For those not living in a toxic environment of religious coercion, it might seem a bit silly to get upset over a piece of candy. That was certainly the response from a lot of righwing media outlets— Fox News, The Daily Wire, The Blaze, etc.—who relied on a rightwing lawyer who called it a “publicity stunt” when they followed up on my December 23 report here, "Jesus Candy Causes Democracy Decay At Peterson AFB".

The complaint arose from an email sent to Mikey Weinstein, founder and President of the Military Religious Freedom Foundation, who called it, “the fundamentalist Christian straw breaking the MRFF clients' backs.” And MRFF researcher Chris Rodda explained that it had been two years since MRFF first requested a copy of Peterson’s religious climate survey—without any response except a notification of delay. “They obviously do not want us to see this religious climate survey, indicating that it must be really bad.”

So, initially the focus was on the whole situation. But now, the candy itself has become the story. “This candy is more of a Christian proselytizing kit than a package of candy,” Rodda wrote at Daily Kos on January 3. And that’s not just her opinion. That’s what the candymaker himself proudly proclaims. In fact, it’s the whole reason for his company’s very existence. Which is why MRFF is now legally demanding that it removed.

First, Rodda notes, is the company’s slogan, printed on the candy’s packaging: “Reaching The World One Piece At A Time.” Then, she notes the company’s name: “Scripture Candy, Inc.” And she presents its stated mission, which begins as follows:

"Go ye into all the world, and preach the gospel to every creature." Mark 16:15

“At Scripture Candy, Inc. we are using a simple piece of candy in order to fulfill this commission. We want to ‘Reach The World One Piece At A Time.

’

This alone is sufficient to show why the candy can’t legally and constitutionally be sold at the Peterson BX: it’s a cut-and-dried case of government promotion of religion—and a discriminatory one at that, which is where it runs further afoul of specific military regulations.

Which is why MRFF sent a demand letter requesting its removal on January 3 to Dale Harbour, General Counsel for the Army & Air Force Exchange Service, which read, in part:

MRFF thus demands that this product be removed from all AAFES facilities at once because, not only is it an illegal promotion of religion, but it is offensive to the many clients of MRFF, Christian and non-Christian, and others who frequent the Exchange facilities.

Scripture Candy’s mission goes on to say:

“We take the best tasting candies and wrap them in Scriptures so that they can be passed out to everyone. It's a great way to spread the Gospel of Jesus Christ. A single piece of Scripture Candy is like that seed planted by the sower in the parable spoken by Jesus in Matthew 13; it has the potential of producing a tremendous harvest. Jesus said in Luke 10:2 ‘…The harvest truly is great, but the labourers are few…’ Ask the Lord of the harvest, therefore, to send out workers into his harvest field.”

All that is just fine and dandy—for selling candy anywhere that doesn’t entail a government endorsement. It could even be sold elsewhere on the base—under the auspices of chaplaincy services.

Rodda also goes on to quote Scripture Candy founder Brian Adkins from the story of why he started his company:

“In 1991, while listening to ‘Focus on the Family’ on the radio doing a program on the occults and Halloween, GOD gave me the inspiration about turning a pagan holiday into something to glorify GOD. Since we give out candy as ‘treats’ during the holiday, if we could wrap the ‘Word’ around the candy, every piece we gave out would have the possibility of planting a seed in a person's life. Thus creating our tagline ‘Reaching The World One Piece At A Time.’ “The whole meaning behind ‘Scripture Candy, Inc.’ is to plant the seed of the ‘Word’ in everyone throughout the world.”

There could not be a clearer statement of proselytizing intent—which, to be clear, is not a problem for MRFF or its clients, if done in a manner that doesn’t infringe on the rights of others.

But, is it really even accurate to call it “candy,” when there’s so much else being sold along with it? As Rodda describes it, the answer is far from clear:

The candy cane package, for example, contains a stocking with the words “JESUS Sweetest Name I Know,” a bookmark with a cross and evangelical scripture verse on one side and a completely bogus history of the candy cane on the other — with the red stripes representing the blood of Christ, and the candy cane’s shape being a “J” for Jesus, an urban legend according to the real history — and a Christian coloring page, all of which are pictured on the back of the package. The only candy in the package is one single candy cane.

If I were a kid, I’d feel cheated to get that as candy, no matter what the occasion. And I’m not the only one who’d be upset, as the demand letter explained:

Can you imagine the uproar if someone tried to sell “Muslim Munchies,” “Buddhist Bubble-gum,” “Wiccan Wafers,” or “Satanic Suckers” in an AAFES facility? This is no different and is equally as offensive to many patrons, including Christian clients of MRFF, who have complained to MRFF. By promoting only Christian “Candy” products (aside from the tackiness of it all), AAFES is in violation of DoD Directive [DoDD] 1020.02E, Diversity Management and Equal Opportunity in the DoD (2018). Enclosure 2 of that DoDD, ¶ 2.b.(1), prohibits “unlawful discrimination on the basis of . . . religion . . .

Among other things, the letter later goes on to quote relevant paragraphs from two Air Force Instructions [AFIs]. First, AFI 1-1, Air Force Standards (2014), ¶ 2.12, which states:

Balance of Free Exercise of Religion and Establishment Clause. Leaders at all levels must balance constitutional protections for their own free exercise of religion, including individual expressions of religious beliefs, and the constitutional prohibition against governmental establishment of religion. They must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief. [Emphasis added].

And second, AFI 36-7001, Diversity and Inclusion (2019), ¶ 2.22, which states:

All Airmen, military and civilian, are responsible for creating an inclusive organizational culture and do so as a reflection of the Air Force’s core values of Integrity First, Service Before Self, and Excellence in All We Do. Airmen at all levels should strive to understand the individual, organizational, and operational value of diversity and inclusion, and ensure mutual respect for all. [Emphasis added].

In short, these regulations reflect that the Establishment Clause of the First Amendment—forbidding establishment of a state religion—has primacy over the Free Exercise Clause when military officers are acting in an official capacity. And that’s what the religious right and its rightwing media allies simply cannot accept—or even admit is the actual issue.

This explains how they spun their initial reporting, which relied on a rightwing lawyer, Mike Berry, who called it “just the latest publicity stunt by a bunch of activists." Berry works for the First Liberty Institute, which the Southern Poverty Law Center has described as “a Christian legal organization based in Plano, Texas that battles LGBT rights and abortion under the guise of ‘religious liberty.’”

Berry is described as FLI’s “director of military affairs,” but his comments in these rightwing outlets were starkly devoid of any consciousness that the military environment is significantly distinct in how First Amendment protections apply, as the regulations above reflect.

"A real constitutional expert or any first-year law student knows that selling candy canes at Christmas is perfectly legal," Berry told Fox News. But that’s not the case when the candy cane is a form of religious proselytization, and it’s sold at a military PX or BX. A first-year law student might not know that, specifically. But it reflects a broader general principle they should know: First Amendment rights of all sorts are subject to “time, place, and manner” regulations. And it shouldn’t be hard for them to understand why the military environment specifically requires a balancing that protects against practices that erode “unit cohesion, good order and discipline,” which are fundamental to the military’s mission.

So, Berry’s faux appeal to a first-year law student is laughable on its face. No way it’s a serious argument. It never has been. It’s a straight-up con. “Freedom for me, but not for thee” always is.