Anderson v. Laird, No. 24617.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PER CURIAM
• Citation: 466 F.2d 283
• Parties: Michael B. ANDERSON et al., Appellants, v. Melvin R. LAIRD, Secretary of Defense of the United States of America, et al.
• Docket Number: No. 24617.
• Decision Date: 30 June 1972

466 F.2d 283 (1972)

Michael B. ANDERSON et al., Appellants,
v.
Melvin R. LAIRD, Secretary of Defense of the United States of America, et al.

No. 24617.

United States Court of Appeals, District of Columbia Circuit.

Argued June 8, 1971.

Decided June 30, 1972.

As Amended August 1, 1972.

Certiorari Denied December 18, 1972.

Mr. Warren K. Kaplan, Washington, D. C., with whom Mrs. Hope Eastman, and Mr. Lawrence Speiser, Washington, D. C., were on the brief, for appellants.

Mr. Robert J. Higgins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellees.

Mr. Joseph B. Friedman, Washington, D. C., filed a brief on behalf of the Baptist Joint Committee on Public Affairs, as amicus curiae urging reversal.

Mr. John J. Adams, Washington, D. C., filed a brief on behalf of the General Comm. on Chaplains and Armed Forces Personnel, as amicus curiae urging reversal.

Messrs. Leo Pfeffer, New York City, Joel H. Levy and Albert E. Arent, Washington, D. C., filed a brief on behalf of the American Jewish Congress and others as amicus curiae.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

Certiorari Denied December 18, 1972. See 93 S.Ct. 690.

PER CURIAM:

The separate opinions of Chief Judge Bazelon and Circuit Judge Leventhal concur in the conclusion that the judgment of the District Court, denying appellants' motions for declaratory and injunctive relief against compulsory chapel

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attendance at the military academies should be reversed. The case is remanded for the entry of an appropriate order. Circuit Judge MacKinnon dissents

BAZELON, Chief Judge:

This appeal seeks reversal of the District Court's decision that the requirement of mandatory chapel attendance for cadets and midshipmen at three federal military academies does not violate the Freedom of Religion Clauses of the First Amendment,¹ or the "religious test" clause of Article Six of the United States Constitution.² We reverse, and hold that the regulations at issue are invalid under the Establishment Clause. Although Judge Leventhal joins me in this holding, his reasons are expressed in a separate concurrence. It is the opinion of this writer that the regulations also violate the Free Exercise Clause. Judge MacKinnon, in dissent, would uphold the decision of the District Court, 316 F. Supp. 1081 (D.D.C.1970).

I.

Plaintiffs brought this suit as a class action on behalf of all cadets and midshipmen at the United States Military Academy at West Point, New York, the United States Naval Academy at Annapolis, Maryland, and the United States Air Force Academy at Colorado Springs, Colorado. There is no dispute that the regulations for these three institutions require attendance at Protestant, Catholic or Jewish chapel services on Sundays. The regulations are unequivocal³ and violations are punished by reprimands, demerits, punishment marching tours, confinement to quarters, and possible expulsion. The Naval and Air Force Academies do allow the midshipmen and cadets to attend services at local churches instead of the academy chapels. No alternative attendance is permitted at West Point because there are no local religious institutions.

The academies permit a cadet or midshipman to change his regular attendance only after he receives permission from the respective chaplains involved and from his parents if he is under twenty-one. The Naval Academy regulations provide that "requests for changes to a different denominational church based on personal whims of the midshipman, rather than a sincere desire to affiliate with the stated denomination, will not be approved."⁴ The academies also formally recognize that some cadets and midshipmen may be excused for conscientious objection to church or chapel attendance.⁵

466 F.2d 285

To test the constitutionality of these regulations under the Establishment Clause, the District Court applied the reasoning of the Supreme Court in School District of Abington Township v. Schempp:

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution."⁶

The court below held that the regulations did not violate the Establishment Clause because the purpose and effect thereof were secular, not religious.

The District Court reasoned that there is a crucial distinction between "attendance" at religious services and "worship" at those services; that the military academies require only attendance at Sunday services for the secular purpose of providing an "overall training program designed to create effective officers and leaders by preparing them to meet all the exigencies of command";⁷ and that the primary effect of compulsory attendance is also secular "in that it enables those who will one day hold command positions to gain an awareness and respect for the force religion has on the lives of men so as to react for the benefit of all in combat crises including the giving of spiritual counseling and guidance to those who turn to religion in such situations."⁸

The District Court found no violation of the Free Exercise Clause because an "individual chooses which service to attend and he chooses whether to participate and worship or not. And for sincerely held reasons he can be excused from attendance."⁹

In making its decision, the court accorded great weight to the opinions and judgments of the military personnel concerned with officer training; noted the unbroken tradition of compulsory chapel attendance at the academies; and relied on the traditional reluctance of courts to interfere in the management of the armed forces.¹⁰

These regulations, however, exceed the constitutionally permitted scope of governmental power. Study of the history of the First Amendment and the Supreme Court decisions interpreting it instructs that the Establishment Clause was written to abolish certain forms of governmental regulation of religion in order to protect absolutely the core values of religious liberty. Attendance at religious exercises is an activity which under the Establishment Clause a government may never compel.

II.

The language of the First Amendment expresses the feelings aroused in early

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America in reaction to the religious conditions and practices transplanted from the Old World. The background of the First Amendment has been probed in depth in many Supreme Court opinions¹¹ and, in the words of Mr. Justice Rutledge, "no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment."¹²

Compulsory church attendance was one of the primary restrictions on religious freedom which the Framers of our Constitution sought to abolish.¹³ Nonattendance was often treated as an offense which could be severely punished in order to enforce loyalty to an established sect.¹⁴ The "Virginia Bill for Religious Liberty", originally drafted by Thomas Jefferson, was enacted in Virginia in 1786 in the wake of the defeat of the state's tax levy for support of established churches. This legislation culminated James Madison's and Jefferson's struggle for religious liberty in that state. The Bill specifically provided:

"That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . ."¹⁵

This statute seeks to define certain categories of governmental involvement with individual religious conduct which must be prohibited. The writers of the First Amendment abandoned this definitional task in favor of drafting broader language to forbid any law "respecting an establishment of religion, or prohibiting the free exercise thereof". The

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actions which the Virginia legislation forbade indicate a core value which remains protected by the Establishment Clause—freedom from governmental imposition of religious activity. The Supreme Court has recognized that "the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute."¹⁶

The struggle in Virginia also led Madison to write his famed "Memorial and Remonstrance Against Religious Assessments."¹⁷ This document reflects Madison's opposition to official relations between church and state in every form and to every degree, whether the relations afforded a preference to a particular sect or simply aided in general the practice of religion. Thus the word religion "connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature regardless of those details."¹⁸ The Government is prohibited from "establishing" all religions as well as just one.¹⁹ And, it is also the legacy of Madison's writings which teach that certain governmental practices must be abolished completely, no matter how slight an incursion they seem to work on the essential nature of religious liberty.²⁰

This brief account reveals that the men who framed the Religion Clauses of the First Amendment were writing to abolish specific governmental practices which destroyed individual religious liberty and thereby "established" religion. Governmental compulsion of church attendance was one of those practices.

III.

However, the holding in this case does not rest on history alone.²¹ The Supreme

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Court has applied the Establishment Clause in circumstances unfamiliar to early Americans,²² and has interpreted it to prohibit...