Rigdon v. Perry

In 1996, The Becket Fund for Religious Liberty successfully sued the military on behalf of a diverse group of Jewish, Muslim and Catholic chaplains, military personnel and their families. The lawsuit challenged directives issued by the Pentagon in June of that year, barring military chaplains from discussing legislation during sermons or counseling. We challenged the gag order because it violated the First Amendment rights of freedom of speech and the free exercise of religion, as well as being a violation of the Religious Freedom Restoration Act. The lawsuit sought a declaration that the directives were unconstitutional and an injunction against their enforcement.

The case arose out of the Armed Services' response to the Catholic Church's "Project Life Postcard Campaign," in which Catholics throughout the country were urged during homilies beginning on June 29-30, 1996, to write to Congress urging an override of President Clinton's veto of the Partial-Birth Abortion Ban Act. The Army, Navy, and Air Force issued memoranda in June interpreting limitations on political activities by service men and women to bar chaplains from speaking about the veto override in sermons or counseling. The memoranda stated that while chaplains may "discuss the morality of current issues," they could not try to "directly or indirectly influence congressional action on pending legislation" and therefore were barred from "participating or urging others to participate" in the postcard campaign. In other words, they were banned from preaching about it.

"There is no more chilling instance of government infringement on religious liberty than the government censoring what can or cannot be said from the pulpit," Becket Fund President Kevin J. Hasson declared. "The Pentagon's gag order has far-reaching implications for the religious liberty of military men and women around the globe who rely on chaplains for their religious needs. This case will vindicate their right to receive uncensored counsel from their chaplains."

The parties appeared before U.S. District Judge Charles R. Richey on September 20, 1996. Judge Richey put the case on a fast track, ordering discovery to be completed by October 25 and summary judgment motions by both parties by November 8.

The case was transferred from the late Judge Richey to Judge Stanley Sporkin of the Federal District Court for the District of Columbia.  Judge Sporkin heard oral arguments from both sides on April 2, 1997 and issued an order and formal opinion ruling for Fr. Rigdon and his fellow chaplains on April 7.  Judge Sporkin was unsparing in his condemnation of the gag order:

What we have here is the government's attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains' free exercise and free speech rights, as well as those of their congregants. On its face, this is a drastic act and can be sanctioned only by compelling circumstances. The government clearly has not met its burden. The "speech" that the plaintiffs intend to employ to inform their congregants of their religious obligations has nothing to do with their role in the military. They are neither being disrespectful to the Armed Forces nor in any way urging their congregants to defy military orders. The chaplains in this case seek to preach only what they would tell their non-military congregants. There is no need for heavy-handed censorship, and any attempt to impinge on the plaintiffs' constitutional and legal rights is not acceptable.

The Pentagon's issuance of the gag order represented the first time in U.S. history that the government had dared to dictate the content of chaplains' sermons. The Court made sure it will be the last. The government declined to appeal the decision, making Rigdon v. Perry a clear precedent affirming the religious liberty of all Americans, including those who risk their lives for our freedom.

Captain David I. Kaye (USAF), one of the plaintiffs in Rigdon v. Perry, received the prestigious Meritorious Service Medal on July 2, 1997 for his many accomplishments in uniform, including his courageous stand in this litigation. The citation accompanying the award of the medal describes him as "the prime mover in a much acclaimed 36-page ruling by a United States District Court on the subject of free exercise of religion and free speech rights, bringing phone calls and letters of congratulations from members of the United States Congress. The singularly distinctive accomplishments of Chaplain Kaye reflect great credit upon himself and the United States Air Force."

Media Coverage:

Retiree Spotlight: Air Force Reservist Chose Obedience to Bishops over Ill-advised Abortion Policy (AMSNews (Archdiocese for the Military Services newsletter), Spring 2003 issue

Military bans pulpit politicking (Christian Science Monitor, by Binyamin L. Jolkovsky, October 16, 1996) [requires registration, $1.50 per article fee]

Clinton: Father Don't Preach (Detroit News, column by Tony Snow, September 26, 1996) [no longer available on line]