Key point 3-05. “Regular or duly ordained ministers of religion” are exempt from military training and service if they apply for exemption. This exemption does not apply to registration requirements, and does not apply to ministerial students.
The Selective Service Act specifies that “it shall be the duty of every male citizen of the United States … who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 26, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President”.29 50 U.S.C. App. § 453(a).
Several Presidential proclamations have been issued over the years, specifying the times and places for military registration. The current proclamation specifies that “persons born on or after January 1, 1963, shall present themselves for registration on the day they attain the 18th anniversary of their birth or on any day within the period of 60 days beginning 30 days before such date.” Persons register by reporting to a designated United States Post Office facility. Registration is a simple procedure requiring only verification of the registrant’s identity (e.g., with a birth certificate) and mailing address.
Clergy and theology students (of the specified age) are not exempt from the registration requirement.
The Selective Service regulations specify that it is the duty of every registrant who registered after July 1, 1980, to notify the Selective Service within 10 days of any change in their mailing address or permanent residence.30 32 C.F.R. § 1621.1.And, clergy or ministerial students who have been deferred or exempted from military training or service must notify the Service immediately of any changes in facts or circumstances relating to their exemption or deferral.
The Military Selective Service Act exempts “regular or duly ordained ministers of religion” from military training and service.31 50 U.S.C. App. § 456(g)(1).However, as noted above, ministers are not exempted from the Act’s registration requirements. The Act defines the term duly ordained minister of religion as
a person who has been ordained, in accordance with the ceremonial [sic], ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization.32 50 U.S.C. App. § 466(g)(1).
The Act defines the term regular minister of religion as
one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of a religion, and who is recognized by such church, sect, or organization as a regular minister.33 50 U.S.C. App. § 466(g)(2).
The Selective Service regulations further specify that the term regular or duly ordained minister of religion does not include
(i) A person who irregularly or incidentally preaches and teaches the principles of a religion of a church, religious sect, or organization; or (ii) a person who has been duly ordained a minister in accordance with the ceremonial rite or discipline of a church, religious sect or organization, but who does not regularly, as a bona fide vocation, teach and preach the principles of a religion and administer the ordinances of public worship, as embodied in the creed or principles of his church, sect, or organization.34 32 C.F.R. § 1645.1.
Why are clergy exempt from military training and service? A federal appeals court explained the exemption as follows: “[M]inisters of religion are relieved of the duty of service not so much for their personal religious training and beliefs, but for the disruption of public worship and religious solace to the people at large which would be caused by their induction.”35 United States ex rel. Trainin v. Cain, 144 F.2d 944, 949 (2nd Cir. 1944), cert. denied, 323 U.S. 795 (1945).
The most important element in the definition of both ordained and regular ministers is the requirement that a minister’s “customary vocation” be preaching and teaching the principles of his or her church or sect. The regulations (quoted above) recognize that ordained and regular ministers may have some secular employment. However, they also state that preaching or teaching that is “part-time or half-time, occasionally or irregularly, are insufficient” to establish exemption. The United States Supreme Court has ruled that the Act’s definitions do “not preclude all secular employment,” since many ministers who are employed by small churches must seek part-time secular employment in order to adequately support themselves.36 Dickinson v. United States, 346 U.S. 389 (1953).The Court has held that a minister’s vocation could be preaching and teaching the principles of his church although he supported himself by working five hours a week as a radio repairman.37 Id.Other cases make it plain that ministers may pursue minimal amounts of secular employment without jeopardizing their exemption from military service. Such cases suggest that full-time clergy who also work 5-10 hours per week in a secular job are eligible for the exemption.
On the other hand, ministers who spend substantial amounts of time in secular employment may not be entitled to the exemption. To illustrate, the following ministers were denied an exemption from military service on the ground that their customary vocation was not the ministry: a minister who worked 28 hours a week as a busboy and 30 hours a month as a minister;38 Fore v. United States, 395 F.2d 548 (10th Cir. 1968).a minister who worked 45 hours a week as a carpenter and 15 hours a month as a minister;39 Leitner v. United States, 222 F.2d 363 (4th Cir. 1955).a minister employed full time in secular employment and 14 hours a week in the ministry;40 United States v. Burgueno, 423 F.2d 599 (9th Cir. 1970), cert. denied, 398 U.S. 965 (1970).a minister employed full-time in secular employment and 10 hours a week in the ministry;41 See generally Annot., 1 A.L.R. FED. 607 (1969).a minister who regularly performed ministerial work, but for only one-third of his total working hours;42 United States v. Isenring, 419 F.2d 975 (7th Cir. 1969), cert. denied, 397 U.S. 1024 (1969).and, a minister who worked a 40-hour per week secular job and who devoted only 12 or 13 hours per month to ministerial duties.43 United States v. Campbell, 439 F.2d 1087 (9th Cir. 1971).One federal appeals court ruled that at least 160 hours per month should be devoted to ministry in order to qualify for the ministerial exemption.44 United States v. Kenstler, 377 F.2d 559 (3rd Cir. 1967).
In summary, the cases and regulations make one thing very clear-clergy who work a full-time secular job will rarely if ever qualify for the ministerial exemption from military training and service, no matter how much time they devote to ministerial services. On the other hand, clergy who are employed on a full-time basis to perform ministerial services will not become ineligible for the exemption merely because they work a minimal number of hours (5-10) each week in a secular job.
In 1971, Congress amended the Selective Service Act to replace the ministerial student exemption with a deferral from military training or service. This deferral of course may mature into an exemption if the student completes his or her training and becomes an ordained or regular minister.
The “deferral” of ministerial students is not automatic. Eligible students must request the deferral by submitting a written application for “2-D” status to their local Selective Service board. The regulations state that an application for deferral must be accompanied by “a statement from a church or religious organization that the [applicant] is preparing for ministry under its direction.” The application for deferral also must contain a “certification” that the applicant (1) is satisfactorily pursuing a full-time course of study required for entrance into a recognized theological or divinity school, or (2) is satisfactorily pursuing a full-time course of study at a recognized theological or divinity school, or (3) is satisfactorily pursuing a full-time graduate program (following the completion of theological or divinity school) that “leads toward entry into service as a regular or duly ordained minister of religion,” or (4) is a full-time intern “whose studies are related to and lead toward entry into service as a regular or duly ordained minister of religion.”45 Id. at § 1639.6.
Part time theology students are not entitled to deferral. To illustrate, one student who worked full time in a secular job and who attended only two hours of classes each week was subject to military training and service.46 United States v. Bartelt, 200 F.2d 385 (7th Cir. 1952).
A federal appeals court ruled that a Mennonite seminarian’s constitutional right to religious freedom was not violated by a federal prosecution for his failure to register with the Selective Service System. The court observed that any burden on religious freedom was minimal since the religious objections could be raised after registration but before induction.
The federal government has made funds available for military chaplains since the Revolutionary War. In a recent year, government statistics revealed that the Army had 1,427 active-duty commissioned chaplains, 1,383 chaplain’s assistants, 48 directors of religious education, and over 500 chapels. Of course, the Navy and Air Force have additional chaplains and facilities. Chaplains must meet educational requirements prescribed by the military, and be endorsed by an ecclesiastical endorsing agency. Chaplains currently represent more than 85 religious faiths, and each faith is assigned a “quota” of chaplains based on its relative size in the general civilian population.
Does the military chaplaincy program constitute a violation of the religious neutrality required by the First Amendment’s “nonestablishment of religion” clause? In 1985, a federal appeals court said no.47 Katcoff v. Marsh, 755 F.2d 223 (2nd Cir. 1985).The court rejected the claim that the religious needs of military personnel could be accomplished at no expense to the government either through the use of civilian clergy or by using chaplains paid by religious denominations themselves. The court noted that 37 percent of Army personnel are stationed overseas and ordinarily do not have access to Christian clergy. With respect to military personnel stationed in the United States, the court observed that “local civilian clergy in the rural areas where most military camps are centered are inadequate to satisfy the soldiers’ religious needs because they are too few in number for the task and are usually of different religious denominations from those of most of the nearby troops.” In rejecting the claim that the military could operate with chaplains financed through denominational contributions, the court noted simply that there was no evidence that the various denominations would “be willing to pay their respective share of the $85 million required to operate a civilian chaplaincy.”
The court emphasized that the purpose of the military chaplaincy program
is to make religion, religious education, counseling and religious facilities available to military personnel and their families under circumstances where the practice of religion would otherwise be denied as a practical matter to all or a substantial number. As a result, the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning.48 Id. at 237.
In further support of its decision upholding the constitutionality of the military chaplaincy program, the court also mentioned that civil courts ordinarily must defer to congressional determinations in military affairs, and that the same Congress that drafted the First Amendment nonestablishment of religion clause authorized a paid chaplain for the Army. The court also noted that the First Amendment guarantees the free exercise of religion, and it quoted with approval from an earlier opinion of a Supreme Court justice: “Spending federal funds to employ chaplains for the armed forces might be said to violate the establishment clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion.”49 Quoting Justice Stewart’s dissenting opinion in Abingdon School District v. Schempp, 374 U.S. 203, 308 (1963). The United States Supreme Court made another reference to military chaplains in a 2005 case: “The First Amendment has not one but two clauses tied to religion, the second forbidding any prohibition on the free exercise thereof, and sometimes, the two clauses compete: spending government money on the clergy looks like establishing religion, but if the government cannot pay for military chaplains a good many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.” McCreary v. American Civil Liberties Union, 125 S.Ct. 2722 (2005).
In conclusion, the military chaplaincy program does not violate the First Amendment’s nonestablishment of religion clause, and accordingly chaplains will continue to play a significant role in the armed forces.
Veterans Administration Chaplains
The United States Veterans Administration (VA) chaplaincy program has a long history of legislative approval and the practice of employing chaplains to serve the religious needs of military veterans began as early as 1883. In the beginning, the primary focus of the VA chaplain was sacramental in nature and involved caring for seriously ill and dying patients, leading worship, and administering the sacraments. However, in recent years the VA chaplaincy has developed a broader focus. VA chaplains have a three-fold responsibility to patients at every VA facility. First, VA chaplains ensure that patients (both inpatients and outpatients) receive appropriate clinical pastoral care. Second, VA chaplains ensure that each patient’s constitutional right to free exercise of religion is protected. Finally, VA chaplains protect patients from having religion imposed upon them.
The Freedom from Religious Foundation filed a lawsuit in federal court in Wisconsin challenging the constitutionality of the VA chaplaincy program. The plaintiff conceded that VA chaplains are entitled to perform religious activities to accommodate the constitutional rights of their hospitalized patients. However, it challenged the following aspects of the chaplaincy program: (1) the clinical focus of the program and its integration into patient care, (2) the spiritual assessment requirement, (3) providing pastoral care to outpatients; and (4) the integration of spirituality or religion into VA treatment programs.
The court ruled that the VA chaplaincy program did not violate the First Amendment’s nonestablishment of religion clause.50 Freedom From Religion Foundation, Inc. v. Nicholson, 469 F.Supp.2d 609 (W.D. Wis. 2007).In evaluating the Foundation’s claims, the court applied the three-part test adopted by the United States Supreme Court in a 1971 case. Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the so-called Lemon test, which the Court later overturned in a 2022 decision, a program does not violate the First Amendment’s nonestablishment of religion clause if: (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion (learn more about the legal standard now used for determining Establishment Clause cases in Chapter 12). The court concluded that all three of these requirements were met, and so there was no constitutional violation. In concluding that the challenged practices had a secular purpose, the court observed: “It is undisputed that one of VA’s purposes in providing pastoral and spiritual care to its patients is to assist in healing the sick. Assisting in healing the sick is not a sham secular purpose and as such integrating a clinical chaplaincy program into VA’s holistic approach to patient care satisfies the first prong of the Lemon test.” In addition, “administering spiritual assessments to VA patients in an attempt to comply with an accreditation body’s standards is a valid secular purpose under Lemon.”
In concluding that the primary effect of the challenged practices was not the advancement of religion, the court observed: “The undisputed facts of this action establish that none of the aspects of VA’s chaplaincy program being challenged have the principal or primary effect of advancing religion. … All aspects of VA’s chaplaincy program being challenged involve private decision making. Accordingly, there is no evidence that any religious indoctrination could reasonably be attributed to governmental as opposed to private action. Voluntariness lies at the heart of each and every aspect of VA’s chaplaincy program being challenged by the Foundation. In terms of its clinical chaplaincy program and integration into patient care, VA chaplains do not incorporate religious content into either their pastoral care or spiritual counseling unless that is the patient’s wish. Additionally, VA chaplains provide spiritual and pastoral care to both religious and non-religious patients but only if they desire such services. Accordingly, the choice to receive such care remains a private choice of the patient. VA’s spiritual assessments are likewise voluntary.”
Finally, the court concluded that the third prong of the Lemon test was satisfied since the challenged practices did not foster an excessive entanglement between church and state: “It is undisputed that VA policy prohibits proselytizing. Additionally, it is undisputed that VA chaplains are proactive in eliminating proselytizing from their hospitals. Accordingly, the Foundation failed to present any evidence demonstrating that publicly paid VA chaplains need to be pervasively monitored while implementing the challenged aspects of VA’s chaplaincy program to ensure they do not inculcate religion and the plaintiff is not entitled to rely on speculation.”