By Michael Berry: “We live in fame or go down in flames. Hey! Nothing can stop the U.S. Air Force!” These ominous words conclude the first stanza of the U.S. Air Force’s official song. Ironically, it appears that nothing indeed can stop the Air Force from going down in flames. Recent events at its hallowed Air Force Academy made news all the way to the halls of the United States Congress, leading to some pointed questions directed at the Air Force’s top two officials.
During what was supposed to be a hearing on military budget issues, members of the House Armed Services Committee questioned Secretary of the Air Force Deborah Lee James and Air Force Chief of Staff General Mark Welsh about an incident at the Air Force Academy. A cadet wrote the verse from Galatians 2:20 on his white board, which allegedly caused some to take offense and complain. Hours later, the verse was erased. Although the voluntariness of the verse’s erasure remains an unanswered question, the controversy centered on the Air Force’s official position when it comes to such religious expression.
The Air Force took the position that, because the cadet in question held a leadership position, he should not have posted a Bible verse. This is because, according to the Air Force, it might create the perception that the cadet would use his leadership position to force his religious beliefs on others. Congressman Forbes, in response, argues that such a position is “incompatible with effective leadership.” Perhaps more problematic is that such a position is also incompatible with the law.
The Air Force’s policy comes directly from Air Force Instruction (AFI) 1-1, which governs the service’s culture and standards. Paragraph 2.11 of AFI 1-1 charges Air Force leaders with balancing an individual’s constitutional right to free exercise of religion with the constitutional prohibition against governmental establishment of religion. By way of example, 2.11 states that leaders “must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates or to extend preferential treatment for any religion.” The Air Force has repeatedly relied on Paragraph 2.11 whenever it is accused of depriving Airmen of freely exercising their religious beliefs.
Paragraph 2.11 is a convenient security blanket. It is probably cited more than any other provision when the Air Force is scrutinized and criticized for religious intolerance. But, as often is the case, it is important to keep reading. The very next provision, Paragraph 2.12, explicitly states that all Airmen “are able to choose to practice their particular religion,” and that they should “confidently practice [their] own beliefs.” When read together Paragraphs 2.11 and 2.12 make it clear that the primary concern here is the avoidance of creating an official U.S. Air Force stamp of approval for a particular religion. That is drastically different from what occurred at the Air Force Academy.
When a cadet writes a Bible verse on his white board, he is not speaking on behalf of the entire U.S. Air Force. It is no different than a service member who tattoos his body with religious markings, or one who emblazons her car with an Ichthys decal. None of those scenarios could reasonably be construed as an official endorsement of religion by the military.
The problem, then, is not that Air Force officials seek to suffocate individual religious expression. Nor is the problem AFI 1-1. The problem is the manner in which the Air Force interprets AFI 1-1. Even if it could be argued that 2.11 and 2.12 somehow create ambiguity, a good rule-of-thumb is to interpret the regulation in a manner that does not violate the Constitution. But until an intellectually honest attorney, or judge—preferably one with some First Amendment knowledge and experience—corrects the Air Force, the problem will persist. The Air Force will continue to believe that its legally indefensible position is the correct one, irreparably harming Airmen and their constitutional rights.
A course correction would not, as some proclaim, require a massive paradigm change in military culture. Indeed, the Air Force is unique among the service branches in its approach to accommodating religious exercise. Instead, all that is necessary is a common sense approach: Airmen should not use their official positions to create the inference that the Air Force officially endorses a particular religion, or no religion at all. This actually comports with other military regulations such as the Joint Ethics Regulation and the military prohibition on partisan political activities. In other words, the Air Force should simply take no position on religion. At the same time, the Air Force should not censor or otherwise restrict the constitutional rights of Airmen and cadets to confidently practice their own beliefs. That is how to respect religion without running afoul of the law. Until that happens, however, nothing will stop the Air Force from going down in flames.
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Michael Berry is an attorney for Liberty Institute, a nationwide religious liberty law firm dedicated to restoring religious liberty in America. Michael joined Liberty Institute in 2013 after seven years serving as a JAG officer in the United States Marine Corps. He is a 1999 graduate of Texas A&M University and a 2005 graduate of The Ohio State University School of Law.
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