The distinction between these two roles of the chaplain, named here as “provide” and “facilitate,” reflects the most fundamental principle of Establishment Clause law. The government is not a religious institution. It does not sponsor worship, prayer, or religious instruction. Those functions belong to the institutions of civil society or the family. If the government claims religious authority, it exceeds the jurisdiction granted in the federal or state constitutions and ceases to be a government “of the people, by the people, and for the people.”
The military chaplaincy offers the best example of how “provide” (the sacred) and “facilitate” (the secular) functions should be structured and provided. A religious organization first determines that a particular person is qualified to provide distinctively religious services to members of its community. The organization then recommends that minister to the military, subject to the government’s condition that, to be a commissioned officer, the minister must agree to function in a “pluralistic environment” and fulfill all aspects of the chaplaincy. The military determines the qualifications and requirements for service in chaplaincy’s “secular” functions, such as helping all service members receive religious aid from qualified members of their own communities.
One facet of this “secular” function of military chaplaincy is frequently misunderstood but key to understanding the roles of government chaplains in hospitals, prisons, universities, police and fire departments, and even legislatures—the duty to provide care for all members of the institution, whether the members belong to the minister’s faith community. If the members belong to the minister’s faith community, that conversation will typically focus on their shared religious commitments. But if the member and chaplain do not share the same faith, the chaplain’s role focuses on the needs of the member. In other words, such pastoral visits do not function as opportunities for the chaplain to proselytize. Instead, the chaplain responds to the member’s commitments and helps the member, to the greatest extent possible, within the member’s own beliefs and practices.
The structure of chaplaincy thus respects both Religion Clauses. By focusing on the religious needs of those within government institutions—especially when access to other religious opportunities is limited—the chaplain serves the free exercise interests of all within the institutions. By restricting explicitly religious activities to those who voluntarily select services offered by the chaplain, and by refraining from proselytizing while engaged in the “facilitate” or “care” functions, the chaplain acknowledges the Establishment Clause’s limits on government sponsorship of distinctively religious activities.
Unfortunately, the Supreme Court’s most recent legislative prayer decision, Town of Greece v. Galloway (2014) neglected the opportunity to clarify the role of a government chaplain. Although the Court’s earlier decision on chaplaincy, Marsh v. Chambers (1983), focused on legislators as the primary beneficiaries of the chaplain’s services—a ruling at least consistent with the model of religious accommodation—Town of Greece asserts counterfactually that the legislators are the primary audience for the chaplain’s prayers. Accommodation of legislators’ religious needs plays a very limited role in Justice Anthony Kennedy’s opinion for the Court. The legislators’ relatively little need—compared with service members, prisoners, and hospital patients—for the aid of a chaplain certainly limits the relevance of accommodation as justification for the chaplaincy.
But the Court’s opinion shifts focus from those who should be the recipients of the chaplain’s services—the Town Board—to community members who attend meetings because of their own need to engage with the government. The core constitutional justification for chaplaincy cannot account for service by a chaplain that aims primarily at the public rather than members within a government institution whose access to religious services may be limited. Town of Greece offers scant separation between the explicitly religious function of a chaplain—even if invited by the legislators for their own religious needs—and the official voice of government, which should be secular.
Notwithstanding constitutionally dubious practices like that in Town of Greece, chaplaincy in other institutions—including more permanent legislative settings, such as the chambers of Congress—continues to embrace accommodation as its constitutional benchmark. Chaplaincy remains a model of proper relationship between the Religion Clauses—respect for the firm line between distinctively religious activities, which are voluntarily chosen experiences directed by religious communities, and chaplaincy’s “secular” functions, which are guided by respect for the religious commitments of individuals entitled to the chaplain’s care and concern.