It always seemed interesting to me that
the Establishment Clause of the U.S. Constitution was only ever applied to the Congress.
It seems obvious that the authors of the Constitution didn't foresee the use of Executive Orders, which act as an exploitation of the "executive power" clause that could have been much more specific.
That said, I'm curious what they might have thought of the military being used as a vessel for converting non-Christians in other countries.
I'm fairly certain that John Adams and Jefferson wouldn't have been particularly happy, but that's not really the point.
The point is where there is any legal action to be pursued against military personell for attempting to act as religious spokespeople while conducting business for the United States government.
Since there's no act of Congress involved here, it's hard for me to say that there has been a clear cut Constitutional violation.
Still, it's worth remembering Tripoli, which (like this military action) isn't blatantly subject to the Establishment Clause.
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of [Islam]; and, as the said States never entered into any war, or act of hostility against any [Muslim] nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
Of course, this is simple a statement that the United States will not enter into holy wars (which I think is a nice sentiment). The first part is what I think is important.
Obviously, as the United States government grants freedom of religion to all of its citizens, servicemen included, there can be no restriction placed on the practice of religion by servicemen.
My frustration with the notion of "converting the heathen" aside, there is a pretty serious diplomatic issue here.
In the uniform code, there's a provision which stipulates that active military personal cannot attempt to religiously convert another person.This seems to be the core violation here.
I bring up the Constitutional issue because, unfortunately, I don't think that it exists. Former Prime Minister Ahmed Shah Ahmedzai seems to think there is one, but I don't see that argument either way.
That said, the Constitutional argument, in this case, in unnecessary. There should be court marshals issued to those servicemen who violated the military code of conduct, and punished accordingly.
Since this isn't a civilian issue, I don't see the legislature or the judiciary intervening, though they may feel the need to wag fingers or (in the case of the Christian right) protest the oppression of Christians in the military, but they really have no place in a military court, and they know that.
It's an interesting issue, though, and I'm curious to see how the military handles it, if we find out.
