The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
Plaintiffs, two cadets of the United States Military Academy and nine midshipmen
of the United States Naval Academy, 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.
The defendants are the Secretary of Defense and the Secretaries of the Army, Air Force, and Navy.
Plaintiffs claim that the regulations of the Academies compelling Sunday attendance at Catholic, Protestant, or Jewish chapel service violate the Establishment/Free Exercise Clauses of the First Amendment and constitute a "religious test" in violation of Article VI of the Constitution. They urge that such compulsory attendance is contrary to the Supreme Court's declarations limiting governmental actions involving religion because compulsory attendance constitutes religious proselytizing and governmental support of religion. They also urge that mandatory attendance constitutes an establishment of religion and an interference with plaintiffs' free exercise of religion. Plaintiffs seek (1) a declaratory judgment that compulsory church or chapel attendance violates the above noted provisions of the Constitution, and (2) a permanent injunction forbidding the Academies from enforcing the regulations and from disciplining those cadets involved in this court action.
The applications for preliminary and permanent injunction were heard on a consolidated basis. The Court first took testimony and heard argument on whether the plaintiffs had exhausted their administrative remedies within the Academies before filing suit. The Court ruled that adequate and effective administrative remedies were not available and hence that the exhaustion doctrine was not available as a defense. Thereafter the Court completed testimony on the merits and took the case under advisement.
There is no question that Sunday church or chapel attendance is required by all cadets attending the three service Academies.
The West Point regulation provides:
"Attendance at Chapel is part of a cadet's training; no cadet is exempt. Each cadet must attend either the Cadet Chapel, Catholic Chapel or Jewish Chapel service on each Sunday, according to announced schedules." Regulations for the United States Cadet Corps of the United States Military Academy, Chapter 8, Section IV, paragraph 819.
Air Force Regulation No. 265-1 provides:
"Attendance at an established church service is mandatory for those Second, Third and Fourth Classmen present for duty in the Cadet area."
Part II, Chapter 15, of the United States Naval Academy Regulations states:
"1. The basic requirements concerning religious matters at the Naval Academy are:
(a) All Midshipmen will attend church or chapel services on Sunday mornings but are required to attend at no other times."
Violations of these regulations are punished in the same manner as violations of other regulations, i.e., by reprimands, demerits, punishment marching tours, confinement to quarters, and for repeated violations, expulsion.
There are slight variations in the respective Academy Regulations concerning alternative worship services available. At West Point, all cadets are required to attend one of the three services on the Academy premises, as there is no town nearby to provide other alternatives. At the Naval Academy, midshipmen are permitted to attend a denominational service in Annapolis in lieu of the Academy church or chapel service. At the Air Force Academy, a cadet may attend church in Colorado Springs which has been approved by the Senior Chaplain.
Cadets may change their regular attendance from one church or chapel service to another only after first securing the approval of the respective chaplains involved, and, if they are under twenty-one, the approval of their parents. The cadet must demonstrate a sincere desire to affiliate with the new church. Approval of requests to change chapel squads is not granted on a mere personal whim any more than requests to change muster, classes or meals.
However, a cadet who has sincerely held convictions against church or chapel attendance itself may be excused from such attendance. It was so declared by the Superintendents of the Academies in April 1969 in a policy statement which said:
"It is understood that intelligent provisions must be made for bona fide cases where attendance would be in conflict with sincerely held convictions of individual cadets or midshipmen."
The requirement of attendance at Sunday services at the service Academies reaches for its origins far back into the nineteenth century. West Point established its requirement as early as 1821; the Annapolis regulation dates back to 1853; and the Air Force Academy, following tradition, adopted a similar requirement when it was organized in 1955.
The First Amendment to the Constitution provides in part that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
It is urged by the plaintiffs that the compulsory chapel requirements quoted above have a purpose which advances religion and have a primary effect which in some ways advances and in other ways inhibits religion in violation of the First Amendment.
The defendants on the other hand urge that the requirement to attend is not a requirement to worship; that the purpose of attendance is purely secular and an integral part of the military training accorded to the various groups of cadets, and that its primary effect is to instill in the cadets an understanding of the religious values which can at times motivate the men who will ultimately come under their command.
The conduct of the service Academies is a military activity (perhaps in the long run the most important military activity) of the United States. It is administered by the respective military services and Secretaries and under the overall responsibility of the Secretary of Defense.
Accordingly to put the issues in proper perspective it would seem appropriate, at the very outset, to note the limitations which have traditionally guided the courts in dealing with matters military.
The Courts have always been reluctant to interfere in the management of the military services. Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953); Nixon v. Secretary of Navy, 422 F.2d 934 (2nd Cir. 1970); Raderman v. Kaine, 411 F.2d 1102 (2nd Cir. 1969); Byrne v. Resor, 412 F.2d 774 (3rd Cir. 1969); Smith v. Resor, 406 F.2d 141 (2nd Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2nd Cir. 1968), cert. denied 394 U.S. 929, 89 S. Ct. 1195, 22 L. Ed. 2d 460 (1969); Fox v. Brown, 402 F.2d 837 (2nd Cir. 1968); Wasson v. Trowbridge, 382 F.2d 807, 812 (2nd Cir. 1967); Noyd v. McNamara, 378 F.2d 538 (10th Cir.), cert. denied 389 U.S. 1022, 88 S. Ct. 593, 19 L. Ed. 2d 667 (1967); Luftig v. McNamara, 126 U.S. App. D.C. 4, 373 F.2d 664 (D.C. Cir. 1967); Feliciano v. Laird, 311 F. Supp. 791 (E.D.N.Y. 1970); Dash v. Commanding General, 307 F. Supp. 849 (D.S.C. 1969); Arnheiter v. Ignatius, 292 F. Supp. 911 (N.D. Calif. 1968); Rank v. Gleszer, 288 F. Supp. 174 (D. Colo. 1968).
The problem here facing the Court is but one facet of the age-old problem of how to balance the requirements of the military and its needs for discipline and training with the Constitutionally protected rights and privileges of the civilian society.
Mr. Justice Harlan succinctly noted in Noyd v. Bond, 395 U.S. 683, 694, 89 S. Ct. 1876, 1883, 23 L. Ed. 2d 631 (1969) that
"In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal."
As a guiding principle it can be said that the amount of judicial interference with the military should be limited; the amount of deference given the military in matters of discipline and training should be wide. As Mr. Justice Jackson commented:
"[Judges] are not given the task of running the Army. * * * The military constitutes a specialized community governed by a separate discipline from that of the civilian." Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 54O, 97 L. Ed. 842 (1953).
The reason for this special treatment is the unique role which the military performs. Mr. Justice Black pointed out in Toth v. Quarles, 350 U.S. 11, 17, 76 S. Ct. 1, 5, 100 L. Ed. 8 (1955), and it was re-emphasized by Mr. Justice Douglas in O'Callahan v. Parker, 395 U.S. 258, 262, 89 S. Ct. 1683, 1685, 23 L. Ed. 2d 291 (1969) that
"Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise."
Judge Latimer of the United States Court of Military Appeals in a similar vein has written "that military units have one major purpose justifying their existence: to prepare themselves for war and to wage it successfully. That purpose must never be overlooked in weighing the conflicting rights of the serviceman * * * and the right of the Government to prepare for and pursue a war to a successful conclusion." U.S. v. Voorhees, 4 U.S.C.M.A. 509, 531, 16 C.M.R. 83 (1954). And in the same opinion, Chief Judge Quinn, while speaking strongly to the constitutional rights of men in uniform, pointed out that "there are differences between the civilian and military communities." Id. at 531.
A most forceful statement of the limitation on the judiciary when dealing with matters military comes from former Chief Justice Warren.
"So far as the relationship of the military to its own personnel is concerned, the basic attitude of the Court has been that the latter's jurisdiction is most limited.
"* * * [It] is indisputable that the tradition of our country * * * has supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have. Many of the problems of the military society are, in a sense, alien to the problems with which the judiciary is trained to deal." [Emphasis supplied] Warren, The Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181, 186-187 (1962).
The Second Circuit, speaking to issues which parallel this case, has echoed the ideas of ...