Religious Liberty in the Air Force Under Dire Threat: An Open Letter to USAF Chief of Staff

Re: Air Force Instruction 1-1

General Welsh,

Sir, I write you this day on behalf of the over 37,500 sailor, soldier, marine, airmen, coast guard, service academy, ROTC, OTS/OCS cadet/midshipmen, national guard, reservist and veteran clients of the civil rights organization I lead, the Military Religious Freedom Foundation (MRFF).Approximately 96% of our MRFF clients identify themselves as practicing, non-fundamentalist Protestants or Roman Catholics. This number of those afflicted, or having been afflicted, with fundamentalist Christian religious persecution emanating from their military superiors includes almost 15,000 active duty and veteran members of the United States Air Force as well as more than two dozen current senior ranking military and civilian Pentagon officials. MRFF speaks on their behalf because they fear retribution if they try to speak for themselves. I beg you to hear their gravely concerned voices within the words of this letter, sir.

Your Invitation to Congressman Randy Forbes

I have learned that on Monday, April 28, 2014 you held a meeting of Air Force leadership, entitled “CSAF (Chief of Staff of the Air Force) Religious Freedoms Focus Day”, to address concerns regarding AFI (Air Force Instruction) 1-1’s discussion of USAF commanders’ and supervisors’ responsibilities regarding the delicate balance of their personal freedom of expression vis-à-vis their religious affiliation, the prohibition of government’s establishment of religion, and the commanders’ and supervisors’ solemn responsibility and duty to the Air Force to safeguard optimal unit cohesion, morale, good order and discipline.

I have only very recently also learned that U.S. Congressman Randy Forbes (R-VA) was specifically invited to speak at this critical meeting of senior Air Force leadership. Given Mr. Forbes’ long, sordid and well established history of supporting and promoting fundamentalist Christian supremacy and primacy in all aspects of the Federal government, especially the United States armed forces, I most assuredly hope that someone, distinctly and robustly representing the other side of this turbulent, church-state separation debate, was invited to speak as well? Sadly, I have not heard that such was the case. While I well respect your desire to give a member of Congress a bully pulpit “forum” to talk to senior Air Force leadership, please know that Congressman Forbes absolutely does NOT represent a consensus of the Nation’s view on this extremely controversial Constitutional topic. Likewise, sir, Forbes hardly represents the best interests of the United States Air Force on same. Indeed, as the founder of the Congressional Prayer Caucus, Rep. Forbes has spared no opportunity to introduce legislation of an unsparingly sectarian, theological character.

I have obtained a copy of Congressman Forbes’ letter to you dated May 6, 2014, which was written well after the meeting concluded (see the letter here: https://tinyurl.com/po7kh5g). General Welsh, Congressman Forbes simply does not represent the best interests of the Nation on this crucial matter of national security: church-state separation in the United States military. Thus, sir, I will respectfully give you my optimal advice in response to his misguided and misleading letter, on behalf of (1) the multiple tens of thousands of military members who have reached out to MRFF in the past decade and, (2) on behalf of the U.S. public interest. I hope you will consider it and find it useful.

Draconian Consequences of Removing the Word “Apparent” from this Regulation

Congressman Forbes’ draft revision to AFI 1-1, Para 2.11 and 2.12, pointedly removes the word, “apparent,” from the phrase “actual or apparent use of their [referring to commanders’ and supervisors’] position to promote their personal religious beliefs,” and leaves the prohibition severely limited to the “actual use of their position to promote their religious beliefs.” This edit may seem like a small matter of merely deleting one word. Nothing could possibly be further from the truth, General Welsh! This wordsmithing legerdemain is nothing less than a blatant attempt to open wide the door to allow USAF commanders and supervisors, and their surrogates at the commanders’ direction or suggestion, to further the commanders’ and supervisors’ parochial religious beliefs and affiliations. Further, deleting the word “apparent” provides commanders and supervisors a would-be authorization or plausible deniability to avoid accountability for having done so. As a result, this suggested new language by Congressman Forbes will cause Airmen to seriously doubt their commanders’ and supervisors’ impartiality in grading their performance, and as a consequence, deleteriously degrade unit cohesion, morale, good order and discipline. If Congressman Forbes’ draft language (which was likely drafted by the Liberty Institute or a similar fundamentalist Christian parachurch organization) is adopted by the USAF, nontrivial numbers of Air Force personnel will most certainly view this sudden regulation alteration as catastrophic. Indeed, General Welsh, it will be justly perceived as nothing less than a clarion call authorization for those same USAF commanders and supervisors to renew their earlier efforts to unconstitutionally proselytize and convert their subordinates to accept their (commanders’ and supervisors’) religious beliefs or risk suffering a wide spectrum of negative career consequences. General Welsh, these types of terribly injurious reprisals and retributions happen quite literally every day already in the USAF. Since the USAF’s adoption of the current AFI 1-1, Section 2.11 on Aug. 7, 2012, MRFF has received almost 4,200 verified client complaints of fundamentalist Christian proselytizing from Air Force members’ chains of command. Remarkably, well over ninety percent of these complaints of religious harassment, bullying, and oppression come to MRFF from Air Force members who describe themselves as practicing Christians, generally either Protestant or Roman Catholic. The Air Force offenders are almost exclusively practitioners of a virulent form of fundamentalist Christianity known as “Dominionism.” Among many others, Congressman Forbes is one of their Poster Children.

The good news is that, heretofore, using the excellent protections afforded by the current language of this regulation (AFI 1-1, Section 2.11), MRFF has been able to assist its thousands of Air Force clients to receive a positive result in approximately 95% of reported cases! General Welsh, if you eliminate the word “apparent” from this existing regulation, sir, you will lay to waste and ruin any hopes for your Air Force brothers and sisters in the ranks to be able to effectively resist and combat the torrent of fundamentalist Christian religious abuse that engulfs the Air Force you command. You allowed Mr. Forbes to make his case in person before you and your special assemblage of senior Air Force brass, sir, on April 28, 2,2014. General Welsh, may I query yet again: whom did you similarly permit to press the legitimate opposing case at this same meeting?

The Fallacy of Forbes’ “Heckler’s Veto” Argument

Congressman Forbes makes repeated references throughout his letter to a so-called “heckler’s veto.” Let’s examine his glaring misusage of the phrase here. While the concept of the “heckler’s veto” is indisputably important in the context of Constitutional law and First Amendment jurisprudence, Forbes twists the meaning of the phrase inside-out and beyond all reasonable recognition when the “heckler” just so happens to be a military leader, commander or supervisor, on duty, who believes that a particular religious faith, or lack thereof, will matter in the performance/evaluation of their official duties (either speaking or acting). The formidable challenge for those victimized is always the same. They must somehow demonstrate this dark specter of command-imposed religious oppression and intolerance while they, as subordinate service members, are concomitantly terrified to express their cries and pleas for help out of abject fear of the reprisal of their inflicting command chains. It is this harrowing hazard alone that once again dramatically underscores the pivotal importance of the word “apparent” in the context of AFI 1-1 Section 2.11.

Ironically, Congressman Forbes is correct, however, on one important point: to wit, AFI 1-1 DOES “chill” commanders’ and supervisors’ desires to directly or indirectly proselytize to their subordinates by “witnessing” to the commanders’ or supervisors’ favored religious beliefs. There is absolutely nothing wrong with this prohibition and everything right with its legitimate necessity. As you surely well accept, sir, unsolicited statements and actions in support of particular, sectarian religious views are not the responsibility, directly or indirectly, of the USAF commander or supervisor. I know you recognize that in an “all-volunteer” Air Force, it is important that all citizens, regardless of their religious beliefs or absence of religious beliefs, understand and sincerely believe that they have an opportunity to excel and become outstanding Airmen, judged solely by their performance and character, and free from any cognizable suspicions that they might be judged by their USAF commander or supervisor, to any measurable degree, by their personal religious affiliation or even lack thereof. The Air Force needs to remain comprehensively inclusive of all its diverse citizenry and constituency. The U.S. Constitution (at Article VI, Clause 3) specifically prohibits the use of any “religious test” under these precise circumstances.

If You Must Edit This Regulation, Please Remove BOTH “Actual” and “Apparent”

Ultimately, General Welsh, if indeed you somehow still feel it absolutely necessary to arrive at a compromise position regarding Congressman Forbes’ disingenuous and specious concern about AFI 1-1’s use of the phrase, “actual or apparent use of their position,” MRFF would reluctantly recommend that the following editing be done. Rather than eliminating only the adjective “apparent,” you instead eliminate BOTH “actual” and “apparent,” so that AFI 1-1 reads, “use of their position to promote their personal religious beliefs to their subordinates….” This suggested language edit will forbid both direct and indirect use of commanders’ and supervisors’ positions to convert, proselytize, and/or promote their religious views to their defenseless subordinates. This updated language certainly wouldn’t and couldn’t even remotely be reasonably criticized as somehow being “ambiguous.”

I noted also that Congressman Forbes asked you to amend AFI 1-1 to state, “No expression of faith should be directly prejudicial to good order and discipline.” At best, this revision in the name of supposedly clarifying an “ambiguity” in AFI 1-1’s policy raises a new and far more troubling ambiguity. Far more likely, the proposed revision is a not-so-clever attempt to authorize commanders and supervisors to “indirectly” prejudice unit cohesion, morale, good order and discipline by their wholly unsolicited religious witnessing and/or proselytizing. Many Air Force leaders, and their numerous allied fundamentalist Christian parachurch organizations (such as the Officers Christian Fellowship, the Navigators, the Christian Military Fellowship, Cadence International, and Campus Crusade for Christ Military Ministries to name just a few) will undoubtedly read such a “subtle” language change as an open authorization to witness or proselytize their religious views in a plethora of ways that only “indirectly” prejudice morale, good order and discipline. By so doing, they believe they will escape admonishment and punishment accountability for any resultant degradation of unit cohesion, morale, good order and discipline. As a result, General Welsh, I cannot strongly recommend enough that you do NOT adopt this proposed change.

U.S. Supreme Court case Parker v. Levy Carries the Day

In support of his sectarian position, Congressman Forbes cited U.S. v. Sadinsky. This particular case was a Uniform Code of Military Justice (UCMJ) criminal case, which held that military members couldn’t be held criminally liable for violating UCMJ Article 134 unless they “directly and palpably” degraded good order and discipline. This UCMJ case does not mean that you cannot direct Air Force leaders to avoid actions that they know, or should reasonably know, will degrade good order and discipline. Most curiously, in his letter to you, Congressman Forbes utterly failed to discuss or reference the universal import, and controlling law in this matter, of the United States Supreme Court’s seminal decision in Parker v Levy. No doubt Forbes failed to cite this case because it is not at all helpful to his dubious crusade of fundamentalist Christian supremacy. Nevertheless, surely he (and the Liberty Institute or whichever other fundamentalist Christian entity or entities may have provided assistance in drafting Forbes’s letter to you) is quite well aware of this profoundly important Supreme Court decision.

The Supreme Court in Parker v. Levy, 417 U.S. 733 (1974), concluded that Capt. Levy’s First Amendment right of free speech did not allow him to encourage soldiers to refuse to deploy to Vietnam because he and they believed the War in Vietnam was immoral. General Welsh, the Supreme Court’s discussion of the limitations on scope of military members’ First Amendment freedoms, which include the freedom to speech, press and religious expression, should significantly guide your actions in the current matter regarding whether to amend AFI 1-1, Section 2.11 et al. In a 6-2 decision written by noted ultra-conservative Chief Justice Rehnquist, the Supreme Court said,

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. … An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier. … While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. … In the armed forces, some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. … In military life, however, other considerations must be weighed. The armed forces depend on a command structure that, at times must commit men to combat, not only hazarding their lives but also ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.”

The Simple Truth

Sir, after reviewing the immediate foregoing good faith arguments, especially the debate-ending, dispositive ruling in Parker v. Levy above, here’s the all-too-simple truth: If USAF commanders and supervisors want to proselytize and/or witness to their subordinate troops without solicitation from these very same troops, despite the fact that these very same Air Force leaders know, or reasonably should know, that the dangerous and debilitating result will be to cause Airmen to doubt the commanders’ or supervisors’ impartiality (and thus degrade unit cohesion, morale, good order and discipline), then those commanders and supervisors should immediately separate themselves from the United States Air Force. Henceforth, and now as civilians, they may proselytize and/or witness their fundamentalist version of the Gospel of Jesus Christ all they wish and to their heart’s content. On the other hand, sir, while they remain in the United States Air Force, their unassailable loyalty must be solely to the Air Force, the Nation and the Constitution whom they are duly sworn to protect, and not to their personal and preferential sense of religious duty to proselytize, witness and/or convert their all-too vulnerable USAF subordinates. The United States Supreme Court incontrovertibly agrees. Our Nation, which is a marvelously diverse country with its citizens free to embrace a literal galaxy of religions as well as a broad range of non-faiths and which depends on the best of America’s sons and daughters to volunteer to serve, would also assiduously agree.

General Welsh, I have respectfully tried my very best to make the case for you to not alter the profound Constitutional protections provided by the current text of AFI 1-1, Sections 2.11 et al. However, in the truly tragic and most unfortunate event that you still elect to change the clear, unambiguous language of AFI 1-1, paragraphs 2.11 and 2.12, I recommend that, at the very least, you ensure that USAF commanders and supervisors fully understand that this abrupt change does not in any way signal a shift in policy. They must know that they are not authorized, in ANY unsolicited fashion, to witness or proselytize to their lower-ranking Airmen. They must understand that changes in the language of AFI 1-1 do not signal, in even the most nuanced manner, an authorization for USAF commanders and supervisors to begin witnessing or proselytizing to and/or converting their otherwise helpless subordinates. Without your singular exercise of personal caution, stewardship and careful guidance, countless Air Force members and their families will read into your potential revisions a disastrous sea-change in the Air Force’s previous policy forbidding command-influenced proselytization. Sir, unless you are quite prepared to aggressively punish the legions of religious extremist fundamentalists who currently permeate the Air Force, please, please do NOT change the language of this extremely effective and protective USAF regulation.

Conclusion: This Regulation is Not Broken; Please Don’t “Fix” It

In conclusion, military members have many stressors in their lives as a result of electing to honorably defend their Nation and protect to the death, if necessary, its myriad national security interests. The ferocious enemies we fight can be vexing and produce enormous anxiety and worry to military members and their loving families. Military members have been asked time and again to make many painful sacrifices while they serve our Nation. Notwithstanding the foregoing, they should NEVER have to sacrifice their personal religious beliefs (or lack of such beliefs) or be forced to even suspect that their commander or supervisor asks them to sacrifice their religious affiliation in the name of becoming a better, or more valued, Airman. Such a sacrifice of personal choice and human dignity was never the Founders’ intent behind the concept of religious free expression. To believe otherwise is to pervert or wretchedly twist Constitutional freedoms into a tool of furious abuse at the hands of many in military leadership positions, in the awful name of furthering an alleged majority view regarding religious affiliation. Indeed, former Supreme Court Justice Sandra Day O’Connor once said, “In America, we don’t count heads before enforcing the First Amendment.'” Such an allowance of vile religious predation by USAF commanders and supervisors is precisely a matter that the Founders hoped to guard against and something that will fatally weaken and unequivocally destroy our beloved Republic.

Sir, the Constitutionally mandated, religious freedom matter at hand is not at all terribly complex. On the contrary, it is clear, straightforward and easily discernible. Those same three descriptors apply to AFI 1-1, Section 2.11 et al. It is working exceptionally well every day providing maximum civil rights protection to the hundreds of thousands of USAF members you lead, sir. Please lead the way forward to a just and equitable resolution. As Former Joint Chiefs of Staff (JCS) Chairman and Secretary of State Colin Powell once so sagaciously opined:

“Great leaders are almost always great simplifiers, who can cut through argument, debate, and doubt to offer a solution everybody can understand.”

Thus I beseech you, General Welsh; please do not alter the shielding, crystal clear language of AFI 1-1, Section 2.11.

Sincerely,

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

CC:
President Barack Obama
Deborah Lee James, Secretary of the Air Force
General Martin E. Dempsey – Chairman of the Joint Chiefs of Staff
Admiral James A. Winnefeld Jr. – Vice Chairman of the Joint Chiefs of Staff
General Raymond T. Odierno – Chief of Staff of the United States Army
Admiral Jonathan W. Greenert – Chief of Naval Operations
General James F. Amos – Commandant of the Marine Corps
Randal G. Mathis, Mathis & Donheiser P.C. – MRFF Lead Trial Counsel