As noted in the first chapter, in 1963 the Supreme Court declared that a law does not violate the principle of church-state separation if its purpose and primary effect are secular. Since then practically every effort to introduce religion in the public school or to get public funds for church schools has been accompanied by a recitation of 'purpose and primary effect' as if it were a verbal talisman whose mere incantation was sufficient to exorcise the ghost of unconstitutionality. The reductio ad absurdum of the purpose effect test is to be found in the 1972 case of Laird v. Anderson.
One would assume that in the United States no one could be forced to go to church. At least four times within the past 25 years the Supreme Court has said so. Nor is this tradition of recent vintage; it is more than three centuries old, dating back to a letter, written in 1654 by Roger Williams to the people of the Town of Providence, in which he said:
'There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or a human combination or society. It hath fallen out sometimes, that both papists and protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm, that all the liberty of conscience, that ever I pleaded for, turns upon these two hinges--that none of the papists, protestants, Jews, or Turks be forced to come to the ship's prayers or worship, if they practice any. I further add, that I never denied, that not- withstanding this liberty, the commander of this ship ought to command the ship's course, yea, and also command that justice, peace and sobriety, be kept and practiced, both among the seamen and all the passengers.'
The military, however, have a tradition of their own. As early as 1821 the United States Military Academy of West Point promulgated a regulation requiring all cadets to attend religious service at the academy chapel. Later the regulation was ecumenicized; in addition to the Protestant chapel, Catholic and Jewish chapels were built so that the cadet could worship in the church of his faith so long as it was Protestant, Catholic, or Jewish. The regulations of the Naval Academy at Annapolis and the Air Force Academy at Colorado Springs were even more liberal; they allowed midshipmen and cadets to attend religious services at an appropriate town church or synagogue approved by the Senior Chaplain.
The regulations were strictly enforced; 'no cadet is exempt,' the West Point regulation said. Unexcused absence from attendance was punished in the same manner as violation of other regulations, i.e., by confinement to quarters, and for repeated violations, expulsion.
Neither permissiveness nor dissidence is encouraged at these academies and it is therefore not surprising that there does not appear to have been any expressed protest to the practice over the years. In 1970, however, a few cadets and midshipmen braved the displeasure of the authorities and called upon the American Civil Liberties Union to bring suit in their behalf challenging the constitutionality of the practice.
At the trial of the case, Assistant Secretary of Defense Roger Kelley and Admiral Thomas Moorer (later Chairman of the Joint Chiefs of Staff) testified that the regulations did not require the cadets and midshipmen to worship but only to attend, and the purpose and primary effect were to make better and more effective combat officers of them. How? Because if a cadet observed young men at prayer and worship he would learn how they responded to religion, and when the cadet became a combat officer he would be able to put this knowledge to use on the battlefield. Secretary Kelley testified:
'The opportunity to observe others at worship is clear manifestation of the manner and extent to which they draw upon God or a supernatural being in the conduct of their lives.'
Attendance at religious services, Admiral Moorer said, 'is a vital part of the leadership package' and it would be 'as inconsistent with the responsibility the Academies have to train complete combat officers to ignore this necessity as it would be to ignore the more obvious physical and tactical education.'
The purpose and effect of the regulations, the Department of Defense argued, were secular; they were not to inculcate faith but to make better military officers, and therefore they were constitutional. Nevertheless, the testimony raised a number of other questions, among them the following:
1. What could a cadet learn by watching the behavior of other men in the peace, quiet, and solemnity of a church service that would be helpful to him in a combat situation on the battlefield, or for that matter anywhere else but in a church during religious services?
2. If anything relevant and useful is thus learned, could it not be learned in one or two visits to the church? What additional knowledge would be gained by repeating the process Sunday after Sunday, month after month, year after year, during the cadet's entire four-year stay at the academy?
3. If there was militarily valuable knowledge that could be gained by watching other men at worship, why was the cadet required to attend services of his own faith? Would it, in fact, not have been wiser to forbid this, for it was quite likely that he had attended such services all his life and could hardly gain additional knowledge from continued attendance?
4. Why was he limited by the regulations to attendance at the services of one faith rather than to require him to attend worship of many faiths, for was it not unlikely that in a religiously pluralistic society such as the United States he would ever have soldiers of only one faith under his command?
5. At West Point the cadet could not attend services in town but only at one of the three denominational chapels at the academy. In these circumstances how would he observe potential soldiers under his command? Moreover, since the cadets were required only to observe but not themselves to participate in worship and prayer (indeed, should they not have been forbidden to do so since it would have diverted them from the serious business for which they were there?), was it not possible that a cadet might find himself observing other cadets engaged not in worship or prayer but in observing him observing them, in a sort of never-ending multifaceted mirror?
Many other questions might also be asked, but these are enough to suggest that the explanation of the military authorities for the regulations bordered on the incredible--except for the fact that the district judge believed it. He accepted the testimony and ruled that the regulations were constitutional since their purpose and primary effect were not religious but militarily secular.
The American Civil Liberties lawyers appealed the decision to the court of appeals, claiming that the regulations violated not only the Establishment but also the Free Exercise Clause. The three judges split three ways: one accepted in full both the testimony and legal arguments of the Department of Defense; a second was of the view that the regulations violated the Establishment Clause but did not prohibit the cadets' free exercise of their religion; and the third found them inconsistent with both clauses of the First Amendment. Since the upshot was that, for whatever reason, the regulations were unconstitutional, the Department of Defense appealed to the Supreme Court; that Court rejected the appeal. Shortly thereafter, in 1973, Secretary of Defense Melvin Laird issued an order annulling the regulations for compulsory attendance of religious services in military academies and elsewhere in the armed services, thus bringing to an end a tradition and practice that had been unquestioned and unchallenged for a century and a half.
Leo Pfeffer
God, Caesar and the Constitution
