Dear (name withheld):
Thank you for your May 17, 2015 email to Mikey Weinstein and the Military Religious Freedom Foundation (“MRFF”) regarding USAF Major General Craig S. Olson’s recent statements. I hope to address each of your concerns. Because your letter was quite lengthy and included many different arguments, I hope that you will thoughtfully consider my response, as I considered each the points you made in your email.
While I am tempted to immediately address your enumerated points concerning the demand letter sent to General Mark A. Welsh, III, I will begin where you did – with your accusations and erroneous assumptions concerning the mission of MRFF. You call Mr. Weinstein a coward for not posting his personal email address, as well as a “Marxist Liberal propagandist,” a “religious bigot,” and an “outright liar.” As an initial matter, it common for non-profit organizations, as well as other businesses, to include only one professional email address for people to use to contact the organization with questions and/or concerns. It is also common for individuals to maintain separate professional and personal email accounts – sometimes even more. I fail to see how not posting his personal email address on MRFF’s website makes Mr. Weinstein a coward, particularly since he reads every email received by MRFF (though, he does not have the time to personally respond to each of them – he is, after all, working to defend the rights of thousands of service members, as well as running the organization.).
You do not state the basis for the other accusations included in the introduction of your letter, but they can be similarly dismissed. You appear to have some historical knowledge, so I am surprised that you do not seem to understand that Marxism is primarily an economic theory concerning class struggle and societal development. In contrast, MRFF’s mission is to protect and defend the religious freedom of all soldiers, sailors, Marines, cadets, and veteran – without referencing economics or the social class of its clients. Consequently, your claim that Mr. Weinstein is a “Marxist Liberal propagandist” is entirely irrelevant to MRFF’s work concerning religious freedom. Moving on to your claim that he is a “religious bigot,” MRFF represents many service members who practice many different religious faiths. In fact,more than 95% of MRFF clients are Christians! Further, its board members and volunteers also observe a variety of religious beliefs. MRFF does not discriminate based on religious belief or otherwise limit the scope of its mission to only help individuals of a particular faith, or no faith at all. Clearly, Mr. Weinstein is not intolerant of those with religious opinions that differ from his, which would be the definition of a religious bigot. Finally, there is simply no basis for your claim that Mr. Weinstein is an “outright liar.” While you allege that he is factually incorrect concerning a number of points (each of which I address below), being incorrect is very different from lying. Even assuming arguendo that he is mistaken regarding certain points, you do not (indeed, cannot) point to a single situation in which he intentionally uttered an outright lie.
On the subject of incorrect facts, you state that this country was founded on Christian principles (citing a book of Catholicism) and assert, “You do not have to be a Christian to live in America but you have to except [sic] its principles and morality.” Although the Founding Fathers may have been Christian, they clearly established a government based on democratic principles – not religious principles. If they intended this to be a Christian nation, they could have easily written that into the Constitution instead of prohibiting the establishment of any particular religion. No citizen is required to accept the principles of Christianity in order to live in this country. As you state, the First Amendment allows anyone to “make a total” of himself/herself.
You are correct that joining the military does not strip a person of all his/her First Amendment rights. MRFF works tirelessly to protect these rights for all men and women in uniform by ensuring that their superiors respect and adhere to the mandates of the Constitution, as well as established military regulations. This brings me to your enumerated points:
1) You claim Mr. Weinstein has no standing for its complaint because he is no longer serving in the military. However, the term “standing” refers to the ability to bring suit in a court of law. It does not restrict a person’s right to send a demand letter to someone with such authority requesting that action be taken. I am unaware of any law or regulation stating that only active members of the military are permitted to send such demand letters and you do not cite any.
Next, you ask who Mr. Weinstein is representing since 70% of Americans are Christians. Assuming that your figure of 70% is correct, is it your position that the remaining 30% have no remedy if their First Amendment rights are violated? So the rights embodied in the Constitution only apply to citizens within the majority? Moreover, the term “Christian” encompasses a variety of denominations, including Protestant, Catholic, and the Church of Jesus Christ of Latter-day Saints. If those who identify as Protestant outnumber those who identify as some other denomination, does that mean only the rights of Protestants are guaranteed? By your logic, if the percentage of non-Christian Americans were to increase by another 45% – perhaps due to converting to another faith or rejecting any religious faith in adulthood – Christians would lose the ability to enforce their First Amendment rights. Otherwise, you might be forced to admit that your opinion is not based on the percentage of Americans who identify as Christian, but is actually based on whether Americans seeking redress agree with YOU and worship YOUR God.
In addition to being illogical, your “majority rules” position has been struck down by the U.S. Supreme Court. See Santa Fe Independent School Dist. V. Doe, 530 U.S. 290 (2000) (holding that a vote of the student body could not authorize student-led prayer prior to school events).
2) It is your position that Maj. Gen. Olson committed no violation because he was speaking at a National Day of Prayer Task Force event and “just acknowledging God is not forcing religion.” You further argue that, since the event was not mandatory for those under his command, it was not proselytizing.
First, Maj. Gen. Olson did not merely “acknowledge God.” He specifically requested that the audience pray for Defense Department leaders and troops preparing to re-deploy. While this request may seem to be a permissible expression of religion under some circumstances, Maj. Gen Olson specifically requested the prayers because Defense Department leaders “need to humbly depend on Christ” and so troops can “bear through that by depending on Christ.” Moreover, he did so while acting in his official capacity as a military leader while wearing his uniform, thus giving the distinct impression that he was not speaking in an individual capacity, but as an agent of the U.S. Air Force when he endorsed Christianity over other religious beliefs.
Second, the National Day of Prayer Task Force is a group whose purpose is to mobilize the Christian Community “to intercede for America and its leadership in the seven centers of power: government, military, media, business, education, church, and family.” As a result, he spoke in his official capacity for a group dedicated to intervening in government and military policies in order to advance Christianity. These actions clearly violated USAF Instruction 1-1, Sec. 2.12: “Leaders at all levels…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.” Whether it was mandatory for Air Force personnel under his command to attend is irrelevant.
3) You allege that the Establishment Clause only applies to Congress in respect to making laws. However, courts throughout the country have repeatedly applied the principles of the Establishment Clause to the policies of governmental entities, such as military institutions. See Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) (addressing the question of whether a daily prayer before supper at the Virginia Military Institute violated the Establishment Clause). Additionally, the Supreme Court has held that the actions of an individual may be deemed to be the actions of the government. See Lee v. Weisman, 505 U.S. 577 (1992) (holding that the decision of a public school principal concerning an introductory prayer at graduation ceremonies was attributable to the State).
I understand that many military leaders endorsed prayer or held prayer services – some still do. However, the mere fact that something is done – even repeatedly – and nobody complains about it, does not mean that the action is permissible under the Constitution. This is particularly true in the context of the military, where subordinates do not feel free to complain about the actions of their superiors. This is precisely why the work of MRFF is so important.
4) You are correct that the exact words “separation of church and state” do not appear in the U.S. Constitution. You also correctly attribute the phrase to Thomas Jefferson in his 1802 letter to theDanbury Baptist Association in Connecticut. That said, while you find Jefferson’s meaning to “clearly” refer to the prohibition of Congress from establishing a national religion, the Supreme Court has cited his words to support the overarching principle of a wall between church and state. See Reynolds v. U.S., 98 U.S. 145 (1879) (stating Jefferson’s words “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment”); Everson v. Board of Education, 330 U.S. 1 (1947) (“In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.”). Additionally, Everson incorporated the Establishment Clause so that it also applied to state and local governments pursuant to the Fourteenth Amendment.
5) You accuse Mr. Weinstein of lying when he stated that Maj. Gen. Olson’s actions constitute a felony under the Uniform Code of Military Justice. To be clear, Mr. Weinstein specifically stated that his remarks constitute a potential felony. Article 92, Section 892 of the Uniform Code of Military Justice states that anyone who “violates or fails to obey any lawful general order or regulation…shall be punished as a court martial may direct.” As previously stated, Maj. Gen. Olson’s remark violated USAF Instruction 1-1, Sec. 2.12. Because some court martial convictions are considered felony convictions, Mr. Weinstein’s assertion that the violation of Air Force Regulations constitutes a potential felony is absolutely correct.
I found a copy of “Military Personnel and Freedom of Religious Expression: Selected Legal Issues,” April 2010, which you cite in your email. It is a report providing an overview of First Amendment requirements concerning the religious freedom of military personnel. I do not know of any case in which the content of an informative report providing an overview of a topic was determined controlling over a statute. Additionally, while you claim that Maj. Gen. Olson was “engaged in religious practice” when he spoke at the National Day of Prayer Task Force event, I was unable to find any information in your cited report defining the term “engaged in religious practice.” Is it your position that simply mentioning one’s personal religious beliefs constitutes being engaged in religious practice? Does his location at a National Day of Prayer Task Force event force the conclusion that he was engaged in religious practice? After all, he was participating in a religious ceremony or ritual at the time – he was simply talking to a group of people who agree with his chosen religion. In any event, the fact that a person is engaged in religious practice does not prevent that person from simultaneously violating a valid regulation. See Employment Div. v. Smith, 494 U.S. 872 (1990) (upholding a prohibition on the use of peyote, despite the drug’s legitimate use as part of a religious ritual).
You also claim that “most people find your actions disgusting.” In support of this claim, you include a link to a Christian website. You are clearly an educated man, so I find it unnecessary to point out why comments to an article posted on a Christian website do not constitute objective support for your argument.
6) The majority of arguments submitted at this point are repetitive, but I will briefly review them. First, you claim that the subject demand letter is just “make [sic] up laws and regulation that do not exist,” yet the Establishment Clause, Article VI, the Air Force Regulations, and the applicable section of the Uniform Code of Military Justice clearly exist and are discussed above. Second, you state that expressing how God affected does not fall within the categories of religion or proselytizing. I find this argument interesting because you previously claimed that Maj. Gen. Olson’s comments regarding his religion constitute being engaged in religious practice. So, does discussing religion constitute religious practice or not? Does that answer depend on whether you agree with what is being said? As for whether his comments should be deemed proselytization, it is not necessary to proselytize or force religion to violate the Establishment Clause or Air Force Regulations, as discussed above. Similarly, the mandates of the Establishment Clause are not limited to the actions of Congress, which is also discussed above.
Finally, you claim that MRFF fails to understand that the Constitution “is to RESTRICT Government, and Government intervention, not the people,” and that Mr. Weinstein spends “every waking moment of [his] pathetic little life trying to convince [himself] and anyone that might be listening that there is no God” because otherwise he would have to “obey Him.” In response, I offer an alternate possibility to these claims: You fail to understand that the mission of MRFF is to protect people from government intervention in the form of the wrongful endorsement of a particular religion by superiors in the military. Additionally, you have spent your life convincing yourself that your views regarding the Constitution and its mandates are correct, despite evidence to the contrary, because otherwise you would have to admit that people who do not agree with you also have rights that must be protected.
Thank you for taking the time to read my response. I hope I have adequately addressed each of the concerns mentioned in your email.