In 2013, as the U.S. Supreme Court was deciding U.S. v. Windsor, the case that struck down the federal Defense of Marriage Act (DOMA), the Chaplain Alliance for Religious Liberty filed an amicus brief on behalf of the legislators who were seeking to uphold DOMA. In their brief, the Chaplain Alliance urged the Court to consider the harms that, if DOMA were overturned, might befall military chaplains opposed to same-sex marriage.
Specifically, it cited a military “marriage enrichment program known as Strong Bonds,” which “is currently congruent with traditional beliefs about marriage as the union of one man and one woman.” Without DOMA, however, “that would almost certainly have to change,” and chaplains with traditional views “would face a direct conflict with their faith.”
Some might argue that the chaplains’ prediction is coming true. Earlier this year, U.S. Army Chaplain Scott Squires, who is endorsed by the North American Mission Board of the Southern Baptist Convention, was found responsible for discriminating against a same-sex couple because he would not conduct a Strong Bonds retreat that included them, even though he arranged for them to be placed in the next available retreat conducted by an affirming chaplain. Chaplain Squires is now contesting an Army investigator’s recommendation that he receive a formal reprimand, something that he predicts will limit his future career prospects.
It might seem that Chaplain Squires’s case is the military equivalent of civilian disputes about whether to grant exemptions from nondiscrimination laws to those who oppose same-sex marriage. The past few years have seen an explosion of such cases, including those of the Colorado baker who refused to make a cake for a same-sex wedding, the Texas foster placement agency that turned away a lesbian couple, and the North Carolina magistrate who lost her job after refusing to perform same-sex marriages. These and similar cases are a subset of a much larger number of disputes about whether, when, and to what extent a person’s or organization’s religious beliefs can excuse them from their ordinary legal responsibilities.
But military chaplaincy has long been understood as a profession where the usual rules about the interaction between religion and civil liberties do not always apply. The U.S. has had military chaplains since the Revolutionary War, and while it might seem unusual for the government to pay religious leaders to minister to servicemembers, the provision of chaplains has traditionally been seen as a way to ensure that servicemembers can exercise their constitutional right freely to practice their faith while serving, especially when deployed, for instance, in combat zones, on submarines, in remote locations, and in other contexts where attending a local church, synagogue, or mosque would be difficult if not impossible.
U.S. military chaplains operate under the obligation to “perform or provide,” that is, either to meet a servicemember’s religious needs themselves or, in cases where a situation presents a conflict with an individual chaplain’s beliefs, to find another chaplain who will do so. It’s for this reason that an Orthodox rabbi serving as a chaplain can refuse to perform an interreligious wedding, so long as he identifies a chaplain who can. Likewise, a Baptist chaplain can connect a Catholic sailor with a priest rather than hear her confession.
But how does “perform or provide” operate in the context of same-sex marriage? When Congress repealed the military’s “Don’t Ask, Don’t Tell” policy, conservative chaplains expressed concern that they would be required to choose between the law and their conscience. At the time, other chaplains pointed out that this argument was “as dangerous as it is disingenuous,” since those conscientiously opposed would not be required, for instance, to perform same-sex marriages. And even despite the objections of the chaplains who filed the amicus brief in Windsor, it appears that “perform or provide” has by and large served the military well as a way of both respecting the diverse views of its chaplains and meeting the spiritual and religious needs of LGBTQ+ servicemembers.
Enter Chaplain Squires. His attorneys say that when a servicemember in a same-sex marriage approached him and requested to join a Strong Bonds retreat he would be leading, he told her that his denomination’s rules and his own beliefs prohibited him from leading such a retreat involving a same-sex couple. He then arranged for the soldier and her spouse to attend the next available retreat being led by a chaplain without such restrictions. In short, he seems to have done his duty: to “provide” when he could not “perform.”
The fact that an Army investigator found Squires responsible for discriminating against the lesbian soldier should be cause for concern—just not the kind of concern that conservative ideologues have, predictably, vented. Squires’s case is not a harbinger of the end of religious freedom for military chaplains; it appears, instead, to be a bad call on the part of an overzealous investigator who, in seeking to uphold the military’s strong commitment to equal opportunity, may have missed the legal peculiarities of the chaplaincy context.
What makes “perform or provide” an unusual standard in disputes involving LGBTQ+ concerns is that it stands in a distinctive relationship to what advocates and legal scholars have often called the “status/conduct distinction.” This is the idea that discriminating against an LGBTQ+ person for doing something that’s very strongly correlated with that person’s sexual orientation or gender identity—marrying a same-sex partner, for instance—is tantamount to discriminating on the basis of the orientation or identity itself. Courts have often rejected the status/conduct distinction, although the plaintiffs in the recent Colorado bakery case appear subtly to have tried to revive it.
In the context of chaplaincy, however, status/conduct distinctions are broadly permitted. Consider the examples I gave earlier. Is the Orthodox rabbi discriminating against the mixed-religious couple because of their religious identities, or because they are seeking to marry each other? Is the Baptist minister discriminating against the Catholic sailor because she’s a Catholic, or because she wants to go to confession?
So “perform or provide,” unlike most civil (and even most other military) standards that permit forms of exemption on the basis of conscience, seems to require permitting differential treatment on the basis of conduct, just so long as the chaplain wishing to treat a servicemember differentially finds another who will provide the requested form of spiritual care. It seems only fair that if this is how the military has reconciled its pluralistic environment with the consciences of its chaplains in other contexts, it should be the same in the context of LGBTQ+ concerns.
In addition, protecting the consciences of all chaplains, regardless of point of view, ensures that if the trend toward acceptance of LGBTQ+ individuals and families were to reverse course, progressive clergy would still have the capacity to solemnize same-sex marriages, provide counseling to gay and lesbian couples, accompany trans persons (assuming, that is, that President Trump’s bid to bar trans servicemembers is unsuccessful), and do everything else that their consciences dictate.
So: has Chaplain Squires been unjustly treated? Yes, but hardly because the military (or advocates of the dreaded “homosexual agenda”) is systematically seeking to undermine some of the strongest conscience protections available in any area of U.S. life. With more than 3,000 chaplains currently on duty, it is both regrettable and inevitable that some will end up on the wrong end of bureaucratic decisions, especially in areas where institutions like the military are rapidly absorbing social shifts. We should hope that Chaplain Squires’s commanding officer reverses the bad call that a well-meaning if somewhat confused investigator appears to have made.
