14-556 International Conference of Evangelical Endorsers

8/9/2019 14-556 International Conference of Evangelical Endorsers

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Nos. 14-556, 14-562, 14-571, 14-574

In The Supreme Court of the United States

J AMES OBERGEFELL , ET AL ., Petitioners,

V .

R ICHARD H ODGES , Respondent.

BRITTANI H ENRY , ET AL ., Petitioners ,

V .

R ICHARD H ODGES , Respondent .

Additional Case Captions Listed on Inside Front Cover

On Writs of Certiorari to the United States Court of Appeals for the Sixth Circuit

BRIEF OF THE INTERNATIONAL CONFERENCE OF EVANGELICAL ENDORSERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

Arthur A. Schulcz, Sr.Counsel of RecordChaplains Counsel, PLLC21043 Honeycreeper Pl.Leesburg, Virginia 20175(703) [email protected] for Amicus Curiae

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

mailto:[email protected]




A PRIL D E B OER , ET AL ., Petitioners ,

v.

R ICHARD S NYDER , ET AL .,Respondents .

V ALERIA T ANCO , ET AL ., Petitioners ,

v.

W ILLIAM E DWARD “B ILL ” H ASLAM , ET AL .,Respondents .

T IMOTHY L OVE , ET AL . AND G REGORY B OURKE , ET AL ., Petitioners ,

v.

S TEVE B ESHEAR ,Respondents .



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QUESTIONS PRESENTED

1. Does the FourteenthAmendmentrequireastate tolicense a marriage between two people of the same sex?

2. Does theFourteenthAmendment require astate torecognize a marriage between two people of the samesex when their marriage was lawfully licensed andperformed out-of-state?



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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

INTERESTS OF THE AMICI . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . 4

THE FUNDAMENTAL ISSUE . . . . . . . . . . . . . . . . 5

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. THE CONSTITUTION REQUIRES THEMILITARY HAVE CHAPLAINS . . . . . . . . . . . . 9

A. The Establishment Clause’s NeutralityMandate Requires a Military ChaplainCorps . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. A Constitutional Chaplain Corps mustReflect the Military’s Free ExerciseNeeds . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. THE CONSTITUTION DEFINES AND LIMITS THE ROLE OF BOTH THE MILITARY AND ITS CHAPLAINS . . . . . . . . . . . . . . . . . . . . . . . 12



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A. Chaplains Are Faith GroupRepresentatives Who Remain

Accountable to Their Faith Communities for Ministry . . . . . . . . . 12

1. Chaplains are not governmentreligious representatives. . . . 12

2. The Establishment Clause mandates religious organizationsdecide who represents their faithto the military . . . . . . . . . . . . . 14

B. The Constitution Mandates the MilitaryHonor and Respect its Chaplains’Religious Independence and DiversityIntegrity . . . . . . . . . . . . . . . . . . . . . . . 15

1. Exercise of religion is anindividual right requiringaccommodation of widelydivergent beliefs . . . . . . . . . . . 15

2. The Free Speech Clause protectschaplains’ speech and ministry .15

III. ELEVATING A COMMON LAW CRIME TO A CONSTITUTIONAL RIGHT CREATES A CONFLICT BETWEEN CHAPLAINS’ FREE EXERCISE AND THE MILITARY’S GOOD ORDER AND DISCIPLINEREQUIREMENT . . . . . . . . . . . . . . . . . . . . . 16



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A. Recent Incidents Attacking Chaplains’Free Exercise and Free SpeechForeshadow the Establishment of aGovernment Religion Based on Same-sex Marriage and Homosexual Acts . 16

B. The Problem Facing EvangelicalChaplains Is Not Competing Theologiesbut Government Preference forLawlessness . . . . . . . . . . . . . . . . . . . . 19

IV. THE MILITARY HAS A SPECIAL INTERESTIN KNOWING WHAT CONSTITUTIONTHEY ARE DEFENDING . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28





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FEDERAL STATUTES:

10 U.S.C. § 502(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fiscal Year 2013 National Defense Authorization

Fiscal Year 2014 National Defense Authorization

10 U.S.C. § 643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

10 U.S.C. § 3581 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

10 U.S.C. § 8581 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Act, §533, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, A-2

Act, § 532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, A-2

Misc.

JCS Joint Publication 1-05, Religious MinistrySupport for Joint Operations, 1996 . . . . . . . . . . . . . 9





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(1983). ICECE’s most important issue is theprotection and advancement of religious liberty forall chaplains and military personnel.

ICECE’s members represent independent,evangelical, Christian churches which providechaplains to the military to serve like minded God-fearing military personnel and dependants. Theyadhere to the historic orthodox Christian doctrinethat marriage is the Divinely-ordained unionbetween one man and one woman and all sexualrelationships outside of marriage violate the law of God, historically called, sin, including same-sexsexual relations. These churches and their chaplainsaffirm that man’s modern invention of “same-sex”marriage is a dangerous defiance of Almighty God’spurpose in forming Man as male-and-female for

union in one-flesh, thus ordered at Creation in HisImage. Their chaplains teach, preach and counselfrom this Biblical understanding, in accord withGod’s Word, rejecting differing modern inventions of man. Counseling and preaching sometimes refer tothe risky, unhealthy behaviors characteristic of thehomosexual lifestyle that medical and public healthstudies show often lead to diseases, antisocialbehavior and problems such as depression.

These Amici present unique constitutionalconcerns, issues and challenges that necessarily arisebecause of the special factors surrounding theirChristian chaplains’ role as both representatives of their Christian endorsing-body to the military andcommissioned military officers subject to the rules,regulations and discipline of the Armed Forces. SeeIn re: England , 375 F.3d 1169, 1171 (D.C. Cir. 2004)



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cert. denied, 543 U.S. 1152 (2005) (“chaplain’s rolewithin the service is ‘unique’ involving simultaneousservice as clergy or a ‘professional representative’ of a particular religious denomination and as acommissioned naval officer”) and II.A infra .

The context of these concerns, issues andchallenges is the destructive impact on the First

Amendment’s protections in the military if theextraordinary and unusual relief Petitioners seekfrom this Court is granted. The Court has phrasedthe issues in the context of the 14 th Amendment.Stripped to its essence, Petitioners ask the Court toelevate to the status of a constitutional right whatwas essentially a common law crime when theConstitution and the First and Fourteenth

Amendments were ratified and became the supreme

law of the land.

While at first glance this may not seem to be anissue within the purview of Christian militarychaplains, the inevitable result of amending theConstitution by judicial fiat instead of through

Article V, creates a conflict between theConstitution’s religious liberty and Free Speechclauses, their underlying principle of freedom of conscience, and the military’s need for “good orderand discipline” in the face of the inherent battle of opposing views of the nature and purpose of marriage and man. It undermines the respect duethe “rule of law”, an important part of militaryculture, and subverts and causes doubt about themeaning and value of the Constitution all militaryswear or affirm to support and defend against allenemies.



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Recent incidents between Christian chaplainsand same-sex activists demonstrate the conflicts anddivisions a constitutional right to same-sex marriagewill cause with adherents of historic orthodoxChristian teaching in the military culture. Thispossibility gravely concerns these Amici.

C ONSTITUTIONAL P ROVISIONS

The First Amendment states:

Congress shall make no law respecting anestablishment of religion, or prohibiting thefree exercise thereof; or abridging thefreedom of speech, or of the press; or theright of the people peaceably to assemble,and to petition the government for a redress

of grievances.

The relevant portion of the Fourteenth Amendment to the Constitution states:

Section 1. All persons born or naturalized inthe United States, and subject to the

jurisdiction thereof, are citizens of the UnitedStates and of the State wherein they reside.No State shall make or enforce any lawwhich shall abridge the privileges orimmunities of citizens of the United States;nor shall any State deprive any person of life,liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.



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THE FUNDAMENTAL ISSUE

The fundamental issue before the Court iswhether the federal government, of which the

judiciary is a part, can usurp a right the Statesspecifically reserved for themselves when ratifyingthe Constitution. There is no record of the Statesknowingly and willingly ceding this right, to defineand regulate marriage, to the federal government asa delegated power, a fact Unites States v. Windsor,133 S.Ct. 2675, 2691-92 (2013) , would seem toaffirm. That fact would seem to answer bothQuestions for Review in the negative.

The States have defined marriage according totheir judgment about significant governmentalinterests in families, including stability,

relationships, and the legal rights resulting fromthose relationships, including property, inheritanceand child welfare among others. Each State has hadthe right to evaluate its interests independently of other States. Until recently, most States definedmarriage in terms of heterosexual relationshipsbecause in each State’s judgment, that definitionproduced the greatest good for its citizens. The factStates have defined marriage in heterosexual termswhich happen to correspond with the historic,orthodox Christian view of marriage is not the resultof the States’ choice between competing theologies orideologies. Rather, each State has made individualgovernmental choices based on secular and neutralterms directly related to each State’s vitalgovernmental interests. Historically, same-sexmarriage was illegal under common law becauseStates viewed their interests as so important thatthey banned other forms of “marriage.”



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The problem confronting these Amici is a Courtdecision elevating a common law crime to aconstitutional right will impose on the Nation acompeting ideology, contrary to historic, orthodoxChristianity. This means historic, orthodox Christianchaplains teaching, preaching, counseling andpracticing their faith as guaranteed by the Bill of Rights, the NDAA, and regulations based on Title 10will be doing so in opposition to this newly created“right.” This will produce an inherent andirreconcilable tension, resulting from Christianchaplains’ obligation to support and defend theConstitution when that obligation conflicts with theirlegally mandated duty to represent their faith,sending churches and endorsers in order to ministerto military personnel of like faith. The military’s

total control of the meaning of “good order anddiscipline” will create an inherent Constitutionalconflict, as evidenced by current problems.

SUMMARY OF ARGUMENT

America’s military sacrifices are the reason weare an independent nation. An important part of thathas been the role of the chaplains to provide thespiritual strength which sustains the soul of ournation’s military protectors and fighters. TheConstitution imposes an obligation on Congress toprovide a chaplaincy to address the free exerciseneeds of its service personnel. Failure to do thatwould make the government hostile to religion,contrary to the Establishment Clause, due to thelimitations placed on free exercise by the military’sunique and inherent nature, e.g. , combat, need for



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rapid deployments to foreign lands with languageand cultural barriers. Thus, chaplains are aconstitutional requirement reflecting the military’smakeup because free exercise requires more thanbelief.

Military chaplains are representatives of theirendorsing faith communities to the military toprovide for the free exercise of religion for their ownfaith groups, facilitate the free exercise needs of others, and care for all. Chaplains remainaccountable to their sending churches for theirmilitary ministry. Chaplains represent their sendingchurches in speaking, counseling, providing religiouseducation and worship, and all activities related totheir office. The Free Speech Clause protects theiractivities as well as their speech.

There has been increased tension and conflictbetween activists for same-sex marriage andevangelical chaplains following this Court’s decisionin United States v. Windsor . Lieut. Commander(“LCDR”) Modder was recently threatened withexpulsion despite 19 years of honorable servicebecause he counseled and responded according to hisfaith perspective to questions from a same-sexcouple. This is contrary to the Constitution andspecific protections Congress enacted in the fiscalyear 2013 and 14 National Defense Authorization

Acts (NDAA) in response to concerns and numerousreports of similar issues in the Armed Services.

This illustrates the inherent conflict between theChristian view of and teaching on marriage and thatof same-sex marriage. Some same-sex couples find



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historic, orthodox Christianity offensive, ignoring theFree Speech Clause which does not give them a vetoover other free speech. LCDR Modder’s case showsthat the military leaders, responsive to civiliandirection, can use “good order and discipline” toeffectively override the First Amendment’s specificguarantees. Other incidents show Armed Servicesleaders have ignored similar violations of law,regulation, breeches of discipline and theConstitution, allowing them to go unaddressed, whileretaliating against chaplains for exercising theirfaith. Such retaliation occurs under the rubric of“maintaining good order and discipline”. This is aharbinger of the results coming if same-sexmarriage, a former common law crime, is elevated toa constitutional right. Those who preach historicChristianity would then be arguing against a

constitutional right and sowing dissension, despitethe Constitution’s specific protections. This will, ineffect, create a new military civic religion based onhomosexual practices with a fabricated libertyinterest yet with no history or roots in the concept of ordered liberty.

This inevitably leads to disrespect for the rule of law, and raises legitimate questions for the militaryabout the nature and meaning of the “Constitution”they swear to defend at the cost of their lives.Homosexual practices and therefore same-sexmarriage were common law crimes until recently, inmany states they remain so. It would be a perniciousdoctrine to say that a liberty interest exists in acrime and courts can amend the Constitutionwithout using the Constitution’s Article V processes,effectively modifying the Bill of Rights. This hasgrave implications for military personnel.



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ARGUMENT

I. THE CONSTITUTION REQUIRES THEMILITARY HAVE CHAPLAINS

I look upon the spiritual life of the soldier aseven more important than his physicalequipment...the soldier’s heart, the soldier’sspirit, the soldier’s soul are everything.Unless the soldier’s soul sustains him, hecannot be relied upon and will fail himself and his commander and his country in theend. It’s morale, and I mean morale, whichwins the victory in the ultimate, and thattype of morale can only come out of thereligious fervor in his soul.

Gen. George C. Marshall, quoted in JCS Joint Pub 105, Religious Ministry Support for Joint Operations,1996.

Gen. Marshall’s statement is borne out in ourhistory. Chaplains have been part of our militaryeven before the United States became a nation. Theyaccompanied the militia of the 13 colonies thatbecame the Continental Army in 1775 and Congressauthorized pay for Continental Army chaplains, July29, 1775. Katcoff v. Marsh , 755 F.2d 223, 225 (2 nd

Cir. 1985) (citation omitted). The ContinentalCongress also authorized chaplains for its ships.Clifford Drury, the History of the US Navy ChaplainCorps, Volume 1, NAVPERS 15807 at 3-4. Congressauthorized “appointment of a commissioned Armychaplain” before the First Amendment was ratified.



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Katcoff, 755 F.2d at 225 (citation omitted). They’veserved in every war, armed conflict and peaceconsistent with the Constitution.

A. The Establishment Clause’sNeutrality Mandate Requires aMilitary Chaplain Corps

Katcoff examined the constitutional dimension ofthe Army Chaplain Corps and rejected anEstablishment Clause claim that providing chaplainsimpermissibly tangled government with religion.

Katcoff held the chaplaincy was Congress’appropriate and necessary accommodation of thecompeting Constitutional commands of theEstablishment, Free Exercise and War PowerClauses, id . at 232-35, 237, and a constitutional

necessity: without a Chaplain Corps to allow for Freeexercise, the government would violate theEstablishment Clause's neutrality mandate.

It is readily apparent that [the Free Exercise]Clause, like the Establishment Clause,obligates Congress, upon creating an Army,to make religion available to soldiers whohave been moved by the Army to areas of theworld where religion of their owndenomination are not available to them. ***Unless the Army provided a chaplaincy itwould deprive the soldier of his right underthe Establishment Clause not to have hisreligion inhibited and of his right under the

Free Exercise Clause to practice his freelychosen religion.



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Id . at 234; id. at 232 (“by removing them to areaswhere religious leaders of their persuasion andfacilities were not available [the Army] could beaccused of violating the Establishment Clause unlessit provided them with a chaplaincy”).

Inherent in this decision is the recognition that"free exercise" of religion involves all other First

Amendment rights and is not limited to a mentalexercise or "belief" alone. Free exercise of religionrequires no established government religion ; freespeech so that religious doctrines can be preached,taught, and communicated to others and ceremoniesand symbols (expressive speech) conducted andexplained ; assembly, in order to meet together toparticipate in worship and rites; and the right topetition because religion motivates actions, often

against evil or injustice as evidenced by the religiousfervor leading up to and during the War for

3Independence, the Civil War and the civil rightsmovement, to name just a few examples. To diminishone of these rights is to diminish and nullify themall.

B. A Constitutional Chaplain Corpsmust Reflect the Military’s FreeExercise Needs

Katcoff ’s used neutrality as the balancing criteriabetween the two religion clauses. Id . at 231 (Army“observes the basic prohibition “of neutrality” andvoluntariness, expressed in Zorach v. Clauson , 343

3 The British referred to America’s Colonial pastors as the“Black Robbed Regiment.”



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U.S. 303, 314 (1952)). The court found that without achaplaincy, military service realities, e.g ., “mobile,deployable nature of our armed forces” , id. at 228 ,would restrict soldiers’ ability to exercise their FreeExercise rights. This would conflict with theEstablishment Clause’s command that governmentneither hinder nor establish a religion andemphasized the several ways this could happen dueto the nature of military service. Id.

Katcoff's constitutionality analysis focused onthe need for soldiers to find “religious leaders of theirpersuasion” or like those available in theircommunities had military service not required theyleave, see, e.g., id. at 232. It cited Congress'sobligation "to make religion available to soldiers whohave been moved by the Army to areas of the world

where religion of their own denominations is notavailable to them" or violate their rights under bothReligion Clauses". Id . at 234 (emphasis added).

II. THE CONSTITUTION DEFINES ANDLIMITS THE ROLE OF BOTH THEMILITARY AND ITS CHAPLAINS

A. Chaplains Are Faith GroupRepresentatives Who Remain

Accountable to Their FaithCommunities for Ministry

1. Chaplains are notgovernment religiousrepresentatives.

Although military officers, chaplainsretain their “unique” and distinct role as faith group



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representatives to the military, accountable to theirendorsers for their ministry. In re England , 375 F.3dat 1171. Rigdon v. Perry , 962 F. Supp. 150 (DDC1997), emphasized that point.

Rigdon challenged the Clinton Administration’sefforts to censor chaplains from communicatinginformation to their congregations about Congress’sattempts to pass the Partial Birth Abortion Bill and

urging their congregants to write Congress insupport of it. The government claimed support of theCatholic Church’s “Project Life Post-card Campaign”,was political speech and chaplains were forbiddenfrom discussing it because they were officers andregulations barred officers rom using “their position”to influence “Congressional action or pendinglegislation.” Id . at 152-53. The government argued

(1) “military chaplains do have ‘official’ authority,because they are commissioned officers”, despitehaving “rank without command”, id. at 157-8; and (2)“when chaplains perform [their] religious functionsthey are acting in their official capacity as a militaryofficer”, id . at 159.

Rigdon rejected those arguments becausestatutes and other authority precluded chaplainsfrom ever being “superior officers”, id . at 159, andthe military’s own regulations demonstrated“chaplains act as representatives of their religionswhen conducting services or performing rituals.” Id .at 159-160. Rigdon held the government had violatedthe Religious Freedom Restoration Act (RFRA) and

the Plaintiffs’ First Amendment Rights.



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10 U.S.C. § 643 recognizes the fact thatchaplains remain accountable to their endorsingagencies for their military ministry by requiringseparation from the service if a chaplain loses his“professional qualifications”, defined by the DefenseDepartment as the chaplain’s s endorsement. Thatdecision is solely in the hands of the endorser andchaplains are the only officer who can lose his/hercareer at any time and for any reason as determinedby an outside agency.

2. The Establishment Clausemandates religiousorganizations decide whorepresents their faith to themilitary

Turner v. Parsons , 620 F Supp. 138(D.C. Pa. 1985), rejected a priest’s argument the

Veterans Administration could determine for itselfwho could represent the Catholic Church as a VA chaplain. The VA mirrors DOD’s requirement itschaplains have a recognized endorsing religiousorganization’s endorsement. The plaintiff priest hadthe approval of his specific Catholic church but notthe approval of the Military Vicariate (now theMilitary Archdiocese). The court held “for thegovernment to determine who is qualified for thevarious religious faiths to lead the flock of Catholicism would be for the government toimpermissibly interfere or entangle itself andreligion.” Id . at 143. The same applies to all faithgroups.



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B. The Constitution Mandates theMilitary Honor and Respect itsChaplains’ Religious Independenceand Diversity Integrity

1. Exercise of religion is anindividual right requiringaccommodation of widelydivergent beliefs

“The primary function of the militarychaplain is to engage in activities designed to meetthe religious needs of a pluralistic militarycommunity ....” Id. at 226. Katcoff illustrated thatpluralism noting the great variety of denominations,id. at 225, and the Army's efforts to matchdenominational needs with chaplain assets, id. at

226 and note 1. The court matched the Army'smeans, chaplains, to the Army's compelling purpose,meeting individual free exercise needs. Thisexamination further validated the Chaplain Corps’neutrality, denominational needs closely matched tothe appropriate chaplain religious leaders preventsfavoritism or disparagement of denominations.

2. The Free Speech Clauseprotects chaplains’ speechand ministry

Chaplains have rank without command,10 U.S.C. §§ 3581 and 8581, and are restricted fromperforming acts implicating the Sovereign’s

authority. The Free Speech and EstablishmentClauses prevents chaplains from becoming“government religious officers.” Every aspect of a



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chaplain’s duties involves speech: preaching,teaching, counseling and providing advice tocommanders. The Free Speech Clause coverschaplains’ expressive speech, performing rites,sacraments, or rituals. Chaplains can only providereligious speech as faith group representatives,because the government may not entangle itself impermissibly in a religious capacity.

Attempts by the military to restrict chaplains’religious speech would violate the Free SpeechClause as viewpoint or subject matterdiscrimination. When the government tells chaplainwhat to say in a manner that touches on religion,that becomes government religious speech under theFree Speech Clause entangling the governmentcontrary to the Establishment Clause.

III. ELEVATING A COMMON LAW CRIMETO A CONSTITUTIONAL RIGHTCREATES A CONFLICT BETWEENCHAPLAINS’ FREE EXERCISE AND THEMILITARY’S GOOD ORDER ANDDISCIPLINE REQUIREMENT

A. Recent Incidents AttackingChaplains’ Free Exercise and FreeSpeech Foreshadow theEstablishment of a GovernmentReligion Based on Same-sexMarriage and Homosexual Acts

Congress passed sections 533 and 532 of fiscalyears 2013 and 2014 National Defense Authorization



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Acts (“NDAA”) respectively to provide specificprotection for chaplains’ speech and actions.Congress determined these protections werenecessary after chaplains pointed out their rightswere being infringed following repeal of Title 10'sformer statutory ban on homosexual behaviors andUnites States v. Windsor, 133 S.Ct. 2675 (2013), heldthe Defense of Marriage Act (DOMA) invaded anarea traditionally reserved to the states and wasunconstitutional.

35 Congressman signed the March 30, 2015,letter at Appendix A1-7 to the Secretary of Navy andthe Navy Chief of Chaplains about an open andegregious violation of the NDAA protections.

It is in the context of these protections and

policies that we inquire about the specificcase of Chaplain Wesley Modder. Ourunderstanding is that Chaplain Modder'scommanding officer has requested thatChaplain Modder be Detached for Causeafter a Sailor at the Naval Nuclear PowerTraining Command complained aboutChaplain Modder's views on pre-marital sexand homosexuality. Chaplain Modder isendorsed by the General Counsel of the

Assemblies of God, an evangelicaldenomination that, like the Catholic Churchand the Southern Baptist Convention,affirms the orthodox theological belief thatsexual intimacy is designed for the context of marriage between one man and one woman.

These beliefs on sexual intimacy do notconstitute a legally viable reason to bring action



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against Chaplain Modder or any member of themilitary. A3-4

Appendix A-8-13 is a Congressional letter (17Representatives and 7 Senators) written on behalf of

Army Chaplain (Major) Lawhorn who wasdisciplined as the result of some unknown complaintoutside normal channels for providing his personalstory in dealing with depression and relying on faithq– among other alternatives – during a suicideprevention class that chaplains must present. LikeModder’s case, the Army superiors up the chain of command ignored the NDAA and the First

Amendment protections.

These and other incidences reported to the House Armed Services committee during its November 2014

religious liberty hearings arise out of differingviewpoints on marriage and the very essence of manand woman. The common element in these incidentsis the military's obvious failure to protect chaplains'First Amendment rights and enforce the NDAA’sspecific protections. This is by leaders whose veryculture demands an obedience to orders,demonstrating there is an aggressive attack onhistoric Christian viewpoints because of itsincompatibility with the religious principlesunderlying same-sex marriage.

The inevitable result of such a course of actionwhich produces a chilling effect on all chaplains andorthodox Christian believers is the establishment ofan official civic religion which disparages the Bibleand suppresses historic orthodox Christian doctrine.





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The direct relationship and linkage between theMilitary’s preferential actions in retaliating and thealleged 14 th Amendment issue before the Court isthis, disrespect for the rule of law . The militaryknows what the NDAA says, it knows what the First

Amendment and Uniform Code of Military Justicesay, and yet its leadership chooses to disregard them.

If the Court were to rummage around in theConstitution and find a new right for same-sexmarriage, it would embolden those who have alreadychose to disregard the clear commands of Title 10, itsown regulations and the Constitution. In the currentmilitary leadership’s eyes, such a new right willenable it to easily conclude these and Amici’schaplains preaching, teaching and counselingagainst and denigrating a "constitutional right", is

clearly disruptive of good order and discipline andmust be silenced.

The fact that the Court has elevated a commonlaw crime to a constitutional right is on its facelawlessness, regardless of how cleaver and judiciallycrafted its magic words. The Windsor Court correctlyand clearly stated that marriage is an area that hasalways been a state issue and no amount of judicialsalesmanship will change the fact the recognition of same-sex marriage is altering the Constitution in anunconstitutional manner. Justice Brandeis's oftquoted dissent in Olmstead v. United States, 277U.S. 438, 485 (U.S. 1928), accurately articulating theconsequences of the government becoming a

lawbreaker is no less true in constitutionaladjudication.



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In a government of laws, existence of thegovernment will be imperilled if it fails toobserve the law scrupulously. OurGovernment is the potent, the omnipresentteacher. For good or for ill, it teaches thewhole people by its example. Crime iscontagious. If the Government becomes alawbreaker, it breeds contempt for law; itinvites every man to become a law untohimself; it invites anarchy. To declare that inthe administration of the [constitutional] lawthe end justifies the means -- to declare that[new rights exist not embedded in the fabricof American liberty]-- would bring terribleretribution. Against that pernicious doctrinethis Court should resolutely set its face.

IV. THE MILITARY HAS A SPECIALINTEREST IN KNOWING WHATCONSTITUTION THEY ARE DEFENDING

These Amici not only represent their chaplains,but the military personnel who share their Christianfaith and the churches who send them. EvangelicalChristians have historically supported the militaryand sent their sons and daughters to defend theConstitution which supposedly guarantees them “theblessings of liberty” which the Constitution waswritten to protect and secure.

10 U.S. Code § 502(a) requires every militaryenlistee to take the following oath:



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"I, _____, do solemnly swear (or affirm) that Iwill support and defend the Constitution of the United States against all enemies,foreign and domestic; that I will bear truefaith and allegiance to the same; and that Iwill obey the orders of the President of theUnited States and the orders of the officersappointed over me ....”

Chaplains, like other military officers, take asimilar but different oath which includes the samekey words: “I will support and defend theConstitution of the United States against allenemies, foreign and domestic, that I will bear truefaith and allegiance to the same ....”

The official religious prejudice against

Chaplains Modder and Lawhorn and other similarincidents which have involved Amici’s evangelicalchaplains, and similar civilian incidents wherereligious beliefs were trampled in pursuit of politicalcorrectness, raise a legitimate question for allsoldiers, sailors, airmen and marines: “Exactly whatis this Constitution my oath requires I defend withmy life?”

The Constitution did not exist when theContinental Army and Navy battled Great Britain,then the Superpower of the world, to create theUnited States. They fought for the rights Englanddenied them, rights guaranteed by the Magna Carta,



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4the English Bill of Rights, and England’s unwrittenconstitution Sir William Blackstone defined in hisCommentaries on the English Law. Those rights canbe seen in the Declaration of Independence’s list of grievances that correspond with Blackstone’s list of all Englishmen’s rights. The Declaration defined andsummarized those rights in a unique Americanperspective based on a Christian view, “unalienablerights” endowed by their Creator, including “life,liberty and the pursuit of happiness”. 5

Inclusion of a Bill of Rights patterned after theEnglish Bill of Rights was a condition for theratification of the Constitution in 1789. America’smilitary and citizenry understood the Constitutionwas a covenant between the States and the peopleestablishing a Federal government of limited powers.

The Bill of Rights clearly articulated non-negotiablerights which the government was to guarantee andnot restrict except for the most compelling reasons.

4. Act of Parliament, December 16, 1689, see W est'sEncyclopedia of American Law , edition 2 . S.v. "English Bill ofRights." Retrieved at http://legaldictionary.thefreedictionary.com/English+Bill+of+Rights

5. The Declarations’ famous words, “That all men arecreated equal, that they are endowed by their Creator withcertain unalienable rights" rests on Genesis 1:26-27 accountof creation: "and then God said, "Let us make man in ourimage….So God created man in his own image, in the imageof God he created him; male and female he created them."Because God did not distinguish among men in his creation,he made them equal; our unalienable rights attach becausethey come from the Creator who made us in His image andman cannot take them.

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The very purpose of a Bill of Rights was towithdraw certain subjects from thevicissitudes of political controversy, to placethem beyond the reach of majorities andofficials and to establish them as legalprinciples to be applied by the courts. One'sright to life, liberty, and property, to freespeech, a free press, freedom of worship andassembly, and other fundamental rights maynot be submitted to vote; they depend on theoutcome of no elections.

West Virginia State Board of Education v. Barnette,319 U.S. 624, 638 (1943).

The Ninth and Tenth Amendments specificallyreserved to the States and the people the powers not

specifically delegated to the Federal government.Those delegated powers in 1789 did not include thepower to regulate or define marriage, a power thisCourt recognized was reserved to the states in Bakerv. Nelson , 409 U.S. 810, 810, (1972) (same-sexcouple’s constitutional challenge did not raise “asubstantial federal question”) and Windsor , 133 S.Ct. at 2691-92 (“Defense of Marriage Act'sunprecedented intrusion into the States' authorityover domestic relations), 2692 (“DOMA ... departsfrom this history and tradition of reliance on statelaw to define marriage”), 2692-93 (Congresspowerless to interfere “with the States' long-heldauthority to define marriage”) (2013).

Petitioners ask this Court to make law bydeclaring a former common law crime, forbiddenfrom the founding of this nation until recently, a



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constitutional right. Same-sex marriage wasforbidden by the common law when the Constitutionwas ratified in 1789. English common law made thepractice of homosexuality a crime, “buggery”, whichcolonial and State laws adopted before and after

American independence.

The Fourteenth Amendment, ratified in 1868 toaddress the denial of the newly freed slaves equalitybefore the law, did not delegate to the federalgovernment the power to regulate or definemarriage. Same-sex marriage at that time was notpossible for any race because homosexuality was stilla crime under State laws. There can be no historicliberty interest in a crime. To declare this commonlaw crime, which remained a crime in most statesuntil recently, a constitutional right means this

Court will have either made national law, usurpingCongress’s Article I power that Windsor denied, orengaged in amending the Constitution, a power

Article V specifically reserves to Congress, the Statesand ultimately the people.

Petitioners argue that the 14th Amendmentmeans something those who passed it and ratified itnever envisioned or contemplated, an invitation totravel back in time and rearrange history. Had thatmeaning been specifically addressed in thelegislative history and debates leading up to that

Amendment's passage, its ratification would havebeen doomed.

Petitioners offer no evidence the States ceded tothe Federal Judiciary the right to (1) usurpfundamental reserved powers specifically not



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delegated to the Federal government when theConstitution was discussed, passed, and ratified; or(2) “tune up” the Constitution to what a majority of

justices agree comports with their current view of appropriate morality. Absent appropriate judicialrestraint, nothing prevents polygamy, bestiality, orany other practice or crime which many peoplecurrently would call a perversion, from becoming aconstitutional right merely because it provides somedisaffected group meaning, an alleged dignity, andpersonal fulfillment. A Florida man’s claim for aconstitutional right to have sex with a donkey basedon Lawrence v. Texas , 539 U.S. 558 (2003), provesthe point. See Vishal Persaud, Lawyers for donkey-sex suspect challenge law'sconstitutionality, Ocala StarBanner, Dec. 11, 2012,http://www.ocala.com/article/20121211/ARTICLES/1

21219937?p=1&tc=pg).What are the Court’s limits, if any, on establishingformer criminal acts as new rights under theFourteenth Amendment? How is that not amendingthe Constitution?

If the Court grants Petitioners’ request, whatthen is the Constitution? It no longer represents agovernment of the people, by the people or for thepeople, but whatever nine unelected justices agree itis. This is not a value worthy of one’s life, given ourpast cost defending against arbitrary tyranny,whether it be king, prince or tyrant.

LCDR Modder’s situation demonstrates theobjective of those pushing same- sex marriage is notequality, but destruction of competing theologies andideologies. Contrary to well established precedent,

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the First Amendment appears to be a casualty in themilitary in the pursuit of forced acceptance of historically criminal pagan practices. This shouldraise concerns.

Those who begin coercive elimination of dissent soon find themselves exterminatingdissenters. Compulsory unification of opinionachieves only the unanimity of thegraveyard.

It seems trite but necessary to say that theFirst Amendment to our Constitution wasdesigned to avoid these ends by avoidingthese beginnings. There is no mysticism inthe American concept of the State or of thenature or origin of its authority. We set upgovernment by consent of the governed, and

the Bill of Rights denies those in power anylegal opportunity to coerce that consent.

Authority here is to be controlled by publicopinion, not public opinion by authority.

Barnett , 319 U.S. at 641.

Amici’s experience as evidenced by the incidentsthus far is recognizing a former common law crimeas a constitutional right will “amend” the First

Amendment out of the Constitution. What then isthe Constitution military personnel are asked todefend with their lives? Will parents recommendtheir children undertake the nation’s defense on soslim a reed?



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CONCLUSION

The Court’s decision in this case has implicationsand applications far beyond the facts and situationspresented in the competing briefs. Elevating acommon law crime to a constitutional rightguarantees conflicts, continued division, the furthererosion of other well-established constitutional rightsthat are already restricted due to the unique natureof military service. This will result in a climate thatwill penalize and repel those with traditional,conservative Christian beliefs and be an interpretedby the military as the Court’s invitation to themilitary to become instruments of tyranny, replacingthe rule of law.

To this, these Amici object and express their

concern. They urge the Court to affirm the SixthCircuit’s constitutionally based decision thatregulation and definition of marriage was andremains a power retained by the States over whichfederal courts have no jurisdiction.

Respectfully submitted,

Arthur A. Schulcz, Sr.Counsel of RecordChaplains Counsel, PLLC21043 Honeycreeper Pl.Leesburg, VA 20175(703) [email protected]





Nos. 14-556, 14-562, 14-571, 14-574

In The Supreme Court of the United States

J AMES OBERGEFELL , ET AL ., Petitioners,

V .

R ICHARD H ODGES , Respondent.

BRITTANI H ENRY , ET AL ., Petitioners ,

V .

R ICHARD H ODGES , Respondent .

Additional Case Captions Listed on Inside Front Cover

On Writs of Certiorari to the United States Court of Appeals for the Sixth Circuit

APPENDIX A

Arthur A. Schulcz, Sr.Counsel of RecordChaplains Counsel, PLLC21043 Honeycreeper Pl.Leesburg, Virginia 20175(703) [email protected] for Amicus Curiae

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477





A PRIL D E B OER , ET AL ., Petitioners ,

v.

R ICHARD S NYDER , ET AL .,Respondents .

V ALERIA T ANCO , ET AL ., Petitioners ,

v.

W ILLIAM E DWARD “B ILL ” H ASLAM , ET AL .,Respondents .

T IMOTHY L OVE , ET AL . AND G REGORY B OURKE , ET AL ., Petitioners ,

v.

S TEVE B ESHEAR ,Respondents .



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Congress of the United States

Washington, D.C. 20515

March 30, 2015

The Honorable Ray Mabus Secretary of the Navy1000 Navy Pentagon, Room 4E686 Washington, DC20350-1000

Rear Admiral Margaret Kibben Chief of Chaplains,United States Navy 2000 Navy Pentagon, Room5E270 Washington, DC 20350-2000

Dear Secretary Mabus and Rear Admiral Kibben:

As Members of Congress, we are deeply investedin protecting the vital role of chaplains in the UnitedStates military. Military chaplains fill a crucialreligious need that exists uniquely in the realm of military service—a need that is imperative to thewell-being and operational readiness of the troops.Their religious guidance and selfless service arecrucial pillars to the health and success of our service

members. For two hundred and forty years, NavyChaplains have been the unsung heroes of the

American warrior.

A chaplain serves a dual duty that is summed upin the Chaplain Corps motto, Pro Deo Et Patria, "ForGod and Country." In carrying out this dual duty,chaplains are answerable both to the military and totheir endorsing denomination. Under Department of Defense policy, a chaplain is answerable to his or her



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endorsing denomination—not the military—forevaluation of theological positions and fitness toserve as a representative of the endorsingdenomination. If a chaplain's ecclesiasticalendorsement is withdrawn, the chaplain must eitherfind another endorsement or be processed forseparation. It is imperative that chaplains remainfree to carry out all aspects of their ministry in amanner consistent with the tenets of their faith.

Congress passed conscience protections forservicemembers and chaplains in the NationalDefense Authorization Act in order to provideconcrete protections for the free exercise of religionand the physical manifestations of beliefs. As youknow, these conscience protections have beenimplemented by the Department of Defense through

two Instructions: DoDI 1300.17, "Accommodation ofReligious Practices Within the Military Services,"and DoDI 1304.28, "Guidance for the Appointment of Chaplains for the Military Departments." Theseinstructions make clear that expressions of belief areprotected within the bounds of good order anddiscipline and that a chaplain may not be required toperform any rite, ritual, or ceremony that is contraryto his or her conscience, moral principles, or religiousbeliefs. Under these instructions, no servicemembermay discriminate or take adverse personnel actionon the basis of these actions by a chaplain.

Additionally, Navy policy and trainingdocuments make clear that achaplain's role is to provide religious ministry.Chaplains "have the freedom to practice theirreligion according to the tenets of their faith. . . . If,



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in chaplains' discharge of their broader duties withinthe unit, they are faced with an issue contrary totheir individual faith, they may refer Sailors to otherappropriate counsel." In other words, if a chaplain isunable to perform in the way a Sailor requests, thechaplain's job is to provide for that need byconnecting the Sailor with someone who can.

Navy policy also protects a chaplain's ability topreach and teach consistent with the tenets of his orher endorsing denomination, even when Sailors maydisagree with the chaplain's remarks: "Chaplainshave the right to express their religious beliefsduring their conduct of a service of worship orreligious study. Unless a chaplain's speech isotherwise prohibited, such as publically maligning

senior leaders, their sermons and/or teachingscannot be restricted, even with regard to sociallycontroversial topics."

It is in the context of these protections andpolicies that we inquire about the specific case of Chaplain Wesley Modder. Our understanding is thatChaplain Modder's commanding officer hasrequested that Chaplain Modder be Detached forCause after a Sailor at the Naval Nuclear PowerTraining Command complained about ChaplainModder's views on pre-marital sex andhomosexuality. Chaplain Modder is endorsed by theGeneral Counsel of the Assemblies of God, anevangelical denomination that, like the CatholicChurch and the Southern Baptist Convention,affirms the orthodox theological belief that sexualintimacy is designed for the context of marriage



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between one man and one woman.

These beliefs on sexual intimacy do notconstitute a legally viable reason to bring actionagainst Chaplain Modder or any member of themilitary. If the request that Chaplain Modder beDetached for Cause is based on Chaplain Modder'sbelief that where his faith conflicts with Navy policy,he must follow his faith and contact the necessarycommanding officer, then the request is untenableand must be denied. Likewise, if it is based onChaplain Modder's religious belief that sexualintimacy was designed for the context of naturalmarriage—an orthodox religious belief that is heldby the majority of chaplains in the Chaplain Corps aswell as by Chaplain Modder's endorsingdenomination—it must be denied. It is dangerous to

fall prey to the -ffindamentally false proposition thatindividuals who support natural marriage can onlybe motivated by animus for others.

We request that you provide information on thenature of the accusations and investigations and askthat all investigations be conducted in accordancewith laws protecting a chaplain's right to expressand conduct himself according to his religious beliefs.We further request an outline of the process andtimeline for review of the investigation and possibleresulting actions.

Finally, as a reassurance to chaplains, sailors,and the public, we would like confirmation as towhat steps the Navy is taking to reinforce thepolicies and protections in place for servicemembers



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and chaplains to freely exercise theirreligiously-informed beliefs, including the freedom of chaplains to adhere to the tenets of their faith asthey perform and provide in all aspects of theirministry, including in counseling sessions. We alsorequest information as to how the Navy has beenimplementing the conscience protections passed byCongress and what training has been provided tochaplains, JAG officers, Equal Opportunity officers,and commanding officers.

Thank you for your service and your commitmentto our nation's Sailors. Your leadership in ourmilitary is vital, Thai* you for your prompt attentionto this matter.

Sincerely,

J. Randy Forbes Vicky HartzlerMember of Congress Member of Congress

Doug Lamborn John FlemingMember of Congress Member of Congress

Doug Collins Tim HuelskampMember of Congress Member of Congress

Walter B. Jones Joseph R. PittsMember of Congress Member of Congress

Randy Neubauer Richard HudsonMember of Congress Member of Congress



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Bob GoodlatteMember of Congress

K. Michael ConawayMember of Congress

Randy K. WeberMember of Congress

Steven PalazzoMember of Congress

Mike KellyMember of Congress

Steve RussellMember of Congress

Robert LattaMember of Congress

French HillMember of Congress

Keith RothfusMember of Congress

John KlineMember of Congress

Gregg HarperMember of Congress

Jeff MillerMember of Congress

Robert R. AderholtMember of Congress

David RouzerMember of Congress

Tim WalbergMember of Congress

Diane BlackMember of Congress

Rob WittmanMember of Congress

Austin ScottMember of Congress

Robert PittengerMember of Congress

Trent FranksMember of Congress

Matt SalmonMember of Congress

Phil RoeMember of Congress



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Brian Babin Bill PoseyMember of Congress Member of Congress

Mike PompeoMember of Congress



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Congress of the United States

Washington, D.C. 20515

February 5, 2015

The Honorable John McHugh Secretary of the Army101 Army Pentagon Washington, DC 20310-0101

Dear Secretary McHugh:

We are very concerned to learn about therecent disciplinary action taken againstChaplain (Captain) Joseph "Joe" Lawhornwhile he was stationed at Fort Benning.

On November 20, 2014 Chaplain Lawhorn conducteda mandatory suicide awareness and preventionbriefing for the 5th Ranger Training Battalion. It isour understanding that during this briefing ChaplainLawhorn presented both spiritual and secularbehavioral health resources available to soldiers formanaging depression on a double-sided handout,making clear that the spiritual options were just

some of many available resources. Subsequently,Colonel David Fivecoat issued Chaplain Lawhorn aLetter of Concern stating "this made it impossible forthose in attendance to receive the mandatoryresource information without also receiving thebiblical information." The Letter of Concern was fileddespite the absence of a formal Equal Opportunitycomplaint within the chain of command andalthough Chaplain Lawhorn had not violated any



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Army regulations.

We believe this administrative action sets adangerous precedent for Army suicide preventioninitiatives, the role of Army chaplains, and mostimportantly, the ability for service members toexercise ami express religious beliefs, as protectedunder the First Amendment and reinforced bycurrent law and DoD regulations.

Army health experts, in conjunction with the American Association of Suicidology, have correctlyacknowledged that spiritual health is an integralcomponent for developing a soldier's resiliency whencombating depression. Suicide Prevention, a UnitedStates Army Center for Health Promotion andPreventive Medicine resource manual, clearly

encourages not only chaplains, but also secularbehavioral health providers to at least reference, if not stress, the importance of spirituality and religionduring suicide prevention training. In short, ColonelFivecoat's disciplinary action is not onlyunwarranted given current Army guidance, but theresulting implication that spirituality isincompatible with this training also undermines therecommendations made by Army healthprofessionals.

Furthermore, Chaplain Lawhorn's Letter of Concernerodes the pivotal role of chaplains within Armyunits. Army Pamphlet 600-24 clearly states thatchaplains are to be integrated as a member of aunit's Suicide Prevention Task Force, with dutiesincluding, among others, advising commanders on





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the views of his endorsing agency andcomplementary to personal convictions. It is ourunderstanding that Chaplain Lawhorn's actions werein line with the NDAA protections, DoD regulations,as well as Army policy and guidance.

To date, we have yet to receive any indication fromthe Army that these religious freedom protectionswere considered before issuing the Letter of Concern.We request that you provide the Army's review of this incident as it relates to federal law, DoDregulations and Army policy.

Additionally, we request that you provide anexplanation of a chaplain's role in conducting Armytraining.

We appreciate your previous engagement on mattersrelated to religious freedom within the context of

Army training. We fully expect Army to take thesteps necessary in protecting the religious freedom of all soldiers while affirming the vital role of chaplainsin ensuring the well being of our soldiers.Thank you for your prompt attention to this matterand we look forward to your response.

Sincerely,

John Fleeming, M.D. James M. InhofeUnited States Representative United States Senator

Michael S. Lee Tom CottonUnited States Senator United States Senator



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Ted CruzUnited States Senator

Roy BluntUnited States Senator

Walter B. JonesUnited States Representative

Jeff MillerUnited States Representative

Trent FranksUnited States Representative

Vicky HartzlerUnited States Representative

Steven PalazzoUnited States Representative

Jackie WalorskiUnited States Representative

Ryan ZinkeUnited States Representative

Doug CollinsUnited States Representative

David VitterUnited States Senator

James LankfordUnited States Senator

J. Randy ForbesUnited States Representative

John KlineUnited States Representative

Doug LambornUnited States Representative

Austin ScottUnited States Representative

Jim BridenstineUnited States Representative

Bradley ByrneUnited States Represenetative

Tim HuelskampUnited States Representative

Steve RussellUnited States Representative



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C: Gen David G. PerkinsCommander U.S. Army Training and DoctrineCommandUnited States Army950 Jefferson AvenueFt. Eustis, VA 23604

Documents

14-556 International Conference of Evangelical Endorsers