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In a much-publicized decision, the United States Court of Appeals for the Ninth Circuit recently decided that a memorial cross at the Mount Soledad veterans’ memorial violated the Federal Constitution. In particular, the Court looked at the First Amendment and examined the issue under the so-called “separation of church and state” mantra. The decision may not seem like much when reported as a news story, but its implications are staggering. Let’s see why.

Imagine a balance scale capable of weighing arguments, so that the weightier side prevails. Here’s the alignment of interests. On one side of the scale, we have a location where a memorial cross honoring veterans has stood, in one form or another, since 1913 – nearly a century. The current memorial has been at the location since 1954, and the area surrounding the memorial is filled with numerous walls of plaques honoring individual veterans. After nearly two decades of relentless lawsuits by the ACLU, the property with the memorial was taken by the Federal Government in an act of Congress to establish a federal memorial for all veterans. By Congressional standards, the action was a marvel of both speed and consensus. More than 80 per cent of representatives in the House voted for it.  The Senate approved the transfer in a unanimous  vote –see many of those lately?

On the same side of the scale with a unified Congress, we also have enormous community support and the opinion of the largest veterans’ organizations in the nation, representing literally millions of veterans.  In fact, the veterans’ groups forcefully described the ACLU lawsuit as an insult to the honor and memory of veterans everywhere. They expressed the surprisingly easy-to-grasp concept that veterans should be able to say how they would like to honor their own. So, on one side we have long-standing tradition, Congress and the President, local residents, and veterans.

What could possibly be placed on the opposite side of the scale to tip the balance? The answer is a handful of individuals who claim to be “offended” by the sight of the memorial. This is not a misprint or misstatement, and now, if this three judge panel has its way, it will be the law for much of the country.

Groups like the ACLU have a long-standing dysfunctional relationship with memorial crosses. The military has long used the symbol of a cross to honor soldiers and veterans; consider, for example, the nation’s second highest military award, the Distinguished Service Cross. Offended observers irrationally see here a covert attempt to establish the Christian faith. The very suggestion defies common sense and experience.

Imagine you are driving down a peaceful country lane, when you round a curve and see a small cross with flowers planted on the roadside. What would be your first thought: someone perished at this spot, or would it be “someone is trying to establish the Christian religion roadside”? No rational person jumps to the second conclusion. And yet, according to this decision, the small handful of thin-skinned types who do must be accommodated.

The comparison is even starker when we look behind the arguments. The memorial cross stands in mute recognition of sacrifice, honor, and courage. These attributes were displayed by veterans, many of whom paid the ultimate price to protect our freedoms. In a grotesque use of those freedoms, a few individuals motivated by their personal offense and sense of self-importance, sued to destroy the symbol honoring those who fought for those freedoms. The easily-offended ACLU clients behind the suit try to cloak their actions with pretensions of constitutional dignity, but the arguments sound more like the yapping of irritated poodles in the presence of a solemn memorial.

Fortunately, the three judge panel is not the end of the road. The United States Supreme Court has an opportunity to hear this case and reverse the terrible injustice. In fact, the Supreme Court has already hinted about their views on memorial crosses. In another ACLU lawsuit against a memorial cross, only the year before, the Supreme Court reversed the same appellate court, though on a different issue. The majority decision by Justice Anthony Kennedy featured stirring language about memorial crosses, which I cannot improve upon, and so I will simply quote:

(A) Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

Unfortunately, three judges on the Ninth Circuit didn’t get the message. Americans everywhere are hoping the Supreme Court will step in again and right this wrong.

This article originally appeared on, January 13, 2011.

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Instead of wrestling with the repeated warnings from chaplains, endorsing agencies, and service members that military religious liberty will suffer if the existing law on homosexual behavior is dismantled, the recent Pentagon “Don’t Ask, Don’t Tell” report only gives it lip service.

The report, compiled by the Comprehensive Review Working Group, merely acknowledges the problem’s existence and then passes it off by stating that it will not be as bad as predicted, assuming existing regulations protecting religious liberty are followed.

Horribly misleading, to say the least.

Under-Secretary for Defense and Personnel Readiness Clifford Stanley (who is a member of the CRWG) has already rejected such a solution under oath. In his affidavit to the U.S. Court of Appeals for the 9th Circuit in Log Cabin Republicans v. Gates, the retired major general stated that the tear-down would require the changing of “dozens” of regulations, including those protecting the “rights and obligations of the Chaplain corps,” to avoid “significant disruption to the force.” His words echo those of over 60 high-ranking veteran military chaplains who have described the potentially devastating effect of dismantling the law, 10 U.S.C. § 654. These chaplains provided the CRWG with a letter (PDF) that, among other things, described the numerous instances where legally normalizing homosexual behavior has resulted in significant losses of religious liberty.

The report tries to avoid these consequences by stating it does not recommend that abolishing the law be followed by making “sexual orientation” a class that receives non-discrimination protections similar to those for race. But this statement is misleading. While some limited protections granted to classes like race would not be available under the CRWG’s recommendation, the CRWG still recommends ambiguous protections that prevent “discrimination” or “harassment” on the basis of sexual orientation.

This type of system is just what chaplains and endorsing agencies have warned can be used to limit religious liberty for chaplains and service members, basing their warnings on many real-life examples that have already occurred in civilian circles and in foreign militaries.

Further, the report—in its attached “Support Plan for Implementation”—admits that current religious liberty regulations create “boundaries that are not always clearly defined.” In that same section, the report specifically admits that the CRWG recommendation would allow a complaint to be filed on the basis of “sexual orientation discrimination” against a chaplain who had preached a sermon teaching that marriage can only be between a man and a woman.

While the report suggests that such a complaint has little likelihood of success, it ignores the obvious fact that (1) unclearly defined regulatory boundaries will push chaplains toward self-censorship to avoid even specious complaints, (2) the proposed complaint resolution system—where the local chain of command resolves complaints on an ad hoc basis—could worsen that chill on religious speech by having inconsistent applications of unclear rules, and (3) even where a complaint is dismissed, the investigation process itself can create pressure to avoid religious teachings on sexual ethics to avoid being branded as a “troublemaker” or seen as “not a team player.” And given that commanders can be criminally punished for failure to prosecute sexual orientation discrimination or harassment complaints, there’s a significant likelihood that even baseless complaints will be exhaustively investigated.

At least some of this harm could have been relieved by encouraging Congress to adopt detailed and comprehensive religious liberty protections—which are often common additions to laws that give sexual orientation special non-discrimination protections—if it chooses to tear down the current law. The CRWG requested and received model legislation from religious liberty groups, based on existing federal legal protections that are available to civilians, that would have helped limit the damage to religious liberty. But, ignoring both that model legislation and its own recognition that current regulations are unclear, the report simply advocates relying on existing regulations.

And this is despite the overwhelming feedback from the survey the CRWG conducted that service members and chaplains are acutely concerned about repeal’s effect on religious liberty.

The existence of this strong emphasis on religious liberty concerns is itself notable because the CRWG survey of 400,000 service members failed to ask a single direct question about that issue. The CRWG’s script for the many discussions with groups of service members similarly failed to inquire about the concern.

And the one notable time that the CRWG did directly solicit input about possible effects on religious liberty—by contacting chaplain endorsing agencies—the majority of respondents emphasized their opposition to dismantling the law and expressed their concern with its effect on religious liberty. One reliable source has indicated that nearly 75 percent of the responding endorsing agencies opposed repeal.

That the CRWG is content to simply recognize the existence of a problem without doing a thing to avoid it is highly troubling. The report does not nearly address the many difficult concerns that endorsing agencies and chaplains have been raising for months, and which they specifically brought to the CRWG’s attention, such as:

Will the Army Chaplaincy’s Strong Bonds program, which exists to strengthen Army marriages, be forced to include same-sex couples? Will chaplains be allowed to offer advice on sexual ethics to commanders? Will chaplains with orthodox beliefs be able to teach ethics courses at military schools, as they do now? Will chaplains be able to reference their beliefs when hiring civilians for military ministry positions? What will happen when chaplains are approached by a service member engaged in homosexual behavior and asked to provide counsel on that behavior? Can chaplains counsel such a person to cease the homosexual conduct, like they can counsel service members to cease adulterous conduct?

The report’s response: silence.

While the report laudably rejects the argument that opposition to homosexual behavior is the same as racism by noting both that “skin color and sexual orientation are fundamentally different” and that the chaplaincy helped lead racial integration efforts in the 1940s, the report nonetheless creates a different erroneous comparison.

It says that since chaplains and service members have been able to handle the moral issue of abortion without loss of religious liberty under existing regulations, they will be able to do the same with homosexual behavior. But this is wrong for at least two reasons.

First, military regulations did not prevent President Clinton from trying to silence chaplains about abortion in the 1990s. Rather, it took a federal court which recognized in Rigdon v. Perry that his efforts violated the chaplains’ rights protected by the First Amendment.

Second, people who choose to have an abortion are not a protected class in the military, unlike the practical effect of the report’s recommendations regarding people who choose to engage in homosexual behavior. In fact, military bases are banned from performing abortions, and military doctors are given special conscience protections regarding abortion.

In fact, the abortion example’s only useful function is to highlight that chaplains are willing to minister to anyone, including those who make moral decisions with which they disagree. But that is true for chaplains in the context of homosexual behavior as well, as chaplains and endorsing organizations opposed to repeal have repeatedly stressed. Their concern is not who they will be ministering to (since they are happy to minister to everyone), but rather how they will be allowed to minister in the wake of crushing the existing law. And nothing about the CRWG Report addressed that concern.

So, the report does make some important contributions to religious liberty concerns by compiling data and recognizing the distinction between homosexual behavior and innate, innocuous characteristics like race. But because the report’s religious liberty analysis is misleading and inaccurate, it will lead to a loss of that liberty. We should not jeopardize the religious liberty of those who fight to protect our own.

This post originally appeared as a column on, 12/17/2010.

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ADF Litigation Counsel - Church Project

For months now, chaplains, organizations that are responsible for placing chaplains in the military, and prominent religious liberty organizations have warned that forcing the military to normalize homosexual behavior by dismantling the so-called “Don’t Ask, Don’t Tell” law will harm religious liberty.  Now, the just-released report issued by the entity tasked by the Pentagon to study the effects of repeal confirms that the men and women who fight to preserve America’s religious liberty agree with those warnings.  Here’s a few comments by service members quoted in the report:  (Note: the report kept the identity of the service member confidential, only identifying the sex of the respondent and whether he or she was a chaplain.)

 “Military chaplains who have volunteered to defend the liberties protected in our Constitution shouldn’t be denied those very same liberties. Preventing chaplains from sharing the full counsel of their faith defeats the purpose of the chaplaincy and threatens the free exercise rights of Service members who depend on chaplains.”(female)

 “I served in the active military as a Southern Baptist Chaplain for over 9 years including two deployments to Iraq. I believe that allowing openly gay individuals will create problems such as openly gay chaplains which in many instances will destroy chapel congregations on army posts. Many of these congregations view the issue as moral and that is in their mind a sinful lifestyle that in the civilian sector the minister would be subject to dismissal as he would for any other unrepentant immoral behavior. Many of these congregations do not get to choose the chaplain that is assigned to the chapel and so would be forced to leave in order to find the spiritual leadership they desire and need.” (male chaplain)

“Forcing chaplains to deny their faith in order to serve in the Armed Forces is a grave threat to the First Amendment and to the spiritual health of Marines, Soldiers, Sailors and Airmen who depend on them. If the military is forced to promote homosexual behavior, for the first time in American history there will be open conflict between the virtues taught by chaplains and the moral message delivered by the military.”(female)

“Repealing DADT will impact my religious liberty as a Christian chaplain. The Christian Scriptures make it clear that homosexuality—like fornication and adultery (which are, along with homosexuality, against the UCMJ)—is a sin. All sexual sins inherently break the law of God. If DADT is repealed, then that situation creates an unavoidable conflict with my ability to preach and teach the entirety of the Scriptures with impunity. What is the constitutional basis for the government ever curtailing my freedom of religion?” (male chaplain)

“Key questions to be considered: Will Chaplains be forced to integrate homosexuals into ‘family’ ministry? If so, what impact will this have on families that do not accept homosexuality? Will Chaplains be limited on what they can define as moral? Until the answers to these questions are presented and the resulting impacts clearly defined, DADT should remain in place.” (male)

“There exist potential ramifications for those who refuse couples counseling to gays. Chaplains who refuse to counsel gays on how to better their relationships or refuse to allow ‘married homosexuals’ to attend marriage retreats would be subject to discrimination charges even though to allow such things would directly violate many chaplains’ beliefs. If it then becomes mandatory to open these events to all couples, chaplains would quit offering the retreats. When family wellness is so important, this would do nothing but hurt the majority for the sake of a few.” (male)

Remarkably, while the report was largely based on a written survey that failed to ask a single question about religious liberty concerns (and had many other deficiencies), it admits that one of the primary objections given by the military to the dismantling of the policy is that normalizing homosexual behavior will harm the ability of service members to fully practice their faith.  Thus, our men and women in uniform have decided not to let their religious liberty go without a fight.  Given that they’re willing to fight for ours, that tenaciousness shouldn’t come as a surprise.

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ADF Litigation Counsel - Church Project

Author: Gary McCaleb - ADF Senior Counsel

Psalm 107:23-30

Those who go down to the sea in ships, who do business on great waters; they have seen the works of the LORD, and His wonders in the deep.

Not a likely verse for a desert-dwelling attorney to favor.  But for five years, thirty years ago, those words reported my reality. For then, a ship was my home:  I stood the long watches of the cold war aboard a U.S. Navy destroyer.

For He spoke and raised up a stormy wind, which lifted up the waves of the sea.

Foul weather brought stress and stole sleep as the ship pitched, yawed, rolled, and heaved.  Even wedged in your bunk, you constantly fought to stay in one place.  After a week, weariness supplanted wakefulness; fatigue was your constant companion.

They rose up to the heavens, they went down to the depths; their soul melted away in their misery.  They reeled and staggered like a drunken man, and were at their wits’ end.

Alas, this is not mere hyperbole; in heavy seas the ship would oscillate vertically through 40 or 50 feet or more; one reeled and staggered in counterpoint to the ship reeling and staggering.  Wits’ end, indeed.

Then they cried to the LORD in their trouble, and He brought them out of their distresses.

I often thought that the calming of the storm seemed a greater exhibition of power than creating the storm.  Chaos is easily produced; peace is produced not so easily.

He caused the storm to be still, So that the waves of the sea were hushed. Then they were glad because they were quiet, so He guided them to their desired haven.

Happily, we always made it to our haven—a safe port, calmer seas; and after many months at sea and abroad, we would find the ultimate haven—the moment would come when a glimpse of green horizon promised our longed-for landfall in a special land—our land, America, our home.

Today, though, that homeland is in the midst of a bitter moral storm that threatens the military I once served.  The waves are stirred at the behest of the radical left, which demands that homosexual and bisexual behavior be normalized and affirmed in our military.

Intentionally injecting such confused sexuality into the military is foolishness.  But with the Commander-in-Chief and even career-conscious top brass pushing the left’s agenda, few are willing to speak truth to power.

Yet a few—actually, quite a few, are speaking:  66 veteran military chaplains, collectively representing 1700 years of service, spoke out very clearly, and America is paying attention to their message.

Take a few minutes to read their message and view their videos, so you get to know the integrity and honor of these men.  Then you, too, should speak up:  let the Commander-in-Chief know that buying into the homosexual agenda will sell the military down the river—and into a sea that has no safe haven.


If you’re a military chaplain, active or retired, and are interested in becoming involved in this issue or signing the Chaplains Letter, please contact us with your information.

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Author: Gary McCaleb - ADF Senior Counsel

On Oct. 12, one federal judge wrested control of the American military from the other two branches of government and ordered the immediate worldwide acceptance of open homosexual/bisexual behavior in the military. Two days later, the Department of Justice appealed that deeply flawed decision in Log Cabin Republicans v. Gates—a decision that should never have been made. The lower court should have honored the constitutional separation of powers that vests Congress and the President with control of the military.

The very next day, the leftist homosexual advocacy group, Servicemembers United, fretted that the DOJ appealed the Log Cabin case but chose not to appeal a ruling in an Alliance Defense Fund lawsuit that struck down an unconstitutional National Park Service speech regulation.

Indeed, SU deemed the government’s decision to appeal the Log Cabin case while not appealing the ADF case to be “incomprehensible.” But to borrow a line from The Princess Bride with regard to a similar term, “You keep using that word. I do not think it means what you think it means.”

Indeed, the DOJ’s decision is entirely comprehensible.

First, the ADF case that the DOJ let stand was issued by a federal appeals court, unlike the lower district court decision in Log Cabin. So, the ADF decision had already been rigorously reviewed on appeal and was so well grounded in existing Supreme Court law that only a terminally bored (and marginally competent) attorney would dream of seeking further review.

Second, the one-judge district court decision in the Log Cabin case will create chaos in the military: even President Obama, who has relentlessly demanded that the military normalize homosexual behavior, admits that such radical change cannot happen instantaneously. At a dead minimum, the military will have to burnits precious time to figure out things like who will bunk with whom in barracks and whether to continue enforcing the regulatory ban on adultery when the court just ordered accommodation of “bisexual” behavior.

Third, the Log Cabin case did not consider the impact on the military chaplaincy and its critical role in teaching morals and ethics to all service members. If anything, that failure is what’s “incomprehensible,” as the DOJ did not forcefully present the issue despite both the President and the Pentagon knowing that the conflict will arise if homosexual/bisexual behavior is normalized.

Fourth, the Log Cabin decision shreds the constitutional principle of judicial deference to professional military opinion when it comes to running the military—and, under binding Supreme Court authority, courts must defer to the military on a broad, programmatic level. Instead, the district court flipped the deference principle upside down.

Consider the issue of adultery between a man and a woman: is it unreasonable for the military to say that adultery undercuts the morale of its troops by devastating families that are already deeply strained by the obligations of service? Of course not. And it scarcely strains one’s reason to say that a court should defer to that professional opinion across the board. But what the Log Cabin approach would do is require the military to prove that a specific act of adultery undercuts military readiness—and if it can’t, the home-wrecking adulterer gets away scot-free. The lower court’s error opens a Pandora’s Box of litigation that could paralyze the military even while two hot wars roil on.

Bear in mind that DOJ attorneys cannot look at a case in isolation. If they decide to throw the case by not appealing now, they are subjecting their clients to the consequences of each of the issues I just touched on. DOJ attorneys, like all other attorneys, are obligated to represent the best interests of their client. When a decision is as dangerous and as flawed as is the one in the Log Cabin case, then the reasonable and ethical choice is to appeal—and appeal swiftly.

Suffice it to say that, with even a quick look at the facts, SU’s lack of comprehension is what’s truly incomprehensible.


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