dissenting:
Each religion clause1 case seems to turn on its unique facts and to involve the interplay between different principles; this case is no exception. The majority opinions, however, seem to me to apply the decisional language of the prior cases in a manner which does not fully consider the unique factual situation which confronts us here. I have no criticism of their quoted references to prior holdings, or of their statements of the general principles that have been considered to be controlling in other cases. They do, however, overemphasize the controlling effect of the eonstitution*306al provisions they rely upon. This overemphasis is their principal error as I see it. One of the opinions also further extends such conclusions to impermissible limits by claims of “per se violations” and “presumptions of invalidity” that tend to substitute assertion and characterization for logic. I find that their analysis, which fundamentally is based on an absolutist approach to the First Amendment, does not furnish a basis for a proper decision of this case.
It is my basic conclusion that the chapel attendance regulations of the academies are within the military power of the United States Government as recognized by the Constitution, and that the First Amendment does not require a different conclusion. The majority opinions overly stress the application of the First Amendment and seem almost to fail to recognize the Nation’s inherent military power; they apparently assume that the First Amendment has overriding supremacy. In doing so they fail to give adequate recognition to the basic power, recognized in the Constitution, under which the armed services educate and train the Nation's future military leaders. I find in the Constitution both a recognition of the military power and the guarantees of freedom of religion, and I believe that these two provisions must be interpreted together.
In approaching the task of accommodating these constitutional provisions, there are many factual similarities to previous cases involving the religion clauses of the First Amendment. We are involved, once again, in exploring the relationship between student and school albeit we are here dealing with higher education and not secondary schools where attendance is compulsory and the pupils are of tender years. We must deal with the traditional problems posed by the educational institution’s assumption of responsibility, in loco parentis, for the physical well-being as well as the moral and intellectual development of the student, while acknowledging the deference we owe to the essentially contractual relationship between the more mature college-age student and his institution.2
However, the overriding factual difference in this case derives from the crucial role these educational institutions play in our military establishment. Unlike civilian and secular institutions^ which are properly concerned only with the physical and intellectual development of their students, moral and character development are vitally important objectives of the service academies whose function is to prepare young men for assuming the grave responsibilities of military leadership.3 In the judgment of *307those military commanders who have been most closely involved with this training through the years, some minimal exposure4 to religion — a force of major importance in the lives of many of the men they will be asked to command— is an absolute necessity in the academies’ program of moral and character development.
This major factual distinction makes it impossible to consider this case as merely a sterile regulation requiring a group of people to attend religious services. These regulations must be examined through the overlay of their importance in properly effectuating the constitutionally recognized power of the armed services to train the necessary personnel to adequately defend this Nation. It is my view that no violation of the First Amendment results from the conflict between such power, as reflected in the academies’ curricular requirement to attend chapel services for one hour each week,5 and the necessity of observing religious practices to the moral development of our future military leaders. Several additional factors particularly aid me in reaching the conclusion that the First Amendment effects of the chapel attendance requirements are de minimis at best, and are clearly overriden by their importance to the proper training of our military leaders: the religious exposure required is to the family religion of the individual cadet or midshipman; the parents are consulted as to any problems that arise;6 the regulation is fully disclosed to applicants prior to their entering the academies;7 attendance only at chapel, and not participation is required; 8 belief or non-belief is not imposed;9 and those who have a bona fide objection to attending services on grounds of conscience may be excused.10
I. THE MILITARY POWER OF THE NATIONAL GOVERNMENT
The Constitution provides that Congress shall have power “to raise and support Armies ... to provide . . . a Navy [and] to make Rules for the Government and Regulation of the land and naval Forces.”11 These enumerated powers necessarily imply *308the power properly to train the necessary personnel.12 This must include the power and authority to specially train a select group of officers in order to guarantee that our Nation will not want for qualified military leaders in the future. Congress has delegated this training responsibility to the various armed services ;13 and students at the academies are members of the armed forces.14
The unfettered power to raise armies and provide a navy was recognized in the original Constitution and the power was conferred on Congress rather than the Executive. Of necessity, because of the strong purpose it serves, it is a great power. Its existence was recognized in the Constitution prior to the adoption of any of the Constitutional Amendments, and several decisions indicate that a number of the Constitutional Amendments are not strictly applicable to the military.15 Most of these decisions relate to criminal proceedings and the *309legal principles upon which they are based may have only a limited application to First Amendment rights,16 but they do indicate the posture of the Nation’s military power as recognized by the Constitution. In any event it is clear that the First Amendment is not fully applicable in the armed services. The 1800 statute, supra note 16, was mandatory and exceeds the present academy *310regulations. It required that all Navy commanders “shall . . . cause all, or as many of the ship’s company as can be spared from duty to attend at every performance of worship of Almighty God.” This indicates that contemporary opinion in Congress, when the First Amendment was fresh in the public mind, was that such a religious attendance provision was not considered to be violative of the religious clauses. In addition, it is certain that the right of free speech is properly subordinated to necessary order and discipline in the armed service, the right of assembly is principally exercised at the call of a bugle, and the right of free exercise of religion is not absolute where military necessity or facilities make it difficult or impossible to recognize. It could be strongly argued that the Chaplain Corps and service chapels would violate the Establishment Clause if that clause were not modified by the Free Exercise Clause and by the military power which is recognized in the Constitution. These religious facilities are saved by reading the military and religious clauses together.17 Each clause has a certain area in which it is supreme, and where they overlap we must seek accommodation. Neither can be completely absolute. In so interpreting their provisions, I would conclude that the military power recognized by the Constitution authorizes the academies to include the chapel attendance requirement in their curriculum as a necessary part of the academies’ training, and that such minimal regulation does not violate the First Amendment to the Constitution.
II. THE FIRST AMENDMENT'
It is clear beyond the need for restatement that absolute separation of church and state is not compelled by the Constitution. Virtually all of the recent cases involving the religion clauses deal with the permissible limits of governmental involvement with religion. The Establishment and Free Exercise clauses pose slightly different problems, but I find the impact of these academy regulations on either clause to be no more than minimal.
A. Establishment Clause
In the most recent Establishment clause cases,18 decided last term, Chief Justice Burger alluded to the “cumulative criteria developed by the Court over many years” and spoke of “Three . tests . . . gleaned from our cases” to be applied in Establishment Clause cases. These are:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster “an excessive government entanglement with religion.”
403 U.S. at 612-613, 91 S.Ct. at 2111. In my opinion the chapel attendance requirement violates none of these standards.
1. Secular purpose.
The record in this case admits of no other conclusion than that the sole purpose and objective of the academies in promulgating the chapel attendance requirement is secular.19 This was the *311substance of the testimony presented by both the academies and the Defense Department, and the trial judge so found. The purpose of chapel attendance is to provide the best possible training for our future military leaders to enable them to acquire the necessary understanding and appreciation of the religious motivations and needs of the men they command. No religious belief is forced or sought to be compelled. Attendance only is required; given attendance, any actual participation is purely voluntary.
Two objections have been raised to this contention. First, that the requirement that the cadets and midshipmen can change their chapel affiliation only with parental consent belies the general educational intent of the regulation and suggests instead an impermissible concern with the content of the religious instruction. I see nothing unconstitutional in this recognition of parental rights by those who are charged with intellectual and moral training — particularly since most cadets and midshipmen are minors20 who are away from home for the first time. Also, the regulations recognize the cadet’s individual right of conscience — regardless of age.
The second objection is the contention that some alternative means exists to accomplish this secular purpose, which would not infringe on the First Amendment’s protection. Much of the record in the trial below is devoted to discussing this issue. The military leaders who are charged with the responsibility for training our future officers testified that the necessary familiarity with religion for a fully-trained officer is best implanted through observation in the religion that each officer candidate brings with him to the academy and that the necessary results could not be obtained through classroom instruction. Their judgment on a matter committed to their charge is entitled to great weight. After all, throughout our history, such education and training has produced military leaders who have successfully met all the demands our Nation has placed upon them. On this issue it is much more reasonable to accept the judgment of experience than the opinions of those without any experience in the field.
In my opinion it is wholly appropriate for us to rely upon the judgment of those to whom this training is entrusted that the alternative of classroom instruction in morals, religion and ethics, is not an adequate substitute to achieve the necessary result.21 It is all very well to state that by eliminating the chapel attendance requirement military interests *312“vital to our immediate national security” are not really at stake (Opinion at 296, emphasis added.) That is true because all our present military leaders, and those who will be for some time to come, have been properly trained in the past. How abqut the future? Should we hazard that? In my opinion we should be just as much concerned that we do nothing to diminish the quality of our Nation’s future military leaders as our predecessors were concerned that our present leaders be thoroughly qualified.
The trial court accepted the judgment expressed in the testimony of those experts who are charged with the training of our future officers. I see no justification for supplanting that judgment with inexperienced opinions that have a lesser creditable factual support in the record.
2. Advance or inhibit religion.
It is clear that the regulations may have the effect of advancing or inhibiting religion to some extent. By requiring attendance at religious services the academies place their officer candidates in a position that maximizes the likelihood of participation. To those with strong religious beliefs there is little or no effect — they would attend and participate on their own. To those whose religious feelings are not so strong, religion may be advanced — they are more likely to participate than they would otherwise be. To those experiencing unfavorable attitudes toward religion the attendance requirement may inhibit religion by intensifying those attitudes. I consider these effects to be de minimis and to be required by the educational contract that the academies assume when they undertake the training of cadets and midshipmen to be our future military leaders. They could not ignore some minimal exposure to religion. The chapel regulation has had a long existence and it is fully disclosed to applicants prior to their admission. It is not something that is foisted upon them after they arrive at the academies. Thus, those entering the academies knowingly consent to this regulation and all the other regimentation and curriculum requirements involved in their training and education at the academies.
The fundamental requirement imposed on the Government by the First Amendment is, as Chief Justice Burger has characterized it, a “benevolent neutrality.” In my view as long as that essential neutrality is maintained, and the effects on religion are as insignificant as here, where minimal attendance only and not belief is required,22 and conscientious objectors may be excused from chapel attendance, the vital importance of the regulations to the accomplishment of the academies’ training objectives demands that we sustain them here. To do so is merely an accommodation of the overlapping interests reflected by the military and religious provisions of the Constitution.
Neutrality is faithfully observed in these regulations. No better description than “neutrality” could be applied to the position the academies have taken on chapel attendance beginning with West Point in 1821.23 The cadets and midshipmen are merely placed in a position to observe church services of their own denomination; participation is purely *313voluntary. Significantly, the regulations do nothing more than generally provide for carrying forward pre-existing family religious preferences of the cadets and midshipmen. For the future, I would also emphasize the absolute necessity that the academies be certain to provide for a completely fair application of that portion of their regulations which permits conscientious objectors to chapel attendance to be excused therefrom.24 I would suggest they conform to the controlling principles set forth in the paraphrase of Justice Goldberg’s remarks at page 314, infra.
The importance of the attendance regulations to the academies’ training program is of the highest order, to my mind. It is in the great importance that I place on this portion of the curriculum, which is directed to building the character of academy graduates and qualifying them to understand the spiritual qualities of the men under their command, that I part company with my colleagues. I consider such training to be more important and necessary than they do. As I view the chapel attendance requirement, it is a partial guarantee that our military leaders will be aware of the moral principles that influence and guide our Nation, and that they will be cognizant of the religious needs and motivations of those who serve in the armed services under their command. To assure that our military leaders will meet these standards requires that academy graduates be conversant with religion and not ignorant of its forms or values. The academies have a compelling obligation to the Nation to see that their graduates are fully trained and that ignorance of the spiritual and moral values of our Nation and our servicemen does not occur. We do not wish to train military leaders — who will have the power in our name to order the destruction of cities and nations — without some assurances that they have at least been exposed to the principles of basic morality that we stand for as a nation. The stakes are too high — we should continue doing everything humanly possible to avoid future My Lais.
Practically all Americans have some religious background.25 When our men are mustered into the armed services, and realize they may eventually face combat duty, their interest in religion often quickens. The closer they approach combat with enemy forces the more frequently many of them seek comfort in religion. New men face death without giving consideration to religious factors.26 It is thus necessary to insure that our top military leaders, most of *314whom are graduates of our Government military academies, have a thorough understanding of the religious needs and motivations of their men. This is a vital morale factor. It has been said: “In war, morale considerations make up three-quarters of the game; the relative balance of manpower accounts only for the remaining quarter.”27 It is thus vitally essential to my mind that academy training continue to include this required minimal exposure to one’s own religion in this minimal good faith attempt to accomplish these purely secular objectives. To paraphrase Justice Goldberg’s concurring remarks in Abington School District v. Schempp, 374 U.S. 203, 306, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963): 28
The academies must inevitably take cognizance of the existence of religion and the Court must recognize the propriety of allowing cadets and midshipmen at the academies to receive a minimal exposure to religion, with due allowance for those whose conscience would be invaded, so that the religious exposure will be free of hostility or favor and without undue involvement.
3. Excessive government entanglement.
The record in this case does not indicate that the chapel attendance requirement involves any additional entanglement of Government with religion other than that already existing by the armed services’ compliance with the Free Exercise clause.29 What is involved is nothing more than the academies furnishing the facilities and personnel (chapels and chaplains) necessary to provide military personnel with the opportunity to exercise their own religion. Even if chapel attendance were voluntary the academies would still be required to make substantially the same facilities available for church attendance. The maintenance of chapels and chaplains 30 throughout the armed services guarantees that the constitutional right to free exercise of religion will not be denied while men are serving their country. There is no showing here that these services are materially increased by the attendance requirement, or that the resulting attendance enmeshes government substantially over and above the involvement which would otherwise result from furnishing the fa*315cilities necessary to meet its obligations under the free exercise requirement.
The majority opinions do not question the constitutional validity of the Chaplain Corps and the furnishing of religious facilities in the armed services. It is submitted that if it is constitutional for the Government to furnish the extensive religious facilities of chapels and chaplains for religious worship throughout the armed services, and I do not question that it is constitutionally permissible, then it is “necessary and proper” to require that our military leaders be exposed to training sufficient to give them a minimal understanding of the religious commitment and motivation of our people.
B. The Free Exercise Clause
There can be no question that the knowledge and understanding of religion that cadets and midshipmen acquire by chapel attendance operates to guarantee that the right of men in the armed services to fully exercise their religion will be more fully understood and recognized when these academy graduates ascend, as they certainly will, to positions of military leadership.
III. THE EFFECT OF THE MAJORITY DECISION
Judge Bazelon’s opinion states:
This case does not involve programs vital to our immediate national security, or even to military operational or disciplinary procedures. Nor does it appear that the ruling will have any detrimental impact on the academies’ training programs. The appellees have made no showing that chapel attendance requirements are the best or the only means to impart to officers some familiarity with religion and its effects on our soldiers.
While some weight must be accorded the military judgment that familiarity with religion is necessary for the all-around officer, it is for this court to assess that decision in constitutional terms. In the words of Mr. Justice Jackson, we act not by virtue of a superior competence but by virtue of our commission to protect basic constitutional rights.
At 296. The foregoing fails to consider or reflect upon the effect that deficiently trained officers can have on the personnel of our armed forces and their morale. The passage recognizes that such training is necessary, but suggests that it can be obtained by other means. There is nothing in the record to support this conclusion. The testimony of our military leaders who are charged with the responsibility of supervising our military academies was to the contrary. Trying to give a person an understanding of the moral force and motivation of religion without attending church is like trying teach swimming without water.
However, if we recognize that some training in religion is necessary, and the majority opinions seem begrudgingly to recognize this, we have come a long way. Then the only question is whether it may permissibly be given by requiring attendance at chapel or in the classroom. In my view the United States has authority to educate its cadets and midshipmen so that they will be fully qualified to assume their place as military leaders of the Nation. If those who are placed in charge of our armed services determine that a minimum exposure to the religion of one’s own choice is necessary through chapel attendance, and if our 150-year experience has demonstrated that the implementation of this policy does not result in an establishment of religion, it seems to me that we should not be swayed by the vanity of the present and the belated fears of the majority that those 150 years are an aberration of the experience we should expect. I believe this lengthy experience demonstrates that the basic guarantee of the First Amendment is not violated or likely to be violated by the chapel requirement, and I also consider that such training furnishes substantial assurance that the free exercise of religion in the armed *316services will be respected.31 I accordingly conclude that a “sensible and realistic application of the Religion Clauses”32 compels a finding that the chapel attendance requirement does not unduly trespass upon the establishment or free exercise provisions.
For the foregoing reasons I respectfully dissent from the majority opinions and would affirm the conclusion reached in Anderson v. Laird, 316 F.Supp. 1081 (D.D.C-1970). I am in general agreement with Judge Corcoran’s reasoning to the extent hereinbefore indicated.
. The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
. College authorities stand in looo parentis, concerning the physical and moral welfare and mental training of pupils. Gott v. Berea College, 156 Ky. 376, 161 S.W. 204, 206 (1913). The relationship between a private college and a student is basically contractual. University of Miami v. Militana, 184 So.2d 701, 704 (Fla. App.1966) ; John B. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637, 640 (1925) and cases cited; Barker v. Trustees of Bryn Mawr College, 278 Pa. 121, 122 A. 220 (1923) ; 14 C.J.S. Colleges and Universities § 24, p. 1358 (1939). While many of the features of the relationship between the cadets and the service academies are prescribed by statutes and regulations, the relationship is one for military service of a definite character and has certain contractual overtones as well, much the same as enlistments in the armed services. See Winthrop, Military Law and Precedents 545-47 (Reprint 1920).
. The military academies present a four-year course of undergraduate study in a highly regimented atmosphere of order and discipline. From the time a cadet or midshipman enters the academy his personal life as well as his school life is under academy control. His entire day follows a prescribed schedule. The educational and training program places great emphasis on developing character and qualities of leadership so that each cadet and midshipman will lay the groundwork for a career not just as an officer but as a future military leader. Since their founding, the military academies have produced practically all our great military leaders. While the military academies produce only about 5% of the total officers it is a fair estimate that graduates of the three military *307academies constitute 90% of our highest military officers. It is not to be assumed that every officer meets the necessary requirements of a military leader.
. A very minimal exposure is all that is involved in the regulation.
. The Air Force Academy exempts first classmen (seniors) from mandatory chapel.
. The strong role of the family in the religious activities and education of their children was recognized in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
. B. g., the catalogue of the Military Academy (Ex. B. p. 76) states : “Each cadet must attend one of the weekly chapel services — Protestant, Catholic, or Jewish.”
. The 1969 Record of Proceedings of the Conference of Superintendents of the Academies of the Armed Forces states:
It is the consensus of the four Superintendents that the purpose of regular attendance at religious services is to instill a sense of respect for religion as a factor in the daily lives and activities of the vast majority of mankind. It is through this respect that officers of the Armed Services can come to understand problems within their future commands which may be motivated by moral, spiritual, or ethical considerations. Regular attendance at religious services is an important part of the development and training of prospective officers of the Armed Services. It is, therefore, the general policy of the Superintendents of the Service Academies of the United States of America that cadets and midshipmen will attend regularly scheduled religious services. It is understood that intelligent provisions must be made for bona fide cases where attendance would be in conflict with sincerely held convictions of individual cadets or midshipmen.
Pl.Ex. 10, p. 32.
. Id.
. Id.
. U.S.Const. art. I, § 8, cl. 12, 13, 14. It was not necessary to insert these powers in the Constitution to vest the na*308tional Government with such power but rather to designate that Congress alone and not the President can raise armies. II Story, Commentaries § 1187 (4th ed. 1873). The Constitution places no express limitations on the military power. It is an inherent power of any nation.
. “A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.” Lichter v. United States, 334 U.S. 742, 778-783, 68 S.Ct. 1294, 1313, 92 L.Ed. 1694 (1948).
. 10 U.S.C. §§ 3012, 5012, 8012 (1970). Command and supervision of the academies is provided for by 10 U.S.C. §§ 4334 (Army), 9334 (Air Force) (1970).
. Cadets and midshipmen are subject to the punitive articles of the Uniform Code of Military Justice (Articles 77 through 134) and have continuing military obligations. Of. 10 U.S.C. §§ 516, 4348(b), 6959(b), 9348(b) (1970); United States Dept, of Defense, Manual for Courts-Martial If 16a, at 212 (1969 Rev. ed.) (hereafter cited as Manual for Courts-Martial) .
. In Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L.Ed. 838 (1857), the Supreme Court held that the military provisions of the Constitution authorize Congress to provide for the trial and punishment of military offenses in the manner then and now practiced by civilized nations without any connection between such power and the Third Article of the Constitution defining the judicial power of the United States. “The two powers are entirely independent of each other.” Thereafter, Chief Justice Chase in his concurring opinion in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 137-138, 18 L.Ed. 281 (1866), remarked:
It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time.
Nor, in our judgment, does the fifth, or any other amendment, abridge that power. “Cases arising in the land and naval forces, or in the militia in actual service in time of war or public danger,” are expressly excepted from the fifth amendment, “that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” and it is admitted that the exception applies to the other amendments as well as to the fifth. (Emphasis added)
It has become well settled that the right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts martial or military commissions. Whelehel v. McDonald, 340 U.S. 122, 127, 71 S.Ct. 146, 95 L.Ed. 141 (1950) ; of. Kahn v. Anderson, 255 U.S. 1, 8-9, 41 S.Ct. 224, 65 L.Ed. 469 (1921) ; Ex parte Quirin, 317 U.S. 1, 40-41, 63 S.Ct. 2, 87 L.Ed. 3 (1942). Easley v. Hunter, 209 F.2d 483, 486 (10th Cir. 1953) states:
It has been indicated in a number of cases that the power of Congress in the government of the land and naval forces of the United States are not affected by any of the constitutional amendments. Hiatt v. Brown, supra, [339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691] ; Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 138, 18 L.Ed. 281. (Emphasis added.)
This may be an overstatement of the law. Those cases related to essentially criminal matters. A more accurate statement may be that the amendments do not literally affect the judicial powers of the land and naval forces, but the military’s judicial *309tribunals for a long time were generally considered to be required to comply with the spirit of such amendments. See, as to the Sixth Amendment right to counsel, Winthrop, supra note 2, at 165 n. 38; right to confrontation of witnesses, id. at 287 n. 27; prohibition against excessive fines and cruel and unusual punishment, id. at 298.
The Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., has subsequently provided more recognition for some of these constitutional guarantees: e. g., Art. 31 prohibits constitutional self-incrimination ; Art. 49 authorizes use of depositions thus minimizing the guarantee of witness confrontation; and an accused is given a right to counsel of his own choice, with some exceptions, Manual for Courts-Martial 1J 48. However, the statutory nature of these enactments with respect to these basic constitutional guarantees is a recognition of the special status of the military with respect to some of these matters. It may well be that the constitutional power in Congress to provide for the government and regulation of the land and naval forces furnishes more support for the conclusion expressed in this opinion than I have afforded it. Certainly, when such power was conferred on Congress in the original Constitution, it was not subject to any religious restriction whatsoever. See nn. 16, 17, infra.
. At one time Article 52 of the Articles of War “earnestly recommended to all officers and soldiers diligently to attend divine services.” Winthrop, supra note 2, at 656, comments on this provision as follows:
THE RECOMMENDATION. The Article, in its first clause, differs from the corresponding British article, from which it was directly derived and which requires attendance at divine worship, in recommending only such attendance; a difference doubtless growing out of the provision in our Constitution, by which Congress is forbidden to make any “law respecting an establishment of religion or prohibiting the free exercise thereof.” A statute making it obligatory upon officers or soldiers to attend religious services on Sunday (or other day) would be of doubtful constitutionality, as opposed to the spirit if not to the letter of the organic law. The Article, therefore, while favoring such attendance, has well left it optional with officers and soldiers whether they will or not be present at any such services. (Emphasis added) (footnotes omitted)
The First Amendment to the Constitution was submitted to the legislatures of the several states on September 25, 1789 by the first Congress to meet under the United States Constitution. Ratification by three-fourths of the states was completed on December 15, 1791. Subsequently, in 1799, when there were still a number of members in Congress who had submitted the First Amendment to the states, and after the amendment had been adopted and its provisions were fresh in the public mind, Congress in the Act for the Government of the Navy required that:
The commanders of the ships of the United States, having on board chaplains, are to take care, that divine service be performed twice a day, and a sermon preached on Sundays, unless bad weather, or other extraordinary accidents prevent. (Emphasis added.)
Act of March 2, 1799, ch. XXIV, 1 Stat. 709. This act passed both houses without objection, and without even a roll call vote (House Journal, Feb. 25, 1799, p. 491; Senate Journal, Feb. 27, 1799, p. 597). In the Senate the bill was recommended by a committee of three, including Senator Goodhue of Massachusetts, who served when the Bill of Rights was submitted. Senator Goodhue was chairman of the committee.
In 1800 Congress replaced the above provision with a stronger one, providing:
Art. II. The commanders of all ships and vessels in the navy, having chaplains on board, shall take care that divine service be performed in a solemn, orderly, and reverent manner twice a day, and a sermon preached on Sunday, unless bad weather, or other extraordinary accidents prevent it; and that they cause all, or as many of the ship’s company as can he spared from duty, to attend at every performance of the worship of Almighty God. (Emphasis added.)
Act of April 23, 1800, ch. 33, 2 Stat. 45.
. Welsh v. United States, 398 U.S. 333, 371, 90 S.Ct. 1792, 1813, 26 L.Ed.2d 308 (1970) (Justice White, dissenting) :
The power to raise armies must be exercised consistently with the First Amendment which, among other things, forbids laws prohibiting the free exercise of religion. It is surely essential therefore — surely “necessary and proper” — in enacting laws for the raising of armies to take account of the First Amendment and to avoid possible violations of the Free Exercise Clause.
. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971).
. The most pertinent evidence on this point was the testimony of Admiral Moorer, Chairman of the Joint Chiefs of Staff:
The purpose, of course, is to enhance his leadership and command ability by putting him in a position where he can get a feel, an understanding of the impact of religion on the various types of *311individuals and so he can see this in operation; and, consequently, as he acts as a leader in later years, he will appreciate this impact that religion will have on so many people.
* **
[T]hat is the sole purpose. We are in the process of developing leaders and this is a vital part of the overall leadership package; and that is the sole purpose.
App. 51-52. Similar testimony was given by Asst. Secy, of Defense, Roger T. Kelley.
. The age of minority may be changed in the near future. Newspaper accounts indicate that Maryland has already changed it. Whether the state of domicile or temporary residence would be controlling is not here determined because the matter does not turn upon the age of minority but rather upon the parent and child relationship and the influence resulting therefrom. See note 6, supra.
. The argument is wide of the mark that since 95% of our military officers are trained outside the academies and may not be required to attend chapel at their undergraduate institution, there is no necessity for requiring such attendance at the academies. Actually, such contention is the best argument for chapel attendance for the remainder. It should be made certain that some portion, albeit small, have a reasonable familiarity with the religious needs of those serving in the armed services since religion is such a strong and compelling force in our citizenry, particularly in men in combat. The fact that we have been forced since World War II to resort to auxiliary methods to train officers for an expanded military establishment, and have been unable to completely train them, does not mean that we should reduce the quality *312of training of our officers at the academies. Thus, Judge Leventhal’s criticism that chapel attendance is not universally required for officers who come to the services from schools outside the service academies is not an argument against the validity of the requirement at the academies.
. In evaluating the effect of the chapel attendance regulation it must be recognized that each hour of a cadet’s day is scheduled by academy regulations.
. Act of March 2, 1821 (3 Stat. 615) approved and adopted for the government of the Army of the United States the “General regulations for the Army” compiled by Major General Scott. Oh. XIII, 5.14. These required that all “academiek officers and cadets must strictly attend . . . divine service . . . on Sundays.” (Regulation 99.)
. Cadets and midshipmen who complain that their conscientious objections to church attendance are not respected may request individual relief from courts after they have processed their complaint through administrative channels of the academy.
. “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952).
. For example, during the Civil War in the winter of 1863-64, while the armies of the Confederacy and the Union were preparing for the battles that began with the Wilderness and ended at Appomattox, a tremendous religious revival occurred in the Confederate Army camped on the banks of the Rapidan:
In every Confederate camp chaplains and visiting ministers erected religious altars, around which the ragged soldiers knelt and worshipped the Heavenly Father into whose keeping they committed themselves and their cause, and through whose all-wise guidance they expected ultimate victory. The religious revivals that ensued form a most remarkable and impressive chapter of war history. Not only on the Sabbath day, but during the week, night after night for long periods, these services continued, increasing in attendance and interest until they brought under religious influence the great body of the army. Along the mountain-sides and in the forests, where the Southern camps were pitched, the rocks and woods rang with appeals for holiness and consecration, with praises for past mercies and earnest prayers for future protection and deliverance. Thousands of these brave followers of Southern banners became consistent and devoted soldiers of the cross. General Lee, who was a deeply *314pious man, manifested a constant and profound interest in the progress of this religious work among his soldiers. He usually attended his own church when services were held there, but his interest was confined to no particular denomination. He encouraged all and helped all.
Gen. J. B. Gordon, OSA, Keminiscences of the Civil War 229-30 (1903).
. Napoleon I, Saint Cloud, August 27, 1808.
. Justice Goldberg’s concurring opinion states:
Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances the First Amendment may require that it do so. And it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains and of the teaching about religion, as distinguished from the teaching of religion, in the public schools.
The examples could readily be multiplied, for both the required and the permissible accommodations between state and church frame the relation as one free of hostility or favor and productive of religious and political harmony, but without undue involvement of one in the concerns or practices of the other. To be sure, the judgment in each case is a delicate one, but it must be made if we are to do loyal service as judges to the ultimate First Amendment objective of religious liberty.
374 U.S. at 306, 83 S.Ct. at 1615-1616.
. See note 17, supra, and accompanying text.
. Buildings may be provided for religious worship at the academies. 10 U.S.C. §§ 4354(b) (Army), 9354 (Air Force). Chaplains are provided throughout the services and at the academies. 10 U.S.C. §§ 3064, 3073, 4337 (Army), 5142, 5404, 5576, 6031 (Navy), 8067(h), 8293, 8547, 9337 (Air Force).
. There has been some objection by various religious bodies to the academies’ chapel attendance regulation. At the same time these bodies seek to bring about a “vigorous and fruitful religious life” in the military through a “strong religious program” in which “participation by officers and enlisted personnel is voluntary.” Pl.Ex. 38, p. 44. They would thus change the present program so as to greatly increase the armed forces’ emphasis on religion and apply the increased program to all “officers and enlisted personnel.” This suggestion proposes a substantially broader religious program than exists at the present time. It would change the policy throughout the armed forces to provide for more encouragement of religion and thus depart from the present policy of neutrality. It seems to me that the present emphasis at the academies is about right.
. Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972).