Katcoff v. Marsh

• Decision Date: 22 January 1985
• Docket Number: No. 352,D,352
• Citation: 755 F.2d 223
• Parties: Joel KATCOFF and Allen M. Wieder, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the Army, the Department of the Army, and the Department of Defense, Defendants-Appellees. ocket 84-6184.
• Court: U.S. Court of Appeals — Second Circuit

Page 223

755 F.2d 223

Joel KATCOFF and Allen M. Wieder, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the Army, the Department of the Army, and the Department of Defense Defendants-Appellees.

No. 352, Docket 84-6184.

United States Court of Appeals Second Circuit.

Argued Oct. 29, 1984.

Decided Jan. 22, 1985.

Joel Katcoff, New York City, pro se (Allen M. Wieder, New York City, on brief).

Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Patrick B. Northup, Asst. U.S. Atty., Brooklyn, N.Y., Lt. Col. Michael J. Nardotti, Jr., Maj. Thomas R. Folk, Dept. of the Army, Washington, D.C., of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, and MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge.

This appeal raises the question of whether Congress and the United States Army ("Army"), in furnishing chaplains as part of our armed forces to enable soldiers to practice the religions of their choice, violate the Constitution. We hold that, except in a few respects that require further consideration, they do not.

Appellants, two practicing attorneys who were Harvard Law School students when they commenced the action, appeal from an Congress, in the exercise of its powers under Art. I, Sec. 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. Sec. 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. Sec. 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. Sec. 3073. Under 10 U.S.C. Sec. 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.

order of the Eastern District of New York, Joseph M. McLaughlin, Judge, granting summary judgment dismissing their complaint, which seeks declaratory and injunctive 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.

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, Sec. 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, Sec. 18, 5 Stat. 259; Act of February 11, 1847, Ch. VIII, Sec. 7, 9 Stat. 124; Act of February 11, 1847, 9 Stat. 123; Act of July 22, 1861, Ch. IX, Sec. 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. Secs. 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 establishes 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.

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.

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. As a result it has become necessary to provide religious facilities for soldiers of some 86 different denominations. ¹ A sample survey Aside from the problems arising out of the sheer size and pluralistic nature of the Army, its members experience increased needs for religion as the result of being uprooted from their home environments, transported often thousands of miles to territories entirely strange to them, and confronted there with new stresses that would not otherwise have been encountered if they had remained at home. ² In 1981 approximately 37% of the Army's active duty soldiers, amounting to 293,000 persons, were stationed overseas in locations such as Turkey, Sinai, Greece, or Korea. In most of these areas the Judeo-Christian faiths of most American soldiers are hardly The problem of meeting the religious needs of Army personnel is compounded by the mobile, deployable nature of our armed forces, who must be ready on extremely short notice to be transported from bases (whether or not in the United States) to distant parts of the world for combat duty in fulfillment of our nation's international defense commitments. Unless there were chaplains ready to move simultaneously with the troops and to tend to their spiritual needs as they face possible death, the soldiers would be left in the lurch, religiously speaking. In the opinion of top generals of the Army and those presently in the chaplaincy, unless chaplains were made available in such circumstances the motivation, morale and willingness of soldiers to face combat would suffer immeasurable harm and our national defense would be weakened accordingly.

of military personnel made by the Army in 1979 revealed the following religious preferences among enlisted personnel represented at all by local clergy and the average soldier is separated from the local populace by a linguistic and cultural wall. Within the United States the same problem exists in a somewhat different way in that, although the linguistic or cultural barrier may be absent, local civilian clergy in the rural areas where most military...