For God and Country
Andrew McClellan January/February 2002 He remembers the screaming KC-135s and C-5s; the roars, the lights, the vibrating windowpanes, the low buzz in his ears. It ignited his mind with the images and fantasies that only children can create. From those early days living near the Robert Gray Army Airfield in Texas, Allen Davis had one goal: to be a military pilot. By the time he was 14 he had read every book in the galaxy on flying. He had even built his own air force of model planes (American only, of course). He dreamed of attending the United States Air Force Academy. Though he graduated fifth in his high school class (with a 3.98 GPA), he faced one of the most searing moments in his life when, standing on his hot front porch, he opened a letter from the academy and read that he wasn’t “academically fit” for their curriculum. But Allen Davis didn’t give up; that wasn’t him. And after four years at the Air Force Reserve Officer Training Program at Southwest Texas State University, he received his commission as a second lieutenant. He had graduated first in his class. Six weeks after his May 1989 graduation he was in the undergraduate pilot training program at Laughlin Air Force Base. Then it was on to Castle Air Force Base, where he learned to fly the KC-135 Stratotanker (one of the planes he had watched as a kid). Next thing he knew he was in Desert Storm, flying out of Jeddah, Saudi Arabia. Today, after many awards and medals (Aerial Achievement Medal, Kosovo Campaign Medal, NATO Medal, Southwest Asia Service Medal, and others), Air Force Major Harry A. Davis, Jr., is assistant operations officer and a C-5 evaluator aircraft commander, 22nd Airlift Squadron, Travis Air Force Base, California. He has a senior pilot rating, having flown more than 3,500 hours in such aircraft as the T-41, T-37, T-38, KC-135, and C-5.That little boy who used to stand outside and watch military planes roar overhead has become an experienced pilot. He now flies planes that other little boys stare at and dream about. Few of them will ever fulfill their dreams the way Allen Davis has.
Amazingly, this Air Force officer has faced the threat of a court-martial because of his religious convictions. Everything he had worked so hard for since childhood came close to ending in “disgrace.” In the midst of his struggle one great irony kept popping up in his mind: “Here I was,” he says, “wanting to serve my country because I believe in its values, among them religious freedom. And now what I was willing to fight for to give to others—religious freedom—I was seeking for myself. And what happened? I faced the possible end of my career. It just didn’t make sense.”
That’s not the only irony in this case. Another is this: Why would someone go AWOL (absent without leave) on a mission that he had volunteered to go on to begin with?
Good question, and it gets to the heart of Air Force Major Allen Davis’s story. Little did he realize as he joined the Air Force that one of his greatest challenges wouldn’t be in the air but on the ground. It came not from a hostile foreign power, but from the very military that he has served for more than a decade.
“Good to Go”
In early 2001 Major Allen Davis (A.D., as he’s commonly called), stationed at Travis, volunteered for a classified training mission in Korea. Before leaving, Davis, a Seventh-day Adventist, spoke with the civilian contractor in charge of the exercise, stressing that he could participate in the exercise, but only if he could miss the training on Saturday, April 14 (the Sabbath day). He would gladly, he said, make up the time the next day. He made it clear that if the accommodation could not be granted, he would not go. If it could, he would be eager to go. He was by the contractor, who was also his sponsor, that it would be granted and that he could make up the time on Easter Sunday (when many of the other men and women in the same training program would be allowed to attend church services). Deciding to go for it, A.D. cleared his accommodation with his own commanding officers before leaving.
Believing that his Sabbath observance had been accommodated, Allen Davis flew to Korea. He arrived on Friday, April 13, at the Inchon International Airport at 1630. The exercises at the Korea Battle Simulation Center were scheduled to begin at 0930 the next day—the Sabbath. Instead of taking part, Major Davis spent the morning at church, then went to the servicemen’s center in downtown Seoul. At one point that day he called his supervisor to let him know that he had arrived and to confirm that the training for the next morning was still on.
“I was told,” said Major Davis, “that it was ‘Good to go.’”
Apparently not.
When Allen Davis showed up for his training the morning of Sunday, April 15, he had no idea that something was amiss. The next day, however, he faced these fateful words from his commanding officer: “You’re in trouble, Major.” He was then charged with Article 86 (failure to go, absent without leave), read his rights, and asked if he wanted a lawyer. The next thing this young Air Force officer and pilot knew he was sent back to America to face a formal military inquiry into his actions. If the inquiry were to determine he was at fault, he would be formally charged with a crime. A conviction would result in a court-martial and the end of his career.
“I just couldn’t understand,” he says, “how in the nation that pioneered religious freedom, I was facing criminal charges for exercising my own.”
The Limits of Free Exercise
Allen Davis wasn’t the first one to ask such a question, or at least a similar one, regarding the limits of religious freedom in America. Though most Americans take the free exercise of religion for granted, this specific freedom, as with all others, comes with limitations.
Of course, given the nature of things, it has to. Free speech doesn’t mean, as it has been said, the right to shout “Fire!” in a crowded movie theater. Freedom of the press doesn’t mean the right to publish secrets that could endanger American service personnel during wartime. And freedom of religion doesn’t mean that any practice—no matter how crude or violent or degrading—done under the auspices of religion has automatic constitutional protection.
Our state-allowed rights do come with limitations, those limitations usually being determined by how they balance with other rights and the rights of others. The great struggle facing American religious jurisprudence is What are those limits? How do we define them?
“The cherished rights of the individual to free exercise of religion,” writes Robert Miller and Ronald Flowers, “often conflict with the equally valued rights of other individuals and the interests of society. It is difficult, at best, to apply general constitutional principles to concrete problem situations; when these principles collide with each other, the difficulty is increased.”
From the earliest days of the American experiment in religious freedom, one of the key struggles has been when the exercise of religion clashed with what’s called the “police power” of the state: that is, the right of the government to regulate behavior that could conflict with the health, safety, and morals of society. It played out in the early Mormon cases, which dealt with the practice of polygamy. We saw the debate in the flag-salute cases regarding the right of Jehovah’s Witness schoolchildren to refuse to salute the flag. And it continued in the situation of Sabbathkeepers who faced economic pressure because of Sunday closing laws. There have been many other examples. Through them all, the courts hammered out a basic principle: those religious practices that were detrimental to individuals or to society as a whole could be banned. Otherwise people should not face civil or criminal penalties when they practice their faith. It was called the “compelling state interest” principle, and it meant, simply and somewhat crudely, that unless the state had a “compelling interest” in stopping the practice, the practice should be allowed.
All things considered, a reasonable position, though by nature it unleashed another slew of questions that to this day have not been fully resolved, such as When is a state interest “compelling”? In fact, since the infamous Smith decision even that standard has changed. According to the United States Supreme Court, it doesn’t matter whether your expression of faith poses a threat: if there’s a generally applicable law against that practice (in other words, the laws didn’t specifically target one particular religious group), then no matter how benign that practice is, to get relief you must get the law changed through the legislative process. Otherwise you’re out of luck.
The Military Question
If free exercise of faith is that fragile within the general population, what happens in the military, with its strict rules of conduct, accountability, and well-defined lines of authority? Here the courts have been even less sympathetic to religious practice.
In one of the more publicized cases, the United States Supreme Court (Goldman v. Weinberger, 1986) upheld an Air Force regulation that forbade the wearing of headgear while indoors, except by on-duty security police. This regulation had been a problem for an Orthodox rabbi and military psychologist named Simcha Goldman. His religion mandated that he wear his skullcap indoors as well. Stating that “the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations,” the High Court sided with the military (Goldman later got legislative relief).
Nevertheless, a person who joins the United States military doesn’t, by default, give up his or her religious rights. Specific regulations guide the principles of religious accommodation for military personnel. Without some effort at accommodation, we would see the great irony that those who risk their lives to fight for the religious freedom of others are denied that very right themselves. Though the lines might be drawn differently within the military, the lines still have to be drawn.
According to Air Force Instruction 36-2706 (Military Equal Opportunity and Treatment Programs), Section 4F, paragraph 4.40.1.1, “religious accommodation is based on the constitutional right of the free exercise of religion in accordance with DoD policy.”According to that policy, the “Department of Defense places a high value on the rights of members of the Armed Forces to observe the tenets of their respective religions. It is DoD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.” The policy stated also that “worship services, holy days, and Sabbath observance should be accommodated, except when precluded by military necessity.”
All that sounds reasonable, which it is. However, it leaves open numerous other questions that could have answers as varied as each situation. First, regulations don’t state that commanders “must” accommodate; regulations say that they “should” do so, and a vast gulf lies between those words. Second, the question arises of exactly how one defines “adverse impact.” One’s reasonable accommodation might be another’s “adverse impact.” Who decides? The answer is easy: the commanding officer.
For God and Country
In Major Davis’s situation the commanding officer denied the request when it came through. He believed that Major Davis would be needed on that Sabbath. Only one problem: For some reason that denial never came through, never reached Major Davis back at Travis. As far as the commanding officer was concerned, when Major Davis didn’t show up he was in dereliction of duty. This was defiance of an order. This was AWOL, something that could have put him in deep trouble, even to the point of ending his career.
Given the seriousness of the charges, the military wasn’t going to do anything without an investigation. It brought two months of anguish for Major Davis. He faced the real possibility that all that he had worked for might crash and burn.
The in-depth investigation involved lawyers, chaplains, depositions, and some top military brass. During the investigation the question naturally came up: What about all the Sabbaths during the previous eight years that A.D. had been an Adventist? The answer was easy: He had been accommodated on every single one. The Air Force, following the dictates of Department of Defense policy, had given him his Sabbaths, hundreds of them in a row. Major Davis stated that in a time of emergency, such as during a war, particularly when lives were at stake, he would serve on the Sabbath.
The point was if accommodation had been made all along, why suddenly this problem? This explains why, when the investigation ended, Major Davis was exonerated. He had done everything right. Somewhere along the way, someone had dropped the ball, and it happened to land on this Air Force pilot’s head. The denial of accommodation had never reached him. It was as simple as that, although that lapse—someone else’s—could have cost him his career.
“There was a breakdown in the system somewhere,” says Colonel Richard Stenbakken, a former U.S. Army chaplain, who was involved in the case from the start. “Though I don’t know who was ultimately responsible for the lapse, someone probably got a good talking to. Things like this aren’t supposed to happen.”
But they do, and maybe not always with such a happy ending, either. Even the “Letter of Counseling” in Major Davis’s file more than likely will be removed at some point. Allen Davis came out of the process with no official damage to his career.
Nevertheless, it still hurts.
“Though I knew that I did nothing wrong,” says Major Davis, “it was still a very painful time for me and my wife, who was expecting. I love my God and I love the Air Force. I never expected those loyalties to come into conflict like this.”
In the end the system worked. There was a mistake, and the mistake was rectified. His story, even though involving a blunder, reflects the basic conflict that Americans, military or civilian, face regarding the limits and parameters of the right to free exercise of faith. The limits are real. Persons of faith, whatever that faith is, never know when or how they might find themselves facing a similar conflict: one that basically pits God against country.
The military Code of Conduct, which many soldiers carry in their wallets, states, “I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in God and in the United States of America.” Fine, but the question remains, not just for soldiers but for all Americans, and it contains the essence of the free exercise dilemma: What happens when God and the United States of America clash?
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Andrew McClellan writes from Silver Spring, Maryland.