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By Mr. Thomas G. In kinetic wars, the Air Force has weapon systems at its disposal. In culture wars, we have the law. We must use it correctly. The Air Force is used to fighting kinetic wars. The most recent example of this is the April decision to reverse action against Colonel Leland Bohannon for his refusal, on religious grounds, to sign a certificate of appreciation for the spouse of a retiring member of his command.
The spouse was the same sex as the retiree. After consulting several sources, this is my understanding of what happened. Colonel Bohannon considered his signature on the certificate would be an endorsement of same-sex marriage in opposition to his Christian beliefs. A few hours before the retirement ceremony at issue, Colonel Bohannon was presented with the spouse appreciation certificate for signature.
Air Force. He called the Deputy Inspector General and informed him of his decision not to sign the certificate. Colonel Bohannon replied he would not. All this happened on such short notice that the Deputy Inspector General was unable to sign a certificate and transmit it in time. At some point, Colonel Bohannon sought advice from a chaplain, who advised him to request a religious accommodation under Department of Defense Instruction DoDI Because the request was moot, The Inspector General returned it with no action.
While this may have been a well-intentioned gesture, its effect was the opposite and virtually guaranteed a formal complaint. The resulting discrimination complaint was found to be substantiated, the report noting that, while Colonel Bohannon may have been expressing his religious beliefs, he was still unlawfully discriminating against the NCO and his spouse on the basis of sexual orientation. First, discrimination law: specifically, is discrimination based on sexual orientation unlawful in the Air Force?
Second, religious accommodation law: that is, did Colonel Bohannon have a legal right to use religion as a reason to refuse to sign the appreciation certificate? The answers are, respectively, yes and no.
No doubt the Court will eventually engage on this issue. Accordingly, one would infer that no change is in the offing. Would anyone say that gay couples in Alabama got married, so there really was no harm for which Moore was accountable?
In Employment Division v. Any right to religious accommodation Colonel Bohannon has is rooted in statute, not the Constitution. Smith, states:. A majority of the Court said it can, at least in the case of a closely-held corporation. United States v. The supervisor told Sterling to take them down. She did not. The supervisor then removed them. Sterling replaced them. These incidents, plus other disobedience, resulted in a special court-martial.
During the trial, for the first time, Sterling identified the postings as scripture and claimed religious accommodation as a defense to the specifications related to the postings.
She claimed the postings were free expression of her religion and cited DoDI Lance Corporal Sterling was convicted. Key portions of the opinion follow:. But even if the religious motivation is apparent and a member requests accommodation, a supervisor does not have to conduct the strict scrutiny required by RFRA and DoDI No one required Colonel Bohannon to officiate at any same-sex wedding.
No one asked him to sign any marriage certificate as a witness. No one even asked him to grant his Airman leave so the Airman could get married. Consider these:. Before you dismiss these potential consequences as Chicken Little rhetoric, remember how emotionally charged this issue can become.
If a commander is known to oppose same-sex marriage on religious grounds, it is possible that members of the command could tee him up at every opportunity to choose between supporting his troops and his religious sensibilities.
For example, recall the case of Kentucky clerk of court Kim Davis who, in the wake of Obergefell , refused on religious grounds to issue marriage licenses to same-sex couples. For a while, it seemed like every gay couple in Kentucky was lined up in her office with TV camera crew in tow , demanding a marriage license even though there were many other Kentucky clerks of court available and willing to issue the licenses. With the Bohannon decision, the Air Force walked into this culture war crossfire.
The outcome should not be a statement that he had a right to do what he did when every relevant legal authority says otherwise. It is possible that the Secretary of the Air Force or the Secretary of Defense could change the decision.
If a similar case comes up, it must be decided differently. This case led us down the wrong road. We need to back up and take the right one. The Air Force culture war capability needs to match its kinetic capability and that starts with correctly applying the law. And maybe it ends there, too. United States, U. See Schwalier v. Hagel, F. Times 3 Apr. Altitude Express, Inc. Ivy Tech Cmty. College of Ind.
See also Oncale v. Sundowner Offshore Servs. AFI , Service Retirements, para. The AFI goes on to specify three situations when the spouse certificate will not be issued; none of these exceptions references religious objection. See, e. Town of Berlin, F. Hodges, U. Civil Rights Comm. LEXIS In ruling in favor of a bakery owner who declined to provide a wedding cake for a gay couple, asserting his religious opposition to gay marriage, the Court had an opportunity to revisit Employment Division v.
Smith but declined. Slip op. Washington, U. The rest will have to wait for a future article. City of Boerne v. Flores, U.
Hobby Lobby Stores, Inc. Smith , which prompted RFRA: Smith herself used peyote in violation of state law and her employment contract. See also United States v. Vasquez-Ramos F. Boyajian , F. United States , Fed. Suffice to say his failure to timely use the process set out on DoDI Veterans Admin. Tags Becker Bohannon civil law culture discrimination justice religion religious freedom same sex sex sexual orientation.
By Lt Col Daniel Watson. We had no idea this would be our last day together as a group. Culture Wars 6 June Civil Law. Share Facebook Twitter LinkedIn. Next Crazy Horse and Custer. Views and hyperlinks expressed herein do not necessarily represent the views of The Judge Advocate General, the Department of the Air Force, or any other department or agency of the United States Government.
The inclusion of external links and references does not imply any endorsement by the author s , The Judge Advocate General, the Department of the Air Force, the Department of Defense or any other department or agency of the U. They are meant to provide an additional perspective or as a supplementary resource. In general.
Whether you are active duty, separated, or retired, you can apply to your service's Board for the Correction of Military Records if you feel there is an error or an injustice in your military personnel records. Any person with military records, or his or her heirs or legal representative, may apply to the appropriate service's Board for the Correction of Military Records. Title 10, United States Code, Section , is the law governing correction of military records. This statute authorizes the Secretary of the service concerned to correct any military record when "necessary to correct an error or injustice.
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