Congress Passes National Defense Authorization Bill with Various Provisions Impacting Religion

A press release from the U.S. Senate Armed Services Committee reports that on Thursday the U.S. Senate passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 by a vote of 83-11. The 4408-page bill (full text) now goes to President Biden for his signature. Among the provisions that impact religious concerns are the following:

 SEC. 509D. STUDY OF CHAPLAINS. 

(a) STUDY REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretaries of the military departments, shall submit to the Committees on Armed Services of the Senate and House of Representatives a study of the roles and responsibilities of chaplains. 

(b) ELEMENTS.—The study under subsection (a) shall include the following: (1) The resources (including funding, administrative support, and personnel) available to support religious programs. (2) Inclusion of chaplains in resiliency, suicide prevention, wellness, and other related programs. (3) The role of chaplains in embedded units, headquarters activities. and military treatment facilities. (4) Recruitment and retention of chaplains. (5) An analysis of the number of hours chaplains spend in roles including pastoral care, religious services, counseling, and administration. (6) The results of any surveys that have assessed the roles, responsibilities and satisfaction of chaplains. (7) A review of the personnel requirements for chaplains during fiscal years 2013 through 2022. (8) Challenges to the abilities of chaplains to offer ministry services.

SEC. 525. RESCISSION OF COVID-19 VACCINATION MANDATE

Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members’’.

SEC. 529. RECURRING REPORT REGARDING COVID-19 MANDATE. 

(a) REPORT REQUIRED.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a recurring report regarding the requirement that a member of the Armed Forces shall receive a vaccination against COVID-19. 

Each such report may not contain any personally identifiable information, and shall contain the following:  (1) With regard to religious exemptions to such requirement— (A) the number of such exemptions for which members applied; (B) the number of such religious exemptions denied; (C) the reasons for such denials; (D) the number of members denied such a religious exemption who complied with the requirement; and (E) the number of members denied such a religious exemption who did not comply with the requirement who were separated, and with what characterization....

Section 533 requires the Armed Forces to submit to Congress a report on recruiting efforts. Among other things, the Report is to include:  "A comparison of the race, religion, sex, education levels, military occupational specialties, and waivers for enlistment granted to enlistees by geographic region and recruiting battalion, recruiting district, or recruiting region of responsibility."

Title XXIX contains various provisions relating to access, preservation and protection of Native American cultural and religious sites within land used for bombing ranges and training areas.

Section 5576 limits foreign aid funds allocated for Burma, providing that funds may not be made available to "to any individual or organization that has committed a gross violation of human rights or advocates violence against ethnic or religious groups or individuals in Burma."

Section 6416 provides for creation of an Office of Wellness and Workforce Support for CIA personnel. Among other things, the Office is to make available: "A list of chaplains and religious counselors who have experience with the needs of the Agency workforce...."

Congress Gives Final Passage To Defense Authorization Act-- Some Sections Impact Religion

Yesterday the Senate gave final approval to S.2943 as amended by Conference Report 114-840, the National Defense Authorization Act for Fiscal Year 2017. (Full text). The 975-page bill, which now goes to the President for his signature, contains the following provisions of interest to those who follow church-state and religious liberty developments:

• Sec. 549 which calls for data collection on hazing notes that victims are often members of protected classes such as race and religion.
• Sec. 585 authorizes award of the distinguished service cross posthumously to Chaplain Joseph Verbis LaFleur for acts of valor while a Japanese prisoner of war during World War II.
• Sec. 591. Repeals the requirement for a chaplain at the United States Air Force Academy appointed by the President.
• Sec. 1085. A sense of Congress resolution that there should be within the National Security Council a Special Adviser to the President on International Religious Freedom who should serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on  International Religious Freedom, Congress and religious nongovernmental organizations.
• Sec. 1263 (Part of the ‘Global Magnitsky Human Rights Accountability Act). Authorizes the President to impose sanctions on any foreign person who is responsible for extrajudicial killings, torture or other gross human rights violations against individuals in a foreign country who, among other things, exercise, defend or promote freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
• Section 2829F provides for return of certain lands at Fort Wingate, New Mexico to the Zuni Tribe and Navajo Nation. Certain of the land is to be held in trust with shared cultural and religious access by the Zuni and Navajos.

The final bill did not include the controversial Russell Amendment which would have allowed religious organizations that enter government contracts to require that their employees adhere to the organization's religious tenets. This would have permitted religious organizations that oppose same-sex marriage to refuse to hire those in same-sex relationships. (Background).

Defense Authorization Act Encourages Religious Diversity In The Armed Forces

After an initial veto by President Obama of the 2016 National Defense Authorization Act, Congress passed a revised version last week and on Monday sent it to the President for his signature.  It is expected the President will sign the bill. (Defense One.) The 1278-page bill (full text) contains at least 3 provision relating to religion or religious services in the military.

Section 504 permits extension of the mandatory retirement age of a chief chaplain or deputy chief of chaplains to 68. Section 898  provides that the Department of Defense may not preclude non-profit organizations from competing for contracts for religious related services at military installations.

The most important religion-related provision, however, is Section 528 which is a "sense of Congress" resolution encouraging diversity in the military. It reads:

(a) Findings-- Congress finds the following: (1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world. (2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, non-practicing, and many more. (3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States. (4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States. (5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great nation.

(b) Sense of Congress-- It is the sense of Congress that the United States should (1) continue to recognize and promote diversity in the Armed Forces; and (2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

Senate Version of Defense Authorization Act Passes--Several Provisions On Religion In the Military

As reported by U.S. News, last Thursday the U.S. Senate by a vote of 71-25 passed its version of H.R.1735, the National Defense Authorization Act for Fiscal Year 2016 (full text).  The bill now goes to conference with the House that passed its own version last month.  The Senate bill includes several provisions relating to religion in the armed forces:

• Section 505: (a) AUTHORITY.—Section 1253 of title 10, United States Code, is amended by adding at the end the following new subsection:
   ‘‘(c) EXCEPTION FOR CHIEFS OF CHAPLAINS AND DEPUTY CHIEFS OF CHAPLAINS.—The Secretary of the military department concerned may defer the retirement under subsection (a) of an officer serving in a general or flag officer grade who is the Chief of Chaplains or Deputy Chief of Chaplains of that officer’s armed force. Such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age.’’.
  
•  Section 524: (a) FINDINGS.—Congress finds the following:
  (1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world.
  (2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, nonpracticing, and many more.
  (3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States.
  (4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States.
  (5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great Nation.

(b) SENSE OF CONGRESS.—It is the sense of Congress that the United States should—
(1) continue to recognize and promote diversity in the Armed Forces; and
(2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

•  Section 829: The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation. 

Congress Gives Final Passage To Defense Authorization Act Including Provisions On Mt. Soledad Transfer

On Friday, the Senate gave final approval and sent to the President for his signature H.R. 3979, the  National Defense Authorization Act for Fiscal Year 2015 (full text). The Act includes a provision (Sec. 2852) calling for the sale of the Mt. Soledad Veteran's Memorial to the privately incorporated Mount Soledad Memorial Association.  The provision, sponsored by Sen. Diane Feinstein, is intended to end the long-running litigation challenging the Memorial's cross as a violation of the Establishment Clause. (See prior posting.) Politico reports on the Act's passage.

The Act also contains provisions regarding the National Park System, including (Sec. 3051) a requirement that the Secretary of the Interior conduct studies to determine whether various sites should be designated as national parks.  Among these sites are properties in Flushing, New York relating to the history of religious freedom during the era of the signing of the Flushing Remonstrance; and Atlanta's West Hunter Street Baptist Church (background).

The Act as passed does not include provisions in an earlier House version relating to military chaplains and religious expression. (See prior posting.)

House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

• Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
• Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
• Section 528 requires the Department of Defense to revise  Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces."  Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Final Version of Defense Authorization Bill Contains Military Religious Freedom Provisions

The House of Representatives yesterday passed H Res. 441 concurring in the Senate Amendments to the 2014 Defense Authorization Bill, H.R. 3304, (with one minor amendment so that it must still go back to the Senate for final approval). (Full text of resolution and bill.) As is typical with military authorization and spending bills, this one contains several provisions on religious freedom in the military.

Section 532 tweaks the language in current law on conscience rights of those in the military, so that the new provision (new language in italics) reads:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The section also sets a 90-day deadline for issuance of regulations implementing this section, and requires the Pentagon to consult with faith-group representatives who endorse military chaplains in drafting the regulations.

Section 533 then requires a DOD Inspector General's report 18 months later on Armed Forces compliance with the ban on adverse personnel action based on conscience, moral principles or religious beliefs. The IG is to consult with the Armed Forces Chaplain Board as appropriate in preparing the report.

Section 534 requires that within one year:

The Secretary of Defense shall conduct a survey among a statistically valid sample of military chaplains of the regular and reserve components of the Armed Forces, to be selected at random, to assess whether—

(1) restrictions placed on prayers offered in a public or non-religious setting have prevented military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group; and 

(2) those restrictions have had an adverse impact on the ability of military chaplains to fulfill their duties to minister to members of the Armed Forces and their dependents.

The Joint Explanatory Statement (at pp. 63-65) explains the House-Senate compromises that led to these provisions. The Statement also contains the following language (pg. 82) that appears to be a response to criticism by some conservative Christian groups (background) that the military has given preferential access in policy making to the Military Religious Freedom Foundation:

The House bill contained a provision (sec. 530E) that would require the Department of Defense to provide to the Committees on Armed Services of the Senate and the House of Representatives advance written notice of any meeting held between Department employees and civilians for the purpose of writing, revising, implementing, enforcing, or seeking advice, input, or counsel regarding military policy related to religious liberty.

The Senate committee-reported bill contained no similar provision.

 The agreement does not include this provision.

We believe the Department and the military services should proactively reach out to and meet with religious groups of all faiths when formulating and revising policies that impact religious freedom and tolerance within the military. We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.