Readings: David Skeel on Religion and the US Military

University of Pennsylvania law professor David Skeel has an important opinion piece in the December 28, 2012 Wall Street Journal on the role of religion in the US military, "The Military Balance of Faith and Freedom: A West Point cadet resigns over religiosity at the Academy, but other cadets have rights, too." (For those of you unfamiliar with Professor Skeel, he is both a leading corporate, finance, and bankruptcy scholar (his 2011 book, The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences, is required reading in discussions of financial regulation) and an Evangelical Christian who is - rare in the American legal academy - willing to declare himself as such.  He and the late Bill Stuntz (also an Evangelical Christian who taught criminal law at Harvard Law School until his untimely death from cancer) ran a blog called "Less Than the Least" that dealt, among many other things, with issues of religion and Christianity.) Here's the basic problem, as Skeel sketches it:

Blake Page had planned on graduating from West Point in the spring, but no more. Earlier this month, the cadet took to the Huffington Post to announce his resignation from the military academy and attack it for "unconstitutional proselytism, discrimination against the nonreligious and establishing formal policies to reward, encourage and even at times require sectarian religious participation." If this sounds familiar, it is. Seven years ago, a group of Air Force Academy cadets complained about widespread pressure to convert to Christianity. Both controversies have centered on prayers by chaplains at formal events and evangelism by officers of their subordinates. Many Americans who identify themselves as having no religious affiliation—20% in the most recent Pew poll—are likely to applaud these dust-ups as evidence that nonbelievers are finally willing to stand up against an atmosphere of enforced faith in the military. Those who are more sympathetic to public expressions of faith see a campaign to stamp out expressions of traditional belief. Although both sides rightly see the military controversies as a microcosm of the country's growing debates about religious freedom, there also are radical differences. The military isn't simply a profession—it's a life. The line between public and private is vanishingly small. (This is one reason why the military can still punish misbehavior like adultery.) Mr. Page therefore has a powerful point when he complains that he had no way to avoid proselytizing comments and prayers by chaplains at formal West Point events. But his Christian colleagues are in a similar bind. There is nowhere else for them to take their faith.

Though the article does not say so, there is an additional reason why religion is an important matter for believers in the military that is not present in most other institutions of government: military service in both concept and practical fact puts these people in harm's way.  Moreover - and this should likewise not be overlooked - it might well order them to do violence, both directly against targets and indirectly by causing, even if unintended, harm to innocents in the form of collateral damage.  People commit themselves in advance to the possibility of being commanded both to lay down their lives and to extinguish the lives of others. For believers, the justifications, consolations, rituals, and rites of faith are important, both with respect to the loss of one's own life and the loss of life one might bring about.  There's a reason why chaplains accompany troops in the field.  Those who might well be about to die for us - well, one might think, we owe it to them not to deny them their faith(s). This is not the same as prayer in school, in other words; it's not the same as events held by government which by custom open with prayer, such as legislative sessions.  The tradeoffs are different in part because of the nature of the activity.  One important distinction that Skeel raises in the essay (and which is already at the heart of how religion is approached in military policy) runs to the role of proselytizing through official events, including prayers:

The military could avoid complaints about chaplains' prayers by removing the prayers from formal events, but it clearly isn't required to do this. The Supreme Court has upheld nonproselytizing prayers by chaplains opening legislative sessions, pointing to the long history of these prayers and their role. But a bit of hairsplitting is involved: The chaplains are allowed to invoke God but not to promote Jesus. As First Amendment scholars Ira Lupu and Robert Tuttle have written, the chaplains' words are "a solemnizing event that 'harmonizes' with the religious activity of prayer," but they are not a religious prayer.

Skeel notes that the role of the chaplains, across religious faiths, is crucial to achieving this balance in practical fact, as life within the military.  It's delicate and perhaps inherently unstable: the rights of non-believers, the rights of believers, and the rights of believers as among their different faiths.  One reason it's difficult is that many of the world's leading religions regard proselytizing as an affirmative religious duty - unsurprising, since it's a way to become a leading religion. By the same token, the history of military men who either faced pressures to convert to the favored religion or else did so in the belief that it conferred preferment is a very long one across the last few thousand years. The concerns of unbelievers or believers in minority faiths in the US military are far from frivolous. I've known a number of US military chaplains over the years, some of them career military and others who were assigned temporarily by their religious denominations.  In my experience, they do an admirable job of ministering to those in need of spiritual or religious assistance, both respecting religious differences and the beliefs of the non-believers, while not standing back from their affirmations as ministers of religion and of particular religions.  One of them once remarked to me that to be in the professional military is to heed a "calling" - a "vocation" in the true and old-style religious sense of the word, a "profession" in the old, pre-market sense of the term.  It's not merely a market transaction, life-style risks accepted for a monetary price.  (It's interesting that Skeel makes almost exactly the same point, but with the words "profession" and "life" used in exactly the opposite ways to the same point; this is really about the erosion of the term "profession" into a merely market description and, fwiw, I discuss this, not about the military but about lawyers, in an essay here.)  Part of that is to understand, this chaplain went on, that these are professionals who put not merely their lives at risk, but those who in an important way offer their souls, whatever their particular religious or non-religious conceptions of them. There's something right about this, I think, and I'd add that I say this as one of the non-believers; it doesn't require a specifically religious belief to think this way about vocations and professions that are not fundamentally about money and market values.  The military does not seem to me the same as other settings of religion and government, wherever exactly one makes the tradeoffs between these rights of believers, of particular types of believers, and of non-believers. It's a community life, not merely an individual life-style, in which one voluntarily assumes something that is more than a mere contract transaction, but which, once assumed, locks one into that community, including its internal line-drawing concerning the proper communal role of religiosity.  This is part of Skeel's point - but clearly we are not yet done in the debate over where to draw those lines.