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The Corner

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Protecting Warriors from ‘Uncomfortable’ Speech



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Though it’s appalling that U.S. Army generals are meeting with an anti-Christian extemist while considering the issue of religious liberty in the military, I’ve been quite skeptical of the more alarmist reports about actual Pentagon policy. So far, reports of actual suppression of religious liberty have been isolated and infrequent, and the military’s existing protections are strong and commonsense. When I’m on active duty, I do not feel as if my religious liberty is suppressed, yet — at the same time — I know that my rights do not trump the need to accomplish my unit’s mission, and if my religious speech caused actual disruption to the mission, I can and should be disciplined.

The Air Force, however, may be sending mixed messages. In a statement to Fox News, a spokesperson said the following: 

When on duty or in an official capacity, Air Force members are free to express their personal religious beliefs as long as it does not make others uncomfortable. Proselytizing (inducing someone to convert to one’s faith) goes over that line.

Yet here is the relevant portion of official DOD policy:

4. POLICY. The U.S. Constitution proscribes Congress from enacting any law prohibiting the free exercise of religion. The Department of Defense places a high value on the rights of members of the Military Services to observe the tenets of their respective religions. It is DoD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on mission accomplishment, military readiness, unit cohesion, standards, or discipline.

From a legal perspective, the difference is profound. As a matter of fundamental First Amendment law, prohibiting religious speech merely because it makes another person “uncomfortable” is unconstitutional.  First, by singling out religious speech from other forms of speech for imposition of this special standard, the Air Force is discriminating against religion. Second, the word “uncomfortable” places the speaker completely at the mercy of the subjective feelings of the listener. In other words, my rights would only extend so far as your sensibilities. Such a standard obliterates the First Amendment.

It also infantilizes warriors. Are we to believe that our men and women in uniform can face the Taliban in battle but can’t withstand an “uncomfortable” conversation? In reality, most soldiers have thick skins, and the ones who don’t need to acquire them. Conversations within the military are wide-ranging, free-wheeling, and often conducted at rather high volume. (The one time I actually had to pull two young soldiers apart, they were about to come to blows over whether Chris Paul was the best point guard in the NBA — perhaps it is time for a strident basketball critic to be invited to the Pentagon.)

The DOD Directive states the correct standard. It reminds commanders of the Constitution, states that the DOD places a “high value” on service members’ rights, then goes on to outline far more objective factors for commanders to consider — mission accomplishment, readiness, cohesion, standards, and discipline. In other words, it places the evaluation squarely within a military context, using factors familiar to commanders across all branches of service.  Even the most vague factor — “unit cohesion” — is commonly understood not to mean that everyone likes each other or agrees with each other (the military’s far too diverse for that), but instead the unit functions as a team in the course of its duties.

The word “uncomfortable,” however, is the language of a poltically correct college speech code.  

The Air Force’s statement is so far out of line with DOD policy and so far beyond the bounds of First Amendment jurisprudence that I have to believe the statement is simply a mistake, and not indicative of any actual command directive that would carry with it UCMJ enforcement. At least I hope that’s the case. As it stands, the Air Force should quickly reaffirm its commitment to standing DOD policies, lest it create any (further) confusion.

Simply put, the Constitution trumps our “comfort.”



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