Protect The 1st — Religious Speech Protection Extends to Dog Tags

Shield of Strength v. United States Department of Defense

​“Love bears all things, believes all things, hopes all things, endures all things ...”

 1 Corinthians 13

“love is the voice under all silences, the hope which has no opposite in fear; the strength so strong mere force is feebleness: the truth more first than sun more last than star.”

e.e. cummings
                                           being to timelessness as it’s to time

​The sentiment expressed by the Apostle Paul in the New Testament testifies to the power of love, as does the snippet from an e.e. cummings poem. Under the standards set by the Department of Defense (DoD) and its trademark office, the first quote is forbidden because it comes from a religious source, the second is permitted because it is ostensibly secular.
 
Protect The 1st is joining an amicus brief – drafted by Prof. Eugene Volokh at the UCLA First Amendment Amicus Brief Clinic, together with his students Elizabeth Anastasi, Aaron Boudaie, and Anastasia Thatcher – filed before the U.S. District Court for the Eastern District of Texas to require the government to resolve discrepancies in its treatment of religious speech. The case involves a company, Shields of Strength (SoS), that sells facsimiles of dog tags with the logos of U.S. military services on one side, and inspirational quotes on the other. Because service logos are used, Shields of Strength must obtain permission from the DoD trademark office.
 
That office routinely approves hundreds of such trademark uses for parades, team uniforms and athletic wear, student-run organizations, and products from jewelry brands to license plates. But DoD policy denies trademark licenses for “any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.”
 
This excludes the use of service trademarks when the back of an SoS dog tag includes a Bible verse. Thus, DoD’s inherently vague standards give it the ability to withhold its approval for the use of its service trademarks where religious speech is concerned. But how can the government assert a justification for denying permission to SoS and its dog tags? No one mistakes the use of trademarked logos on various products – from team jerseys to earrings – to be government speech. Rather, the trademark program is clearly a limited public forum that, by the admission of the services, works with hundreds of companies around the world. Consumers want no more than to honor the services in their own way.
 
How then can these commercial dog tags be considered government speech? SoS dog tags are not worn instead of military dog tags. They do not identify the wearer. They do not contain government opinion. These dog tags are meant to be worn on the bodies of private people, not displayed to the public like a government-printed license plate. These dog tags are expressive works in which the wearer communicates both patriotism and religiosity.
 
Courts have held that when the free exercise of religion is at risk, the strictest scrutiny must apply. For all these reasons, DoD’s refusal to let SoS use these marks discriminates against this company and its customers solely due to their religiosity – and thus violates the Free Exercise Clause of the First Amendment.