In the waning days of its lame duck session, the 112th Congress passed the National Defense Authorization Act, which contains this provision:
SEC. 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS OF SUCH MEMBERS.
(a) PROTECTION OF RIGHTS OF CONSCIENCE.—
(1) ACCOMMODATION.—The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.
(2) DISCIPLINARY OR ADMINISTRATIVE ACTION.—Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline.
(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUS BELIEFS.—No member of the Armed Forces may—
(1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or
(2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1).
(c) REGULATIONS.—The Secretary of Defense shall issue regulations implementing the protections afforded by this section.
On January 2, President Obama signed the Act, and issued a “signing statement” (remember when Sen. Obama opposed those?), which contains the following paragraph:
Section 533 is an unnecessary and ill-advised provision, as the military already appropriately protects the freedom of conscience of chaplains and service members. The Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct. My Administration remains fully committed to continuing the successful implementation of the repeal of Don’t Ask, Don’t Tell, and to protecting the rights of gay and lesbian service members; Section 533 will not alter that.
It should be noted that Obama explicitly does not raise a constitutional issue regarding Section 533. He goes on to raise “constitutional concerns” about other provisions, where he views the Act as making inroads on his authority as commander-in-chief, but Section 533 is a straightforward employment of Congress’s authority “to make Rules for the Government and Regulation of the land and naval Forces,” and the president is in no position to gainsay such authority.
Hence this paragraph of Obama’s signing statement is fairly gratuitous, since Congress’s power here is complete, and unchallengeable on any separation-of-powers basis. If Section 533 is “unnecessary,” because “freedom of conscience” is already adequately protected in the military, then there is certainly no harm in legislation underscoring this protection–and it can hardly therefore be “ill-advised.” But there is no question that this administration’s push to repeal “Don’t Ask, Don’t Tell” has put religious freedom in the military in jeopardy, for chaplains and other service members alike. Section 533 is exceedingly well-advised, and the president’s fit of pique about it in his signing statement is proof of it. One day, perhaps soon, we may see a test of the question whether “protecting the rights of gay and lesbian service members,” as this administration understands those rights, collides with the religious freedom of chaplains or other personnel, to live by their faith and to witness to their beliefs. Then we may be very glad to have this provision in law.