A new opinion from the Air Force Judge Advocate General clearly violates the 1st Amendment, as well as Air Force regulations. For the first time ever, the Military Religious Freedom Foundation is seeking relief from the US Civil Rights Commission.
Air Force JAG Opinion Appealed To US Civil Rights Commission
Change of command ceremonies have been rife with First Amendment violations over the years. But now the Air Force JAG says they're not violations at all. A challenge is being lodged with the US Civil Rights Commission.Credit: Military Religious Freedom Foundation
March 23, 2019

Last month, as I reported for Religion Dispatches, the Military Religious Freedom Foundation went public with a leaked opinion from the Judge Advocate General of the Air Force, purportedly legalizing religious expression at change of command and promotion ceremonies, in violation of the First Amendment’s Establishment Clause, as well as existing Air Force regulations intended to protect the military’s core mission, and the unit cohesion, good order, and discipline needed to carry it out.

Now, MRFF has taken the unprecedented step of writing to the US Civil Rights Commission, asking them to “urgently consider” MRFF’s objections. The opinion “reaches an extremely ominous and utterly unconstitutional conclusion,” MRFF wrote, “to wit, that United States Air Force (USAF) commanders may now publicly endorse the specific name of their personal gods or deities at their official USAF Change of Command ceremonies and promotion ceremonies.”

At the time it was leaked, MRFF President Mikey Weinstein called the opinion “a direct and defiant nuclear attack against the First Amendment’s separation of church and state.” Attorneys from the Freedom From Religion Foundation and Americans United for Separation of Church and State, both agreed.

As an official legal opinion, it went drastically beyond the lax enforcement of recent cases that MRFF has dealt with within the military framework. It’s a framework MRFF no longer trusts, but the breaking point was more political than institutional.

“We don't trust Donald Trump's Department of Defense anymore. Were done,” Weinstein told this reporter. “We have a lot of contacts there, from people below the political level, but we know when we’re at the political level…we don't trust any of them.” But the decision was not taken lightly. Neither MRFF’s lawyers nor its clients feel the system is working, he said.

“Over the years, we have made repeated complaints with the Department of Defense and the Department of the Air Force on religious matters in violation of the Establishment Clause,” MRFF wrote. “Due to our complaints being routinely minimized and rejected by DOD and USAF, we now seek your review.”

“They're out of their home park. We’re going to make them play an away game.” Weinstein said. “They can't keep playing in Yankee Stadium as the Yankees. They're going to have to go to Fenway Park. They're going to have to go to Dodger Stadium.”

Within the military, the Free Expression clause of the First Amendment is significantly subordinated to the Establishment Clause because of the military’s over-riding purpose and the nature of military life. The most significant Supreme Court case, Parker v. Levy, established the basic framework, reflected in turn by regulations, such as Air Force Instruction 1-1, Paragraph 2.12:

Leaders at all levels…. must ensure their words and actions cannot reasonably be construed to be officially endorsing or disproving of, or extending preferential treatment for any faith, belief, or absence of belief. [emphasis added]

In sharp contrast, the JAG opinion stated:

[A] commander may: briefly thank a Supreme Being (either generally, such as Providence, that Almighty Being, our Lord, or the Supreme Author of All Good; or specifically, such as Allah, Brahman, Christ, Ganesh, God, Yahweh, or even Beelzebub), have an invocation, and choose whomever he or she would like to provide the invocation.

The opinion unrealistically disregards the actual consequences of such action, the exact opposite of what AFI 1-1 requires. “Unit morale, discipline and good order are degraded on day #1 for of the new commander appointment when the commander makes such a declaration in his change of command remarks,” MRFF stated in letter. “The incoming commander, who makes a statement of religious preference at an official ceremony, is a uniformed government official, and for that reason alone, his remarks constitute state speech in violation of the Establishment Clause.”

There’s a good deal of detail behind the obvious, glaring contradiction, such as the pretense that publicly thanking a deity is not proselyting. However, MRFF’s letter notes:

"The commander reasonably knows that members of the audience, upon hearing his 'thank you' to his deity, will predictably conclude that the new commander is engaged in a form of evangelizing and proselytizing. Why else would the incoming commander feel compelled to, for example, thank Jesus publicly in front of an audience whom he has never met? The incoming commander is certainly aware that he could thank Jesus privately or at a religious service."

Another issue concerns the spurious distinction between the official, public change of command and the nominally “private” promotion ceremonies. Evidence to the contrary is three-fold:

- First, the change of command ceremony is most often considered a mandatory attendance event.
- Second, the incoming commander is always be promoted by state action.
- Third, promotion ceremonies, especially those that take place after a change of command ceremony, occur on federal property, usually (in Air Force cases) in aircraft hangars and officers’ clubs. The Airmen who attend are in uniform, on 'official duty' and accordingly paid by the US taxpayers. They are not on personal or administrative leave.

Thus, MRFF’s letter concludes, “According to the OPJAGAF logic, the ceremony is official for purposes of using appropriated funds (e.g., federal salaries and equipment) and ‘unofficial’ for purposes of authorizing religious statements by the promote, which would otherwise violate the Establishment Clause and AFI 1-1.”

This appeal to the US Civil Rights Commission won’t be the last. “We’re going to start doing this all the time with the DOD, now. We don't trust them anymore,” Weinstein said. “That's a far better venue than the venue that is dominated by Trump and his fundamentalist Christian minions.”

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