Liberty University

Students walk on the campus of Liberty University in September 2019.

A watchdog group advocating for religious freedom in the armed forces has accused Pentagon officials of “dropping a nuclear weapon on the Constitution” after a military court held a special session at Liberty University last week.

In a strongly worded letter Monday to U.S. Secretary of Defense Mark Esper, the New Mexico-based Military Religious Freedom Foundation blasted military officials for allowing the Air Force Court of Criminal Appeals to hold a secular criminal proceeding in the halls of a private college with a “Christian worldview.”

“To hold oral argument in a United States military justice case in a bastion of odious discrimination such as Liberty University sends a message that the Air Force continues its decades long malfeasance by unconstitutionally elevating the Christian faith over all [others’] faith and non-faith traditions,” Michael “Mikey” Weinstein, the group’s president, wrote in the letter.

In an emailed statement Monday, Liberty said the Military Religious Freedom Foundation’s accusation that military officials violated the law were “erroneous.”

“The practice of holding hearings at Liberty University is not a prohibited endorsement of religion,” Keith Faulkner, the dean of the law school, said in the statement. “In fact, MRFF’s demanded remedy of prohibiting any hearing at a religiously-affiliated law school would be an unconstitutional violation of the First Amendment’s prohibition against viewpoint discrimination.”

The watchdog group demanded the Air Force Court of Criminal Appeals sever its relationship with the religious institution and the Pentagon open an investigation into the circumstances surrounding the Feb. 20 proceeding.

The Air Force Court of Criminal Appeals and other military appellate courts have a long history of holding special sessions at law schools across the country. The program is meant to encourage law students to pursue a career in the military justice system.

The hearing, which involved an airman who is appealing a court-martial conviction, was held at the Liberty University School of Law’s Supreme Courtroom, which is a replica of the U.S. Supreme Court. According to a university news release, two law students presented oral arguments before a panel of military judges in support of both parties as part of the court’s outreach program.

The students were under the supervision of judge advocates — the military equivalent of prosecutors and defense attorneys, who were representing each party.

At the center of the watchdog group’s claim is that Liberty, as a private religiously affiliated institution, has a history of discriminating against non-Christians and is thus constitutionally barred from hosting a government function. The group cited an employee handbook mandating faculty members “be a model of biblical lifestyle.”

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Military officials reached by email, did not provide comment by press time on Wednesday.

In Faulkner’s emailed statement Monday he said: “The Supreme Court of the United States has repeatedly held that the government cannot favor the non-religious over the religious when making selections because doing so relegates religious people and institutions to a disfavored second-class status, something that the government is prohibited from doing.”

“Religiously-affiliated law schools must be treated equally with secular law schools in order to satisfy the neutrality required by the First Amendment.”

Faulkner cited recent hearings at several other private religious institutions, including Georgetown University and Notre Dame University, as evidence the military court did nothing wrong at Liberty.

Thursday’s hearing was not the first time a federal court heard arguments at Liberty Law. In the last two years, both the United States Court of Appeals for the Fourth Circuit and United States Court of Appeals for Veterans have visited campus to hear cases.

“These events provide exceptional real-world experiences for our students and provide outreach opportunities to the courts that help bring the law to life,” Faulkner said. “During these proceedings, the rules of the visiting court prevail, and Liberty University does not control the proceedings in any way.”

Still, the watchdog group was firm in its belief the military court made an error by visiting Liberty.

“Our secular military and its secular military justice system have no business conducting secular military justice at an exclusive sectarian institution with an extreme sectarian reputation,” MRFF board member and retired Army Brig. Gen. John Compere said in a statement. “It implies an endorsement of the sectarian institution & its sectarian education which clearly violates the United States Constitution and US Armed Forces regulations.”

Richard Chumney covers Liberty University for The News & Advance. Reach him at (434) 385-5547.

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