Local police department, fire department chaplain programs raise Constitutional questions

After publication of an article in the Observer, about a volunteer chaplain who serves Oakland and Windermere’s police departments, Ocoee’s fire department and both the fire and police departments in Winter Garden, the chiefs of those agencies received a letter from the Freedom From Religion Foundation (FFRF), stating that “police chaplain programs are unconstitutional.”

The letters, written by FFRF staff attorney Chris Line, explained that absent the inability to access religious counsel because of confinement related to active military service or prison:

“Our Constitution’s Establishment Clause —which protects Americans’ religious freedom by ensuring the continued separation of religion and government — dictates that the government cannot in any way show favoritism toward religion. As the Supreme Court has stated, the First Amendment mandates governmental neutrality between religion and religion and religion and non-religion.”

In other words, as Line stated further down in his letters, “There is no need for a secular police department/fire department to be providing “spiritual support.”

Robert Smith, Windermere town manager, pushed back on the suggestion that police and fire chaplain programs are unconstitutional. In an email to VoxPopuli, Smith said, “This is not a Church and State issue, it is providing comfort and assistance to those that require it.”

“The chaplain is a volunteer, non-salaried position; utilized as an additional resource for our employees or public who ask for assistance in a time of crisis. He is not a sworn officer,” Mike Bryant, deputy chief of the Town of Oakland Police Department said in an email to VoxPopuli. “The Town of Oakland Police department remains neutral regarding religion and does not violate the First Amendment’s mandate.”

Ocoee Fire Chief Tom Smothers declined to comment. Robert Frank, Ocoee City Manager, did not respond to a request for comment.

In Winter Garden, where the city commission unanimously passed rules barring journalists from questioning elected officials during city meetings — described as unconstitutional by civil rights and media organizations — and where Mayor John Rees ousted a resident for not standing for the Pledge of Allegiance, City Manager Jon Williams maintained via email, “We understand the Constitution just fine. What we don’t do is succumb to one individual or group of individuals’ opinion in furtherance of their agenda to promote political social divisiveness.”

“There is no government endorsement of any particular religion,” Williams continued. “If that a were the case, I suspect the use of Chaplain Services on a National Level would be called into question.”

Williams said the city’s three chaplains are trained in peer counseling and Critical Incident Stress Management, a crisis-intervention technique originally developed for military and first responders. “They give aid, comfort and help to first responders, their families and victims who have had the misfortune of experiencing a traumatic event. Their services are non-denominational, non-sectarian and do not compromise the individual beliefs of or convictions of anyone.” However, Williams declined to say whether any of the volunteer chaplains represented faiths other than Christianity. “The city does not ask,” Williams said in his email.

Caroline Mala Corbin, a Constitutional law professor at the University of Miami School of Law dismisses the non-denominational argument. “If you can't provide the equivalent religious services to everyone, then you are favoring some religions over others, and that has long been understood to violate the Establishment Clause,” she said in a phone interview.

She added that insisting someone of another religion could help you in a crisis “undermines the whole argument about the necessity of religious ministers. If that's the case, then no doubt a psychologist could likewise help you.

“There's a real blind spot for those who belong to religious majorities about what it's like to be a religious minority in this country,” Male Corbin said. “I think it's very cavalier to say the minister of another religion can tend to your needs.”

“We see them all over the country”

These West Orange cities are not the only ones with police chaplains.

The International Conference of Police Chaplains (ICPC), with headquarters in Destin, was founded in 1973 with the purpose of connecting police chaplains across the United States and Canada. There’s also the Dallas-based Federation of Fire Chaplains, founded in 1978, which according to a fact sheet on its website, strives “To serve God, to aid humanity, our communities, our government, our religions, our Country and the quality of life …”

Chaplain Gary Holden who founded the Police Chaplain Program to train chaplains and establish chaplain programs in law enforcement and first responder departments, estimates they’ve trained least 1,200 police chaplains in New Jersey, which is where the program is based. Still more — including rabbis, imams and Sikh priests — have gone through their two-day program in other states, he added in a phone interview.

“We see [chaplain programs] all over the country. Whenever one's brought up to us, we do write to them because it is unconstitutional,” Line said in a phone interview.

“We have a separation of church and state in this country, which says that if you work for the government, you need to be neutral with regard to religion,” he continued. “You shouldn’t be promoting certain religions or denigrating religions or non-religion. Regular government officials can't be performing their religion, so the idea that we could go ahead and hire someone specifically for the purpose of being a religious government official, is just preposterous.”

Some police chaplains are paid, some are even sworn officers, according to the ICPC. But Line said paid or volunteer, the issue is the same: it’s permitting someone “to proselytize and spread their religion through an official government position, even if they're not being paid.”

Unless requested, police/fire chaplains are not meant to preach their own religious beliefs, Holden said. It’s something his organization addresses during training. “We talk about the two hats in our training — pastor, rabbi, whatever hat it might be. When you become a chaplain, you take off the other hat and you put on the chaplain hat. Now you're representing the police department. You're not representing your house of worship.”

But Steve Green, director of the Center for Religion, Law and Democracy at Willamette University in Salem, Oregon, and author of Church and State, thinks that may be — pardon the term — “hard to police.”

“Sure, the chaplain thinks they are ministering to the needs of first responders probably in good faith, and for them, part of that is to bring that person to Christ,” Green said. “Chaplains need to have a little self control. Their job is not to proselytize. Their job is to comfort. When the government, the county or the city is awarding this chaplain special access, the imprimatur of authority, you may have a chaplain who uses that as much as possible to push their own personal religious agenda. And that’s not the job of chaplains.”

“Play in the joints”

According to ICPC, chaplains support police and fire department personnel and their families as they manage the responsibilities and pressures that come with a first responder job as well as aiding victims of crime, tragedy, disaster. But, the website notes, they also offer prayer “for special occasions and ceremonies” and “scripture at Roll Calls.”

“People may benefit from prayer, but that doesn't mean the government should be the one to provide it,” said Mala Corbin. “Now, I think the city should definitely provide [police and fire fighters] with counseling. But the government is not supposed to be providing religious services. That’s because it's never going to be able to provide it for everyone equally.”

Even so, Mala Corbin believes that given the current conservative tilt of the Supreme Court, police and fire department chaplaincy programs would be deemed constitutional.

“Under longstanding principles of the Establishment Clause, this should be considered unconstitutional as it's favoring one religion over others,” she said. “But given the way the current Supreme Court has really eviscerated that area of law, it will probably uphold it if it ever reached them.”

Green doesn’t believe police and fire personnel need government-sponsored chaplains when crisis trained mental health counselors would serve as well, and those who want spiritual counsel can reach their own pastors, rabbis or imams fairly quickly should the need arise. But legally, he explained, there’s enough room between the non-establishment of religion clause and the free exercise of religion clause in the Establishment Clause to consider chaplain programs constitutional.

“They call it ‘play in the joints,’” he said.

“The Supreme Court in other contexts and lower courts have said over and over again, there is the opportunity for reasonable accommodations of people's religion that stops short of the government actually advancing religion,” he explained. “We can’t read the religion clauses so strictly. The government does one thing, and Oh, it's a violation of the Establishment Clause. They do something else because it’s required by the Free Exercise Clause. Consequently, there can be room for reasonable accommodation. And I would think the vast majority of courts would find that this is reasonable.”

Oakland, Windermere and Winter Garden have said they will maintain their programs.