Justia Federal District Court Opinions

The separate opinions of Chief Judge Bazelon and Circuit Judge Leventhal concur in the conclusion that the judgment of the District Court, denying appellants' motions for declaratory and injunctive relief against compulsory chapel attendance at the military academies should be reversed. The case is remanded for the entry of an appropriate order. Circuit Judge MacKinnon dissents.

BAZELON, Chief Judge:

This appeal seeks reversal of the District Court's decision that the requirement of mandatory chapel attendance for cadets and midshipmen at three federal military academies does not violate the Freedom of Religion Clauses of the First Amendment,¹ or the "religious test" clause of Article Six of the United States Constitution.² We reverse, and hold that the regulations at issue are invalid under the Establishment Clause. Although Judge Leventhal joins me in this holding, his reasons are expressed in a separate concurrence. It is the opinion of this writer that the regulations also violate the Free Exercise Clause. Judge MacKinnon, in dissent, would uphold the decision of the District Court, 316 F. Supp. 1081 (D.D.C.1970).

Plaintiffs brought this suit as a class action on behalf of all cadets and midshipmen at the United States Military Academy at West Point, New York, the United States Naval Academy at Annapolis, Maryland, and the United States Air Force Academy at Colorado Springs, Colorado. There is no dispute that the regulations for these three institutions require attendance at Protestant, Catholic or Jewish chapel services on Sundays. The regulations are unequivocal³ and violations are punished by reprimands, demerits, punishment marching tours, confinement to quarters, and possible expulsion. The Naval and Air Force Academies do allow the midshipmen and cadets to attend services at local churches instead of the academy chapels. No alternative attendance is permitted at West Point because there are no local religious institutions.

The academies permit a cadet or midshipman to change his regular attendance only after he receives permission from the respective chaplains involved and from his parents if he is under twenty-one. The Naval Academy regulations provide that "[r]equests for changes to a different denominational church based on personal whims of the midshipman, rather than a sincere desire to affiliate with the stated denomination, will not be approved."⁴ The academies also formally recognize that some cadets and midshipmen may be excused for conscientious objection to church or chapel attendance.⁵

To test the constitutionality of these regulations under the Establishment Clause, the District Court applied the reasoning of the Supreme Court in School District of Abington Township v. Schempp:

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution."⁶

The court below held that the regulations did not violate the Establishment Clause because the purpose and effect thereof were secular, not religious.

The District Court reasoned that there is a crucial distinction between "attendance" at religious services and "worship" at those services; that the military academies require only attendance at Sunday services for the secular purpose of providing an "overall training program designed to create effective officers and leaders by preparing them to meet all the exigencies of command";⁷ and that the primary effect of compulsory attendance is also secular "in that it enables those who will one day hold command positions to gain an awareness and respect for the force religion has on the lives of men so as to react for the benefit of all in combat crises including the giving of spiritual counseling and guidance to those who turn to religion in such situations."⁸

The District Court found no violation of the Free Exercise Clause because an "individual chooses which service to attend and he chooses whether to participate and worship or not. And for sincerely held reasons he can be excused from attendance."⁹

In making its decision, the court accorded great weight to the opinions and judgments of the military personnel concerned with officer training; noted the unbroken tradition of compulsory chapel attendance at the academies; and relied on the traditional reluctance of courts to interfere in the management of the armed forces.¹⁰

These regulations, however, exceed the constitutionally permitted scope of governmental power. Study of the history of the First Amendment and the Supreme Court decisions interpreting it instructs that the Establishment Clause was written to abolish certain forms of governmental regulation of religion in order to protect absolutely the core values of religious liberty. Attendance at religious exercises is an activity which under the Establishment Clause a government may never compel.

The language of the First Amendment expresses the feelings aroused in early America in reaction to the religious conditions and practices transplanted from the Old World. The background of the First Amendment has been probed in depth in many Supreme Court opinions11 and, in the words of Mr. Justice Rutledge, "[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment."¹²

Compulsory church attendance was one of the primary restrictions on religious freedom which the Framers of our Constitution sought to abolish.¹³ Nonattendance was often treated as an offense which could be severely punished in order to enforce loyalty to an established sect.¹⁴ The "Virginia Bill for Religious Liberty", originally drafted by Thomas Jefferson, was enacted in Virginia in 1786 in the wake of the defeat of the state's tax levy for support of established churches. This legislation culminated James Madison's and Jefferson's struggle for religious liberty in that state. The Bill specifically provided:

"That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burtened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . . "¹⁵

This statute seeks to define certain categories of governmental involvement with individual religious conduct which must be prohibited. The writers of the First Amendment abandoned this definitional task in favor of drafting broader language to forbid any law "respecting an establishment of religion, or prohibiting the free exercise thereof". The actions which the Virginia legislation forbade indicate a core value which remains protected by the Establishment Clause-freedom from governmental imposition of religious activity. The Supreme Court has recognized that "the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute."¹⁶

The struggle in Virginia also led Madison to write his famed "Memorial and Remonstrance Against Religious Assessments."¹⁷ This document reflects Madison's opposition to official relations between church and state in every form and to every degree, whether the relations afforded a preference to a particular sect or simply aided in general the practice of religion. Thus the word religion "connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature regardless of those details."¹⁸ The Government is prohibited from "establishing" all religions as well as just one.¹⁹ And, it is also the legacy of Madison's writings which teach that certain governmental practices must be abolished completely, no matter how slight an incursion they seem to work on the essential nature of religious liberty.²⁰

This brief account reveals that the men who framed the Religion Clauses of the First Amendment were writing to abolish specific governmental practices which destroyed individual religious liberty and thereby "established" religion. Governmental compulsion of church attendance was one of those practices.

However, the holding in this case does not rest on history alone.²¹ The Supreme Court has applied the Establishment Clause in circumstances unfamiliar to early Americans,²² and has interpreted it to prohibit those governmental actions which pose the same threat to religious liberty as did earlier colonical practices.²³ Thus in Everson v. Board of Education, Mr. Justice Black wrote for the Court:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."²⁴

Our case would seem to be resolved by Everson, since the attendance regulations undoubtedly force or influence church attendance, and non-attendance is admittedly punished. The inquiry cannot begin and end with Everson, however, for while this reading of the Establishment Clause has been re-affirmed several times²⁵ it has also been difficult to apply. Certain forms of government involvement which recognize, favor and even support religious interests have been sustained under the Establishment Clause in order to avoid conflict with the Free Exercise Clause.

That conflicts are created by an absolute rendering of each Clause is now well-recognized.²⁶ In Walz v. Tax Commission,²⁷ ] relied on by the District Court in this case,²⁸ Chief Justice Burger pointed out that not only was an absolute separation of church and state impossible, but also the absolute language of both Religion Clauses might have to be ignored in order to accommodate the values protected by each. "The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited."²⁹

The need for accommodation between the two Clauses is evident in Walz. In that case the Court upheld a New York State tax exemption for houses of religious worship challenged as a violation of the Establishment Clause. The Court recognized that the statute did grant an indirect economic benefit to churches³⁰ and might therefore violate the Establishment Clause, interpreted as it was in Everson as prohibiting laws which aid all religions. On the other hand, deliberate exclusion of religious institutions from the tax exemption³¹ would possibly violate the Free Exercise Clause.³² The Chief Justice, writing for the Court, therefore questioned the breadth of the language in Everson³³ and devised the principle of benevolent neutrality between State and Church to accommodate no-establishment and free exercise values.³⁴

This principle was mistaken by the District Court as authority for its holding that all first Amendment rights must bend when they conflict with military interests.³⁵ The Supreme Court's interpretations of the Establishment Clause refer to no overriding secular interests which could ever justify a government's imposition of those religious activities which the Clause was written to abolish. It should be clear from Walz that the actions absolutely proscribed by the Establishment Clause, among which is the compulsion of church attendance, could be constitutionally justified only out of the necessity of preserving the right to free exercise of religion.³⁶ To decline to apply the Clause absolutely in this case is to create a loophole in the scope of its protection which the Supreme Court simply does not admit. This is the crux of the difference of opinion between Judges Leventhal, MacKinnon, and myself.³⁷

Admittedly, when the liberties protected by the two Religion Clauses conflict, there must be "play in the joints" between them. But when abolition of governmental imposition of religious activity presents no conflict with the Free Exercise Clause, the principle of accommodation espoused in Walz has little relevance.

In this case, rather than conflicting, the two Clauses complement each other and dictate the same result.³⁸ Abolition of the attendance requirements enhances rather than violates the free exercise rights of cadets and midshipmen. The Establishment Clause should therefore be read as it was in Everson: "Neither a state nor the Federal Government . . can force nor influence a person to go to or to remain away from church against his will."³⁹

The force of this language in Everson has not been diminished by subsequent Supreme Court opinions. Walz in fact re-affirms the teaching of Everson that there are certain forms of governmental involvement with religion which the Establishment Clause prohibits absolutely:

"The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."⁴⁰ (Emphasis added.)

Compulsory attendance requirements fall squarely within this principle. As the history recounted above shows, official adoption of a single creed is not the sole act of establishment. Compulsory attendance at worship and prayer, profession of belief and payment of tithes are necessary concomittants.⁴¹

The Government's contention that there is a difference between compelling attendance at church and compelling worship or belief⁴² is completely without merit. Neither appellees, nor the dissenting opinion infra, reveal how a government could possibly compel individual worship or belief other than by compelling certain overt actions-for example, profession of belief in God; recitation of prayers; or mere presence during Bible readings. Attendance during chapel services is indistinguishable from these other overt actions, the compulsion of which has been declared unconstitutional in Torcaso v. Watkins,⁴³ School District of Abington Township v. Schempp,⁴⁴ and Engel v. Vitale.⁴⁵

It is derived from these cases, as well as from history, that freedom from governmental imposition of religious activity is a core value protected by the Establishment Clause,⁴⁶ and that therefore a government may not require an individual to engage in religious practices or be present at religious exercises.⁴⁷ The "purpose and effect" test developed in McGowan v. Maryland⁴⁸ does not undermine this principle. The test is properly applied when there is some ambiguity about the nature of the activity imposed by the government, and thus some question whether the values protected by the Establishment Clause are actually threatened. In McGowan it was necessary for the Court to inquire extensively into the purpose and effect of Maryland's Sunday-closing laws.⁴⁹ The Court found that these laws did not impose religious practices on anyone, but allowed individuals to spend the day of rest as they pleased.⁵⁰ Since the laws did not threaten to impose religious activity, the secular purpose and effect outweighed any incidental benefit to those who chose to attend services on Sundays.⁵¹

In later cases, the "purpose and effect" test has been used only to underscore the religious nature of the activity actually imposed by the government. In striking down the Maryland test oath of belief in God in Torcaso v. Watkins, the Court ascertained the purpose and effect of the law from its very language.⁵² Re-affirming its approach in Everson, the Court held that governmental imposition of this form of religious exercise-profession of belief-was absolutely proscribed by the First Amendment.⁵³ In Engel v. Vitale the Court expressed "no doubt that New York's program of daily classroom invocation of God's blessings . . . is a religious activity."⁵⁴ Once it was conceded that the prayer was of a "religious nature", inquiry into its possible secular purpose or effect was halted⁵⁵ since governmental imposition of this activity could not be justified.

The court in Schempp in fact noted that Bible readings in the public schools could have a secular purpose.⁵⁶ However, the Court's factual inquiry into the purpose and effect of the readings began and ended with its recognition that the Bible was an instrument of religion.⁵⁷ The conclusion necessarily followed that "the laws require religious exercises and such exercises are being conducted in direct violation of [the pupils'] rights. . . ."⁵⁸ Again, no finding of a secular purpose or effect could justify this form of governmental imposition of religion.

Thus the trial court's findings of fact in the case before us cannot avert the impact of the decisions of the Supreme Court. The military regulations on their face compel presence at religious exercises.⁵⁹ The appellees do not deny that the chapels conduct genuine services of worship, which include Bible readings and weekly invocations of God's blessings.⁶⁰ 0] This is scarcely the minimal exposure to religion the dissent would have us believe. The trial court should have investigated "purpose and effect" no further since the very language of the regulations reveals that the government is imposing conduct in violation of the letter and the spirit of the Establishment Clause.

It is of no importance that certain cadets and midshipmen may be excused from attendance for conscientiously held beliefs. Such was also true in Engel and Schempp. We rely on the Supreme Court's holding in Engel:

"The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."⁶¹

We reject also the trial court's allusion to the notion that the attendance requirements ought not be considered compulsory since the military academies are voluntary institutions. It is certainly true that in this case attendance at the academies is not mandatory.⁶² However, the Supreme Court's decision in Torcaso v. Watkins turns on its holding that the government may not attach unconstitutional conditions to the award of public employment.⁶³ An individual's voluntary assumption of an employment or an educational relationship with the government is not a waiver of First Amendment rights.⁶⁴

The court below, however, grounded its decision in a deference to the unique role of the military in our society. In fact, it is difficult to believe that the trial court would have sustained the attendance requirements were any other than select military educational institutions involved-if, for example, the Government had made church attendance compulsory for all welfare recipients; for all elected officials; or even for all of its fighting forces.⁶⁵

In passing, it should also be noted that the court accorded great weight to the testimony of military officials about the effect of the academy regulations.⁶⁶ This casts serious doubt on the validity of the trial court's findings, since those upon whom the regulations have an impact-the students and their religious advisors-are uniquely qualified to testify to their effect.⁶⁷ However, it is not necessary to the disposition of this case to overturn the findings, since any factual inquiry, beyond noting that attendance at religious exercises was compelled, was unnecessary.⁶⁸

In contrast to the holding of this opinion that secular interests may never justify governmental imposition of church attendance, the District Court decided that this absolute rendering of the Establishment Clause could be abandoned since the military's interest in training a select group of officers was at stake.⁶⁹ This is also the position of the dissenting opinion, infra. However, a careful examination of the cases relied on by the District Court indicates that while an individual's freedoms may of necessity be abridged upon his entrance into military life, there is no authority for the point that his right to freedom of religion is abolished.⁷⁰

Personal freedoms of conduct and appearance have been accommodated to the military's perceived need to establish procedures best suited to regulate its day-to-day operations, duty assignments and call-up orders;⁷¹ to determine a reservist's discharge of his duties;⁷² to regulate physical appearance;⁷³ and to ascertain "the essential characteristics of fitness for duty."⁷⁴ This deference to military decisionmaking has been justified by the military's role, its mandate to prepare for the waging of war, and the necessity of this mandate for our national security. However, deference has inherent limitations which have also been fully recognized in judicial decision.

Thus, although First Amendment rights to free speech and expression may be "less" for a soldier than a civilian, they are by no means lost to him. The Second Circuit has emphasized in Cortright v. Resor that "we are far from holding that under no circumstances could a civilian court interfere with a transfer order or prescribe other relief if that were needed to prevent abridgement of a soldier's First Amendment rights."⁷⁵

Individual freedom may not be sacrificed to military interests to the point that constitutional rights are abolished. The military regulations in this case violate the core value of the Establishment Clause⁷⁶ and completely abolish its protection. Therefore, judicial action is mandated now.

Finally I reach appellants' claim that the attendance regulations are also unconstitutional under the Free Exercise Clause. It has already been ascertained that the academies have made some provision for excusing cadets and midshipmen for "conscientious objections."⁷⁷ However, as the Supreme Court has made clear, coercion as well as compulsion is prohibited by the Free Exercise Clause: "The Free Exercise Clause . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion . . . a violation of the Free Exercise Clause is predicated on coercion. . . ."⁷⁸

Adopting this interpretation, I cannot agree with the District Court's bald conclusions that:

"These regulations in no way operate against a cadet in practicing his own religion or in practicing none. The individual chooses which service to attend and he chooses whether to participate and worship or not. And for sincerely held reasons he can be excused from attendance."⁷⁹

It bears emphasis that the fact that attendance at the military academies is voluntary does not eliminate the possibility of coercion.⁸⁰ Since there is no difference between requiring attendance and requiring worship,⁸¹ the District Court's reference to the freedom "to participate or worship or not" is misleading. A single reading of these regulations reveals sufficient coercion to violate the Free Exercise Clause.

First, the failure to attend formal, group worship is punished like any other violation of an academy rule. The most devout believer, who may wish just once or always to worship alone is plainly coerced to attend services. The Supreme Court has recognized in Engel and Schempp that peer group pressure to conform to established practices is a forceful form of coercion.⁸² Thirdly, practitioners of sectarian beliefs may attend only "approved" alternatives to the academy chapels. For certain minorities, and all cadets at West Point, there are no alternatives available. Parental and chaplain approval is required for a change in attendance. And finally, visitation of a variety of religious services, thoroughly consistent with the search for or exercise of religious beliefs, is absolutely prohibited.

These manifest restraints on the free exercise of religion can be saved from unconstitutionality only if they were enacted to serve paramount and compelling state interests; and if there are no alternative means to achieve the government's goals. This dual test of constitutional validity was established by the Supreme Court in Sherbert v. Verner⁸³ and has been applied in this Circuit.⁸⁴ The fact that military interests are involved in this case does not make the test less rigorous.

The military's interest espoused in this case has already been contrasted to "paramount and compelling" concerns which have justified infringements of personal freedoms in the past.⁸⁵ This case does not involve programs vital to our immediate national security, or even to military operational or disciplinary procedures. Nor does it appear that the ruling will have any detrimental impact on the academies' training programs. The appellees have made no showing that chapel attendance requirements are the best or the only means to impart to officers some familiarity with religion and its effects on our soldiers.

While some weight must be accorded the military judgment that familiarity with religion is necessary for the allaround officer, it is for this court to assess that decision in constitutional terms. In the words of Mr. Justice Jackson, we act not by virtue of a superior competence but by virtue of our commission to protect basic constitutional rights.⁸⁶ Absent any attempt by appellees to devise an alternative program other than compulsory attendance at the regular chapel services of a single denomination, I am constrained to declare these regulations invalid under the Free Exercise Clause.

LEVENTHAL, Circuit Judge:

I concur in reversal, and in the conclusion that the Establishment Clause of the First Amendment, which prohibits government measures "respecting an establishing of religion," is violated by the regulations of the various Service Academies requiring Sunday attendance at church or chapel services by cadets (a term used broadly to include midshipmen).

Although I reach the same conclusion as Chief Judge Bazelon on violation of the Establishment Clause, I do not follow the same path. As I understand it, his view is that the compulsory chapelchurch attendance requirement is per se a violation of the Establishment Clause, and the justification brought forward by the Service officers and Defense Department officials is not material. Whether the chapel-church attendance regulation would be valid if it were indispensable for officer training and military survival is, for me, a more difficult question than this case requires be answered. It suffices, in my view, that an Academy regulation requiring chapelchurch attendance is, at the very least, presumptively invalid as a measure respecting an establishment of religion, and that there is no showing that such an infringement of First Amendment liberties is unavoidably required on ground of military necessity. In view of this conclusion, I find it unnecessary to consider whether these regulations violate the Free Exercise Clause of the First Amendment independently of their violation of the Establishment Clause. I now amplify my reasoning, with references to the record.

1. The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The First Amendment respects religion as a great and important moral force in society. The religious liberty guaranteed by the Constitution embraces two interrelated freedoms: every person is assured the free exercise of his own religion (Free Exercise Clause); and every person is assured freedom from participation by the state concerning his decisions as to exercise of his religion (Establishment Clause). The Establishment Clause assures that the exercise of religion will be truly free-will be voluntary, and not imposed.

The essential requirement of voluntarism is breached by the compulsory Academy regulations.1 Violations of these, like other, regulations are punished by reprimands, demerits, marching tours, confinement to quarters, and, for repeated violations, expulsion.

The Supreme Court's opinions have explicitly and pointedly reiterated:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.2

It is the Government's premise that these judicial expressions, albeit stated in plenary generality, are subject to qualification for particular instances. Accepting that hypothesis for purpose of discussion, the Supreme Court opinions establish at the very least that a government regulation requiring church attendance is prima facie invalid, a badge of religious establishment, and that it would require the strongest kind of demonstration of secularity and necessity in terms of a compelling state interest to establish its validity. Such a showing is not before us in this case.

2. To confine and define the issues of compulsory church attendance, it is important to begin with the proposition, which to me at least seems clear, that the Establishment Clause does not prohibit the Academies from providing property, facilities, and personnel in order to permit chapel and church attendance by cadets on a voluntary basis. In this voluntary context, the scope of the Establishment Clause is affected by the special position of the military and needs of its often isolated personnel, and such expenditures do not constitute an "excessive entanglement" with religion, cf. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). This conclusion is borne out by Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1962). Justice Clark's opinion for the Court, prohibiting a school requirement of Bible readings, reiterates the recognition in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952), that we "are a religious people whose institutions presuppose a Supreme Being," notes various religious manifestations in our society, and comments (374 U.S. at p. 213, 83 S.Ct. at p. 1566):

Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship." (Emphasis added.)

Seven justices expressly joined in this opinion, some adding their own. Insofar as the other opinions refer to the matter, they confirm that the special case of the military permits Government aid for religious worship-assuming the core element of voluntarism on the part of the attending military personnel. See 374 U.S. at 296, 83 S.Ct. 1560 (Brennan, J., concurring); at 306, 83 S.Ct. 1560 (Goldberg and Harlan, JJ., concurring) (recognizing the propriety of allowing cadets to receive exposure to religion); at 309, 83 S.Ct. 1560 (Stewart, J., dissenting). These references focus on military chaplaincies, but I think the same considerations justify any other aid involved in making Sunday chapel available on a voluntary basis.

3. The Government, however, contends that the purpose-effect test set forth in Abington School Dist. v. Schempp, supra, at 222, 83 S.Ct. 1560, establishes the validity of the compulsory chapel regulations because they have a secular purpose and primarily secular effect. The Government puts it that the purpose of compulsory chapel-church attendance is wholly secular, as a training program. "The sole purpose of chapel attendance is to develop in the cadets, through observation of the impact of religion on the lives of others during actual worship services, that sensitivity to religious emotion which is required of a military leader." (Br. 27).

The amicus curiae submission in behalf of religious groups terms the assertion a "shocking" claim to debase and manipulate religious worship as a mere instructional tool, and "trusts that this is but a recently derived contention to seek to avoid the thrust of the First Amendment."3

It would be difficult on this record to sustain the conclusion that the purpose of the regulations is wholly secular. We have been asked to look at history, by the Government and the District Court ("tradition cannot be lightly discarded"). The regulations begin with an unmistakable religious premise. The 1970 affidavit of Admiral Calvert, Superintendent of the Naval Academy, sets forth:

"1. Naval Academy records show that since the year 1853 Naval Academy Regulations have included a provision for Sunday chapel attendance by midshipmen as a regular part of the Naval Academy program for training of future naval officers. The articles for the government of the United States Navy in effect at that time charged commanding officers with the responsibility, 'to take care that divine services were performed . . . and that they cause all, or as many of the ship's company as can be spared from duty, to attend at every performance of worship of Almighty God.' Act of April 23, 1800. 6th Congress, 1st Session, 2 Stat. 45.

"The present Naval Academy Regulations are based upon Title 10 US Code, Section 6031, which states, in part, '. . . commanders of vessels and naval activities to which chaplains are attached shall cause divine service to be performed on Sunday . . .; and it is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.'

"This statute is also implemented by U.S. Navy Regulations, Article 0711, which states, in part, '. . . the religious tendencies of individuals shall be recognized and encouraged."'

There is likewise an unmistakable religious premise in the 1821 General Regulations for the Army which contains an Academy chapel requirement as an act of legislation.4

A practice is not necessarily frozen in its religious roots, as appears from the decisions upholding the Sunday closing legislation as "having undergone extensive changes from the earliest forms" and not retaining a "religious character." McGowan v. Maryland, 366 U.S. 420, 431, 81 S.Ct. 1101, 1108 (1966).

In the case of compulsory chapel, however, we do not have the kind of longstanding transfer to secular objectives which characterized the Sunday closing legislation.

To some extent there have been changes that reflect a shift from compulsory to voluntary worship, as appears in the shift from the 1800 legislation, 2 Stat. 45, to the current version, 10 U.S.C. Sec. 6031; and see Navy Regs. art. 0711. There is no point in pausing for the problem that the current provisions contain an outright encouragement of religious worship. The fact is that as to the compulsion, that still plainly survives, for chapel-church attendance by Academy cadets, there are references and justifications that plainly retain a religious premise, even in Academy regulations, catalogs and policy statements, issued shortly prior to the filing of this litigation in 1970.5

In this litigation, the Government stands on the Chapel Attendance Statement adopted in 1969 by the Superintendents of the four Service Academies, which focuses on the requirement in training terms.6 As for the mixture of religious and training premises, the Government has developed an alternative position on the appeal, that the primary purpose of the chapel attendance requirement is secular, even if that is not the sole purpose, as stated by the District Court, and that this suffices for validity, assuming the effect as well as the purpose is primarily secular.

4. Accepting, for purpose of discussion, that the Superintendents' subjective purpose is now primarily secular, the objective appearance and effect of the regulations are critical in appraisal of validity, and it can hardly be gainsaid that they have substantial religious impact and consequences.

It is inescapable that compulsory chapel operates to encourage religious tendencies of cadets. Admiral Moorer conceded in his testimony (Tr. 267-271) that chapel attendance tends "to strengthen a man's religious ties" in most cases, and specifically that the requirement of attendance-over and above the course of merely making a chapel available-has "the effect of encouraging his religious tendencies."7

The adverse effect of compulsory chapel on religious sentiment was also the subject of evidence. The General Commission on Chaplains lauds voluntary attendance, by those who come to learn as well as participate, but opposes compelled attendance as a hindrance and inhibition of religious worship by those seeking a meaningful and devout relationship with their God and fellow believers. This was the thrust of testimony at the trial by various ministers.8 The testimony of cadets and chaplains presents in the record the development of resentment, hostility and synicism toward religion engendered in cadets subject to the chapel requirement. The position of the General Commission on Chaplains is before us not only in amicus curiae memorandum (supra, note 3), but in the testimony of its deputy secretary, Reverend A. Ray Applequist. He testified that in 1964 the Commission considered the subject of compulsory chapel attendance, because of growing opposition and concern from cadets and church leaders, and the adverse effect on recruitment of Protestant chaplains. The Commission prepared on behalf of its 35 member denominations a position paper against mandatory attendance, and petitioned the Defense Department to drop the mandatory requirement. Reverend Applequist further testified, from his experience as an Army Chaplain, concerning Academy officers who declined to attend chapel after graduation, explicitly stating they had been adversely affected by the experience, as characterized by one, of "having religion rammed down my throat for my four years at the Point." However the Government's witnesses, like Admiral Moorer, were not familiar with any such problem of weakening of religious ties.

The District Court acknowledged the "forceful testimony" adduced by plaintiffs as to the generally negative effects of compulsory attendance at worship services, and the testimony that mandatory attendance will have some religious effect on some of the cadets, but stated that "plaintiffs failed . . . to demonstrate that the effect is anything but slight, insubstantial, and non-extensive." The District Court cited that the regulations provided that a cadet may be excused from attendance for sincerely held reasons or beliefs. Such excuse, even if readily available, would not negative the existence of a religious practice forbidden by the Establishment Clause, see Abington School Dist. v. Schempp, supra, 374 U.S. at 224-225, 83 S.Ct. 1560.

Moreover, it is plain that the excuse provision does not in fact mitigate the rigidity of the compulsory requirement. It is available only to a cadet able to prove "beyond any reasonable question of doubt" that chapel attendance would be "counterproductive," as interfering with his awareness of the effect of religion on others. (Tr. 79; Assistant Secretary of Defense Roger Kelley.) It is not sufficient that the cadet does not believe in a Supreme Being, or that he feels that mandatory chapel attendance violates his conscience or inhibits his moral development. No cadet has ever been excused at West Point, and four cadets who sought to be excused in 1969 were called "troublemakers." At the Naval Academy, there were three excusals in the past 40 years. The rigidity of the attendance requirement is underscored by the policy concerning transfer from one church or chapel service to another: the cadet must get the permission of both chaplains, and the permission of his parents, at least if he is under 21, and must demonstrate a sincere desire to affiliate with the stated denomination.

5. When a practice, like compelled church attendance, is religious in general significance, as well as origin, and the defense is put that a particular context marks an exception where the practice is secular, the conclusion that the particular compulsion is permissible requires an extraordinary showing. No such showing has been made as to compulsory chapel at the Academies. The badge of religious establishment has not been swept away; the religious characteristic has not been shown to be a mere "vestige," or a mere "ceremonial" feature devoid of any meaningful religious impact.

The conclusion that compelled chapel attendance must be considered as retaining a substantial religious character does not necessarily end the case. The question arises whether the government's use of a practice that bears a religious impress is saved from unconstitutionality because of an overriding state interest in effective training of its military officers. That is the nub of this case, as I see it. For the government to invoke this possibility of justification it must show the clearest kind of imperative, and lack of alternative, for the "government may not employ religious means to serve secular interests, however legitimate they may be, at least without the clearest demonstration that nonreligious means will not suffice."9 The burden on the government is at least as great as when it offers a secular justification to deny a claim under the First Amendment right of free exercise of religion, and there the Court has insisted that there must be more than a showing by the Government of a rational relationship to a state interest, there must be a showing that the governmental interest is "compelling", and "that no alternative" measures are available that could be used "without infringing First Amendment rights." Sherbert v. Verner, 374 U.S. 398, 406-407, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); cf. Shelton v. Tucker, 364 U.S. 479, 487-490, 81 S.Ct. 247, 5 L.Ed. 2d 231 (1960). The government action is unconstitutional unless it is "necessary" to promote a compelling governmental interest.10 That burden persists under the formulation that there must be no "excessive" entanglement with religion.¹¹

The government simply has not made the required showing that its interference with religious freedoms is compelled by, and goes no further than what is compelled by, the effective training of military officers needed for survival.

a. The concept of government necessity is undercut by the fact that approximately 95% of the Service officers do not graduate from the Academies,12 and have never been subject to this compulsory chapel requirement.

The District Court made reference to the interest in the training of "the key reservoir of officer talent" as effective combat leaders. Apart from generalities, the only specific testimony in the record on this point was Admiral Calvert's reference (Tr. 7-8), from experience, to the occasional need for commanding officers to conduct religious exercises, on the eve of battle. The official position is not premised on this need for a surrogate-chaplain, notwith-standing its emotional tug, presumably in recognition that it proves too much, and ultimately calls for the service of someone steeped in religion. Only a limited training would be needed to ensure a relatively simple service by a secular commanding officer; secular judges have been able, with general experience and without special training, to conduct often eloquent marriage services.

If we move toward a religious-type comfort to men under stress, or to "sensitivity" awareness, as a compelling imperative, neither judicial notice nor the record establishes how this can be at the same time required for Academy graduates and not for the bulk of the officers, including those closest to the men. In certain respects, Academy graduates can set the standards for the entire officer corps. But if there is truly an imperative need for Academy officers to obtain sensitivity training through personal observation of worship, they could not pass it along to nonacademy officers who have not had such observation.

The long-standing restriction of the chapel attendance obligation to Academy graduates seems to me a powerful demonstration that it is not a necessity in the making of an officer. And constitutional doctrine will not support an infringement of religious liberty except on a showing of unquestioned and imperative necessity.

b. The church leaders and groups opposing compulsory chapel made it clear to the Defense Department that they shared its objectives of enhancing officer sensitivity to the religious well-springs of servicemen, but believed these did not require the overriding of the voluntarism essential to the vitality of religious life, and could best be achieved by focusing on strong programs encouraging voluntary attendance at chapel and church services and by providing a regular place in the training schedule, including formal instruction, for the overall achievement of the "vital concerns" of the training objectives.13 The significance of this viewpoint is underscored by the fact that it does not reflect an attitude of implacable opposition to any and all involvement of the military in religious matters; these groups approved the military's maintenance of chaplaincies and places of worship as necessary to provide religious services sought by military personnel on a voluntary basis.

The deciding officers did not accept that suggestion. Admiral Moorer testified on direct that he felt that classroom instruction in comparative religion, religious beliefs and moral values, would be "artificial." The record discloses, however, that such courses have been given at the Air Academy, and that the Superintendent of the Naval Academy testified that in his view coursework "might be more effective in some ways."14 But the officers concluded, to quote Admiral Moorer's testimony, that it was preferable to permit observation "in a real world, so to speak." While the District Court did not discredit the testimony and views of church leaders and groups, it stood them on a lower rung. "As moralists the Court must accord them due deference, but in matters military the Court feels constrained to look to the military experts. . . . To accomplish the end involved-the complete training of future military leaders-it is the judgment of military experts that secular means would not suffice."

The fact that the judgment of the District Court is couched in terms of a finding cannot be determinative of the outcome of a constitutional litigation requiring an appraisal of fundamental values. That is demonstrated by the decision declining to sustain a district court determination that the Sunday closing law reflected no secular interest. Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961).

The District Court failed to take into account that what is involved is necessarily a composite, and not a purely military judgment. Concerning the training of men to understand the religious sentiments of others, educators, psychologists and church men would seem to have significant standing. In essence, all that is shown on the record are conclusory opinions of military officers. These simply do not suffice for the extraordinary showing of military necessity that is required for justification to override religious freedoms.15

c. If a practice is to be upheld as secular, it must be confined, under strict safeguards, so as to insure wholehearted secularity of purpose and thrust. That is plainly not the case of the regulations brought before us.

Thus, there is no substantial justification of the necessity of what may be characterized as the "intensity" requirement of the regulation-which prohibits the cadet from attending the services of more than one religious group. This structure is particularly hard to comprehend in view of the claim that the purpose of the regulation is to inculate awareness of the sentiments of others, the men they will command, rather than to inculcate religious feeling in the cadets themselves.16 In the absence of necessity, this insistence on attendance at a single church is an "excessive entanglement" with an established religion. This point is underscored by the testimony of Assistant Secretary of Defense Roger Kelley, who was asked why cadets should not go to services of all three religions or more. He replied that this was a good question, and he tended to believe the greater exposure would enhance a cadet's understanding, but this was not administratively feasible.17 There may be elements of administrative convenience in denying leave to attend different places of worship, but administrative convenience does not loom large as an imperative requiring such intensity of church requirement.18

The approach of the military officials seems permeated with a sense of tradition, which is laudable, but not a justification for disregarding First Amendment considerations, and by an attitude that the cadets have no "right" to attend the Academy, a view which fails to appreciate that they do have a right to be free of unconstitutional requirements, and to be entitled to attend the service academies, assuming they are qualified and duly selected, without being subject to unconstitutional conditions.

The Government asks us to engage in a kind of repair carpentry, to sever out any particular aspects of the regulation deemed constitutionally objectionable. The problem is deeper than that. The court must take the regulations and practice as they are, not as they might have been. As they stand, they are marked by religious character and impact not shown to be unavoidable and imperative. They are a violation of the Establishment Clause.

MacKINNON, Circuit Judge, dissenting:

Each religion clause1 case seems to turn on its unique facts and to involve the interplay between different principles; this case is no exception. The majority opinions, however, seem to me to apply the decisional language of the prior cases in a manner which does not fully consider the unique factual situation which confronts us here. I have no criticism of their quoted references to prior holdings, or of their statements of the general principles that have been considered to be controlling in other cases. They do, however, overemphasize the controlling effect of the constitutional provisions they rely upon. This overemphasis is their principal error as I see it. One of the opinions also further extends such conclusions to impermissible limits by claims of "per se violations" and "presumptions of invalidity" that tend to substitute assertion and characterization for logic. I find that their analysis, which fundamentally is based on an absolutist approach to the First Amendment, does not furnish a basis for a proper decision of this case.

It is my basic conclusion that the chapel attendance regulations of the academies are within the military power of the United States Government as recognized by the Constitution, and that the First Amendment does not require a different conclusion. The majority opinions overly stress the application of the First Amendment and seem almost to fail to recognize the Nation's inherent military power; they apparently assume that the First Amendment has overriding supremacy. In doing so they fail to give adequate recognition to the basic power, recognized in the Constitution, under which the armed services educate and train the Nation's future military leaders. I find in the Constitution both a recognition of the military power and the guarantees of freedom of religion, and I believe that these two provisions must be interpreted together.

In approaching the task of accommodating these constitutional provisions, there are many factual similarities to previous cases involving the religion clauses of the First Amendment. We are involved, once again, in exploring the relationship between student and school albeit we are here dealing with higher education and not secondary schools where attendance is compulsory and the pupils are of tender years. We must deal with the traditional problems posed by the educational institution's assumption of responsibility, in loco parentis, for the physical well-being as well as the moral and intellectual development of the student, while acknowledging the deference we owe to the essentially contractual relationship between the more mature college-age student and his institution.2

However, the overriding factual difference in this case derives from the crucial role these educational institutions play in our military establishment. Unlike civilian and secular institutions, which are properly concerned only with the physical and intellectual development of their students, moral and character development are vitally important objectives of the service academies whose function is to prepare young men for assuming the grave responsibilities of military leadership.3 In the judgment of those military commanders who have been most closely involved with this training through the years, some minimal exposure4 to religion-a force of major importance in the lives of many of the men they will be asked to command-is an absolute necessity in the academies' program of moral and character development.

This major factual distinction makes it impossible to consider this case as merely a sterile regulation requiring a group of people to attend religious services. These regulations must be examined through the overlay of their importance in properly effectuating the constitutionally recognized power of the armed services to train the necessary personnel to adequately defend this Nation. It is my view that no violation of the First Amendment results from the conflict between such power, as reflected in the academies' curricular requirement to attend chapel services for one hour each week,5 and the necessity of observing religious practices to the moral development of our future military leaders. Several additional factors particularly aid me in reaching the conclusion that the First Amendment effects of the chapel attendance requirements are deminimis at best, and are clearly overriden by their importance to the proper training of our military leaders: the religious exposure required is to the family religion of the individual cadet or midshipman; the parents are consulted as to any problems that arise;6 the regulation is fully disclosed to applicants prior to their entering the academies;7 attendance only at chapel, and not participation is required;8 belief or nonbelief is not imposed;9 and those who have a bona fide objection to attending services on grounds of conscience may be excused.10

I. THE MILITARY POWER OF THE NATIONAL GOVERNMENT

The Constitution provides that Congress shall have power "to raise and support Armies . . . to provide . . . a Navy [and] to make Rules for the Government and Regulation of the land and naval Forces."¹¹ These enumerated powers necessarily imply the power properly to train the necessary personnel.12 This must include the power and authority to specially train a select group of officers in order to guarantee that our Nation will not want for qualified military leaders in the future. Congress has delegated this training responsibility to the various armed services;13 and students at the academies are members of the armed forces.14

The unfettered power to raise armies and provide a navy was recognized in the original Constitution and the power was conferred on Congress rather than the Executive. Of necessity, because of the strong purpose it serves, it is a great power. Its existence was recognized in the Constitution prior to the adoption of any of the Constitutional Amendments, and several decisions indicate that a number of the Constitutional Amendments are not strictly applicable to the military.15 Most of these decisions relate to criminal proceedings and the legal principles upon which they are based may have only a limited application to First Amendment rights,16 but they do indicate the posture of the Nation's military power as recognized by the Constitution. In any event it is clear that the First Amendment is not fully applicable in the armed services. The 1800 statute, supra note 16, was mandatory and exceeds the present academy regulations. It required that all Navy commanders "shall . . . cause all, or as many of the ship's company as can be spared from duty to attend at every performance of worship of Almighty God." This indicates that contemporary opinion in Congress, when the First Amendment was fresh in the public mind, was that such a religious attendance provision was not considered to be violative of the religious clauses. In addition, it is certain that the right of free speech is properly subordinated to necessary order and discipline in the armed service, the right of assembly is principally exercised at the call of a bugle, and the right of free exercise of religion is not absolute where military necessity or facilities make it difficult or impossible to recognize. It could be strongly argued that the Chaplain Corps and service chapels would violate the Establishment Clause if that clause were not modified by the Free Exercise Clause and by the military power which is recognized in the Constitution. These religious facilities are saved by reading the military and religious clauses together.17 Each clause has a certain area in which it is supreme, and where they overlap we must seek accommodation. Neither can be completely absolute. In so interpreting their provisions, I would conclude that the military power recognized by the Constitution authorizes the academies to include the chapel attendance requirement in their curriculum as a necessary part of the academies' training, and that such minimal regulation does not violate the First Amendment to the Constitution.

It is clear beyond the need for restatement that absolute separation of church and state is not compelled by the Constitution. Virtually all of the recent cases involving the religion clauses deal with the permissible limits of governmental involvement with religion. The Establishment and Free Exercise clauses pose slightly different problems, but I find the impact of these academy regulations on either clause to be no more than minimal.

In the most recent Establishment clause cases,18 decided last term, Chief Justice Burger alluded to the "cumulative criteria developed by the Court over many years" and spoke of "Three . . tests . . . gleaned from our cases" to be applied in Establishment Clause cases. These are:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster "an excessive government entanglement with religion."

403 U.S. at 612-613, 91 S.Ct. at 2111. In my opinion the chapel attendance requirement violates none of these standards.

1. Secular purpose.

The record in this case admits of no other conclusion than that the sole purpose and objective of the academies in promulgating the chapel attendance requirement is secular.19 This was the substance of the testimony presented by both the academies and the Defense Department, and the trial judge so found. The purpose of chapel attendance is to provide the best possible training for our future military leaders to enable them to acquire the necessary understanding and appreciation of the religious motivations and needs of the men they command. No religious belief is forced or sought to be compelled. Attendance only is required; given attendance, any actual participation is purely voluntary.

*****

* * *

Two objections have been raised to this contention. First, that the requirement that the cadets and midshipmen can change their chapel affiliation only with parental consent belies the general educational intent of the regulation and suggests instead an impermissible concern with the content of the religious instruction. I see nothing unconstitutional in this recognition of parental rights by those who are charged with intellectual and moral training-particularly since most cadets and midshipmen are minors20 who are away from home for the first time. Also, the regulations recognize the cadet's individual right of conscience-regardless of age.

The second objection is the contention that some alternative means exists to accomplish this secular purpose, which would not infringe on the First Amendment's protection. Much of the record in the trial below is devoted to discussing this issue. The military leaders who are charged with the responsibility for training our future officers testified that the necessary familiarity with religion for a fully-trained officer is best implanted through observation in the religion that each officer candidate brings with him to the academy and that the necessary results could not be obtained through classroom instruction. Their judgment on a matter committed to their charge is entitled to great weight. After all, throughout our history, such education and training has produced military leaders who have successfully met all the demands our Nation has placed upon them. On this issue it is much more reasonable to accept the judgment of experience than the opinions of those without any experience in the field.

In my opinion it is wholly appropriate for us to rely upon the judgment of those to whom this training is entrusted that the alternative of classroom instruction in morals, religion and ethics, is not an adequate substitute to achieve the necessary result.21 It is all very well to state that by eliminating the chapel attendance requirement military interests "vital to our immediate national security" are not really at stake (Opinion at 296, emphasis added.) That is true because all our present military leaders, and those who will be for some time to come, have been properly trained in the past. How about the future? Should we hazard that? In my opinion we should be just as much concerned that we do nothing to diminish the quality of our Nation's future military leaders as our predecessors were concerned that our present leaders be thoroughly qualified.

The trial court accepted the judgment expressed in the testimony of those experts who are charged with the training of our future officers. I see no justification for supplanting that judgment with inexperienced opinions that have a lesser creditable factual support in the record.

2. Advance or inhibit religion.

It is clear that the regulations may have the effect of advancing or inhibiting religion to some extent. By requiring attendance at religious services the academies place their officer candidates in a position that maximizes the likelihood of participation. To those with strong religious beliefs there is little or no effect-they would attend and participate on their own. To those whose religious feelings are not so strong, religion may be advanced-they are more likely to participate than they would otherwise be. To those experiencing unfavorable attitudes toward religion the attendance requirement may inhibit religion by intensifying those attitudes. I consider these effects to be de minimis and to be required by the educational contract that the academies assume when they undertake the training of cadets and midshipmen to be our future military leaders. They could not ignore some minimal exposure to religion. The chapel regulation has had a long existence and it is fully disclosed to applicants prior to their admission. It is not something that is foisted upon them after they arrive at the academies. Thus, those entering the academies knowingly consent to this regulation and all the other regimentation and curriculum requirements involved in their training and education at the academies.

The fundamental requirement imposed on the Government by the First Amendment is, as Chief Justice Burger has characterized it, a "benevolent neutrality." In my view as long as that essential neutrality is maintained, and the effects on religion are as insignificant as here, where minimal attendance only and not belief is required,22 and conscientious objectors may be excused from chapel attendance, the vital importance of the regulations to the accomplishment of the academies' training objectives demands that we sustain them here. To do so is merely an accommodation of the overlapping interests reflected by the military and religious provisions of the Constitution.

Neutrality is faithfully observed in these regulations. No better description than "neutrality" could be applied to the position the academies have taken on chapel attendance beginning with West Point in 1821.23 The cadets and midshipmen are merely placed in a position to observe church services of their own denomination; participation is purely voluntary. Significantly, the regulations do nothing more than generally provide for carrying forward pre-existing family religious preferences of the cadets and midshipmen. For the future, I would also emphasize the absolute necessity that the academies be certain to provide for a completely fair application of that portion of their regulations which permits conscientious objectors to chapel attendance to be excused therefrom.24 I would suggest they conform to the controlling principles set forth in the paraphrase of Justice Goldberg's remarks at page 314, infra.

The importance of the attendance regulations to the academies' training program is of the highest order, to my mind. It is in the great importance that I place on this portion of the curriculum, which is directed to building the character of academy graduates and qualifying them to understand the spiritual qualities of the men under their command, that I part company with my colleagues. I consider such training to be more important and necessary than they do. As I view the chapel attendance requirement, it is a partial guarantee that our military leaders will be aware of the moral principles that influence and guide our Nation, and that they will be cognizant of the religious needs and motivations of those who serve in the armed services under their command. To assure that our military leaders will meet these standards requires that academy graduates be conversant with religion and not ignorant of its forms or values. The academies have a compelling obligation to the Nation to see that their graduates are fully trained and that ignorance of the spiritual and moral values of our Nation and our servicemen does not occur. We do not with to train military leaders-who will have the power in our name to order the destruction of cities and nations-without some assurances that they have at least been exposed to the principles of basic morality that we stand for as a nation. The stakes are too high-we should continue doing everything humanly possible to avoid future My Lais.

Practically all Americans have some religious background.25 When our men are mustered into the armed services, and realize they may eventually face combat duty, their interest in religion often quickens. The closer they approach combat with enemy forces the more frequently many of them seek comfort in religion. Few men face death without giving consideration to religious factors.26 It is thus necessary to insure that our top military leaders, most of whom are graduates of our Government military academies, have a thorough understanding of the religious needs and motivations of their men. This is a vital morale factor. It has been said: "In war, morale considerations make up three-quarters of the game; the relative balance of manpower accounts only for the remaining quarter."27 It is thus vitally essential to my mind that academy training continue to include this required minimal exposure to one's own religion in this minimal good faith attempt to accomplish these purely secular objectives. To paraphrase Justice Goldberg's concurring remarks in Abington School District v. Schempp, 374 U.S. 203, 306, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963):28

The academies must inevitably take cognizance of the existence of religion and the Court must recognize the propriety of allowing cadets and midshipmen at the academies to receive a minimal exposure to religion, with due allowance for those whose conscience would be invaded, so that the religious exposure will be free of hostility or favor and without undue involvement.

3. Excessive government entanglement.

The record in this case does not indicate that the chapel attendance requirement involves any additional entanglement of Government with religion other than that already existing by the armed services' compliance with the Free Exercise clause.29 What is involved is nothing more than the academies furnishing the facilities and personnel (chapels and chaplains) necessary to provide military personnel with the opportunity to exercise their own religion. Even if chapel attendance were voluntary the academies would still be required to make substantially the same facilities available for church attendance. The maintenance of chapels and chaplains30 throughout the armed services guarantees that the constitutional right to free exercise of religion will not be denied while men are serving their country. There is no showing here that these services are materially increased by the attendance requirement, or that the resulting attendance enmeshes government substantially over and above the involvement which would otherwise result from furnishing the facilities necessary to meet its obligations under the free exercise requirement.

The majority opinions do not question the constitutional validity of the Chaplain Corps and the furnishing of religious facilities in the armed services. It is submitted that if it is constitutional for the Government to furnish the extensive religious facilities of chapels and chaplains for religious worship throughout the armed services, and I do not question that it is constitutionally permissible, then it is "necessary and proper" to require that our military leaders be exposed to training sufficient to give them a minimal understanding of the religious commitment and motivation of our people.

There can be no question that the knowledge and understanding of religion that cadets and midshipmen acquire by chapel attendance operates to guarantee that the right of men in the armed services to fully exercise their religion will be more fully understood and recognized when these academy graduates ascend, as they certainly will, to positions of military leadership.

Judge Bazelon's opinion states:

This case does not involve programs vital to our immediate national security, or even to military operational or disciplinary procedures. Nor does it appear that the ruling will have any detrimental impact on the academies' training programs. The appellees have made no showing that chapel attendance requirements are the best or the only means to impart to officers some familiarity with religion and its effects on our soldiers.

While some weight must be accorded the military judgment that familiarity with religion is necessary for the all-around officer, it is for this court to assess that decision in constitutional terms. In the words of Mr. Justice Jackson, we act not by virtue of a superior competence but by virtue of our commission to protect basic constitutional rights.

At 296. The foregoing fails to consider or reflect upon the effect that deficiently trained officers can have on the personnel of our armed forces and their morale. The passage recognizes that such training is necessary, but suggests that it can be obtained by other means. There is nothing in the record to support this conclusion. The testimony of our military leaders who are charged with the responsibility of supervising our military academies was to the contrary. Trying to give a person an understanding of the moral force and motivation of religion without attending church is like trying teach swimming without water.

However, if we recognize that some training in religion is necessary, and the majority opinions seem begrudgingly to recognize this, we have come a long way. Then the only question is whether it may permissibly be given by requireing attendance at chapel or in the classroom. In my view the United States has authority to educate its cadets and midshipmen so that they will be fully qualified to assume their place as military leaders of the Nation. If those who are placed in charge of our armed services determine that a minimum exposure to the religion of one's own choice is necessary through chapel attendance, and if our 150-year experience has demonstrated that the implementation of this policy does not result in an establishment of religion, it seems to me that we should not be swayed by the vanity of the present and the belated fears of the majority that those 150 years are an aberration of the experience we should expect. I believe this lengthy experience demonstrates that the basic guarantee of the First Amendment is not violated or likely to be violated by the chapel requirement, and I also consider that such training furnishes substantial assurance that the free exercise of religion in the armed services will be respected.31 I accordingly conclude that a "sensible and realistic application of the Religion Clauses"32 compels a finding that the chapel attendance requirement does not unduly trespass upon the establishment or free exercise provisions.

For the foregoing reasons I respectfully dissent from the majority opinions and would affirm the conclusion reached in Anderson v. Laird, 316 F.Supp. 1081 (D.D.C.1970). I am in general agreement with Judge Corcoran's reasoning to the extent hereinbefore indicated.