[History of the Army Chaplaincy (Separate Page)]
Proposed Civilianization of the Chaplaincy
The Constitutional Challenge
4. The Argumentation
6. Plaintiff’s Appeal, 1984
Conclusion with Prejudice
8. Chaplaincy Goals
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.
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.
~[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
Dr. Grant Shockley
Parish Pluralism and Future Forms of Ministry -
Bishop Paul Moore
Social Issues and Future Forms of
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.
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.
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
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.
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
Joel Katcoff wrote later:
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.
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.
They reviewed cases and opinions by Justices William Brennan and William
O. Douglas who was “on the record
as saying the Chaplaincy is unconstitutional.”
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.”
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
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:
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.
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.”
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
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
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
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
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.
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
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.”
The political argument cited numerous legal opinions that chaplains have
“historically been viewed to be authorized by the First Amendment.”
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).
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.”
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
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.
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.
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
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.
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:
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
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.
For the Chaplain Corps, Chaplain Johnson intended the term to refer to
the basic ministerial role of chaplains:
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,
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.
“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.”
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
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.
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.
The significant conclusions provided by Judge McLaughlin included:
Chaplaincy is Constitutional.
He went on to say: “In its present form, then, the Army Chaplaincy is a
constitutionally permissible means to a constitutionally mandated end.”
that the plaintiffs do have standing.
has repeatedly funded the Chaplaincy.
founding fathers saw no inconsistency between the First Amendment and a paid
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
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.
The judges determined that:
plaintiffs do have standing
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.”
to Congress in matters pertaining to the military and its Chaplaincy is a well
established and legitimate practice.
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.”
Assuming, hypothetically, that such a program (civilian Chaplaincy) could
be launched, “it would be constantly teetering on the brink of disaster.”
“In short, plaintiffs' proposal is so inherently impractical as to
border on the frivolous.”
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
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.”
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.”
The Court also determined that the appellees (Katcoff and Wieder) would
be required to pay the costs of the District Court.
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.”
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
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.
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.
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:
means of enhancing chapel activity specialist job satisfaction and career
recruitment and retention of Catholic chaplains and ministry to Catholics
religious pluralism in the Army
moral and ethical impact on decision-making
6. Reach the
unchurched in the Army
soldier contact with chaplains
closer denominational ties
dialogue to decrease racism/sexism
lay person in ministry
programs for spiritual formation and mission
12. Develop a
Chaplain Support System (ministry to pastors)
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.” 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.
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.
See Israel Drazin and Cecil B. Currey, For
God and Country (Hoboken, New Jersey:
KTAV Publishing House, 1955): pp.
The Harvard Crimson,
November l, 1979, p. 1. At the
time Harvard Law students filed their case, the Massachusetts Supreme Court
was deciding an issue of prayer in public schools.
Latham, “Law Students File Suit Against Army,” The Harvard
Crimson, November 30, 1979, p. 1.
Letter from Joel Katcoff to Ms. Cindee M.
Brinsfield, April 6, 1995. Copy in the Chaplain Corps Archives.
Michael Smith, “3L's Attack U. S. Army for
Employing Chaplains,” Harvard Law Record, December 7, 1979, p. 3.
Stephen R. Latham, The Harvard Crimson,
November 30, 1979, p. 8.
Michael Smith, Harvard Law Record,
December 7, 1979, p. 3.
United States District Court for the Eastern
District Court of New York, Joel Katcoff and Allen M. Wieder, Plaintiffs,
against Clifford L. Alexander, Jr., Secretary of the Army, and the
Department of Defense, Defendants. Civil Action 79C-2986, November 23, 1979.
Ibid., p. 6.
Ibid., p. 8.
Ibid., p. 10.
“Interrogatories and Request for Production
of Documents,” November 23, 1979, p. 10.
Copy in the Chaplain Corps Archives.
“Memorandum of Law in Support of Defendants'
Motion to Dismiss or in the Alternative, for Summary Judgment,” January
Ibid., pp. 20, 21.
Ibid., pp. 22, 23.
Ibid., p. 30.
Stewart in his dissent in Abington School District v. Schenmpp, argued
in favor of the complementary nature of the two clauses.
Ibid., p. 49ff.
Ibid., p. 62.
Lemon, “First, the statute must have a secular legislative
purpose; second, its principal
or primary effect must be one that neither advances nor inhibits religion
... finally, the statute must
not foster `an excessive government entanglement with religion.”
Ibid., p. 63ff.
Israel Drazin and Cecil B. Currey, For God
and Country (Hoboken, New Jersey: KTAV
Publishing House, 1995), p. 67.
Active duty participants at the Manressa
Conference included: Chaplain (Col.) Douglas Jones, USAF; Chaplain (Col.) Charles Kriete, Army War College;
Chaplain (Col.) Richard Tupy, Commandant of the Chaplain School;
Chaplain (Col.) Edward Christopher, Fort Ord;
Chaplain (Col.) Harold Lamm, Armed Forces Chaplain Board; Chaplain (Col.) John Deveaux, DARCOM; Chaplain (Col.) Richard Martin, Fort Myer;
Chaplain (Col.) Ivan Ives, DACH;
Chaplain (Col.) John Scott, DACH;
Chaplain (Lt. Col.) Wayne Kuehne, DACH;
Chaplain (Lt. Col.)
Rodger Venzke, Army Chaplain Board; Chaplain
(Lt. Col.) Ronald Bezanson,
DARCOM; Chaplain (Maj.) Herman
Keizer, Chaplain School; Chaplain
(Maj.) Richard Goellen, TRADOC; Chaplain(Maj.)
Sanford Dresin, DACH; Chaplain
(Capt.) John Brinsfield, USMA. Mrs.
Lee Cherepes, secretary in Plans, Programs and Policies, was
Letter, DACH-PPZ-A, January 16, 1981.
Signed by Chaplain (Maj. Gen.)
Kermit D. Johnson.
Gen.) Kermit Johnson, letter to Chaplain (Col.) John Brinsfield (with
notes), June 22, 1995.
Personal interview with Major General Michael
J. Nardotti, Jr., The Judge Advocate General of the Army, March 20,
The General's comments are in the U. S.
District Court, Eastern District of New York, Statutory Appendix, pp.
212-262. Copy in the
Chaplain Corps Archives.
“Memorandum and Order” February 1, 1984
(Judge McLaughlin). Copy in the
Chaplain Corps Archives.
Ibid., p. 2.
Ibid., p. 24.
Ibid., pp. 33-35.
“Decided” United States Court of Appeals
for the Second Circuit, January 22, 1985.
Ibid., p. 24.
Ibid., p. 27.
Ibid., p. 28.
Ibid., p. 29.
Ibid., p. 31.
Ibid., p. 32.
DADA, “Final Dismissal of Constitutional
Challenge to Army Chaplaincy -- INFORMATION MEMORANDUM” February 7, 1986.
Rostker v. Goldberg (453
US 57), June l, 1981.
John Garth Murray, et. al, v. Azie Taylor
Morton, et. al., Civil Action No.
The Chief of Chaplains Annual Historical
Review, October 1, 1980 - September 30, 1981, HQDA, Washington, D.C., p.
OCCH, Annual Historical Review, FY 81,
OCCH, Annual Historical Review, FY 82,