Joel Katcoff and Allen M. Wieder v. John O. Marsh, Jr., Secretary of the Army, the Department of the Army, and the Department of Defense

755 F.2d 223, 1985 U.S. App. LEXIS 27978
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 22, 1985
Docket352, Docket 84-6184
StatusPublished
Cited by74 cases

This text of 755 F.2d 223 (Joel Katcoff and Allen M. Wieder v. John O. Marsh, Jr., Secretary of the Army, the Department of the Army, and the Department of Defense) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joel Katcoff and Allen M. Wieder v. John O. Marsh, Jr., Secretary of the Army, the Department of the Army, and the Department of Defense, 755 F.2d 223, 1985 U.S. App. LEXIS 27978 (2d Cir. 1985).

Opinions

MANSFIELD, Circuit Judge,

This appeal raises the questi0n of whether Congress and the United States Army (“Army”), in furnishing chaplains as part of our arme(j forces to enable soldiers to practice the religions of their choice, violate the Constitution. We hold that, except in a tew respects that require further consider-a^’on, they do not.

Appellants, two practicing attorneys who were Harvard Law School students when they commenced the action, appeal from an [225]*225order of the Eastern District of New York, Joseph M. McLaughlin, Judge, granting summary judgment dismissing their complaint, which seeks declaratory and injunc-tive relief against continuation of the Army’s chaplaincy program as violative of the Establishment Clause. We affirm except to the extent that the order applies to a few specific aspects of the program,, which we reverse and remand for further proceedings.

Congress, in the exercise of its powers under Art. I, § 8, of the Constitution to provide for the conduct of our national defense, has established an Army for the purpose of “preserving the peace and security, and providing for the defense, of the United States,” 10 U.S.C. § 3062(a), and has directed that the “organized peace establishment of the Army” consist of all organizations and persons “necessary to form the basis for a complete and immediate mobilization for the national defense in the event of a national emergency,” 10 U.S.C. § 3062(d). It has specifically authorized that as part of this establishment there be “Chaplains in the Army,” who shall include the Chief of Chaplains, and commissioned and other officers of the Army appointed as chaplains. 10 U.S.C. § 3073. Under 10 U.S.C. § 3547 each chaplain is required, when practicable, to hold religious services for the command to which he is assigned and to perform burial services for soldiers who die while in that command. The statute also obligates the commanding officer to furnish facilities, including transportation, to assist a chaplain in performing his duties. Id.

In providing our armed forces with a military chaplaincy Congress has perpetuated a facility that began during Revolutionary days before the adoption of our Constitution, and that has continued ever since then, with the size of the chaplaincy growing larger in proportion to the increase in the size of our Army. When the Continental Army was formed those chaplains attached to the militia of the 13 colonies became part of our country’s first national army. P. Thompson, 1 The United States Army Chaplaincy xix (1978). On July 29, 1775, the Continental Congress authorized that a Continental Army chaplain be paid, II Cont.Cong.Jour. 220 (1775), and within a year General George Washington directed that regimental Continental Army chaplains be procured. V The Writings of George Washington From The Original Manuscript Sources 244-45 (J. Fitzgerald ed. 1932).

Upon the adoption of the Constitution and before the December 1791 ratification of the First Amendment Congress authorized the appointment of a commissioned Army chaplain. Act of March 3, 1791, Ch. XXVIII, § 5, 1 Stat. 222. Since then, as the Army has increased in size the military chaplaincy has been extended and Congress has increased the number of Army chaplains. See, e.g., Act of April 12, 1808, 2 Stat. 481; Act of January 11, 1812, 2 Stat. 671; Act of July 5, 1838, Ch. CLXII, § 18, 5 Stat. 259; Act of February 11,1847, Ch. VIII, § 7, 9 Stat. 124; Act of February 11, 1847, 9 Stat. 123; Act of July 22, 1861, Ch. IX, § 9, 12 Stat. 270.

In 1981 the Army had approximately 1,427 active-duty commissioned chaplains, 10 auxiliary chaplains, 1,383 chaplain’s assistants, and 48 Directors of Religious Education. These chaplains are appointed as commissioned officers with rank and uniform but without command. 10 U.S.C. §§ 3293, 3581. Before an applicant may be appointed to the position of chaplain he must receive endorsement from an ecclesiastical endorsing agency recognized by the Armed Forces Chaplains Board, of which there are 47 in the United States, representing 120 denominations. In addition to meeting the theological standards of the endorsing agency the applicant must also meet minimum educational requirements established by the Department of Defense, which are more stringent than those of some religious denominations having endorsing agencies and are designed to insure the applicant’s ability to communicate with soldiers of all ranks and to administer religious programs. In deciding upon the denominations of chaplains to be appointed the Office of the Chief of Chaplains estab[226]*226lishes quotas based on the denominational distribution of the population of the United States as a whole. The entire civilian church population rather than the current military religious population is used in order to assure that in the event of war or total mobilization the denominational breakdown will accurately reflect that of the larger-sized Army.

Upon his appointment the chaplain, except for a number of civilian clerics provided voluntarily or by contract, is subject to the same discipline and training as that given to other officers and soldiers. He is trained in such subjects as Army organization, command relationships, supply, planning, teaching, map-reading, types of warfare, security, battlefield survival, and military administration. When ordered with troops into any area, including a combat zone under fire, he must obey. He must be prepared to meet problems inherent in Army life, including how to handle trauma, death or serious injury of soldiers on the field of battle, marital and family stresses of military personnel, tending the wounded or dying, and psychological treatment of soldiers’ drug or alcohol abuse, as well as the alleviation of tensions between soldiers and their commanders. On the other hand, the chaplain is not required to bear arms or receive training in weapons. Under Articles 33 and 35 of the Geneva Conventions Relative to Treatment of Prisoners of War “chaplains” are accorded a non-combatant status, which means that they are not to be considered prisoners of war and they may exercise their ministry among prisoners of war. Promotion of a chaplain within the military ranks is based solely on his military performance and not on his effectiveness as a cleric.

The primary function of the military chaplain is to engage in activities designed to meet the religious needs of a pluralistic military community, including military personnel and their dependents. In view of the Army’s huge size (some 788,000 soldiers and 1,300,000 dependents in 1981) and its far-flung distribution (291,000 soldiers stationed abroad and many in remote areas of the United States) the task is an important and formidable one. The Army consists of a wide spectrum of persons of different ethnic, racial and religious backgrounds who go into military service from varied social, economic and educational environments. The great majority of the soldiers in the Army express religious preferences. About 80% are under 30 years of age and a large number are married.

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755 F.2d 223, 1985 U.S. App. LEXIS 27978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joel-katcoff-and-allen-m-wieder-v-john-o-marsh-jr-secretary-of-the-ca2-1985.