The Military’s Policy on Proselytizing Is Not New and Is Consistent with Federal Law

Some have suggested that the military’s policy on religious proselytizing is new and perhaps tied to a meeting held recently with Mikey Weinstein, president of the Military Religious Freedom Foundation, and Pentagon leaders. However, this is incorrect. According to DoD spokesman Nate Christensen, the Department of Defense regulations stem from compliance with Equal Employment Opportunity Commission regulations which govern the civilian workforce. By DoD directive 1020.02, the military provides protections to service members at the same level as for civilian employees.

In this case, the relevant EEOC directive is 915.003. Dated August 22, 2008, these guidelines provided examples of appropriate religious accommodations. In addition, guidelines relating to proselytizing are provided. Here is the introduction to the section on proselytizing:

Some employees may seek to display religious icons or messages at their work stations. Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others. Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study. In some of these situations, an employee might request accommodation in advance to permit such religious expression. In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers. As noted in §§ II-A-3 and III-C of this document, prayer, proselytizing, and other forms of religious expression do not solely raise the issue of religious accommodation, but may also raise disparate treatment or harassment issues.

To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting this expression of religious belief.[196] As explained below, relevant considerations may include the effect such expression has had, or can reasonably be expected to have, if permitted to continue, on co-workers, customers, or business operations.

Additional guidelines are relevant to the DoD instructions. For instance, under “unwelcome conduct”, the guidelines read:

To be unlawful, harassing conduct must be unwelcome. Conduct is “unwelcome” when the employee did not solicit or incite it and regards it as undesirable or offensive.[84] It is necessary to evaluate all of the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome.[85] For example, where an employee is upset by repeated mocking use of derogatory terms or comments[86] about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome. This would stand in stark contrast to a situation where the same two employees were engaged in a consensual conversation that involves a spirited debate of religious views, and neither employee indicates that he was upset by it.

The distinction between welcome and unwelcome conduct is especially important in the religious context in situations involving proselytizing of employees who have not invited such conduct.[87] Where a religious employee attempts to persuade a non-religious employee of the correctness of his belief, or vice versa, the conduct may or may not be welcome. When an employee objects to particular religious expression, unwelcomeness is evident.[88]

EXAMPLE 18

Unwelcome Conduct

Beth’s colleague, Bill, repeatedly talked to her at work about her prospects for salvation. For several months, she did not object and discussed the matter with him. When he persisted even after she told him that he had “crossed the line” and should stop having non-work related conversations with her, the conduct was clearly unwelcome.[89]

The DoD has committed to provide their service members with same legal protections as civilian employees. In this case, the guidance was issued long before the current controversy and has nothing to do with a meeting with Mikey Weinstein or a desire to purge Christians from the military. The guidance is designed to protect the rights of people of all faiths.

Related Posts:

Is the Military Preparing to Court Martial Christians?

On the Military and Religious Proselytizing: Military Spokesman’s Original Comments Used Out of Context

Department of Defense Statement on Religious Proselytizing

  • Tom Van Dyke

    Attorney/pundit Matthew Franck writes:

    The Air Force, however, may be sending mixed messages. In a statement to Fox News, a spokesperson said the following:

    “When on duty or in an official capacity, Air Force members are free to express their personal religious beliefs as long as it does not make others uncomfortable. Proselytizing (inducing someone to convert to one’s faith) goes over that line.”

    Yet here is the relevant portion of official DOD policy:

    4. POLICY. The U.S. Constitution proscribes Congress from enacting any law prohibiting the free exercise of religion. The Department of Defense places a high value on the rights of members of the Military Services to observe the tenets of their respective religions. It is DoD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on mission accomplishment, military readiness, unit cohesion, standards, or discipline.

    From a legal perspective, the difference is profound. As a matter of fundamental First Amendment law, prohibiting religious speech merely because it makes another person “uncomfortable” is unconstitutional. First, by singling out religious speech from other forms of speech for imposition of this special standard, the Air Force is discriminating against religion. Second, the word “uncomfortable” places the speaker completely at the mercy of the subjective feelings of the listener. In other words, my rights would only extend so far as your sensibilities. Such a standard obliterates the First Amendment.

    It also infantilizes warriors. Are we to believe that our men and women in uniform can face the Taliban in battle but can’t withstand an “uncomfortable” conversation?

    The Air Force’s statement is so far out of line with DOD policy and so far beyond the bounds of First Amendment jurisprudence that I have to believe the statement is simply a mistake, and not indicative of any actual command directive that would carry with it UCMJ enforcement. At least I hope that’s the case. As it stands, the Air Force should quickly reaffirm its commitment to standing DOD policies, lest it create any (further) confusion.

    Simply put, the Constitution trumps our “comfort.”

  • Jon Rowe

    Franck is a legal scholar; but I’m fairly certain is no attorney (he’s a PhD, not a JD).

  • Tom Van Dyke

    Thx for the correction, Jon.

    http://heartland.org/matthew-j-franck

    Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution of the Witherspoon Institute. He is Professor Emeritus of Political Science at Radford University in Virginia where he taught constitutional law, American politics, and political philosophy from 1989 to 2010, and chaired the Department of Political Science from 1995 until his retirement.

    He received his BA (magna cum laude) in 1980 from Virginia Wesleyan College, and his M.A. (1982) and PhD (1992) from Northern Illinois University.

  • Rich

    Interesting. Heartland is best known as an AstroTurf organization promoting global warming denialism.

  • Christian Lawyer

    Tom,

    Not trying to gang up on you with corrections, but what you quote appears not to have been written by Matthew Franck at all. Rather, it’s by David French, writing at NRO’s The Corner. BTW, French is an attorney (J.D. Harvard Law) at the ACLJ. The link to his post is below.* I looked for Franck’s complete piece to clarify which part of your comment was Franck and which was you. I wanted to respond since this whole controversy struck me as being way overblown given the anti-discrimination rules that govern most civilian workplaces and now Warren has helpfully done all the research for me!

    French is simply incorrect. He purports to quote “the relevant portion of DOD policy,” but instead he quotes the DOD policy on religious “accommodations” titled “Accommodation of Religious Practices Within the Military Services,” #1300.17.** That’s a different issue from the DOD policy on harassment that Warren quotes above, titled “Diversity Management and Equal Opportunity (EO) in the Department of Defense,” #1020.02. These directives were issued within a week of each other at the start of the Obama Administration, so it’s not a matter of one replacing the other. They are two different areas of law.

    “Accommodation” concerns things like requesting kosher meals, requesting light duty during pregnancy, requesting a desk built to allow wheelchair access. In contrast “harassment” falls generally into two types: (i) “quid pro quo,” something for something, a boss who says sleep with me or I’ll fire you, or unless you profess Jesus you’ll never be officer material, and (ii) “hostile environment,” repeated mocking of religious beliefs, gender, or race or repeated unwelcome sexual advances (or invites to bible study) even if nothing is demanded or threatened. In addition to the EEOC guidelines Warren cites, below is a cite to a Q&A from the EEOC on religious discrimination that explains “accommodation” and “harassment.”***

    Weinstein was talking about religious harassment and so the DOD spokesperson was responding to that point, not “singling out religious speech.” Neither were discussing accommodations. Yes, the 1st A prohibits Congress from passing laws that prohibit the free exercise of religion, but Congress has authority to further efficient commerce by prohibiting discrimination (including harassment) on the basis of race, sex, religion, national origin, disability, etc. By citing a policy that has nothing to do with the issue under discussion, and omitting the policy the actually governs the conduct at issue, French gives the impression that the policy and the law say one thing when they really say another.

    French then focuses on the word “uncomfortable” and complains that such a standard is the “language of a politically correct college speech code.” He claims that “[i]n other words, my rights would only extend so far as your sensibilities. Such a standard obliterates the First Amendment.”

    IMO, the term “uncomfortable is nothing more than a layman’s shorthand reference, in a short press statement, to the two technical legal requirements for a finding of harassment. Per the EEOC, the statements or conduct must be (i) “unwelcome,” and (ii) so pervasive or repetitive that the recipient “reasonably finds” the work environment to be “hostile or abusive.” Also, the claim must be evaluated in light of “all the surrounding circumstances, which helps raises it above an “in the eye of the beholder” standard.

    Now, I acknowledge that “uncomfortable” is not as precise as the EEOC explanations, and one can reasonably argue that it didn’t adequately convey the multi-part analysis required by the law, but one would have to have actually acknowledged the existence of the harassment policy in the first place. Similarly, while there is robust debate (e.g., Profs. Volokh and Oppenheimer) about whether or to what extent harassment law violates the first amendment,**** one can’t get into that debate without acknowledging the existence of the harassment law. Without speculating about knowledge or intent, French’s citation to the wrong policy directive and omission of the applicable one is just odd.

    * http://www.nationalreview.com/corner/347345/protecting-warriors-uncomfortable-speech

    ** http://www.dtic.mil/whs/directives/corres/pdf/130017p.pdf

    *** http://www.eeoc.gov/policy/docs/qanda_religion.html

    **** scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1253&context=facpubs

  • Tom Van Dyke

    Tom,

    Not trying to gang up on you with corrections, but what you quote appears not to have been written by Matthew Franck at all. Rather, it’s by David French

    Aargh. My mental typo was substituting French, the lawyer, for Franck, the constitutional scholar. Both write for NRO. Sorry.

    As for this whole phony issue, my main point of agreement is that evangelizing [call it what you will] is an essential component of the evangelical Christian faith. See Patrick Henry representing the Baptists jailed for “preaching without a license.” It’s part of “free exercise.”

    Nothing much will come of it except lining the pockets of professional agitator Mikey Weinstein. I further agree w/French that it infantilizes our military, that the necessary regs are already in place, and that it remains an internal military matter.

  • Rich

    Tom, the Henry incident was more about the establishment rather than free exercise clause. It wasn’t the preaching the Gospel that was at issue but rather he wasn’t licensed by the Anglican Church. The closest analogy is like evangelical Christians at the Air Force Academy forcing themselves on Jews and other religious minorities like Mikey Weinstein’s son. Here is what he said in The Hill in 2006.

    “My battle against the Air Force began two years ago (2004) when I learned that my sons, the eldest an Air Force Academy graduate and the other a cadet at the Academy, were subjected to taunts and derision because of their Jewish faith and that each had faced proselytizing both from their peers and superiors. My daughter-in-law, a graduate of the Air Force Academy and a practicing non-evangelical Christian, also found herself subjected to evangelizing.

    The matter was personal, but it was very clear that it was not just my sons and daughter-in-law whose constitutional rights were being violated. Air Force personnel — non-evangelical Christians, those of minority faiths and those who chose not to worship at all — were experiencing illegal proselytizing and evangelizing.”

    More of this is documented concerning this and other Christian anti-Semitism in the documentary Constantine’s Sword.

  • Tom Van Dyke

    Yours is an invalid analogy, Rich. Evangelization is part of free exercise–the Henry point is germane. Further, these Weinstein stories about isolated incidents of harassment are already in violation of regulations. That a soldier needs their parent to fight for them is indeed an infantilization.

  • Scotty G.

    As has already been clearly stated, soldiers are not permitted to ‘fight back’. Thus it is up to the citizenry (and for some soldiers, that would include their parents) to fight for them.

    But we wouldn’t want to infringe on anyone’s self-righteous superiority complex.


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