by Dena Sher and Ian Thompson, ACLU Washington Legislative Office. The authors are, respectively, legislative counsel on issues related to religion and belief and legislative representative on issues related to LGBT rights in the ACLU’s Washington Legislative Office.
With Congress having recently approved this year’s NDAA, we think it is important to draw attention to a provision (Section 533(a)(1)), which, though hidden away, is unprecedented, sweeping, and could invite dangerous claims of a right to discriminate against not just lesbian, gay, and bisexual service members, but also women, religious minorities, and in the provision of health care.
This section of the conference report requires the military to accommodate the conscience, moral principles, or religious beliefs of all members of the armed forces. We strongly support accommodating beliefs -- so long as doing so does not result in discrimination or harm to others, or undermine other important objectives like military readiness or unit cohesion.
We think this language, however, is too broad and could be construed to not allow for the consideration of the harms an accommodation could cause and the impact it could have on others. The language, for example, could reopen longstanding prohibitions against harassment, give rise to claims of a right to proselytize other service members as well as civilians in occupied areas, and could lead to claims affecting health care services or anti-harassment training.