A little publicized legal opinion that addresses commanders’ rights to mention God at change of command and promotion ceremonies, issued by the Air Force judge advocate general in December, is now drawing protests and praise.
The opinion, dated Dec. 19, addresses whether commanders who invoke a deity at their official change of command ceremony, and also at the promotion ceremony that often follows a change of command, violate the 1st Amendment’s Establishment Clause and Air Force Instruction 1-1.
“We conclude 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 states.
“If the commander holds a personal promotion ceremony on the same day, a significant break must occur between the change of command and promotion ceremony in order for the commander to be freer in expressing his or her personal religious beliefs,” the opinion continues. “If a break does not occur, the commander must limit his or her religious comments to comments that are appropriate at the official change of command.”
The opinion was provided to Air Force Times by Mikey Weinstein, founder and president of the Military Religious Freedom Foundation. A spokesman for the Air Force confirmed that it is authentic.
The foundation is objecting to the Air Force JAG’s interpretation of the law and Air Force regulations and has asked the U.S. Commission on Civil Rights to hold a hearing on the foundation’s concerns and overrule the opinion.
In a March 21 letter to the commission, Weinstein notes that in the 1974 Supreme Court case Parker v. Levy, the court “concluded that First Amendment freedoms (such as the religious Free Exercise Clause) are restricted when such speech begins to degrade morale, good order and discipline in the Armed Forces.”
“Heretofore, the USAF has always concluded that speeches given at change of command and promotion ceremonies are, as a matter of law, official “state speech” which may not endorse particular religious affiliations or lack thereof,” Weinstein writes to the commission. “Such state speech would predictably have a deleteriously corrosive effect on the morale, good order, discipline, and unit cohesion of airmen in attendance who are not affiliated with the commanders’ personally expressed religious beliefs and affiliation.”
Weinstein also points to Air Force Instruction 1-1, paragraph 2.12 — Balance of Free Exercise of Religion and Establishment Clause: “Leaders at all levels must balance constitutional protections, for their own free exercise of religion, including individual expressions of religious beliefs, and the constitutional prohibition against governmental establishment of religion," it states. "They must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief.”
The JAG’s legal opinion contradicts the Supreme Court ruling, Air Force precedent and the Air Force instruction, Weinstein argues.
Mike Berry, director of military affairs for First Liberty Institute, a national religious liberty organization that has represented numerous service members and veterans, disagrees.
“This looks like a desperate attempt by Mikey Weinstein to reverse good religious liberty law and policy,” Berry said. "The [U.S. Commission on Civil Rights] should not grant Weinstein’s inappropriate demands to harass the Air Force because of an internal policy memo that simply applies the Constitution and Supreme Court precedent to the Air Force.
“At a time when our military needs more religious freedom, we can count on Mikey Weinstein to be the first to complain when the Air Force does something right,” he said.
Weinstein believes the weight of evidence suggests that airmen “who do not share the incoming commander’s religious affiliation will question the impartiality of a commander who went out of his way at his change of command ceremony to state his loyalty and affection for a deity not shared by those airmen who hold affiliation with another deity or with no deity.”
Weinstein also takes issue with the idea that by waiting at least 10 minutes between a change of command and a promotion ceremony, the latter becomes a personal, rather than official, event.
“To suggest that the promotion ceremony, which symbolizes an officer’s promotion in grade to the Air Force community, is somehow “unofficial” ignores the obvious fact that his or her promotion is the result of state action on multiple levels,” he wrote.
In the Air Force, promotion ceremonies typically occur on federal property, in aircraft hangars and officers’ clubs," he wrote. “The airmen who attend are in uniform, on “official duty” and accordingly paid by the U.S. taxpayers. They are not on personal or administrative leave. The honor guard, narrator, presiding official and the officer to be promoted are likewise each on active duty.”
It is unclear whether the U.S. Commission on Civil Rights will grant MRFF’s request for a hearing.