics were not a bit bizarre.  They opposed in theory the tax support for religious activities of benefit to a million soldiers, but they accepted indirect Federal tax support for an expensive legal case which dragged on for 6 years which was of principal benefit to only two ambitious students.

4.  The Argumentation

The plaintiffs (Katcoff and Wieder) in the 1979 case stipulated that the Army Chaplaincy violated the First Amendment to the Constitution:  “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof....”  The official court document states:

This is a civil action for declaratory and injunctive relief brought by federal taxpayers challenging the constitutionality of the United States Army's religious support program.  Plaintiffs seek (i) a judgment declaring that the Chaplaincy program constitutes an establishment of religion in violation of the First Amendment of the United States Constitution, and (ii) an injunction restraining the defendants from approving or otherwise providing funds or support in any respect to religious activities in the Army.^[8]

Allegations of unconstitutionality included:  expenditure of government funds for chaplains’ salaries, for religious facilities, programs and materials, as well as the actual conducting of religious programs, religious education and pastoral care.  The plaintiffs stated that, “The United States government by design and appearance lends its prestige, influence and power to organized religion by granting commissions, rank and uniform to Army Chaplains.”^[9]  They further alleged that denominational involvement in the selection of chaplains “constitutes excessive entanglement between church and state.”  Katcoff and Wieder stated that rather than enhancing the free exercise of religion, “...the Army Chaplaincy program serves to inhibit that free exercise.”^[10]  This argument rested on the fact that chaplain representation did not include every possible denomination or faith group -- regardless of size or desire.  The plaintiffs also cited the fact that the commander, not the chaplain, is ultimately responsible for the Army's religious program (Army Regulation 165-20, “Duties of Chaplains and Commanders’ Responsibilities”).  The “free exercise” argument did not play a major role for the plaintiffs in future proceedings In ensuing months, the plaintiffs would argue the Establishment Clause while the defendants argued the Free Exercise Clause.

In place of the current Chaplaincy system, the plaintiffs advocated an “alternative Chaplaincy program which is privately funded and controlled.”^[11]  The students presented no studies or other evidence that supported their contention that civilian clergy could feasiblely carry on military ministry.  The one illustration offered (Wisconsin Evangelical Lutheran Synod) proved to be highly unsuccessful in providing ministry to soldiers of that denomination.  The denomination's own leaders attested to the insurmountable problems encountered that led to inconsistency and often times ineffectiveness in providing ministry.  Studies done by the Chaplaincy and other denominational groups all pointed to the impossibility of providing effective ministry through a civilian clergy program.  The government effectively argued that the military environment and demands on clergy is exceedingly different from the civilian environment and pastoral responsibilities.  It also reminded the court that civilian clergy serving in the military would not enjoy the protections granted to military chaplains under the provisions of the Geneva Conventions regarding treatment of prisoners of war and detainees.

The lawsuit included one hundred and twenty-three interrogatories and requests for production of documents.  The interrogatories were extensive and indicated that the plaintiffs had invested considerable effort in trying to understand the Chaplaincy system.  Actually, the plaintiffs received most of the information they used in filing the suit from the Office of The Chief of Chaplains.  Over a period of several months they made “Freedom of Information Act” (FOIA) requests.  The materials requested were not unusual and it was assumed they were intended for a research project at Harvard Law School.  The Chaplaincy thus, in conforming with the law, provided the very documents that formed the basis of the suit against it.

In many instances, the interrogatories and requests for reproduction were so burdensome that the Army could not reasonably provide the documents demanded.  To provide specific answers to each interrogatory would require the Army to search worldwide for information that in many cases was decades old.  Interrogatory #77, for instance, requested “a detailed description of the Army's operation of devotional programs and dissemination of religious news and information through radio, TV and news media ... Produce and permit plaintiffs to inspect and copy the transcripts of all such devotional programs.”^[12]  The government delayed its response for almost two years.  Finally, materials were provided, but for only about one third of the requests.  Other answers followed at later dates.

Responsibility for defending the government's interests resided in the Assistant United States Attorney, Mr. Richard P. Caro.  The office of the Judge Advocate General of the Army (OTJAG) had primary responsibility to represent the Department of Defense.  Colonel Arnold Melnick, Lt. Col. Scott Magers, and Major Roy Dodson initially managed the case.  Major Michael J. Nardotti, Jr., (later Major General and The Judge Advocate General of the Army) succeeded Major Dodson in 1981.  The Chief of Chaplains, Major General Kermit D. Johnson, assigned Chaplain John C. Scott to be his agency's representative for all matters related to the court case.  Chaplain Scott coordinated directly with the Office of the Judge Advocate General (OTJAG) to determine materials and support needed to defend the Chaplaincy.  A task force established in the Office of the Chief of Chaplains (OCCH) included Chaplain Wayne E.  Kuehne, Chaplain Sanford Dresin and Chaplain Ivan Ives (succeeded later by Chaplain James Edgren).  Task force members were responsible to provide information related to their directorate area of interest in response to allegations, interrogatories and requests made by the OTJAG.  Army Reserve Chaplains, temporarily called to active duty, conducted historical, sociological and legal studies, and literature searches.  Chaplain scholars, notably Chaplain Cecil Currey, a reserve officer and professor of history in Florida, devoted weeks to culling documents from the Library of Congress, historical archives and university libraries.  These studies provided an important perspective on the Chaplaincy.  Chaplain Scott analyzed the materials provided by the task force, prepared them for approval by the Chief of Chaplains, and forwarded them to OTJAG to become a part of the government's first response to the plaintiffs in January 1980.  The seventy-six page document submitted by the Army outlined the history of the Chaplaincy from its origins.  It also provided a succinct, but extensive and articulate summation of the legal basis and current statutory authority of the Army Chaplaincy.^[13]

Early in the proceedings the government also raised the questions of “standing,” and “political interest.”  They argued that the plaintiffs “have not shown requisite personal stake in the outcome of the controversy herein to grant standing, but merely rely on their status as past taxpayers.”^[14]  The crux of the issue was whether or not the plaintiffs were taxpayers when they filed suit.  The plaintiffs responded that they were and would continue to be taxpayers.  That answer did not satisfy the defendants and the issue remained a point of contention until the case ended in 1986.  The government sought to invoke the two prong test of Flast v. Cohen:  (a) a logical link between taxpayer status and the “legislative enactment attacked,” and (b) “a nexus between that status and the precise nature of the constitutional infringement alleged.”^[15]  The political argument cited numerous legal opinions that chaplains have “historically been viewed to be authorized by the First Amendment.”^[16]

The legal opinions offered by the government identified modern examples of support for the Chaplaincy and the interdependency and complementary nature of the two clauses of the First Amendment (establishment, and free exercise).^[17]  There had been times when one part of the First Amendment had to give way to the other in spite of appearances of conflict.  For instance, it has been considered essential to provide for the free exercise of religion for soldiers-no one questioned that.  In order to accomplish that, however, there may have been the appearance of a violation of the Establishment Clause.  The government contended that, like any other citizens, soldiers are entitled to free exercise of religion.  The means by which the Congress has decided to provide for free exercise of religion is the military Chaplaincy.  The government also argued that, “The Institution and Maintenance of the Chaplains Corps is Important to the National Defense, and is a Valid and Necessary Exercise of Congressional War Power.”^[18]  Government attorneys argued that the Congress has the duty to raise and support armies.  In many cases courts have shown deference to the military because of its unique needs.  Some Supreme Court Justices at least obliquely implied that the Chaplaincy would pass constitutional muster if it were to meet the free exercise needs of the lonely soldier at an isolated outpost.  The defendants also argued that the Chaplaincy met the three prong test of Lemon v. Kurtzman.^[19]   Finally, the defendants argued that the plaintiffs’ claims were not “reviewable by this court because the substantive questions they raise constitute political questions under the standards set forth in Baker v. Carr.”^[20]  It was argued later that Congress, as an independent arm of government, is not subject to the courts in these matters.  The Congress, since 1775, demonstrated that in significant and minuscule matters it continually approved and monitored the Chaplaincy.  It fixed manpower ceilings, authorized pay, appropriated funds for programs and facilities, and often involved itself in matters regarding the welfare of a single chaplain or local religious program.

5.  Rulings 1980-1984

During the remainder of 1980, numerous documents were submitted to the Court by both the plaintiffs and the defendants.  Much of the maneuvering revolved around the questions of “Standing,” “Production of Documents,” and requests for summary judgment by the plaintiffs and the defendants.  On March 7, 1980, Judge Jacob Mishler conducted the first hearing of the case.  Joel Katcoff argued that there should be no military chaplains at all-under any circumstances.  He further argued that civilian churches could and should provide this service.  In August 1980, Judge Mishler published his opinion.  He supported the plaintiffs' standing as taxpayers, and stated that the court did have jurisdiction to review the case.  He also noted that sometimes the Establishment Clause must accommodate the Free Exercise Clause, particularly in the unique military environment.  It appeared from the Judge's comments that the constitutionality of the Chaplaincy extended only so far as it supported the soldier’s free exercise of religion.  Whatever went beyond meeting free exercise rights was subject to review and possible prohibition.  Some interpreted that to mean that the court under this rubric could evaluate each and every Chaplaincy program to see if it passed constitutional muster.^[21]  If it did not meet the requirements, it would be disallowed or forbidden.

Judge Mishler's ruling caused serious concern throughout the Chaplaincy.  There were questions about whether the government could win the case.  Worse, some felt that the court would now become involved in approving programs and ministry and micro-managing the Chaplaincy from the dais.  This did not happen, but the potential remained a clear and present danger as far as the management of the Chaplain Corps was concerned.

In what to some appeared as an overreaction to the Judge's decision, the Chaplaincy entered a period of intensive self-examination.  Everything came under scrutiny.  The Chief of Chaplains, and particularly the Deputy Chief of Chaplains, did not want to do anything that could in any way strengthen the plaintiffs' case.

As the Chaplaincy began to prepare for future legal maneuvering, Chaplain Scott recommended to Chaplain Johnson that a strategy conference be convened to include experts from all levels of the Chaplaincy and representatives of OTJAG.  The Chief of Chaplains approved the idea and the meeting convened at Manressa Retreat House in Annapolis, Maryland, from 19-23 January 1981.^[22]  Participants, besides active duty chaplains, included Reserve Chaplains David Heino, Israel Drazin and Cecil Currey, a representative from the Air Force Chief of Chaplain's Office, and Major Dodson from OTJAG.  Chaplain Kermit Johnson attended the meeting on 22 January.  The agenda included a top to bottom review of the Chaplaincy to determine what was constitutional and what might not contribute directly to meeting the free exercise needs of soldiers.  The Chief of Chaplains wrote:

The court challenge to the Constitutionality of the Chaplaincy is the single most critical issue facing us at this time.  The future of the Chaplaincy rests on the outcome of the case, and the work done here at Manressa, hopefully, will provide material that will substantially assist us in influencing decisions made by the court.  However, your conference goes beyond the court challenge and will allow us to take a serious and in-depth look at what we do as a Chaplaincy and why.  It should provide this office with data for future directions and decisions.^[23]

Chaplain Johnson also challenged the group to develop “a zero-based Chaplaincy.”  His reference came from the Carter presidency in relation to zero-based budgeting.  This emphasis was part of the total Army Staffs deliberations in funding what was necessary “to accomplish the mission.”  All elements of the Army Staff had been thinking along these lines.^[24]  For the Chaplain Corps, Chaplain Johnson intended the term to refer to the basic ministerial role of chaplains:

The freeing aspect of this [concept] meant that we did not have to be bound by the past.  Because of my emphasis on basic ministry, some of those oriented toward psychological and sociological tools felt that I was going to take a cudgel to these programs.  I never did, and I never intended to;  I only wanted to restore and emphasize first things:  individual contact with soldiers, preaching, worship, care of souls, spirituality, ethics.^[25]

Some chaplains did not understand what the Chief had in mind by the term “zero-based,” but the majority did realize that for Chaplain Johnson “the soldier was our first priority” for a ministry that was both pastorally supportive and morally challenging.

Conference participants received Issue Papers written by members of the task force.  These papers proposed answers to allegations and interrogatories and provided a basis for discussions on varied topics.  In spite of some bias, expressions of personal interest, and differences regarding the nature of the Chaplaincy and its future directions, considerable progress was made in developing positions on the chaplain's role and functions, civilianization of the Chaplaincy, and the basic elements required for a viable Chaplaincy in the late twentieth century.  Many of these ideas were later incorporated into court documents.  Although Chaplain Johnson's objectives for the meeting were not totally met, enough was accomplished that he was satisfied with the results.

Chaplain Israel Drazin, an Army reservist and a rabbi, favorably impressed the gathering with his legal and theological expertise.  Upon returning to the Pentagon, Chaplain Scott recommended to Chaplain Johnson that Drazin be called to active duty for at least one year to help prepare for future developments in the court case.  Chaplain Drazin already had done a great deal of work on the case and was willing to give it his full attention.  Chaplain Drazin entered active duty and assumed total responsibility as the Chief s action officer upon Scott’s reassignment in May 1982.  Thereafter, Chaplain Drazin was responsible for representing the Office of the Chief of Chaplains to the OTJAG.  He remained in that status until the conclusion of the case whereupon he was selected for a promotion to Brigadier General and appointed one of two Assistant Chiefs of Chaplains from the Reserve.  Chaplain Drazin made outstanding contributions to the defense of the Chaplaincy in the court case and in other issues related to the First Amendment that arose during his active duty period, and in matters of religious practice and accommodation of religion in the Army.

During the Spring and Summer of 1981, documents from both plaintiffs and defendants flowed in and out of the courthouse.  The defendants provided answers to some of the interrogatories and continued their arguments against standing for the plaintiffs.  The plaintiffs sought to compel the defendants to produce all the documents they requested.  In the meantime significant changes had been made to the principals in the case.  Secretary John O. Marsh, Jr., replaced Secretary of the Army Alexander;  Judge Joseph McLaughlin replaced Judge Mishler;  Ms. Marilyn Go replaced Mr. Caro as the Assistant US Attorney, and Major Nardotti replaced Major Dodson.

Major Michael Nardotti worked closely with Chaplain Drazin and other chaplains in 1982.  The teamwork between the JAG officers and the chaplains was outstanding.  Chaplains Kermit Johnson, Don Shea, John Scott, Wayne Kuehne, and Israel Drazin had produced or collected an enormous file of information.  Major Nardotti xeroxed every reference to chaplains in the statutory and legislative records of Congress--more than 600 pages of historic data.  At times there were slight disagreements over the timing of arguments.  “By 1982 every major argument was already on the table,” Major General Nardotti recalled in 1995.^[26]  “Some people wanted to ignore the standing argument and move directly to the free exercise argument, but we had to challenge the standing of the plaintiffs to prevent hundreds of other potential suits by students or others across the country.”^[27]  Eventually the chaplains deferred to the JAG officers who actually argued the case, yet both sides agreed that teamwork paid off when the work load was so large.

Debate on the taxpayer issue also continued into 1982.  The government requested a dismissal of the case and the plaintiffs responded with a motion for summary judgment.  In response to Chaplain Kermit Johnson's personal request, five general officers of the Army provided written statements in support of the Chaplaincy.  General Edward C. Meyer, Chief of Staff of the Army, presented his views on the duty of the Army to meet the religious needs of soldiers.  He stated further, “Chaplains have credibility with soldiers.  Soldiers know that Chaplains share their common bond of personal experience.  Perhaps most important for the soldier is that he knows the chaplain will always be there.”  General John W. Vessey, Vice Chief of Staff, spoke about the impossibility of civilians ministering on the dangerous battlefield.  General Charles W.  Bagnal, Commanding General of the 101 st Airborne Division wrote, “It is obvious to me that if we do not have chaplains in the Army ...  we are prohibiting to a degree the free exercise of religion ...  we must never lose sight of this as we plan and execute our programs.”  General Frederick J.  Kroesen, Commander in Chief, U. S. Army Europe, noted that “only the Army Chaplaincy, because it is as mobile as the troops, can meet our religious support needs.”  Chaplain (Major General) Gerhardt W. Hyatt, USA Retired, stated that no civilian clergy had ever met the Army's comprehensive religious needs with any degree of success.^[28]  Chaplain Kermit Johnson's affidavit was far more detailed than those of the other generals.  He outlined the history of the Chaplaincy program, its roots in Congressional actions and the mechanisms by which it meets the free exercise of religion needs of soldiers.  Major General Nardotti said later that Chaplain Johnson's ability to persuade these general officers to make statements in support of the Chaplaincy as then constituted was an extremely valuable asset for the government's case.

On June 8, 1982, Judge McLaughlin conducted a short hearing that basically dealt with the plaintiffs' request to take depositions from the five generals who submitted affidavits.  He denied their request.  On November 3, 1982, Judge McLaughlin conducted another hearing to address Motions for Summary Judgment, submitted by both plaintiffs and defendants.  No decision was rendered until February 1, 1984.^[29]  The significant conclusions provided by Judge McLaughlin included:

1.  The Chaplaincy is Constitutional.^[30]  He went on to say:  “In its present form, then, the Army Chaplaincy is a constitutionally permissible means to a constitutionally mandated end.”

2.  Decided that the plaintiffs do have standing.^[31]

3.  Congress has repeatedly funded the Chaplaincy.

4.  The founding fathers saw no inconsistency between the First Amendment and a paid Chaplaincy.^[32]

5.  The judge also noted the inability of the Wisconsin Evangelical Lutheran Synod to provide effective ministry during the Vietnam War.  Civilian ministry, as envisioned .  by the plaintiffs, would be even further negated without the substantive military logistical and transportation support provided by the Army for religious support to soldiers.^[33]

6.  Plaintiffs' Appeal, 1984

Katcoff and Wieder were displeased with the determination of Judge McLaughlin.  They appealed to the Second Circuit Court for a reversal of McLaughlin's decision.  A panel of three judges heard the case on October 29, 1984.  On January 22, 1985, the decision of the appeals court was published.^[34]  The judges determined that:

1.  The plaintiffs do have standing

2.  The Chaplaincy, “viewed in isolation” would fail to meet the establishment clause requirements as outlined in Lemon v. Kurtman.  “However, neither the Establishment Clause nor the statutes creating and maintaining the Army Chaplaincy may be interpreted as if they existed in a sterile vacuum.”^[35]

3.  Deference to Congress in matters pertaining to the military and its Chaplaincy is a well established and legitimate practice.^[36]

4.  Free Exercise obligates Congress “to make religion available to soldiers who have been moved by the Army to areas of the world where religion of their own denomination is not available to them.  Otherwise, the effect of compulsory military service could be to violate their rights under both Clauses of the First Amendment.”^[37]

5.  Assuming, hypothetically, that such a program (civilian Chaplaincy) could be launched, “it would be constantly teetering on the brink of disaster.”^[38]  “In short, plaintiffs' proposal is so inherently impractical as to border on the frivolous.”^[39]  They further stated that the feasibility of a civilian Chaplaincy “must in our view be resolved in favor of judicial deference to Congress' decisions in this area.”^[40]

Not all of their findings were favorable to the Chaplaincy.  “In a few areas, however, the reasonable necessity for certain activities of the military Chaplaincy is not readily available.”^[41]  One of the examples cited in the decision was stationing of chaplains in large metropolitan areas.  Because of the court's hesitancy in this area, the case was remanded to the District Court to “determine if some activities are constitutionally permissible.”^[42]  The Court also determined that the appellees (Katcoff and Wieder) would be required to pay the costs of the District Court.

7.  Conclusion with Prejudice

In January 1986, in the face of mounting financial costs, Katcoff and Wieder decided to drop the case.  Eventually the government agreed to their action.  Although Chaplain Hessian wanted to see the case through to its conclusion, he eventually acquiesced to Army lawyers and agreed to their recommendation to allow the plaintiffs to drop the case with prejudice.  On February 7, 1986, the Office of the Staff Judge Advocate General informed the Chief of Chaplains that “On 31 January 1986, the plaintiff in Katcoff v. Marsh abandoned his lawsuit.”^[43]  More than six years had passed since the case was filed.  Although many questions remained unanswered, at least the court answered the basic question of constitutionality for this case.

During the six year period of Katcoff, several other significant cases made their way into other courts that had a direct relationship to the Chaplaincy.  In Rostker v. Goldberg, the central issue was “deference.” The suit alleged that it was unconstitutional for the government to require only males to register for the draft.^[44]  Supreme Court Justice Rehnquist wrote, “The Court has made it clear that even our most fundamental constitutional rights must in some circumstances be modified in the light of military needs, and that Congress' judgment as to what is necessary to preserve our national security is entitled to great deference.”  In John Garth Murray, et. al., v. Azie Taylor Morton, et. al., the plaintiffs alleged that the paid civilian chaplain in the House of Representatives was unconstitutional.  The District Court in Washington, DC determined that the plaintiffs lacked standing to sue, but also cited the deference argument as reason for the court not to make a decision in the case.^[45]

The negative effects of the challenge to the constitutionality of the Chaplaincy were few and transient.  The threat of placing all Chaplaincy programs under the scrutiny of the courts caused some curtailment of programs and activities and some temporary stagnation in others.  The majority of the chaplains in the field continued uninterrupted in the performance of their religious duties.  Soldiers’ free exercise rights were not abridged in any way.

In the late 1970s, the Department of Defense established a study group to grapple with the problem of how the free exercise of religion could be respected while at the same time maintaining good order, discipline and morale.  Chaplain Wayne Kuehne represented the Office of the Chief of Chaplains.  Committee meetings over a period of several years resulted in a principle of “accommodation.” The thrust of this policy was to allow free expression of religious beliefs unless they impinge on such things as readiness, good order and discipline.  The local commander maintained authority to make decisions regarding individual situations on a case by case basis, with the individual having the right of appeal to higher headquarters.  This was not a major change in the way the Army operated, but it did affirm, on a policy level, the right of soldiers to freely exercise their religious beliefs.

There is little doubt that the Chaplaincy emerged from the court case as a much stronger structure and more resolved to be the instrument of government whereby the free exercise of religion is available to every soldier.  There were several positive outcomes of the case.  First, it forced the Chaplaincy into a healthy self-examination.  It placed all of its programs and activities under the microscope.  The Chaplaincy eliminated some programs that did not contribute to free exercise.  Secondly, it required every chaplain to focus clearly on providing for the free exercise of religion as the raison d'etre of the Chaplaincy.  It furthermore made chaplains conscious that they must avoid at all cost any excessive entanglements between church and state, or any perception of violation of the Establishment Clause.  Thirdly, it made clear that there are certain vulnerabilities to the Chaplaincy as an institution.  There also may be limits to what the Chaplain Corps can do and retain protection under the Constitution.  While the threat of the courts evaluating every program has been reduced, it undoubtedly will surface again in any new court challenge.  The future of the Chaplaincy, as well as its past, will rest squarely on the support and good will of Congress, and on the Chaplaincy's ability to remain focused on providing for the free exercise of religion for soldiers as the legal basis for the existence of a uniformed ministry in the military.

8.  Chaplaincy Goals

Chaplaincy Goals and Objectives for the fiscal years 1983-1984 were established by Chaplain Johnson in February 1981.  The future direction of the Chaplaincy was promulgated in the “Chief of Chaplain's Guidance to MACOMs and Installations.”  The following specific priorities were declared:^[46]

1.  Explore means of enhancing chapel activity specialist job satisfaction and career opportunity

2.  Prepare for mobilization

3.  Emphasize recruitment and retention of Catholic chaplains and ministry to Catholics

4.  Reaffirm religious pluralism in the Army

5.  Provide moral and ethical impact on decision-making

6.  Reach the unchurched in the Army

7.  Increase soldier contact with chaplains

8.  Develop closer denominational ties

9.  Increase dialogue to decrease racism/sexism

10.  Empower lay person in ministry

11.  Develop programs for spiritual formation and mission

12.  Develop a Chaplain Support System (ministry to pastors)

13.  Expand Family Life Ministry

14.  Use the skills and education of chaplains and rely less on outside consultants.

Each of these priorities was critical to maintaining the strength and viability of the Chaplaincy program.  Leadership and supervision, particularly at the middle management (brigade) level, had been determined to be one of the weakest links in chaplain leadership. The U. S. Army Chaplain Academic Board reported in March of 1981 that “there was nothing in the Basic or Advanced courses which taught a chaplain how to be a brigade chaplain or how to supervise.”^[47]  Increased training in this area would be provided by the Chaplain School.  As noted elsewhere, preaching and worship were not considered high priorities by many commanders and their chaplains.  Consequently, preaching often did not receive the attention it deserved. Division '86 , the “heavy division doctrine,” was well on its way to implementation.  It would be a larger division with more tanks, armored personnel carriers and other equipment.  The Chaplaincy needed to make changes on how it would operate under this doctrine on a modern, highly mobile and exceedingly lethal battlefield.

In his goals for fiscal years 1984 and 1985, the Chief of Chaplains again began setting the course for the future.  His major emphases were on Leadership and Supervision, Homiletics and Worship, preparing the Chaplaincy for implementing the Army’s Division '86, and how religious requirements would be integrated into the new Army structure.^[48]

President Jimmy Carter introduced the concept of zero-based budgeting to the Congress and to the American people.  Chaplain Johnson felt that the Chaplaincy could use this concept as a means of prioritizing missions and programs that the Chaplaincy wished to pursue.  His notion was that we should not just continue programs because we had always done so, but should always be looking for new ideas and discarding old unworkable ideas and programs.  The Katcoff case helped to refocus the Chaplaincy on those ministries that were clearly within the purview of the First Amendment, and provided a catalyst to discard those that were not.  Chaplain Johnson, therefore, used the First Amendment as one measure by which programs or policies could be approved or disapproved.