9

A Leader’s Guide to Lawfully 

Addressing Religion and Spirituality

by Lieutenant Colonel Emilee Elbert 

Chair, Administrative and Civil Law Department, The Judge 

Advocate General’s Legal Center and School 

and by Chaplain (Major) Joshua Chittim, 

Chaplain, The Judge Advocate General’s Legal Center and School

Introduction

The First Amendment right for an individual to freely practice 

the religion of their own choosing is a hallmark of the American 

psyche.1

 This hallmark sits uneasily alongside the demand that 

Service members sometimes must subjugate their personal right 

to exercise certain religious practices for the good of the service.2

Federal law places a high burden on the Department of Defense 

(DoD) to justify any limitation on the religious freedom of Service 

members,3

 and prohibits certain government action with regard to 

practicing religion.4

 At the same time, Commanders are charged,
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A Leader’s Guide

The Free Exercise of Religion and Spirituality in the Army

through the assistance of Chaplains and 

leaders at all echelons, with ensuring 

the spiritual fitness of their formations.5

Balancing this directive while ensuring 

that leaders do not impinge upon their 

Soldiers’ individual rights is a tricky 

dynamic, but it can be navigated 

successfully. This article summarizes 

the legal underpinnings of religious 

freedom, the processes, and the test 

by which religious freedom is limited, 

and concludes with suggestions of the 

best practices for addressing religious 

freedom in the military. Its purpose is to 

ensure that Commanders and leaders 

have the information they need to 

address spirituality and religion with their 

Soldiers in ways that do not violate the 

Constitution, Federal law, or DoD and 

Army policy. This article does not replace 

the advice of a Commander’s staff, 

but serves as a starting point should a 

leader be faced with a question about 

this difficult area and does not have 

immediate access to a Chaplain or judge 

advocate.

Part I of this article provides the 

background of the First Amendment, 

including specific discussions of the Free 

Exercise and Establishment Clauses. 

Part II summarizes the DoD and Army 

policies and procedures applicable to 

religious practices in the military. Part III 

provides practical guidance for leaders 

in the field who deal with requests for 

religious accommodation, who provide 

religious services to Soldiers, or who 

want to know more about how to address 

spirituality with their formations.

Part I: Background

The First Amendment to the Constitution 

of the United States of America, passed 

in 1787 as part of the Bill of Rights, 

states: “Congress shall make no law 

respecting an establishment of religion, 

or prohibiting the free exercise thereof.”6

The First Amendment contains two 

complementary rights regarding religion7

: 

the right to free exercise of religion 

(the Free Exercise Clause)8

 and the 

prohibition of government actions that 

favor one religion over another (the 

Establishment Clause).9

The Free Exercise Clause is not 

absolute despite being woven into the 

fabric of American society. In fact, it is 

particularly limited for military Service 

members.10 The right of Commanders to 

infringe upon certain rights of Soldiers 

for the good of the service is, in fact, 

deeply rooted in case law.11 The seminal 

case, Parker v. Levy, summarizes the 

rationale for this:

While the members of the military 

are not excluded from the protection 

granted by the First Amendment, 

the different character of the military 

community and of the military mission 

requires a different application of 

those protections. The fundamental 

necessity for obedience, and the 

consequent necessity for imposition 

of discipline, may render within 

the military that which would be 

constitutionally impermissible outside 

it.12
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The Free Exercise of Religion and Spirituality in the Army

This precedent, established in 1974, 

remained virtually unchallenged until 

the mid-1990s with the passage of 

the Religious Freedom Restoration 

Act (RFRA),13 which clearly defines 

the limits of the government’s ability to 

subjugate Soldiers’ religious freedom. 

Pursuant to RFRA, Commanders 

may only substantially burden a 

person’s religious exercise if it furthers 

a compelling government interest 

and is the least restrictive means of 

furthering that interest.14 A Commander 

“substantially burden[s]” a Service 

member’s religious practice if their 

action either prevents participation in 

conduct motivated by a sincerely held 

belief or places substantial pressure on 

a Service member to engage in conduct 

contradictory to a sincerely held belief.15

The authority of a Commander to 

infringe on a Service member’s religious 

freedom is not absolute. In certain 

instances it is quite limited.16 The 

Establishment Clause is one such limit; 

its language and subsequent case law 

specifically limit government action 

with regard to religion.17 While recent 

Supreme Court decisions leave new 

ambiguity to be sorted by the lower 

courts, what remains clear is that public 

speech by public officials is limited by 

the Establishment Clause.18 As public 

officials, Commanders must take care to 

ensure speech with regard to religion is 

not coercive.19

The courts have identified specific 

examples of permissible government 

action with regard to religion.20

According to United States v. Marsh, 

the Establishment Clause cannot 

be applied in a vacuum; presumably 

practices that were in use at the time 

of the passage of the First Amendment 

are considered acceptable.21 The use 

of religious invocation or prayer to mark 

the beginning of an important event 

or ceremony is one such practice.22

Subsequent case law upheld Marsh.

23

This case law further articulates that 

prayer during the ceremonial portion of 

a government meeting is permissible 

because it does not “exact financial 

support of the church, compel religious 

observance, or control religious 

doctrine.”24

The court in Katcoff v. Marsh settled 

all previous concerns about the 

intersection of the Free Exercise Clause, 

Establishment Clause, and the War 

Powers Clause of the Constitution,25

and their applicability to the U.S. Army 

and its Chaplain Corps.26 Indeed, the 

court squarely addressed whether the 

existence of the Chaplain Corps violated 

the Free Exercise or Establishment 

Clauses.27 The court applied this test 

to the issue: “whether the chaplaincy 

program is relevant and reasonably 

necessary for the Army’s conduct of our 

national defense.”28 The court held that 

because the “purpose and effect of the 

program is to make religion, religious 

education, counseling and religious 

facilities available to military personnel” 

the military chaplaincy is “vital to our 

Army’s functioning,” and therefore, 

reasonably necessary for our national 

defense.29
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Understanding these foundational 

principles, including the Free Exercise 

and Establishment Clauses, and RFRA, 

is necessary to an analysis of their 

implementation by the DoD and U.S. 

Army. The applicable policies are firmly 

rooted in the preceding principles.30

Less clear, and infinitely more difficult 

to address, is how Commanders can 

support religion and spirituality without 

running afoul of the First Amendment. 

We do know, however, that they must 

address it.31

Part II: Department of Defense 

and Army Policy on Addressing 

Religion

The concept that Commanders must 

care for all aspects of a Service 

member’s fitness is longstanding. 

However, it was recently encapsulated 

in a framework known as Total Force 

Fitness.32 Total Force Fitness consists 

of nine domains and is a “methodology 

for understanding, assessing, and 

maintaining Service members’ wellbeing and sustaining their ability to 

carry out missions.”33 Spiritual fitness, 

one domain, is the “ability to adhere to 

beliefs, principles, or values needed to 

persevere and prevail in accomplishing 

missions.”34

Spirituality and religion are related 

but different and are thus treated 

differently under DoD and Army policy. 

Commanders must carefully balance 

attention to spiritual fitness with 

respect for their subordinates’ religious 

preference.35 DoD and Army policy on 

religious liberty and spirituality in general 

is fully informed by the Free Exercise 

and Establishment Clauses of the First 

Amendment and RFRA.36 According to 

DoD policy:

“Service members have the right to 

observe the tenets of their religion or 

to observe no religion at all;”37

“DoD Components will accommodate 

individual expressions of sincerely 

held beliefs which do not have an 

adverse impact on military readiness, 

unit cohesion, good orders and 

discipline, or health and safety;”38

“A strong spirit promotes resiliency 

and enhances one’s ability to 

mitigate adverse responses to stress. 

Promoting spiritual fitness is a vital 

component of a [Total Force Fitness] 

program.”39

Likewise, Army policy nests firmly 

in DoD policy, RFRA, and the First 

Amendment.40 In addition to Soldiers’ 

rights to practice their respective 

religions or observe no religion at all, 

Army policy states that it protects the 

“civil liberties of its personnel to the 

greatest extent possible, consistent with 

its military requirements.”41

The Army aims to achieve this balance 

through its combined approach to 

religious accommodation and spiritual 

fitness.42 The Army’s guidance to 

Commanders on how to address 

spirituality is contained in Field 

Manual (FM) 7-22, Holistic Health and 
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The Free Exercise of Religion and Spirituality in the Army

Fitness (H2F).43 FM 7-22, published in 

2020, established the Army’s system 

to address five domains of Soldier 

readiness: physical, mental, sleep, 

nutrition, and spiritual.44 The H2F 

program defines spirituality as a “sense 

of connection that gives meaning and 

purpose to a person’s life.”45 Spirituality 

is “unique to each individual” and 

“applies to all people, whether religious 

and nonreligious . . . and forms the basis 

of their character.”46

Part III: Situation-Specific 

Guidance

FM 7-22 acknowledges the diverse and 

individualistic sources of spiritual and 

religious practice, thereby providing 

Commanders with the ideas, resources, 

and personnel necessary to address 

spiritual readiness without impacting 

the right to religious freedom.47 With 

this guidance, Commanders should not 

shy away from addressing spirituality or 

religion, but work energetically to provide 

their Soldiers a wide variety of options 

for building their spiritual readiness. In 

general, if the Commander can articulate 

how their initiative or event achieves the 

H2F goal of “build[ing] physical lethality 

and mental toughness to win quickly and 

return home healthy,” without violating 

the DoD and Army policies on the 

exercise of religion and the requirement 

for religious accommodation, such 

initiatives will pass legal muster.48 To 

illustrate how to accomplish the daunting 

task of addressing spirituality without 

indicating preference for one religion 

over another, this article provides a 

description of resources available 

to Commanders as well as practical 

examples. 

A. EVALUATING RELIGIOUS ACCOMMODATION 

REQUESTS

When it comes to providing religious 

accommodations, Chaplains are 

an essential resource in helping to 

determine the religious nature of the 

request and the sincerity of the religious 

belief.49 Chaplains need to be confident 

in their role as a principal advisor 

to the Commander in the religious 

accommodation process.50 Chaplains 

are tasked to formally interview Soldiers 

requesting religious accommodation to 

determine the religious nature of the 

request and the religious sincerity of the 

requestor.51

Determining whether an accommodation 

request is religious in nature is not as 

straightforward as it might initially seem. 

To evaluate whether an accommodation 

request is truly religious, Chaplains may 

consider using the following three-prong 

test to evaluate such requests:52 first, 

whether the religious belief addresses 

“fundamental and ultimate questions of 

life;” second, whether the belief system 

is “comprehensive in nature;” and third, 

whether the belief system has formally 

established external visible signs.53

Alternatively, in evaluating whether the 

request is religious leaders may ask 

whether the Soldier’s “moral, ethical, 

or religious beliefs about what is right 

and wrong” is “held with strength of 

traditional religious convictions.”54 Finally, 
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a Soldier’s adherence to a “merely 

personal moral code,” is not sufficient 

to meet the threshold for religious 

accommodation.55

Take as an example a Soldier who 

requests relaxed grooming standards 

due to their adherence to the Asatru 

faith.56 In determining whether Asatru is 

considered a religion, a Chaplain should 

conduct research to determine whether 

the Asatru religion answers questions 

such as what happens to a person after 

death or what is the purpose of life. A 

Chaplain also should explore whether 

the Asatru religion addresses a person’s 

complete identity and how they are 

to live. Finally, the Chaplain should 

explore what formal and external signs 

the religion incorporates into the belief 

structure. In this example, the Asatru 

religion addresses the deep and ultimate 

questions of life; it has a holistic set of 

teachings for how a person is to live; 

and, finally, it has formal and external 

signs that appear to be established by 

the belief system.57

Determining the sincerity of the Soldier’s 

religious belief will invariably be the 

most probing and consequential part of 

the interview process. To determine the 

sincerity of religious belief, the Chaplain 

should explore three elements. The 

first element is the motivation of the 

religious request.58 Is the Soldier making 

this request simply because they want 

to grow a beard? Or is the motivation 

fueled by a genuine religious fervor to 

grow a beard as a means to grow in 

their spirituality? The second element 

to explore is the consistency of how 

the individual lives out their religious 

convictions. Perhaps a Soldier wants 

separate rations due to certain offlimits or forbidden foods being served 

in a dining facility.59 However, outside 

of wanting to adhere to certain dietary 

restrictions, the Soldier does not actively 

participate in religious observances or 

adhere to other religious teachings. 

This may not necessarily mean that the 

Soldier is not sincere in their request, 

but it may be a sign that the sincerity is 

not religious in nature. The final element 

in determining religious sincerity is to 

explore if the request is from a religious 

conviction or, conversely, if it arises from 

a strongly held moral objection that is 

not religious in nature.60 Often moral and 

ethical beliefs are based on a religious 

belief system.61 However, there are 

moral objections that may be grounded 

on a political or scientific viewpoint. 

Chaplains need to be sensitive to this 

dynamic and be aware that there can be 

a difference between a moral objection 

and a religious conviction.

With the implementation of FM 7-22, 

Commanders and Unit Ministry Teams 

(UMT) have a renewed responsibility 

to help improve the spiritual readiness 

of the Force.62 In granting religious 

accommodations, a Commander 

does not endorse one religion over 

another.63 Instead, by granting a 

religious accommodation request, the 

Commander helps to support the free 

exercise of religion, which, in turn, helps 

to grow and improve the overall health 

and fitness of their Soldiers.64
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B. RELIGIOUS DISPLAYS AND PRAYER

As previously discussed, Commanders 

must be careful to avoid religious 

coercion.65 However, as long as 

Commanders take care to conduct 

activities in a manner that “that is 

consistent with accepted historical 

practice” in the military and is not 

coercive, holiday displays and even 

prayer can be part of the Commander’s 

plan to address support spiritual 

readiness.66 For example, the month 

of December is generally a time when 

many Soldiers celebrate important 

religious holidays such as Christmas, 

Hanukkah, or Kwanza. While 

Commanders should avoid events that 

only highlight a particular religious 

remembrance, an event or display 

that celebrates multiple religions is 

acceptable.67 Common displays or 

events that are likely acceptable include 

a Christmas tree lighting ceremony and 

the display of multiple holiday images, 

such as a Santa Claus house, reindeer 

pulling Santa’s sleigh, a nativity scene, 

a menorah, and a “Season’s Greetings” 

sign, in the dining facility.68 Likewise, 

prayers offered by a Chaplain during 

formal, solemn military ceremonies such 

as a change-of-command, retirement, 

graduation, or dining-in where prayer or 

invocation is “deeply embedded” in our 

military history are likely acceptable.69

On the other hand, a prayer led by the 

Commander at the start of every meeting 

is likely a violation of the Establishment 

clause because the speech is official, 

conducted during a mandatory meeting, 

and may appear coercive.70A quick 

review from the command judge 

advocate can ensure Commanders and 

their staff stay within legal bounds when 

planning such events or displays.

C. OPPORTUNITIES FOR DEVELOPING 

SPIRITUAL READINESS

The publication of FM 7-22, provides 

Commanders with a host of resources 

available to address the spiritual 

readiness of their Soldiers.71 While the 

guidance acknowledges that spirituality 

is highly individualized, it highlights many 

options Commanders can implement to 

address this component of readiness 

while also avoiding the preference of one 

religion over another.72 Such activities 

could include a day of service, providing 

time for meditation, providing time and 

space for individual religious education 

or prayer, conducting relationship 

building events such as Strong Bonds, or 

hosting leader professional development 

on a certain religion.73 In planning 

these activities, Commanders are 

not alone.74 They can and should rely 

on numerous individuals and entities 

inside and outside of their organizations 

for assistance and expertise such as 

the Chaplain and UMT, the Garrison 

Chaplain’s office, the legal office, the 

Equal Opportunity Advisor or Office, and 

the Army Fit website, to name a few.75

Conclusion

While at first less experienced 

Commanders may feel hesitant to 

address very personal and weighty 
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issues like religion and spirituality with 

their formations, it is their duty. As 

they become more comfortable with 

this important aspect of their mission, 

Commanders and leaders should feel 

empowered to share their own spirituality 

and proudly exercise their religious 

beliefs appropriately. Knowing they have 

the staff, information, and resources to 

assist them in effectively addressing this 

important aspect of readiness should 

ease their concern. 

NOTES

1 Jan Neuharth, First Amendment Day is an Important 

Reminder of the Rights We Enjoy—and Must Protect, 

USA Today (Sept. 23, 2021, 10:00AM), http://usatoday.

com/story/opinion/2021/09/23/first-amendment-rightsmust protect/8377984002/.

2 Reynolds v. United States, 98 U.S. 145, 164 (1878).

3 Religious Freedom Restoration Act of 1993, Pub. L. No. 

103-141, 107 Stat. 1488.

4 Ibid.

5 U.S. Dep’t of Army, Field Manual 7-22, Holistic Health 

and Fitness (1 Oct. 2020) (C1, 8 Oct. 2020) [hereinafter 

FM 7-22].

6 U.S. Const. amend. I.

7 Kennedy v. Bremerton Sch. Dist., No. 21-418, 2022 

U.S. LEXIS 3218, at *7 (June 27, 2022) (citing Everson 

v. Board of Ed. of Ewing, 330 U.S. 1, 15 (1947).

8 Cantwell v. State of Connecticut, 310 U.S. 296, 303 

(1940).

9 Ibid.

10 Ibid.

11 Parker v. Levy, 417 U.S. 733, 758 (1974).

12 Ibid. at 759.

13 42 U.S.C. §§ 2000bb to -4.

14 Ibid.

15 Ibid.

16 See Lemon v. Kurtzman, 403 U.S. 602 (1971); Lynch 

v. Donnelly, 465 U.S. 668 (1984); County of Allegheny 

v. ACLU, 492 U.S. 573 (1989); Lee v. Weisman, 505 

U.S. 577 (1992); Town of Greece v. Galloway, 572 

U.S. 565 (2014); Am. Legion v. Am. Humanist Ass’n, 

139 S. Ct. 2067 (2019); Zelman v. Simmons-Harris, 

536 U.S. 639 (2002); Kennedy v. Bremerton Sch. 

Dist., No. 21-418, 2022 U.S. LEXIS 3218, at *40 (June 

27, 2022).

17 See Kennedy v. Bremerton Sch. Dist., No. 21-418, 

2022 U.S. LEXIS 3218, at *40 (June 27, 2022).

18 See Ibid.

19 See Ibid.

20 Marsh v. Chambers, 463 U.S. 783, 790 (1983).

21 Ibid.

22 Town of Greece v. Galloway, 572 U.S. 565, 566–67 

(2014).

23 Ibid.

24 Ibid.
17

NOTES cont.

25 U.S. Const. art. I, § 8.

26 Katcoff v. Marsh, 755 F.2d 223, 235 (1984).

27 Ibid.

28 Ibid.

29 Ibid.

30 U.S. Dep’t of Def., Instr. 1300.17, Religious Liberty 

in the Military Services para. 1.2 (1 Sept. 2020) 

[hereinafter DoDI 1300.17]; U.S. Dep’t of Army, Reg. 

600-20, Army Command Policy para. 5-6a (24 July 

2020) [hereinafter AR 600-20].

31 See FM 7-22, supra note 5.

32 See generally Joint Chiefs of Staff, Instr. 3405.01, 

Chairman’s Total Force Fitness Framework (1 Sept. 

2011) [hereinafter CJCSI 3405.01].

33 Ibid. at encl. A, para. 2.

34 Ibid. at encl. A, para. 3e.

35 U.S. Dep’t of Army, Reg. 600-63, Army Health 

Promotion paras. 1-32, 6-2 (14 May 2015) [hereinafter 

AR 600-63].

36 DoDI 1300.17, supra note 28, at 4.

37 Ibid.

38 Ibid.

39 CJCSI 3405.01, supra note 30, at encl. a, app. e, 

para. 5.

40 AR 600-20, supra note 28.

41 Ibid.

42 See Ibid.; see also FM 7-22, supra note 5; see also

U.S. Dep’t of Army, Techs. Pub. 1-05.04, Religious 

Support and Internal Advisement (23 Mar. 2017) 

[hereinafter ATP 1-05.04].

43 See generally FM 7-22, supra note 5.

44 FM 7-22, supra note 5.

45 Ibid. para. 10-2.

46 Ibid.

47 Ibid. paras. 10-10 to -27.

48 Ibid. at ix.

49 See generally AR 600-20, supra note 28, at app. P; 

see also FM 7-22, supra note 5, para. 10-9.

50 See generally AR 600-20, supra note 28, at app. P. 

51 Ibid.

52 Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 

1981) (citing Malnak v. Yogi, 592 F.2d 197, 205 (3d Cir. 

1979)).

53 Ibid.

54 U.S. v. Ward, 989 F.2d 1015 (9th Cir. 1992) (citing 

Welsh v. U.S., 398 U.S. 333, 340 (1970)).

55 Africa, 662 F.2d at 1034.

56 See generally Sergeant First Class Erick Studenicka, 

Number of Religious Accommodations, Including 

Beards, Likely to Grow in Nevada Guard Ranks, Def. 

Visual Info. Distrib. Serv. (Dec. 19, 2019), https://

www.dvidshub.net/news/356626/number-religiousaccommodations-including-beards-likely-grow-nevadaguard-ranks.

57 See Ibid.

58 See generally Bryant et al., supra note 50.

59 See generally ATP 1-05.04, supra note 40, app. A-5. 

60 Ibid. app. A-1.

61 See generally FM 7-22, supra note 5, para. 10-10.

62 See generally Ibid.

63 Ibid. para. 10-5.

64 Ibid.

65 Ibid. para. 10-6.

66 See Kennedy, supra note 16 at *40 (June 27, 2022).

67 Ibid.

68 See Lynch v. Donnelly, 465 U.S. 668, 685 (1984); see 

also County of Allegheny v. ACLU, 492 U.S. 573, 591 

(1989).

69 See Marsh, supra note 19, at 786.

70 See Warnock v. Archer, 380 F.3d 1076, 1081 (8th Cir. 

2004); See also Kennedy at *41.

71 See FM 7-22, supra note 5, paras. 10-9, 10-30 to -37.

72 See Ibid.

73 Ibid.

74 Ibid.

75 See Ibid. paras. 10-10 to -27.

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The Free Exercise of Religion and Spirituality in the Army