10/13/16 MRFF Demands Pentagon Investigate Recent Abrupt Change of Air Force Instruction Concerning the USAF American Flag-Folding Scripts at Retirement Ceremonies

Thursday, October 13, 2016

Glenn A. Fine

Inspector General, Department of Defense

4800 Mark Center Drive

Alexandria, VA 22350-1500

 

Dear Honorable Glenn Fine:

Background

My name is Mikey Weinstein, and I am the Founder and President of the Military Religious Freedom Foundation (“MRFF”), which is a nonprofit civil rights advocacy organization. MRFF currently represents over 47,600 U.S. soldiers, sailors, airmen, and marines, as well as national guard, reservists, service Academy/ROTC cadets and midshipmen, and veterans in connection with unconstitutional violations of the separation between church and state that are occurring within the U.S. military. Approximately 96% of MRFF’s clients are practitioners of the Christian faith with the remainder of MRFF’s clients following many different faiths and no-faith traditions.

I am writing to urgently request an immediate and official DoD Inspector General (DoD/IG) investigation into the very recent and abrupt change to Air Force Instruction (AFI) 34-1201 concerning the USAF American flag-folding scripts at retirement ceremonies.  Specifically, the once clear and constitutionally sound governing instruction now allows Air Force leaders to unlawfully and unconstitutionally endorse their personal religious beliefs during such ceremonies.  Further, the brand new language describes flag-folding retirement ceremonies as “not official ceremonies,” despite a literal plethora of overwhelming, compelling evidence to the contrary.

The rescinding of the language in AFI 34-1201 related to flag folding scripts at retirement ceremonies is extraordinarily problematic for at least three specific rational and relevant reasons: (1) it erroneously makes retirement ceremonies “unofficial” in order to justify what would clearly be a violation of the First Amendment’s Establishment Clause when the overwhelming, undisputed evidence demonstrates that these ceremonies are unquestionably official, (2) it permits the use of religious flag-folding “scripts,” which most often and predictably invoke sectarian Christian values with each fold without the slightest respect or consideration of other service members’ differing religious beliefs or the absence of religious beliefs in direct violation of the U.S. Constitution’s Establishment Clause, and (3) retirement ceremonies are comprehensively supported by the use of federally funded facilities and the use of uniformed, on-duty military personnel paid with federal funds, which – because the ceremony is incontrovertibly official and not solely personal without support from federal facilities and federal funds – violates the federal *Purpose Statute and the **Anti-Deficiency Act (ADA), please see below for descriptions of both statutes.  Because every ADA violation requires a report to the President of the United States, which includes a description of the disciplinary action taken against those who elect to violate the ADA, you should direct the Secretary of the Air Force to report to the President each of these ADA violations with a description of the disciplinary action taken.  Under the Freedom of Information Act, 5 U.S.C. Section 552, please copy MRFF and me on all of these reports.

Request for Independent, Unbiased Review of this Complaint

Mr. Fine, I humbly and most respectfully ask that you seriously consider the following request:  Please do NOT merely forward or delegate the response to this MRFF complaint to the Secretary of the Air Force Inspector General (SAF/IG).  SAF/IG’s legal advice is provided by USAF officers and staff assigned to and performance-rated by the Administrative Law Division, Headquarters United States Air Force Division (AF/JAA).  AF/JAA was the precise legal office that erroneously concluded and ill-advised the Secretary of the Air Force’s Public Affairs Office (SAF/PA) that allowing a USAF retirement ceremony’s honoree to select his or her own religious version of the flag-folding script did NOT violate the Establishment Clause, the Purpose Statute, or the Anti-Deficiency Act, because the flag-folding retirement ceremony was speciously a “momentary unofficial lapse” in the otherwise “official” retirement ceremony.  To permit AF/JAA to now respond to this complaint about their clearly deficient legal advice would constitute the most egregious aspects of “self-inspection” and a horrific conflict of interest, with all the attendant deficiencies associated with the lack of independent IG oversight.  Given the historically very close relationship between AF/JAA and Secretary of the Air Force/General Counsel’s Office (SAF/GC), delegating the critically important answer to this MRFF complaint to SAF/GC would only give rise to the appearance of the very same conflict of interest and appearance of self-inspection that forwarding the complaint to AF/JAA itself would create.  Therefore, I respectfully request an honest, de novo examination and answer to MRFF’s complaint contained herein, untainted by AF/JAA’s and SAF/GC’s very likely biased investigation or authorship of the answer to this official DoD/IG complaint.

The Amended AFI 34-1201 Permits Wrongful Endorsement of Religion in Violation of the US Constitution’s Establishment Clause

By removing any requirement that USAF flag-folding retirement ceremonies obey the mandates of the Constitution’s Establishment Clause, the Air Force has provided religious zealots with a universal “loophole,” which permits sectarian religious proselytization at these USAF events – events that subordinate airmen are expected to attend and are customarily performed on military bases by Air Force leaders during official duty hours and in military full uniform.

Such endorsement of religion under these circumstances clearly violates the Establishment Clause of the Constitution.  Please refer to the First Amendment to read the language of the Establishment Clause.  An act or policy of a government entity violates the Establishment Clause if any one of the following is shown: (1) its purpose is not secular; (2) its principal/primary effect either advances or inhibits religion; or (3) it fosters an excessive entanglement with religion.  Lemon v. Kurtzman, 403 U.S. 602 (1971).

At the very least, allowing language in any USAF flag-folding script that associates the Nation’s flag with sectarian Christian values, rather than secular military values, has the all-too-obvious primary effect of advancing Christian religious teachings.  It cannot be advocated that any other purpose is served.  For example, one popular “script” includes the language, “The fourth fold of the flag represents our weaker nature, for as American citizens trusting in God, it is to Him we turn in times of peace as well as in times of war for His divine guidance.”  The script goes on to declare that the fully folded flag, in a trifold geometric form, represents our allegiance to the Trinity, meaning God the Father, God the Son, and God the Holy Spirit.  Taken together as a whole, this language and its clear syntax must unquestionably be understood to state that the flag represents Christianity, that only the service and sacrifice of Christian service members should thus be honored, and that others should convert to those specific religious values or their service to our nation will not be as honored and respected.

It should also be noted that the new AFI 34-1201 permits associating particular, numbered folds with meanings that have absolutely no historical support whatsoever.  While individual service members may rely on their Judeo-Christian values during their time of military service, the flag simply does not represent only THEIR personal religious beliefs.  It is both unconstitutional and improper for military leaders to imply that the flag represents anything other than one nation under law, indivisible with liberty and justice, FOR ALL, not just Judeo-Christian service members.  The sacrifice of EVERY service member counts, regardless of his or her religious faith or lack thereof.  For the United States Air Force, a federal agency, to state or suggest otherwise is a clear, unrepentant and savage violation of the Establishment Clause.

Flag-Foldings at Retirement Ceremonies are Official Air Force Ceremonies

Describing flag-folding retirement ceremonies as “unofficial” and “personal in nature,” when every circumstance surrounding the ceremony makes it clear that the ceremony is, in fact, a wholly official, federally-funded ceremony, defies all logic. These ceremonies are usually performed on military bases, during duty hours, presided over by uniformed on-duty Air Force (paid with federal funds) leaders, and attended by uniformed on-duty (paid with federal funds) Air Force subordinates, and supported by uniformed (paid with federal funds) Air Force Honor Guard members, who most often serve as the assigned flag-folding detail.  In fact, a published SAF/GC legal opinion allows federal funds to pay for the travel expenses of an officer to preside over these retirement ceremonies, and the opinion actually encourages a General Officer to serve as the paid presiding officer.  Every indicia of a USAF retirement ceremony underscores its official nature.  The mere fact that the honoree can decline the ceremony does not make the federally funded ceremony somehow “unofficial.”

It defies credulity and basic common sense to suggest that otherwise official USAF ceremonies may contain authorized “momentary lapses into unofficial speech”, which is somehow magically unconstrained by law.  If this ridiculous fiction were true, every time a uniformed, on-duty military member wished to religiously proselytize his or her subordinates, he or she could call a “time out” for unauthorized religious speech which (as explained below) would violate the Establishment Clause and the Anti-Deficiency Act.   For example, unofficial lapses or “time outs” from otherwise official ceremonies could occur in promotion ceremonies, award ceremonies, change of command ceremonies, “hail and farewell” ceremonies, permitting unrestrained, personal religious advocacy that would otherwise be totally prohibited by the Establishment Clause and the Anti-Deficiency Act.   It is not a large leap to foresee that this travesty will lead to temporary lapses or “time outs” in commanders’ calls, guard mounts, and supervisor morning meetings.  The end result will be to allow the exception to eviscerate the rule, nullifying the Establishment Clause and the Anti-Deficiency Act. The good order, morale, discipline and unit cohesion of USAF airmen will consequentially be terribly afflicted and maligned.

It is absolutely shocking to think that the Air Force has now authorized “unofficial lapses” (time outs) to permit military members in a flag-folding script during otherwise official ceremonies to advocate, for example, their personal religious objections about working with gay and lesbian co-workers by claiming that LGBT sexual orientation violates Biblical prohibitions, to object to women performing combat duties by claiming that the Bible states that women must be subservient to men, to state that the nation was founded as solely a Christian nation under God and not a nation supporting other religious beliefs, and to state that failure to convert to Christianity will result in their non-Christian co-workers being denied the rewards of Heaven and, resultantly, consigned to burn eternally in the fires of hell.

Key U.S. Supreme Court Ruling and Federal Purpose Act and Anti-Deficiency Act Applicability

The United States Supreme Court in Parker v. Levy (417 U.S. 733, 1974) firmly held that First Amendment freedoms (free speech and religious free practice) are restricted in the military by the overriding interest in maintaining good order, morale, discipline and unit cohesion.  On-duty, sectarian religious proselytizing serves as a fatal cancer to the maintenance of good order, discipline, unit cohesion and morale.  As an extremely dangerous consequence, it severely and most deleteriously degrades good order, discipline, unit cohesion morale, mission accomplishment, the health and safety of the troops and overall combat readiness.  Parker allows the Air Force to forbid sectarian, religious flag-folding retirement ceremonies in otherwise official ceremonies like individual retirements.  The Air Force prohibited these religious flag-folding retirement ceremonies in the past for good cause and on a strong and formidable legal foundation.  Until recently changed, Air Force Instruction 34-1201 refused to sanction and approve religious flag-folding retirement ceremonies.  The Air Force should not now suddenly reverse its prior constitutional course to please airmen who wish to use, capitalize and leverage official forums and federal funds to religiously proselytize other airmen in violation of the Constitution and federal statutes.

*The Purpose Statute, 31 U.S.C. § 1301, requires before a federal agency, such as the Air Force, may lawfully expend federal funds, Congress must first authorize the agency permission to use those funds for the purpose that the agency intends.  The agency must have BOTH an authorization from Congress (aka: an “authorization act”) and appropriation from Congress (aka: an “appropriations act”) before it may lawfully use federal funds for a particular purpose.  For a good tutorial, please see:

www.dod.mil/dodgc/defense_ethics/resource_library/deskbook/fiscal_law.pdf

As the earlier cited SAF/GC opinion states, Congress has authorized use of federal funds for official military ceremonies, which permits the use of federal travel funds to pay, for example, the presiding official’s travel expenses.   However, as SAF/GC must have recognized, Congress is prohibited by the First Amendment from using federal funds to pay for ceremonies (outside of chapel services, of course) which proselytize sectarian religious teachings, and accordingly, Congress has not passed an authorization to use federal funds to support such personal religious speech in Air Force ceremonies.  Therefore, because there is no Congressional authorization to pay for religious flag-folding retirement ceremonies, use of federal funds to facilitate religious based flag-folding scripts which broadcast sectarian religious teachings is absolutely forbidden by law.  More specifically, when the Air Force elects to use federal funds to support such religious flag-folding retirement ceremonies, it violates the **Anti-Deficiency Act, 31 USC 1351, which prohibits use of federal funds for purposes not authorized by Congress.  Violations of the ADA require an agency investigate and, when the ADA violation is confirmed, send a timely report to the President describing the disciplinary action regarding the responsible government official.  Therefore, the Air Force’s Congressionally-unauthorized approval to use federal funds to host personal, religious flag-folding retirement ceremonies is a clear violation of the ADA and the Purpose Statute, requiring three things  (1) an investigation into how this malfeasance occurred; (2) that the responsible official be held accountable; and, (3) that a report of accountability be sent to the President.   For a good explanation of the ADA and its mandatory reporting requirements, please see: http://www.gao.gov/legal/anti-deficiency-act/about and https://www.whitehouse.gov/sites/default/files/omb/assets/a11_current_year/s145.pdf.

Furthermore, even if Congress authorized expenditure of federal funds to host sectarian religious flag-folding retirement ceremonies and required such ceremonies be preceded by an announcement that attendance at the ceremony is “voluntary,” it is widely known in military culture that subordinates are expected to attend and that those who do not attend often experience negative direct and in-direct consequences to their military careers.  No official announcement ostensibly to the contrary can adequately cleanse military members from believing that attendance is, in fact, fully expected.

Religious based flag-folding retirement ceremonies could indeed be lawfully permitted if:  the retirement ceremony occurred off-base, in a civilian facility; the presiding official is not in uniform and he or she does not serve as a superior or supervisor of other military members so that the presiding official’s presence cannot be perceived as an endorsement of the flag-folding script’s religious teachings; no federal funds are used to support the ceremony to include funding the presiding official’s travel expenses; and attendees and participants (e.g., the presiding official, Honor Guard members, master of ceremony, escorts etc.) are on leave and, thus, their attendance during the ceremony is not cognizably compensated by their federally funded salaries.

Conclusion

MRFF insists than an immediate DoD/IG investigation be performed concerning the reasons for the recent change to Air Force Instruction 34-1201, that appropriate sanctions be imposed for allowing the Establishment Clause and the Anti-Deficiency Act to be systemically violated, and that Air Force Instruction 34-1201 be immediately amended to obey and conform to the mandates of the Constitution and the restrictions of the Purpose Statute and Anti-Deficiency Act.

We at MRFF, along with our tens of thousands of military and veteran clients, anxiously await your response, sir.  Please let me know if you have any questions or require any additional information.

Respectfully,

Michael L. “Mikey” Weinstein, Esq.

Founder and President

Military Religious Freedom Foundation

[email protected]

(505) 250-7727

CC:

Secretary of Defense – Ash Carter

Chairman of the Joint Chiefs of Staff – General Joseph F. Dunford, Jr.

Secretary of the Air Force – Deborah Lee James

Chief of Staff, United States Air Force – General David L. Goldfein

Randal G. Mathis, Mathis & Donheiser P.C. – MRFF Lead Trial Counsel

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1 Comment

  1. Sami Thompson

    After reading the article, I find the objections (to the recent actions by certain members of the Air Force) to be completely reasonable. Yet I expect a tsunami of outrage from Christians. I wish I could get them to listen when I say that the best way to determine if what they’re doing is inappropriate is to imagine their religious words replaced by those of a religion that is foreign to them, or that frightens them.

    The world is full of religions, and Christianity is no different than all the rest. They all deserve equal respect; however, none should have any bearing whatsoever on our military or government.

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