THE BLOG
07/30/2014 05:37 pm ET Updated Sep 29, 2014

Open Letter to: Secretary of Defense Chuck Hagel From MRFF Founder and President Michael L. "Mikey" Weinstein

The Honorable Chuck Hagel
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Hagel:

It has come to my attention that the Office of the Secretary of Defense (OSD) is now reviewing proposed changes to Air Force Instruction (AFI) 1-1's policy on religious neutrality. I have copied you on my previous correspondence to Air Force senior leadership regarding the Military Religious Freedom Foundation's (MRFF's) concerns about these proposed changes. I would like to pass along to you MRFF's additional concerns regarding these proposed changes which have recently come to our attention. I recommend that you seek your General Counsel's (GC's) and OSD Personnel and Readiness's (P&R)'s advice regarding the legal and practical concerns that I will discuss below.

Every indication and source I have tells me the Air Force has not received ANY complaints about AFI 1-1's command religious neutrality standard from Airmen, who are comfortable with the standard. Instead, it is blatantly partisan religious advocates who support changing AFI 1-1. These sectarian entities include members of Congress and their parochial, fundamentalist Christian, parachurch, supporting organizations such as the Family Research Council, the American Family Association, and many others who have never served in the military but believe commanders and military supervisors ought to be allowed to proselytize or "witness" to their subordinates. While their strident advocacy and oratory on this subject might well mobilize their political base back home (who also largely have not served in or commanded our American armed forces, and who line the Congressmen's and Congresswomen's pockets with more political donations and votes and thus higher job security), their proposal would have disastrous effects on morale, unit cohesion, good order, and discipline in today's religiously diverse Air Force - an Air Force in which you and all of us should be so very proud. Their proposal is wholly irresponsible, an example of poor statesmanship, and, frankly, represents the worst of American political theater.

At the risk of pointing out the blindingly obvious to you, let me describe the negative impact on military subordinates when their commander or supervisor begins to proselytize or "witness" his/her faith to them. Your own well known experience as an NCO during the Vietnam War should serve you well in understanding this predictable impact. Having heard his/her commander's or supervisor's unsolicited declaration of faith, the subordinate logically will wonder why the superior saw fit to express, without being asked, his/her religious views. It is unquestionably human nature for the subordinate to believe, under these circumstances, that the superior hopes that the subordinate will adopt the superior's religious beliefs (and in fact that is indeed the superior's intent). While the subordinate could walk away from an unsolicited declaration of religious faith from a stranger on the street, in an airport, or in a shopping mall, the military subordinate will not -- indeed CAN not -- walk away from his/her military superior, for fear that he/she will offend his/her superior or display possibly punishable disrespect to that very same superior. Unsolicited declarations of religious faith by a military superior to an otherwise helpless and defenseless subordinate leaves the subordinate questioning the impartiality of the superior and wondering whether the subordinate's peers, who believe exactly like the superior (or at least pretend to), will be unfairly advantaged when the superior is required to rate the duty performance of his/her subordinates and stratify their value to the unit. The subordinate knows all too well that these ratings and stratifications are absolutely essential to advancement in a military career.

The Air Force ought to be a level-playing-field meritocracy where its members are fairly evaluated, rated, and stratified based on their demonstrated character, integrity, and accomplishments, and not on the color of their skin, their sexual orientation, their gender, or the nature of their religious faith or their absence of religious faith. Unsolicited declarations of religious faith most often result in significant degradation of unit morale, and as such, represent a clear and present danger to unit morale, good order, unit cohesion, and discipline, and in turn, military effectiveness. MRFF believes (and I'm sure you would agree) that every Airman, Soldier, Sailor, Marine, and Coast Guardsman ought to be free to adopt religious beliefs (or refuse to adopt any religious faith) in a fashion that suits his or her very personal choice. Our United States Constitution stands precisely for this precious principle of BOTH freedom of, and freedom from, religion. It also explicitly forbids any "religious test" whatsoever (Clause 3, Article VI). Freedom of and from religion represents the ultimate in freedom of choice and freedom of thought and it must be inalienable. No commander and no military supervisor ought to be authorized to interfere with their subordinate's right to believe in religious concepts (or the absence thereof) of their sole, unfettered choice.

Secretary Hagel, before any DoD decision maker seriously entertains the Congressional Members' proposals to scrap AFI 1-1, at least one of these Congressional politicians ought to be asked to define the factual circumstances under which a military commander or supervisor should be permitted to proselytize, witness, or express in some unsolicited fashion his/her religious views to their powerless subordinates, who do not perfectly share the commander's or supervisor's own religious faith. That Member of Congress should then attempt to prove conclusively to the Air Force and to the Department of Defense that such an act by a commander or supervisor would not degrade in any meaningful degree the subordinate's expectation that, despite the difference between the superior's and subordinate's religious beliefs, he/she will be judged fairly by his/her commander or supervisor and that his/her peers, who adopt (or pretend to adopt) the superior's expressed religious beliefs, will not be unfairly advantaged.

The reason no Congressman or Congresswoman has yet offered up such an example is, quite simply, because none exists. Instead of providing concrete examples of where AFI 1-1 has perilously chilled lawful religious expression in the Air Force, these radical, fundamentalist Christian Members of Congress and their parachurch fellow travelers substitute the idea that, somehow, AFI 1-1 is "confusing" and "ambiguous" and that somehow lawful religious expression "might have been" chilled. Yet, as far we can tell, no Air Force member has yet said that he or she is confused by AFI 1-1, does not understand what the AFI's standard means, or has been prevented from lawfully expressing his/her right to religious expression in an appropriate time, place, and manner. These religious zealot politicians on Capitol Hill and their religious extremist minions are trying to fix a problem that just does not exist in order to authorize proselytizing in the Air Force and build the kind of fundamentalist Christian Air Force they find acceptable. And it's too bad for the non-Christian Airmen or the Airmen who are not "the right kind of Christians" in the eyes of their commander or supervisor. In the thinking of these radical Congressmen and Congresswomen, these Airmen must be made to suffer for these legislators' larger goal: building the right kind of fundamentalist Christian United States Armed Forces. They view the awful consequence of devastating degradation to the morale and civil rights of non-fundamentalist Christian Airmen as little more than acceptable collateral damage.

Again, please ask at least one of these Members of Congress, or any advocate for eliminating the Air Force's religious neutrality standard in AFI 1-1, to define the factual circumstances under which a commander or supervisor should be permitted to proselytize, witness, or in some fashion, without prior solicitation, express their religious views to their subordinates who do NOT share the commander's or supervisor's exact religious faith. Their inability to provide an acceptable answer will inform your judgment on the horribly ill-advised nature of their proposal.

Mr. Secretary, please also consider another incredibly important point. My previous correspondence to you has demonstrated that military members do not have an unqualified right of religious free expression under the First Amendment. In Parker v. Levy, the U.S. Supreme Court held, in a seminal opinion authored by noted ultra-conservative Chief Justice William Rehnquist, that military members' First Amendment freedoms of expression are significantly limited. However, for purposes of illustrating another important point, please consider the following: Even assuming that military members did have an unconstrained on-duty right to religious free expression under the First Amendment, they do not have the right to have their religious expression funded by taxpayers' dollars. When on duty (and arguably 24/7, as they are always on call), military members' and DoD civilian employees' salaries are funded by Congressional appropriations. The First Amendment and all U.S. Supreme Court opinions say absolutely nothing about a right to have one's freedom of expression paid for by federal funds; therefore, how can anyone conclude that military members have a Constitutional right to funded religious free expression?

In fact, the only Constitutional language that comes close to providing guidance on this issue is the Establishment Clause, which clearly limits the use of federal funds for religious expression (except, perhaps, for federal chaplaincy programs) and unquestionably forbids a federally funded attempt at establishing any particular religious affiliation. Using federal funds to pay for and/or facilitate proselytizing, witnessing, or expressing unsolicited religious beliefs by military superiors to subordinates is absolutely prohibited by the Establishment Clause of the U.S. Constitution.

However, Secretary Hagel, there is another equally troubling and important point here. Even assuming that military members have an unconstrained, on-duty right to religious free expression under the First Amendment (they do not), and further assuming that they have a First Amendment right to be paid with taxpayer dollars while they exercise that right of expression (they do not), and further assuming that when they exercise their unconstrained, funded right of free expression, the federal agency that funded their expressions did not violate the Establishment Clause (it would have violated the Establishment Clause), then such expenditures by the federal agency would still amount to the otherwise blatantly illegal use of appropriated federal dollars. Please let me explain why, Mr. Secretary.

It is a foundational, bedrock, basic tenet of federal fiscal law that a federal agency may not use federal funds (to include salary dollars) for any purpose unless Congress has both authorized and appropriated dollars for that particular purpose. The U.S. Supreme Court has expressed this universal guiding principle of "appropriations law" as follows: "The established rule is that the expenditure of public funds is proper ONLY when authorized by Congress, not that public funds may be expended UNLESS prohibited by Congress" (United States v. MacCollom, 426 U.S. 317, 321 (1976) emphasis added).

This basic rubric and tenet of federal fiscal law is embodied not only in the Constitution, but also in the "Purpose Statute," found at 31 U.S.C. 1301(a). The Purpose Statute prohibits federal officials from using appropriated funds for purposes other than those for which the funds were appropriated. Violations of the Purpose Statute are subject to serious remedies found in the Anti-Deficiency Act (ADA). The ADA (codified at 31 U.S.C. 1341 et seq.) prohibits government agencies (and their officers or employees) from obligating the government, by contract or otherwise, in excess of or in advance of appropriations, unless authorized by a specific statute. The ADA requires the heads of all federal executive agencies to report ADA violations (through the Office of Management and Budget [OMB]) to the President and Congress, with a copy to the Government Accountability Office (GAO). The report must include an explanation of disciplinary actions taken against the accountable officials.

Given that Congress has not authorized military members to proselytize, witness, or express unsolicited religious beliefs while performing their otherwise authorized military duties and given that Congress has not appropriated dollars for the purpose of military members' proselytizing, witnessing, or expressing unsolicited religious beliefs, then a federal agency's expenditure of appropriated personnel funds for this unauthorized and un-appropriated purpose would clearly violate the Purpose Statute and trigger the draconian ADA reporting and disciplinary requirements.

If the few radical Congressmen and Congresswomen and their parachurch henchmen, who support an expanded right of religious expression by military members to proselytize, witness, or express unsolicited religious beliefs to their subordinates while on duty, would like the Air Force to adopt their "proselytizing" proposal, then they should seek authorization and appropriation bills from Congress to legally permit the implementation of their proposal. To avoid an ADA violation, their proposed authorization and appropriation should seek to place a ceiling on the amount of proselytizing and witnessing that commanders and supervisors may engage in, perhaps by capping the number of on-duty hours that commanders and supervisors may devote to such activity. (Note that this outrageous legislation would not resolve the Establishment Clause violation, and would likely result in a Presidential veto for that specific reason, among a literal ocean of other well expected obstacles.)

Of course, proselytizing and witnessing by commanders and DoD supervisors is dangerously destructive to unit morale, cohesion, good order, and discipline and I would hope that more moderate and rational Congressmen and Congresswomen might question the wisdom of such an expenditure of funds, especially in today's fiscally-constrained environment. As you well know, today the services must provide for the nation's defense under the fiscal restraints of the Budget Control Act, with sequestration almost as predictable as the seasons of the year, and with the persistent threat that civilian employees may yet again be furloughed. Moderate minds will question why this expenditure to authorize and fund an expanded right of religious expression is more important than the harsh and brutal offsets it will require. When faced with the choice of not funding other armed forces weapon systems vital to the defense of the nation in order to fund "proselytizing and witnessing" activities for DoD commanders and supervisors, I would hope that Congress will put national defense first.

Mr. Secretary, thank you for this opportunity to share some additional thoughts about the incredibly ill-advised nature of the proposals to change AFI 1-1's well-articulated, stalwart, religious neutrality standard. This robust standard protects the Air Force's and the nation's interest in fielding the best combat forces to defend our country. It is a superb model for other agencies to follow, and the Air Force should be proud for having led the way in adopting this model standard of excellence. It should not be changed or corrupted, especially in order to pacify radical, sectarian Congressional and parachurch organizational agendas.

Very sincerely,

Michael L. "Mikey" Weinstein, Esq.
Founder and President
Military Religious Freedom Foundation

CC:

OSD (GC)
OSD (P&R)
Secretary of Air Force
Chief of Staff, USAF