New law requires DOD procedures for religious freedom complaints

Adversaries offer alternate postmortems on how, why it came to be.

By Marshall Weiss, The Dayton Jewish Observer

The Pentagon has a new policy for handling religious freedom complaints: objections to specific displays or expressions will automatically go up the chain of command to the Department of Defense and must be responded to within a set time.

U.S. Rep. Mike Turner and Military Religious Freedom Foundation President/founder Mikey Weinstein both see it as a victory — against each other.

Weinstein claims credit for the victory. So does Turner. The Dayton area’s congressman, a senior member of the House Armed Services Committee, sees it as a way to keep Weinstein and his organization in check. Weinstein sees it as requiring the DOD to respond to his organization’s complaints, and in a timely manner. And if the MRFF isn’t satisfied with the results, it threatens to take the DOD to federal court.

U.S. Rep. Mike Turner (R-OH 10th District).

The requirement for these DOD procedures was a final amendment to the 2024 National Defense Authorization Act, signed into law by President Biden, Dec. 22.

It’s a substitution for the amendment that Turner added to the version of the 2024 NDAA the House passed last June.

Turner’s House amendment prohibited the DOD from communicating with the Military Religious Freedom Foundation, its leadership, or its founder or ” to take any action or make any decision as a result of any claim, objection, or protest made by the Military Religious Freedom Foundation without the authority of the Secretary of Defense.”

The amendment’s inclusion and approval “without controversy” by the House was first reported June 22 by Military Times covered the story June 26. The Forward wrote about it July 13. The Observer picked up and distributed the Forward’s coverage in its August issue.

Weinstein established the non-profit Military Religious Freedom Foundation in 2005. It grew out of antisemitism he says his two sons experienced at the U.S. Air Force Academy in Colorado, where Weinstein himself graduated.

Military Religious Freedom Foundation Pres. Mikey Weinstein.

“Most of our clients, by sheer numbers, happen to be Christians,” Weinstein says. He says most cases brought to MRFF by military personnel involve “a fundamentalist Christian who is trying to impose and use the rank on their collar, whatever their rank is, as a force multiplier to force an otherwise helpless subordinate to adhere to their view.” The subordinate, he says, can’t fight back.

“You are facing the dynamic of a military superior telling you in essence that your religious faith or lack thereof means that you lack intelligence, compassion, empathy, courage, honor, and honorability. Because under the Uniform Code of Military Justice, insubordination often is punished as a felony.”

Weinstein describes his MRFF as very aggressive, militant. “But it’s always legal, ethical, and moral what we do. Because when you have your constitutional rights stripped away, you don’t want to wait very long. You want the attention of the chain of command.”

Cases the MRFF has worked on recently according to Weinstein include shutting down a military unit’s “Jesus Wants You To Be His Valentine” sermon and altar call (inviting people to come forward and publicly announce their decision to commit their lives to Jesus) during normal duty hours, stopping a commander and his wife from offering “Christian Bible counseling” to service members, and the removal of a VA chaplain’s anti-LGBTQ+ display at a VA Medical Center.

“We only care about the time, place and manner in which a member of the military, the Defense agencies, believe they have the right to deploy their faith,” Weinstein says.

Turner tells The Observer it’s Weinstein’s tactics he objects to, not the MRFF’s mission.

“The principles of freedom of worship and religion are the most important principles of the foundation of our nation,” Turner says.

“Unfortunately, Mikey Weinstein has reportedly been abusive, attacking, unprofessional in the manner in which he has approached this issue with commanders at installations across the country. He is the poster child for bad behavior, and it has resulted in a patchwork of bad precedent.”

“We tried to be nice,” the Albuquerque-based Weinstein says of MRFF’s approach. “And we tried to follow the Marquess of Queensberry rules in helping our clients in the early 2000s,” he says, referring to the boxing expert who codified the sport’s rules.

“It doesn’t work. So we had to create the only civil rights organization in American history and in the U.S. Congress that has caused members of Congress like Mike Turner — who we view as weak, unintelligent, obviously very cowardly, very craven — to want to assassinate us by legislation.”

Weinstein claims Turner’s amendment to the House version of the 2024 NDAA prohibiting the military from any interactions with the MRFF stems from a 2016 incident at Wright-Patterson Air Force Base.

He said he had received 31 complaints that spring about the inclusion of a Christian Bible on a Missing Man Table at the Wright-Patt Medical Center dining facility. Under pressure from the MRFF, Wright-Patt’s installation commander removed the Bible from the POW display.

At the time, Turner called it an act of censorship. In an April 13, 2016 interview with the Dayton Daily News, Turner said, “In this instance, we have staff of the Air Force making an independent decision about removing a religious symbol. We certainly have a number of religious symbols at the National Air Force Museum, and I would hate for this to become an overarching policy at Wright-Patt or at the Air Force. If we continue to have that, I’m looking for the answer from Wright-Patt and of course the Air Force to ensure that we’re not going to have the Air Force going through and censoring religious expression and religious symbols. And if we don’t get the right response, we’re certainly going to be looking to a legislative fix. Because this undermines what really goes to the basis of our heritage.”

Turner told The Observer in January that Weinstein’s allegedly abusive, attacking behavior “cannot be the basis on which a commander says, ‘I need to end this relentless interaction with Mikey Weinstein, so I’m just going to concede.’ What we need is a coherent policy that’s based upon principles and values.”

Turner says the final approved amendment — rather than his House version against Weinstein and the MRFF — had been his aim all along. “It was my goal, which we achieved, that there be a consolidation in the Department of Defense of this function of dealing with freedom of expression, freedom of worship, freedom of religion issues. What we achieved is the Department of Defense is now going to consolidate the process so that if a commander finds himself in a situation where he’s being attacked or abused by the Mikey Weinsteins of the world, he’s going to be able to put that at the bottom of his list and send it up the chain of command and respond, ‘This is not within my jurisdiction. You’re going to have to deal with someone else.'”

Weinstein, who accuses Turner of being a Christian Nationalist, claims his foundation reached out to Democrats on the Senate side to kill Turner’s original House amendment. “I cannot go into the specifics with you. We were fortunate that we have contacts on Capitol Hill, most of whom didn’t want to have their names utilized because they’re afraid of losing hard-right Christian votes or hard-right Christian money,” Weinstein says. “We were shocked by Turner’s attempt to make it a felony under the Uniform Code of Military Justice for anyone to even reach out to us by name.”

Weinstein says MRFF’s backup plan was to sue in federal court. “This would be viewed as a prototypical bill of attainder. Congress is not allowed by our Constitution to pass a law that specifically punishes an organization or entity,” Weinstein says. “That’s what the judiciary is there for. Separation of powers.”

Representatives of two national civil rights organizations describe the language of Turner’s original House amendment as concerning.

“We were tracking the Turner Amendment and were shocked when it was included in the House-passed bill,” says Michael Lieberman, senior policy counsel on hate and extremism with the Southern Poverty Law Center. “It was one of a great number of truly horrific House-passed provisions that were either stripped or mitigated in the final bill.”

Maggie Garrett, vice president for public policy at Americans United for Separation of Church and State, agrees that the original amendment was unconstitutional. “This targeted attack, based upon one representative’s disagreement with the group, violated the Constitution,” she says. “The First Amendment guarantees us all the freedom to petition the government, but this provision would have denied MRFF the right to communicate with government officials and access information. The provision was also an unconstitutional bill of attainder — the provision targeted the MRFF, singling the organization out for punishment without due process.”

Garrett adds that Americans United is cautiously optimistic that having a process for responding to complaints “will add transparency and better protect the religious freedom of service members.”

Weinstein says he’s elated with the final approved NDAA amendment. “Now, for the first time, If we reach out to a military commander with a specific complaint, she has only 10 calendar days to take the complaint directly to the secretary of whatever branch they’re in and the service secretary must coordinate with their top-level military lawyers — judge advocates — and the highest level chaplains and then send back a decision from their office in just 30 calendar days to that commander and to us.

“The real advantage here is that I can whisper in the ear of a commander and say, ‘Sir or ma’am, this is not an official complaint. Yet. This is an FYI that this is going on in your organization. If you don’t stop it, you will get an official complaint. And then you will have 10 days — 240 hours — to make sure that the service secretary knows that you can’t handle issues in your own command.”

Prior to the new law, MRFF couldn’t sue in federal court until a client had exhausted administrative remedies. “That requires our clients to file an EEO complaint, which can take months and years. Now, this has a built-in administrative exhaustion device. In 960 hours, if you can rule against us, five little words I would simply say to the military: ‘Tell it to the judge.'”

Turner says he named Weinstein and MRFF in his House amendment to NDAA as examples. “It was a bill within legislation that never became law but starts the discussion, so people would be able to cite what has reportedly been the worst behavior that commanders are subject to at the local level, to focus the discussion on really the burden, the current situation that has been placed on commanders.

“They have important things to do: to run their facilities and to protect our nation and our national security. They shouldn’t be making national policy. The Secretary of Defense is now required to give the relief to those commanders by consolidating a process for handling these complaints. The Mikey Weinsteins of the world will no longer be able to pick on single commanders who perhaps aren’t even well-versed in these issues.”

To read the complete March 2024 Dayton Jewish Observer, click here.

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