WASHINGTON — Before the end of the year, President Obama is expected to sign a defense-spending bill that provides a religious exemption for military chaplains who refuse to officiate at same-sex “marriages.”

But critics argue that the additional protection is inadequate.

Passed by Congress last week, the 2012 National Defense Authorization Act (H.R. 1540) included a provision stating: “A military chaplain who, as a matter of conscience or moral principle, does not wish to perform a marriage may not be required to do so.”

Republicans failed to secure the House’s proposed language, designed to provide a more robust exemption for an estimated 3,000 chaplains and block any backdoor attempt to use the repeal of “Don’t Ask, Don’t Tell” to overturn the Defense of Marriage Act (DOMA).

The final bill adopted the Senate’s narrow exemption, and religious-freedom advocates contend that it won’t shield chaplains who challenge the morality of homosexual behavior while performing a range of duties on military bases.

However, traditional-marriage activists applauded the House for blocking a Senate amendment that sought to legalize sodomy in the Uniform Code of Military Justice.

“The conscience protection that has been put into this bill does very little that is not already protected by the U.S. Constitution. It leaves unaddressed the many issues chaplains and other service members will face when confronting the issues of same-sex ‘marriage’ or anything else,” said Eric Rassbach, national litigation director for the Becket Fund for Religious Liberty..

“This does nothing to deal with questions of whether chaplains would have to counsel same-sex couples. Or if you had a chaplain who said in a worship service that homosexual behavior is wrong and sinful, could he be punished for that?” said Rassbach.

He predicted that a “whole range of issues” would come up “once same-sex ‘marriages’ are recognized, and that will affect religious liberty. First Amendment scholars agree there is a conflict.” He argued that other military personnel, family members and voluntary organizations that refused to condone homosexual behavior or accommodate same-sex couples could still face penalties.

“It’s not just chaplains,” he said. “For example, there are spousal support groups. But what if a spouse doesn’t want to be with a spouse who’s part of a same-sex couple? Groups like the Knights of Columbus or a Protestant Christian fellowship organization only allow people to join who adhere to a certain standard of conduct. Will those policies now be viewed as discriminatory? If you are kicked off the base, there is nowhere else to go in some areas.”

First Amendment Rights

The Archdiocese for the Military Services and the Chaplain Alliance for Religious Liberty, an organization representing more than half of the Protestant churches that “endorse,” or certify, military chaplains, have opposed the repeal of the “Don’t Ask, Don’t Tell” policy. Introduced during the Clinton administration, the policy has allowed servicemen and women with a homosexual orientation to serve in the military if they did not publicly confirm that orientation.

“The conscience protection we have been looking for is this: ‘No chaplain would be required to do anything contrary to the dictates of his faith.’ We’re looking for a protection for chaplains in their daily role,” said John Schlageter, general counsel for the Archdiocese for the Military Services, speaking for Archbishop Timothy Broglio, who was travelling and unavailable for comment.

While Schlageter expressed disappointment with the final language, he described it as “a good step to clarify what has been presumed for years” — the strong First Amendment rights for military chaplains.

A chaplain is a “commissioned service member, employed by the Department of Defense,” he noted. “As officers of the Chaplain Corps, they are accountable to DOD, but they are also certified religious leaders who are ultimately accountable to their faith and the spiritual needs of the members in uniform of that faith.”

Archbishop Broglio has issued a number of statements outlining the Church’s response to the expected repeal.

In his 2011 “Statement on the Implementation Process of the Repeal of ‘Don’t Ask, Don’t Tell’ Legislation,” he reaffirmed the Church’s commitment to the pastoral care of all military personnel, no matter their sexual orientation. But he also upheld the Church’s right to unequivocally teach the “biblical principle that all persons, regardless of their sexual orientation, are called to chastity inside and outside the bonds of marriage.”

As the movement for “marriage equality” advances in the United States, and homosexuals are increasingly included as a protected class in state anti-discrimination statutes, religious-freedom activists and scholars acknowledge that First Amendment rights are under attack — and even in retreat.

Archbishop Broglio’s statement strongly defended the First Amendment rights of chaplains, but also echoed the mounting anxiety of many military chaplains.

“When we speak about human rights, it must not be forgotten that all share in those rights. Those who seek to redefine the community of life between a man and a woman, that is marriage, must not diminish the rights of others or their ability to live according to the dictates of their conscience,” the archbishop concluded.

Chaplain Shortage

Since Obama first expressed his desire to repeal “Don’t Ask, Don’t Tell,” some critics have predicted that the new policy could result in mass retirements of chaplains and great difficulty recruiting their replacements. Catholic chaplains are already in very short supply, and some active-duty military personnel do not have regular access to the sacraments.

The Department of Defense issued a November 2010 report that summarized a variety of concerns provoked by the expected repeal of “Don’t Ask, Don’t Tell.” The report’s authors acknowledged that a significant number of military chaplains opposed any change in policy.

“I do not expect that anyone who holds fast with the truth as it is in the word of God ... to be allowed to continue on and to advance in their career, as I did,” said James Poe, a retired Navy captain and former secretary of the International Conference of Evangelical Chaplain Endorsers, in a published interview following the report’s release.

The Pentagon has sought to tamp down such fears. This September, it issued a memo that broadly outlined the way forward into uncharted territory.

“A military chaplain may participate in or officiate any private ceremony, whether on or off a military installation, provided that the ceremony is not prohibited by applicable state and local law,” stated the memo.

“Further, a chaplain is not required to participate in or officiate a private ceremony if doing so would be in variance with the tenets of his or her religion.”

Meanwhile, the chairman of the House Armed Services Committee, Rep. Howard “Buck” McKeon, R-Calif., worked to secure a broader and stronger exemption in the 2012 military-spending bill.

Like most of the GOP leadership in the House, McKeon also sought to prevent the repeal of the controversial policy from being used to undermine the Defense of Marriage Act, already under heavy assault from the Justice Department, which said it would no longer defend the law.

“This was one of the concerns that we had — that we were rushing this, to eliminate this before we had fully prepared things. And DOMA is the law of the land,” said McKeon in a published interview.

But in the end, to the applause of homosexual-rights groups like the Human Rights Campaign, the Senate’s narrow language made the final cut.

The limited exemption was viewed as a defeat for McKeon. But John Noonan, a spokesman for the House Armed Services Committee, insisted that chaplains still retain strong First Amendment protections and that nothing in the new language “contravenes or amends DOMA, nor is the DOD relieved from the prohibition on federal recognition of same-sex unions.”

That said, organizations like the Chaplain Alliance for Religious Liberty remain wary about the practical impact of the repeal. They note that individual base commanders possess considerable autonomy to make their own judgments about speech that could now be interpreted as undermining military readiness.

“We fear that the religious liberty of our chaplains will be repealed or infringed,” said Ron Crews, the executive director of the Chaplain Alliance for Religious Liberty, and a retired army chaplain.

Crews said he knew of a few chaplains who “were retiring earlier than planned.” For now, however, his organization is encouraging members “to continue to serve everybody with grace and dignity. But if they are going to provide counsel for a soldier, they need to be clear they will be offering biblical teaching.”

Early next month, the Chaplain Alliance plans to organize a strategy session to map out a response to a rapidly changing cultural and political environment.

“If you speak in favor of the homosexual lifestyle, it’s okay,” said Crews. “But if you express any kind of concern [about it], there is a fear of some type of recrimination or retaliation in this new climate.”

Joan Frawley Desmond is the Register’s senior editor.