Wednesday, December 31, 2008

Messianic Jews, The United States Military and The First Amendment.

Jews in Green recently reported that the U.S. military is requiring Messianic Jewish chaplains to wear on their uniforms crosses, the standard Christian symbol, rather than a small pair of tablets, the standard symbol for Jewish chaplains. The military has yet to issue an official statement. This report raises a variety of First Amendment issues.

A bit of background: Messianic Judaism is a movement composed of individuals who claim to be both practicing Jews while they accept Jesus as Messiah. While there is variety among the various Messianic groups, most have beliefs very similar to the beliefs found in Protestant Christianity. In particular, Messianic Jews emphasize the divinity of Jesus, not just his messiahood , and emphasize their acceptance of Jesus as their personal lord and savior. Additionally, many Messianic Jews (according to some sources, a majority) are not halachically Jewish and a substantial fraction have no actual Jewish heritage, but are Christians who have decided to identify as Messianic Jews for a variety of reasons. The Jewish element of Messianic Judaism comes from many of them keeping some degree of Kashrut and some Sabbath observance starting on Friday and ending Saturday night. Mainline Christian denominations, most evangelical Christians and almost all Jews consider Messianic Judaism to be a form of Christianity, not Judaism. There is a perception among many Jews and Christians that Messianic Jews have been deceptive in their proselytizing practices and have presented themselves as a standard form of Judaism, particularly to Jews who have little background in Jewish knowledge.[i]

Michael Hiles, a self-identified Messianic Jew, was training to become a Navy chaplain. He was informed that he would be required to wear the cross on his uniform rather than the small pair of tablets representing the Ten Commandments, which is the symbol for Jewish chaplains. Hiles objected , and, after unsuccessful appeals up the chain of command, ceased training to be a chaplain rather than comply.

These events raise a variety of questions. I will examine two of these and then propose a solution. First, is the Navy’s decision constitutional? Second, is the Navy’s decision, assuming it is constitutional, the best course as a matter of policy?

Does this Navy’s decision interfere with Hiles’s First Amendment rights? The Navy’s actions appear to be constitutional under existing precedent. However, it is plausible that, if the matter were to be litigated, the Navy’s treatment of Hiles might be declared unconstitutional. In 1986, Simcha Goldman, an Orthodox Jew and member of the U.S. Air Force, argued that Air Force uniform regulations prohibiting head coverings indoors violated his right to free expression of religion, given his need to wear a keepah. The Supreme Court decided 5-4 in Goldman v. Weinberger that Goldman’s rights were not violated. In particular, the Court noted the long-standing deference given to the military. Thus, the burden that the Air Force had to meet was very low. The four dissenters agreed with this premise but argued that the Air Force had failed to meet the low burden of rationality needed to justify its regulation preventing a religious airman from wearing a keepah[ii]

Goldman suggests that Hiles has no case. However, the Navy’s decision with Hiles is arguably a theological decision, i.e. Messianic Judaism is not a branch of Judaism. Hiles can argue that his rights under the First Amendment’s Establishment Clause rather than his rights under the Free Expression have been violated. Arguably, the Court should give less deference to the Navy when Establishment Clause issues are concerned. However, as I will discuss shortly, the Navy’s decision is pragmatically justifiable. Thus, even if the burden the Navy would face in a hypothetical court case is greater than the Air Force’s burden in Goldman, the Navy would likely be able to meet that burden.

Does the Navy’s decision as to Mr. Hiles make sense? Tentatively, I’d say yes. The accuracy of military uniforms and the perceived accuracy of military uniforms is important to morale. There is a serious potential to damage the morale and unit cohesion of soldiers who interact with a Messianic chaplain under the mistaken impression that the chaplain is Jewish. Such confusion can reduce respect for and reliability of the chaplaincy core as a whole. This is particularly likely given the history of Messianic Jews engaging in deceptive practices and the repeated problems of proselytizing by evangelical groups in the U.S. military.

However, there is another solution which is constitutionally and pragmatically preferable. The military should give all chaplains the same, religiously neutral, symbol rather than different symbols based on religious affiliation. One obvious possibility would be simply the letter “C”, denoting that the officer is chaplain without indicating his or her religious affiliation Since most duties of chaplains are identical, this approach keeps the military from having to make essentially theological decisions about which chaplains should be treated as members of which religions. This will not solve all the First Amendment problems presented by the chaplaincy. Some of these problems, such as the necessity of allocating chaplains by religion in large military bases, may be unresolvable. However, this approach – identifying all chaplains as such without specifying on their uniforms the religions to which they belong, will eliminate the problem posed by Mr. Hiles.

Hat tip to Ed Brayton at Dispatches from the Culture Wars. Brayton’s blog entry has a long comments thread which discusses and raises some interesting points which I have not addressed here. For more information, one should also look at the entry at Jews in Green which gives further background of the Hiles incident.

[i] Although most Jews use the term “Messianic Judaism” and “Jews for Jesus” interchangeably, this is not accurate and most Messianic Jews strongly object to the grouping of the two. Jews for Jesus generally have even less Jewish content. Almost none keep kosher or keep Shabbat in any form.. Jews for Jesus also emphasizes Jewishness as an ethnic group and is much more explicit and blatant in their desire to evangelize to Jews. Jews for Jesus as an organization is a member of the World Evangelical Alliance and various other Christian evangelical organizations. As far as Jews (and almost all Christians) are concerned, Messianic Judaism and Jews for Jesus are both Christian. They both believe that Jesus is their personal lord and savior and that such belief, including the divinity of Jesus, is necessary to avoid eternal hellfire. They both believe in a standard Trinity. Thus, one should not mistakenly label the Messianics as somehow less Christian simply because the Jews for Jesus are even more blatantly evangelical.

[ii] I am simplifying the breakdown. There were 3 dissenting opinions and one concurring opinion. Also note that Goldman was subsequently overturned by legislation that "a member of the armed forces may wear an item of religious apparel while wearing the uniform" so long as the item is “neat and conservative” and does not interfere with the member’s ability to carry out his duties.


Lautreamont said...

The military shouldn't have chaplains in the first place. When it is your actual job to break a commandment one must find the idea of prayer ridiculous. Though, religion has always been a tool of greater powers to manipulate lesser powers. You would think, with this in mind, that by now we would have done away with religion, just as we have done away with state-sponsored slavery and human sacrifice.

Joshua said...

Lautreamont, I'm not sure I follow you when you say that "When it is your actual job to break a commandment one must find the idea of prayer ridiculous." To what commandment do you refer? Do you mean some variant of the 6th commandment (5th for Roman Catholics)? The commandment pretty clear means to not murder rather than to not kill. This can be easily seen by the context in which it occurs where multiple forms of death penalties are prescribed. Moreover, war is clearly considered acceptable. So that's not an issue.

Also note that whether something has been used as a tool has little to do with whether it is correct or not. Finally, unlike slavery and human sacrifice, the vast majority of religious behavior does not impinge upon other people. So there's no compelling reason to interfere with individuals actions.

Lautreamont said...

Josh, your argument that dates back to Thomas Aquinas' work in theology is certainly well accepted and true but it, unfortunately, neither follows nor precedes the words 'thou shalt not kill' in scripture. And yet with your argument (1st paragraph) in mind we must certainly agree this commandment is ridiculous for any country to abide by and, thus,leads to the sense that Christianity, itself, is a flawed doctrine which bring us right back to the very first sentence I wrote.

As for impinging, Josh, the very reason people are killing each other in much of the middle east, the very reason our largely christian army is fighting in 3 wars, the very reason we fear islamic extremist terrorists and christian extremist american presidents, is because of religion. With even the most general current events in mind your suggestion must be seen as untenable.

Lautreamont said...

I also want to add that killing which is not defined as murder is commonly considered to be an act of self defense. And we can safely say that the American army is not engaged in any form of self defense.

Joshua said...

I'm not sure what you mean by referencing Aquinas. The point in question is much older and what Aquinas had to say about it isn't very relevant; it is quite clear that the author of the text whoever it was had no problem with killing in general.

Whether the current wars the United States is fighting in are either defensive or just is a distinct issue. Even if a specific war or series of wars is unjust it doesn't make the existence of an army unjust.

Johan said...

"thou shalt not kill"

That is not what the Hebrew Bible says!

It says "lo´ tirsah" which means thou shalt not murder. It uses the verb rasah which is only used for wrongful killing, not the neutral qatal.