Can you imagine Congress passing a law making it illegal for the Department of Justice to communicate with the ACLU or the NAACP? For the Department of Health and Human Services to communicate with Planned Parenthood? Or for the Department of Labor to communicate with the AFL-CIO?
Well, that’s just what House Republicans are preparing to do—except it’s even worse. The department involved in the Department of Defense, and the organization they’d be banned from communicating with is the Military Religious Freedom Foundation, which only exists to communicate with the Department of Defense to protect the religious freedom of service members and veterans. This means it’s more like Congress passing a law to shut down the ACLU.
In their fanaticism to violate the First Amendment, Christian nationalists on the House Armed Services Committee advanced an amendment to the National Defense Authorization Act on June 21 that also violated another key constitutional principle—separation of powers—by adding what amounts to a bill of attainder, expressly forbidden by Article 1, Section 9, Clause 3: “No Bill of Attainder or ex post facto Law shall be passed.” States are also prohibited under Section 10.
“Such an action is clearly constitutionally prohibited as an illicit ‘Bill of Attainder’ by Sections 9 and 10 of Article 1 of the US Constitution as this is nothing more than a transparent attempt to destroy a civil rights organization advocating for separation of church and state in the military, which has existed for nearly 20 years now,” said Mikey Weinstein, founder and president of MRFF. And he wasn’t alone.
“The amendment smacks of being a bill of attainder—a kind of legislation the Constitution specifically sought to prevent—in which Congress and state legislatures are proscribed from circumventing the courts by punishing people without due process of law,” said Frederick Clarkson, a Senior Research Analyst at Political Research Associates. “The proposed amendment limits members of the armed forces from seeking outside counsel from MRFF; and MRFF from being able to communicate with military leaders or even their public affairs officers—all without due process of law.”
On the other hand, there’s still the obvious. “My best guess is this amendment would be struck down on speech or religion grounds or both,” said constitutional law professor Eric Segall, author of Originalism as Faith and
Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges”
Specifically, the amendment introduced by Rep. Mike Turner (R-OH) reads:
None of the funds authorized to be appropriated by this Act or otherwise made available for fiscal year 2024 for the Department of Defense may be used—
- to communicate 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.
At Daily Kos, Chris Rodda, the MRFF’s director of research, explained the dire consequences it would have:
If this amendment remains in the final bill, it will become LAW. Specifically, it will become part of Title 10 of the U.S. Code, also known as the Uniform Code of Military Justice (UCMJ). This means that if a military commander even responds to an email from MRFF, or makes any decision as a result of being contacted by MRFF, that commander can be charged with violating the UCMJ and potentially face a court-martial!
In addition to obstructing MRFF’s crucial ability to communicate with commanders to advocate for the constitutionally-guaranteed rights of our service members, this amendment would also obliterate MRFF’s ability to get responses to or FOIA requests since it would be illegal for any FOIA officer to respond to our requests.
In other words, THE GOAL OF TURNER’S AMENDMENT IS TO SHUT MRFF DOWN!!!
It would almost certainly fail, however. “Should this blatantly unconstitutional piece of legislation ever come into law, the MRFF will immediately file suit in federal court, to ensure that it is found to be, among many other things, wholly unconstitutional!” Weinstein said. “Shame on these fascistic, Republican fundamentalist Christian members of the House of Representatives!”
Significantly, it appeared to fly under the radar, first reported by Jewish Insider as one of many amendments in an en bloc amendment package “negotiated by both parties before their introduction,” at the same time that other GOP culture war amendments faced significant debate. “There was no reading of or debate on each individual amendment, allowing Turner to easily sneak in his reprehensible shut-MRFF-down amendment and get it passed,” Rodda wrote.
But it’s a mystery why Democrats agreed to let it be part of an en bloc package in the first place. And it’s a further mystery why Turner was the one introducing it, since he appeared to be less gung-ho than other Republicans, according to this part of the Jewish Insider report:
The committee spent significant time on Wednesday debating amendments relating to counter-extremism, diversity, equity and inclusion, and critical race theory programs within the Defense Department. It ultimately approved amendments eliminating the department’s chief diversity officer, defunding the Pentagon’s extremism working group, capping pay for individuals involved in DEI work, and cutting off funding for any training related to CRT.
The committee rejected amendments that would have eliminated the department’s inspector general for DEI and extremism and cut off funding for DEI training. Bacon and Turner voted with Democrats to block those two amendments. Turner also voted with Democrats against eliminating the Pentagon’s chief diversity officer.
“Maybe he was picked to introduce the amendment against us because he’s not the most gung-ho and could sneak it in more easily,” Rodda said. “He’s definitely a Christian nationalist. I previously knew of him because he’s a member of the Congressional Prayer Caucus.”
“In the unlikely event that this becomes law, it would be a terrible precedent,” Clarkson said. “Any group or individual could effectively be banned from routine interaction with government agencies, if they become unpopular with powerful interests. By this standard, for example, the Congress in the 1950s and 60s could have proscribed contact between the Department of Justice and the Southern Christian Leadership Conference.”
Congress then would never have done such a thing—even with so many segregationists in its ranks. But times have definitely changed, Clarkson noted.
“In our time, creeping theocratic factions are seeking to use the institutions of government to advance their own religiously animated political agendas. The effort to silence the Military Religious Freedom Foundation may be the first effort of this kind, but it will certainly not be the last,” he said. “I hope that groups and individuals across the religious and political spectrum will vigorously oppose this. If Congress can legislate the silencing of MRFF, they can do it to anyone.”
House GOP Declares War On Religious Freedom
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