Religious Rights and Involuntary State Institutions in Democratic Countries: On Evenhandedness and Ecumenism in Militaries
1. Militaries as Involuntary Institutions
2. Three Institutional-Religious Models within Militaries: Religious Majoritarian Approach, Evenhandedness and Ecumenism
2.1. Religious Majoritarian Approach (RMA)
2.1.1. RMA as a General Religion-State Relations Model
2.1.2. RMA as a Military Religion-State Institution
2.2.1. Evenhandedness as a General Religion-State Relations Model
2.2.2. Even-Handedness as a Military Religion-State Institution
2.3.1. Ecumenism: A General Description
2.3.2. Ecumenism as a Military Religion-State Institution
3. RMA, Even-Handedness and Ecumenism: A Liberal Balance Sheet
4. The Models in Practice—Burial of Soldiers at the Israel Defense Force
Conflicts of Interest
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The American Legion v. American Humanist Association, No. 17-1717, 588 U.S. ___ (2019)
Religious liberty, as central to liberal theory, law and countries, is recognized by many prominent scholars of liberalism, see: (Waldron 1987, p. 130; Rawls 1996, pp. 30, 291; Laborde 2017). Religious liberty is understood here as the ability, unconstrained by the government, to hold religious beliefs or none at all, to convert to a different religion or cease to believe, to associate with other like-minded religious individuals, and to be able to publicly practice one’s religion, given usual public safety and other regulatory schemes (see, Rawls 1996, pp. 295–96; Evans 2001).
The word ‘liberal’ is used here to denote a Shklarian minimalist meaning, as she famously wrote: “Liberalism has only one overriding aim: to secure the political conditions that are necessary for the exercise of personal freedom. Every adult should be able to make as many effective decisions without fear or favor about as many aspects of her or his life as is compatible with the like freedom of every other adult. That belief is the original and only defensible meaning of liberalism” (Shklar and Rosenblum 1989, p. 21); see also Gaus et al., who wrote, in a similar liberal ‘minimalist’ manner: “The Fundamental Liberal Principle holds that restrictions on liberty must be justified” (Gaus et al. 2018, para. 1.1). This minimalist (although not uncontroversial) approach to liberalism is especially suitable to the interest of the current essay in total institutions, and see in the text.
Here, involuntariness refers to the nature of the institution (the military). There might be variations between countries in which service is compulsory and those that are based on voluntary military service, in that the different entry point differs in terms of voluntariness. However (and this especially pertains to the U.S.) the wider economic inequalities of the general society influence the decision of individuals to join the military (Melin 2016). Given this background and the nature of militaries as a whole, the term ‘involuntary organizations’ seems appropriate.
The terms liberal/liberal-democratic and democratic countries will be used here interchangeably, generally denoting democratic countries according to the polity scale (6 and above in this scale is defined as democratic; see: http://www.systemicpeace.org/polityproject.html).
As he writes, “The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others” (Berlin 2002, pp. 213–14).
Note that there is a lively debate regarding the extent of autonomy granted to religious associations, from rules such as non-discrimination and other civil rights, and the U.S. Supreme Court has struggled with this contested topic. However, the current article merely presents the description above as a point of departure for the deliberations to follow, as the non-interference model is not applicable to militaries, and see in the text. (For scholarly debates on the topic of religious associations and exemptions from non-discrimination rules, see (Koppelman 2001; Perez and Rosman-Stollman 2019; Shiffrin 2004); in the U.S. context Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012) in which it was held that federal discrimination laws do not apply to religious organizations’ selection of religious ministers (even though the person, Cheryl Perich, was a teacher, not quite a minister) is an often cited case, demonstrating the doctrine of religious associations’ immunity from non-discrimination rules, in this case, a disability act.
See Everson v. Board of Education, 330 U.S. 1 (1947).
To state the obvious, the non-interference/separation model is not free of complex difficulties, such as cases of generally applicable laws that burden certain faiths, or cases of discrimination enacted by religious associations; however, the point of the description above is merely to generally illustrate the model, which is inapplicable to militaries. On such complexities, see (Barry 2002, chp. 2) (on generally applicable laws); Shorten (2019) (on discrimination in religious context).
Notably, the approach adopted by the court that unless the government provides religious goods, religious liberty will be denied to soldiers, applies to a voluntary military force (the U.S. military, in this case). This means that the court rejected the notion that by agreeing to serve in the military, a soldier can be expected to waive her/his religious liberties. This approach would apply more forcefully in countries that enact conscription. The reasons for maintaining the religious interests of soldiers in both cases (conscription and voluntary based militaries) are varied, but for our needs, Levi’s analysis of military service (which is not specific to religion) is useful in that it takes for granted that mistreating soldiers will be negatively correlated with their willingness to serve (Levi 1997, chp. 2).
This decision implies the need for a governmental funded program of religious goods, designed in some fashion. It does not provide a precise boundary to the limits of religious liberties to which soldiers are entitled. For example, the issue of soldiers’ rights to wear religious attire is a point of controversy; in Goldman v. Weinberger, (475 U.S. 503 1986), for example, it was decided that Jewish soldiers could not wear a yarmulke while in service, although that decision was later reversed by an act of Congress (1988) (on this case see Fitzkee and Letendre 2007, pp. 62–70).
The names of the models chosen are not always the ones used by the noted countries and/or militaries. Here, a Dworkinian approach is adopted, in which a correct interpretation and understanding of a policy, law, or social institution lies in a proper description and analysis of the central and patterned aspects of that policy, law, or social institution. As Dworkin argues, in the context of law: “But the purposes in play are not (fundamentally) those of some author but of the interpreter. Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong (Dworkin 1986, p. 52)”. Note that Dworkin’s approach rules out attempting to ponder the mental status of the legislators (Marmor 2005, p. 126).
The religious majoritarian approach, as its name hints, emphasizes the religious aspects of the noted phenomena rather than its cultural or national aspects. This choice of terms reflects the political and legal cases at hand which are distinctly within the religious sphere: the minarets (Swiss—a successful popular initiative in Switzerland to prevent the construction of minarets on mosques, 2009), the crucifix (Italy, ‘Lautsi’—a case brought before the European Court of Human Rights, which, in 2011, ruled that the requirement in Italian law that crucifixes be displayed in classrooms of schools does not violate the European Convention on Human Rights), are two prominent examples; see Miller (2016a—for a qualified justification of this approach); Thompson (2019) for a critique of this approach.
Major RMA supporters include Miller (2016a, 2016b, 2019) and Weiler (2012, 2013). RMA supporters have somewhat different versions of what exactly is the majoritarian line or threshold that RMA policies should not cross or violate—that is, as it would violate minority rights; Miller speaks of equal treatment of all citizens (Miller 2016a, p. 441); Weiler speaks of non-discrimination as a standard that should be respected towards all citizens (Weiler 2013, p. 766). This nuanced point cannot be further analyzed here, see Section 3, in the context of total institutions.
See, for example, in the U.S. Supreme Court decision of The American Legion v. American Humanist Association, No. 17-1717, 588 U.S. ___ (2019), in which it was decided that the governmental-funded placement and maintenance of the Bladensburg Cross (placed on public land) is not a violation of the establishment clause; Justice Kavanaugh in his concurring opinion (p.4, italics added) effectively demonstrated the point at hand: “The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause”.
Here, there is an interesting debate in the relevant case law (both in ‘Lautsi’ and in the ‘American Legion’ cases) whether the Cross is a religious symbol or a ‘cultural’ symbol. For the purposes of this article, the approach of the ECtHR in the Lautsi case that it is a religious Christian symbol (“The Court further considers that the crucifix is above all a religious symbol”; Lautsi, para. 66, majority decision), and that of the U.S. Supreme Court in the American Legion decision (“the cross is undoubtedly a Christian symbol”; Syllabus, para. D, majority opinion written by Justice Alito)—also identifying it as a religious symbol (although it might also have other meanings), is the most adequate interpretation for the content of the actual cases. Regardless of other meanings that might be attributed to the crucifix or the cross, it is surely a religious symbol of the Christian faith. Hence, the case law fits the RMA model and analysis, that the correct unit of analysis is that the phenomenon at hand regards religion, not culture.
Notably, religious-institutional arrangements within the military ‘shape-back’ religion-state relations within the society at large, given the importance of the military as a central institution; this applies forcefully in RMA models, given the prominence given to one distinct faith, but also in other models. On this ‘shape-back’ phenomenon see Stahl (2017).
This process is never smooth and problem free, and raises many questions, including how are the recognized religious groups selected? How are their needs measured and funded? What is the process in which new groups can become eligible to enter the recognized cohort? This contested process can be counted as a disadvantage of the even-handed model. See T. Jelen (2010, chp. 1).
Note that in the military context, as explained in Section 1 above, denying soldiers the provision of religious goods comes close to governmental sanctioned violation of religious liberty, banned even in minimalist versions of liberalism.
Robert Merton, in a classic article describing the disconnection between private traits and social/public roles in modern bureaucratic systems wrote the following: “The assignment of roles occurs on the basis of technical qualifications which are ascertained through formalized, impersonal procedures” (Merton 1940, p. 561).
Hansen, describing cases in which chaplains are faced with expectations to serve soldiers outside of their own denominations within the U.S. military, describes such scenarios in the following way: “some boundaries are harder to negotiate than others” (Hansen 2012, p. 127).
Notably, the evenhanded model might bring about an increase in the number of chaplains, as compared to the ecumenism model.
Note that the discussion of religious ecumenism is focused on the rights of chaplains. The reason is that they are supposed to provide the noted services, and hence the burden of balancing loyalty to their religious beliefs with the expectation (within military contexts) to act in an ecumenical manner is placed on their shoulders. Soldiers, however, are not placed in such an uncomfortable position, and are merely receiving ecumenical religious services, which are hardly objectional (one can imagine a scenario in which a given soldier finds ecumenical services inappropriate, but in such a scenario this soldier can avoid attending such a service, and request a specific chaplain—belonging to her/his religion. Admittedly, answering to such a request will not always be feasible).
The noted objection to proselytism applies in other models as well. However, only in the ecumenism model chaplains are expected to meet and provide services to all soldiers, and hence, the discussion of this ban pertains more forcefully to this model.
Indeed, Holmes (1997) suggested the well-known category of gag rules. Gag rules are used in order to avoid social instability created by speech/actions that severely offend a specific group’s feelings or obstruct their interests. Hence, ‘gag rules’ prevent—either legally or through informal social norms—individuals from speaking or acting in a certain way. The term ‘gag rule’ has been used to describe a range of prohibitions from precluding prosecution after a certain temporal point, to avoiding topics entirely—such as slavery in the U.S.—during certain periods, to excluding religion from some institutional contexts.
The notion that would-be chaplains know in advance the chaplaincy framework of the U.S. military, and hence can be expected to provide consent to the ecumenical model is arguably not a persuasive position, given three considerations: the unequal social circumstances in which a decision to enlist takes place (Melin 2016); the typical lack of rational connection between limitations put on the free exercise of religion of chaplains and military needs and functions (as argued by the court in Rigdon vs. Perry, and see in the text); finally, the importance attributed to freedom of religion, while not quite absolute, creates significant barriers to any attempt by institutions to argue that it was waived (even when grounded in presumed consent) (see, McConnell 1999).
The details of this procedure cannot enter this article, but generally are a part of the abortion controversy in the U.S. The law itself was eventually passed by Congress in 2003, and was deemed constitutional by the U.S. Supreme Court in 2007 in Gonzales v. Carhart, 550 U.S. 124 (2007).
The funerals of non-Jewish soldiers are usually conducted by a civil clergy of the relevant religion, in a full and formal military apparatus (on religious diversity within the IDF see Rosman 2016).
In its website Hiddush, in the first answer about its goals at the FAQ section, it is written as follows: “We deeply believe that nothing will do more good for Judaism than freedom of religion and the liberation of Judaism from the chains of politics and religious coercion. We do not see in the Haredim (Jewish Ultra-Orthodox - the author) the exclusive representatives of Judaism, but only one version of it. There are many kinds of Judaism, including Reform, Conservative and Secular. They are no less legitimate, and we won’t let anyone take away our right to be Jews in our own way”, available at: http://hiddush.org/faq.aspx?aid=1486.
See http://hiddush.org/article-23337-0-The_Supreme_Court_ruling_on_pluralistic_IDF_burial.aspx/HCJ. Hiddush v. IDF 3458/17. (2019). Para. 6.
Interestingly, the ecumenical option, in which Orthodox rabbis acting as chaplains at the IDF were to be ordered to lead non-Orthodox burials, was not considered or asked for.
In 2004, MK Ran Cohen attempted to pass legislation that would mandate the appointment of non-Jewish chaplains at the IDF at the Knesset (Israeli Parliament) following the death of several Bedouin (Muslim) soldiers and certain difficulties involved in the religious aspects of their military funerals. The legislation was never completed however. (see: Alon 2004; Wagner 2005).
© 2019 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).
Perez, N. Religious Rights and Involuntary State Institutions in Democratic Countries: On Evenhandedness and Ecumenism in Militaries. Religions 2019, 10, 556. https://doi.org/10.3390/rel10100556
Perez N. Religious Rights and Involuntary State Institutions in Democratic Countries: On Evenhandedness and Ecumenism in Militaries. Religions. 2019; 10(10):556. https://doi.org/10.3390/rel10100556Chicago/Turabian Style
Perez, Nahshon. 2019. "Religious Rights and Involuntary State Institutions in Democratic Countries: On Evenhandedness and Ecumenism in Militaries" Religions 10, no. 10: 556. https://doi.org/10.3390/rel10100556