Chapman Law Review
THE APPLICATION OF THE RELIGIOUS FREEDOM RESTORATION ACT TO APPEARANCE REGULATIONS THAT PRESUMPTIVELY PROHIBIT OBSERVANT SIKH LAWYERS FROM JOINING THE U.S. ARMY JUDGE ADVOCATE GENERAL CORPS
Copyright (c) 2007 Chapman Law Review; Rajdeep Singh Jolly
Observant Sikh lawyers are presumptively prohibited from joining the U.S. Army Judge Advocate General (JAG) Corps because they cannot satisfy the Army’s appearance regulations. This essay argues that this presumptive prohibition violates the Religious Freedom Restoration Act (RFRA). Under RFRA, the federal government may substantially burden an individual’s exercise of religion only if it demonstrates that its application of the burden furthers a compelling governmental interest by the least restrictive means. The Army’s appearance regulations are designed to promote two interests–uniformity and safety. In the course of furthering these interests, the Army’s appearance regulations effectively preclude observant Sikhs from joining the U.S. Army JAG Corps. The Sikh religion requires its male followers to wear turbans and forbids all of its followers from cutting their hair. Both requirements purportedly interfere with the Army’s asserted interests in uniformity and safety. This purported interference forms the basis for a conclusion that observant Sikhs are appropriately excluded from joining the U.S. Army JAG Corps. This essay argues against the necessity of such a conclusion by demonstrating that under RFRA (1) the Army does not have a compelling interest in disallowing exceptions to its appearance regulations, and (2) the Army’s appearance regulations do not constitute the least restrictive means of promoting safety. Because the Army’s appearance regulations violate RFRA, they must be amended to allow for the accommodation of observant Sikhs in the U.S. Army JAG Corps.
Observant Sikhs in Context
As of 2006, there were approximately 25 million Sikhs in the world. The overwhelming majority of them live on the Indian subcontinent. In contrast, only an estimated 251,000 live in the United States. The formative phase of Sikh history began with Guru Nanak (1469-1539), the founder of Sikhism, and continued for two centuries under the leadership of nine successive Gurus. The last of these Gurus, Guru Gobind Singh (1666-1708), presided over a transformative phase of Sikh history; Guru Gobind Singh not only vested permanent spiritual authority in the Sikh scripture–the Adi Granth–but also inaugurated a fellowship of orthodox Sikhs–the Khalsa–which “provided a visible insignia and an explicit discipline which members of the community could renounce only at the cost of virtual excommunication.” One of the most conspicuous components of the Khalsa code of discipline is a prohibition on hair-cutting. In practice, even among Sikhs who do not live in complete accordance with Khalsa traditions, a turban and unshorn hair are important marks of a Sikh male’s personality. These identifiers link the Sikh community and also serve as “a declaration of privilege [and] also of the intent to be prepared steadfastly to uphold the ideals [that Guru Gobind Singh] had demarcated.” Those who decline to accept these aspects of the Sikh identity are still regarded as Sikhs, “but only on the understanding that they are failing to discharge customary duties.” In other words, to the extent that Sikhs decline to wear a turban and decline to keep their hair unshorn, they are not regarded as observant Sikhs.
Sikhs have earned recognition for martial prowess in the course of their history. An estimated 100,000 Sikhs served in the British armed forces during World War I, disproportionately forming around twenty percent of the total number of volunteers from India. Over 83,000 observant Sikh soldiers died and more than 109,000 were wounded in the cause of the Allies during both World Wars, and five observant Sikhs were awarded the Victoria Cross for gallantry in these conflicts. Observant Sikhs still serve in the armed forces of India and are presumptively permitted to serve in the armed forces of Canada and the United Kingdom.
Unlike their coreligionists elsewhere in the world, and as explained in greater detail below, observant American Sikhs who wish to wear the uniform of their country do not presumptively enjoy this privilege.
Notes On The Scope Of This Essay
This essay argues for the accommodation of observant Sikh lawyers in the U.S. Army JAG Corps. This narrow focus is premised on two assumptions, the second of which qualifies the first. In the first place, there is institutional precedent and, accordingly, a greater practical possibility of accommodating observant Sikhs in the Army. Between 1958 and 1981, the Army specifically permitted observant Sikhs to enlist through a special exemption from its appearance regulations. After this exemption ended in 1981, prior grantees of the exemption were permitted to remain in uniform, provided that they were “otherwise eligible for continued service.” In addition, prior grantees are subject to assignment restrictions. Even still, the significance is that the Army is familiar with the religious commitments of observant Sikhs. Secondly, notwithstanding this history of accommodation, it is arguably the case that institutional change in the Army and other armed forces will face less opposition if such change is implemented in a piecemeal fashion. As discussed in greater detail below, opposition to the accommodation of Sikhs in the Army stems from concerns about operational requirements in the military. Allaying these concerns may be easier if the question of accommodating observant Sikh lawyers is successfully addressed before the knottier issue of accommodating observant Sikhs who seek to serve primarily as combatants.
Reasons For Appearance Regulations In The Military
The presumptive preclusion of observant Sikhs from the U.S. Army JAG Corps is based on the inability of observant Sikhs to satisfy the Army’s current appearance regulations. These regulations are based on the military’s interests in uniformity and safety. In 1984, pursuant to a congressional amendment to that year’s Department of Defense Authorization Bill, the Department of Defense established a Joint Service Study Group on Religious Practice (Joint Study Group), which was tasked with studying the possibility of modifying appearance regulations to accommodate religious practices in the armed forces. The Joint Study Group issued its report in March 1985, and its examination of the military’s interests in uniformity and safety forms the basis for the following discussion.
A. The Army’s Interest in Uniformity
According to the Joint Study Group, uniforms “act as a cohesive bond within the services by instilling a common identity, by providing visual evidence of shared experience, and by reinforcing a sense of tradition.” These factors are said to play “an essential role in the development of unit cohesion and institutional esprit de corps, which in turn contribute to military effectiveness.” As well, “[u]niformity not only directly imposes the discipline of the group, but, more subtly, instills the self-discipline necessary for the military member to perform effectively.” Non-uniformity, on the other hand, may result in polarization, which “fractures the [military] unit along lines that are irrelevant to and destructive of military considerations.” In other words, because uniformity “induces the wearers to view themselves as part of a group larger than themselves,” and because “the extent to which individuals retain old dress and appearance habits reduces their identity with and commitment to the new group,” it is possible that non-uniformity can “create an impression that [an] individual is unwilling to subordinate personal desires to traditional military values and raise questions of ultimate dependability in a crisis.” Put another way, exceptions to appearance regulations may create “perceptions of favored treatment for some military members, or the feeling that some individuals were ‘getting over’ on the system, [and] would almost certainly be disruptive.” The foregoing arguments can be condensed into the proposition that uniformity has a psychological and behavioral impact on operational effectiveness.
In the course of suggesting a connection between uniformity and operational effectiveness, the Joint Study Group offered several additional reasons for preserving uniformity. First “[w]hen perceived favored treatment is linked to a potentially emotional issue such as religion, the possibility of prejudice exists.” One might argue that prejudice would disrupt esprit de corps and consequently have an adverse impact on operational effectiveness. Second, uniformity reinforces “the idea that military members are different from civilians,” and “remind[s] the men and women who wear them that they put aside certain personal freedoms when they joined the armed forces and that they have assumed special obligations inherent in the military’s responsibility for the nation’s defense.” It is possible that non-uniformity undermines esprit de corps to the extent that it simultaneously accentuates civilian distinctions and undermines professional equality among military members. Third, “permitting certain faith groups openly to display their religious preference and to identify with a particular religion (and in some cases ethnic group) might cause other groups to assert more vocally and visibly their commitment to their particular faith.” In other words, it is feared that departures from uniformity will lead to a slippery slope situation and generate unwieldiness of a sort that would not only create “chao[s] in combat” but also “discourage others from entering what they perceive as no longer a ‘sharp’ military organization.” The Joint Study Group ultimately concluded that, as a matter of policy, “it would be unwise to permit visible exceptions to uniform dress and appearance standards . . . .”
B. The Army’s Interest in Safety
According to the Joint Study Group, safety standards not only “directly affect the individual’s health and well-being,” but also “affect the ability of the individual to perform a task. This, in turn, influences the accomplishment of the unit’s mission in both peace and war.” Of particular relevance to observant Sikhs is their ability (or inability, as the case may be) to wear protective equipment. For example, within the military, there is hesitation about permitting dress and grooming standards that would prevent the formation of “an effective seal on a protective mask or which would otherwise fail to ensure complete protection in a toxic environment.” As of 1985–the year in which the Joint Study Group released its report–“test results and testimony from experts in chemical protection . . . overwhelmingly concluded that an effective seal is not possible with a beard.”
To the extent that protective equipment cannot function on a bearded individual, one might argue that the individual should be free to subject himself to the risks that ordinarily compel the use of protective equipment. Anticipating this argument, the Joint Study Group determined that it would not be feasible “to permit the individual to determine the risk to which he is willing to put himself,” because, “[g]iven the interdependency of all activities within the military, what would be at stake would not be merely one individual, but the lives of others as well as the accomplishment of the mission.” To the extent that protective equipment cannot function on a bearded individual, one might argue that the individual should be assigned roles not likely to require the use of protective equipment. Anticipating this argument, the Joint Study Group suggested that assignment restrictions could harm military esprit de corps. Finally, to the extent that protective equipment cannot function on a bearded individual, one might argue that the individual should be allowed to maintain a beard until its modification or removal is compelled by extenuating circumstances. Anticipating this argument, the Joint Study Group rejected it on two grounds: (1) “it opens the possibility of individuals questioning . . . their commander’s judgment of what constitutes an emergency situation” and (2) “there would be no way to ensure [that] the individual would live up to his commitment when circumstances did so dictate.”
The Law of Religious Accommodation In The U.S. Military
A. Goldman v. Weinberger
The Goldman case concerned Dr. Simcha Goldman, an Orthodox Jew and ordained rabbi who actively served in the U.S. Air Force as a clinical psychologist between 1977 and 1981. Until 1981, Dr. Goldman was not prohibited from wearing his yarmulke on the base where he worked. Throughout his service, Dr. Goldman consistently received outstanding evaluations from his superiors, who even recognized him for professionalism in dress. In April 1981, Dr. Goldman testified as a defense witness at a court-martial while wearing his yarmulke. Opposing counsel subsequently complained about the yarmulke to the commander of the hospital where Dr. Goldman worked, noting that wearing it on duty constituted a violation of Air Force appearance regulations. In response, the hospital commander ordered Dr. Goldman to refrain from wearing a yarmulke off base while on duty; when Dr. Goldman refused and protested through an attorney, the hospital commander enjoined Dr. Goldman from wearing a yarmulke at any time while on duty. After receiving a reprimand and a threat of a court-martial, Dr. Goldman filed suit, claiming that the Air Force regulations at issue infringed upon his First Amendment right to practice his religion. The case made its way to the U.S. Supreme Court, where a five-to-four majority of the Court upheld the preclusive appearance regulations.
The result in Goldman stemmed from a principle of judicial deference to military judgment. Writing for the majority, Justice Rehnquist articulated this principle as follows: “[W]hen evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” In other words, “review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.” This deference was motivated at least in part by the Goldman majority’s concern about being “ill-equipped” to determine the extent to which a religious accommodation would impact discipline in the military. According to Justice Rehnquist, “[t]he considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission.” In other words, because “[u]niforms encourage a sense of hierarchical unity,” and because “the necessary habits of discipline and unity must be developed in advance of trouble,” the “Air Force considers them as vital during peacetime as during war. . . .” Notwithstanding the preclusive impact of the appearance regulations at issue in Goldman, the majority in Goldman ultimately concluded that the regulations “reasonably and evenhandedly regulate[d] dress in the interest of the military’s perceived need for uniformity.”
B. The Congressional Response to Goldman v. Weinberger
The Goldman majority pointed out that “[j]udicial deference. . .is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Pursuant to this constitutionally-delegated authority, several members of Congress responded to the Goldman decision by proposing legislation designed to permit members of the armed forces to wear “neat and conservative” religious apparel if such apparel does not interfere with military duties. Rooted in efforts that began in response to Dr. Simcha Goldman’s 1984 loss in the U.S. Court of Appeals for the District of Columbia, the proposal was eventually approved in 1987 by Congress and signed into law by President Reagan before its codification as 10 U.S.C. § 774. Under this statute, the general rule is that “a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force.” The general rule does not apply, however, in two circumstances: (1) if it is determined “that the wearing of the item would interfere with the performance of the member’s military duties,” or (2) if it is determined “that the item of apparel is not neat and conservative.” The statute directs the armed forces to “prescribe regulations concerning the wearing of religious apparel by members of the armed forces. . . .” Pursuant to this delegation of authority, the armed forces must not only determine whether religious apparel significantly interferes with military duties but also develop criteria for determining whether religious apparel is neat and conservative. These details found expression in 1988 when the Department of Defense issued Directive Number 1300.17.
The Directive applies to all branches of the armed forces and governs the accommodation of religious practices within the military. In pertinent part, the Directive permits members of the armed forces to “wear visible items of religious apparel while in uniform, except under circumstances in which an item is not neat and conservative or its wearing shall interfere with the performance of the member’s military duties.” The Directive defines “religious apparel” as “articles of clothing worn as part of the doctrinal or traditional observance of the religious faith practiced by the member.” To emphasize that “religious apparel” only includes “articles of clothing,” the Directive excludes “[h]air and grooming practices required or observed by religious groups” from its definition of “religious apparel.” In doing so, the Directive prevents observant Sikhs from satisfying its requirements. Notwithstanding this, the Directive grants military commanders discretion to approve requests for religious accommodation in individual cases; however, the Army almost categorically forbids religious accommodations for uncut hair.
It has been suggested that 10 U.S.C. § 774 “was specifically designed to allow Jewish servicemembers to wear yarmulkes and Sikh servicemembers to wear turbans.” This proposition is based on statements in that statute’s legislative history that address the accommodation of Sikhs in the Army. If the proposition is correct, then the Department of Defense and U.S. Army effected a significant departure from congressional intent by promulgating appearance regulations that effectively disqualify observant Sikhs from military service. Upon closer examination, however, the legislative history that eventuated in 10 U.S.C. § 774 reflects tentativeness about accommodating observant Sikhs in the military. That Congress did not wholeheartedly intend to pursue the accommodation of observant Sikhs is evinced further by an unsuccessful attempt by Representative Dennis Hastert in 1990 to amend 10 U.S.C. § 774 to expressly allow for the accommodation of observant Sikhs in the U.S. Armed Forces.
The Religious Freedom Restoration Act’s Applicability To The Military
The Religious Freedom Restoration Act of 1993 (RFRA) sought to invalidate any state or federal law that substantially burdens a person’s exercise of religion unless such a law furthers a compelling governmental interest by the least restrictive means. RFRA was enacted in response to the U.S. Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, according to which “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest. . . .” Prior to Smith, the compelling interest test was an established means of resolving federal cases involving religious liberty and competing government interests. RFRA effectively overturned Smith by codifying the compelling interest test and by expressly applying it to laws of general applicability. In 1997, the U.S. Supreme Court in City of Boerne v. Flores concluded that RFRA cannot constitutionally apply to state law. Notwithstanding this, in 2006, the U.S. Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal ratified the settled judgments of numerous appellate courts that RFRA still applies to federal law. RFRA applies sweepingly to all federal law and implementations of federal law, “whether statutory or otherwise, and whether adopted before or after [RFRA].”
On its face, RFRA does not exempt the U.S. military from the compelling interest test. In general, RFRA imposes limitations on the federal “government,” which encompasses any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States. . . .” This definition facially applies to the Department of Defense and, by implication, to the military branches–including the Army. Although RFRA’s legislative history expressly declares that RFRA applies to the military, a closer examination is required to ascertain the scope of RFRA’s applicability to the military.
A. Ascertaining the Scope of RFRA’s Applicability to the Military
The Senate Judiciary Committee’s report on RFRA noted that “the [federal] courts have always extended to military authorities significant deference in effectuating . . . [military] interests.” The Committee then declared its intention and expectation that “such deference” continue under RFRA. The House Judiciary Committee’s report on RFRA was not as categorical. After noting the importance of respecting the “expertise and authority” of military officials, the House report declared that, under RFRA, “[s]eemingly reasonable [military] regulations based upon speculation, exaggerated fears . . . [or] thoughtless policies cannot stand.” Significantly, the Senate Judiciary Committee’s report on RFRA adopted a similar stance with respect to regulations based on “speculation, exaggerated fears, or post-hoc rationalizations,” but only with respect to prison regulations. The notion that military regulations must be justified on the basis of something other than speculation, exaggerated fears, or thoughtless policies is not significant because, the Senate Judiciary Committee applied this justificatory standard only to prison regulations–it declined or neglected to apply the standard to military regulations. The consequent failure of the Senate and House reports to comport with each other with respect to the standard detracts from its significance.
Notwithstanding this divergence, both reports expressed an expectation that courts applying RFRA will construe the compelling interest test neither “more stringently [n]or more leniently than it was prior to Smith.” The next section of this essay examines two pre-Smith cases that applied the compelling interest test to military appearance regulations.
B. Two Pre-Smith Applications of the Compelling Interest Test to Military Appearance Regulations
In Bitterman v. Secretary of Defense, the U.S. District Court for the District of Columbia addressed the constitutionality of Air Force regulations that prohibited an active duty air traffic controller from wearing a yarmulke in uniform. Sergeant Murray Bitterman–the complainant–filed suit after being denied permission to wear a yarmulke. Although the Air Force conceded that a yarmulke would not interfere with Bitterman’s air traffic control duties, and notwithstanding the testimony of a former Air Force physician, who wore a yarmulke during active duty, the District Court upheld the Air Force regulations after applying a compelling interest test. According to the District Court, the Air Force asserted two compelling interests: (1) a compelling interest in “the effective functioning and maintenance of the Air Force,” and (2) a compelling interest in preserving “motivation, image, morale, discipline and esprit de corps,” which are “essential to the efficient functioning and operation of the Air Force.” According to the District Court, permitting departures from Air Force appearance regulations would “adversely affect the promotion of teamwork, counteract pride and motivation, and undermine discipline and morale, all to the detriment of the substantial compelling governmental interest of maintaining an efficient Air Force.”
The District Court also concluded that the appearance regulations at issue were the least intrusive means of furthering the Air Force’s asserted interests. This conclusion was motivated in part by the District Court’s assumption of the following analytic stance: in determining the intrusiveness of the challenged regulation, “[i]ts effect upon the religious practices of all Air Force personnel must be considered, not just its effect upon the wearing of a yarmulke” by a single individual. After assuming this analytic stance, the District Court posed an extreme hypothetical, in which the Air Force promotes uniformity by requiring all personnel to adhere to the same religion or to no religion. Because the actual regulations at issue sought to promote uniformity while permitting personnel to adhere to at least some form of religion, they were less restrictive than they hypothetically could have been. The District Court went further than this, however, by concluding on the basis of its hypothetical that the actual regulations were the least restrictive means of promoting uniformity and, derivatively, operational effectiveness in the Air Force.
The District Court went even further in the course of upholding the contested regulations. Drawing on an interpretation of Jewish religious law, the District Court opined that Bitterman’s desire to wear a yarmulke was a “religious preference” instead of a religious requirement. This, according to the District Court, supported the notion that the contested regulations constituted the least restrictive means of promoting uniformity and operational effectiveness in the Air Force.
In Sherwood v. Brown, the U.S. Court of Appeals for the Ninth Circuit addressed the constitutionality of Navy regulations that prohibited an enlistee from remaining in uniform after his adoption of Sikhism. Ronald Sherwood–the complainant–filed suit after being court-martialed and discharged from the Navy for refusing to remove his turban and wear a helmet in compliance with Navy appearance regulations. In a short opinion, the court upheld the Navy regulations by affirming the lower court’s application of a compelling interest test. Both courts concluded that the Navy’s interest in safety was a compelling interest. Addressing the observant Sikh practice of wearing a turban, and drawing on an affidavit by a senior naval officer, both courts concluded that the “[a]bsence of a helmet poses serious safety problems both for the unprotected sailor and for the crew that depends on him” and that “[a] turban does not meet [the] safety requirement necessitated by both the ordinary and extraordinary activities of the modern, mechanized Navy.” Both courts also concluded that “because all naval personnel are subject to military duties which implicate the safety rationale, no less restrictive alternative [to naval appearance regulations] exists.”
C. The Significance of Bitterman and Sherwood in the Context of RFRA’s Legislative History
RFRA’s legislative history uniformly contemplated that RFRA would reinstate the compelling interest test, as applied prior to Smith, in free exercise cases. RFRA’s legislative history also contemplated deference to military judgment in RFRA challenges to military regulations. Bitterman and Sherwood were pre-Smith applications of the compelling interest test, and both courts upheld military appearance regulations against constitutional challenge. The court in Bitterman expressly stated that its application of the compelling interest test was “tempered by the substantial deference to be accorded military judgments as to the appropriate ways in which to further a compelling interest.” All of this, without more, might support a conclusion that RFRA does not compel the accommodation of observant Sikh lawyers in the U.S. Army JAG Corps. The balance of this essay argues against the necessity of such a conclusion by applying RFRA to appearance regulations that presumptively prohibit observant Sikh lawyers from joining the U.S. Army JAG Corps.
The Applicability Of The Religious Freedom Restoration Act To Appearance Regulation That Presumptively Prohibit Observant Sikh Lawyers From Joining The U.S. Army Judge Advocate General Corps
The Religious Freedom Restoration Act of 1993 reads in pertinent part as follows: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability . . . .” Notwithstanding this, “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person–(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The following discussion is organized around RFRA’s statutory language.
A. Do Army Appearance Regulations Substantially Burden an Observant Sikh’s Exercise of Religion?
Under RFRA, as under the First Amendment, “[r]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit . . . protection.” RFRA protects the “sincere exercise of religion.” An observant Sikh who initiates a RFRA challenge of Army appearance regulations would accordingly have to demonstrate that his practice of Sikhism is sincere. As mentioned earlier in this essay, observant Sikhs wear turbans and refrain from cutting their hair in accordance with their religion.
Federal courts have offered multiple expressions of the requirement that contested regulations “substantially burden” a person’s exercise of religion; even still, several recurring principles emerge from these expressions. As a threshold matter, “plaintiffs have the initial burden under RFRA to demonstrate that the policy in question substantially burdens the free exercise of their religion.” This initial evidentiary burden is a prerequisite to the government’s demonstration that its contested regulations further a compelling governmental interest by the least restrictive means. A “substantial burden” under RFRA “must be more than an inconvenience.” A RFRA plaintiff must show that a government regulation “pressur[es] him or her to commit an act forbidden by the religion or . . . [prevents] him or her from engaging in conduct or having a religious experience which the faith mandates.” Although at least one court interpreted the substantial burden test as applying only to religious practices that are mandated rather than to those which are merely encouraged, at least one other court has concluded that “a restriction on practices subjectively important to plaintiff’s sincerely held religious understanding is a substantial burden within the meaning of RFRA.”
Two aspects of the Army’s appearance regulations fail to comport with Sikh religious requirements: (1) rules regarding headgear, and (2) rules regarding hair. In pertinent part, the regulations permit religious headdress to be worn if it is “of a style and size which can be completely covered by standard military headgear” but categorically forbid personnel from wearing religious headgear in “circumstances when the wear of military headgear is required (for example, when the soldier is outside or required to wear headgear indoors for a special purpose).” Religious headdress cannot be worn at all if it “interfere[s] with the wear or proper functioning of protective clothing or equipment.” Although it is possible that an observant Sikh would consent to wearing a small head-covering underneath a protective helmet as required by operational necessity, it is equally possible that an observant Sikh would categorically object to wearing a helmet if this required him to remove any form of traditional headgear; this is so because observant Sikhs regard their turbans as being inseparable parts of their religious identity. With respect to such a Sikh–faced with a choice between removing his turban and being precluded from the U.S. Army JAG Corps–some courts might find a substantial burden on religious exercise in virtue of his subjective but sincere belief that a turban is an inseparable part of his religious identity. Even if a court requires that such an individual demonstrate that turbans are mandated rather than encouraged in Sikhism, there is ecclesiastical support for the proposition that turbans are required for Sikh males. This would likely lead a court to conclude that an observant Sikh’s exercise of religion is substantially burdened by a rule that requires him to remove his turban and replace it with a helmet.
Observant Sikhs do not cut their hair. Emphasizing cleanliness, observant Sikhs keep their uncut hair combed and tied in a knot underneath their turbans. Although many observant Sikhs maintain flowing beards, others keep their uncut beards secured with hair gel, an elastic band, or a combination of both. As with turbans, although an individual Sikh may have subjective religious reasons for wanting to preserve his hair in the face of opposition from military authorities, there is ecclesiastical support for the proposition that hair-cutting is prohibited in Sikhism. Several courts have, in the context of particular cases, concluded that forcing individuals to cut their hair in violation of religious requirements constitutes a substantial burden on the exercise of religion. For the foregoing reasons, it is likely that a court would conclude that giving a Sikh a choice between preserving his hair and being able to join the U.S. Army JAG Corps constitutes a substantial burden on his exercise of religion.
B. Do Army Appearance Regulations Further Compelling Governmental Interests by the Least Restrictive Means?
The foregoing section of this essay argued that, with respect to an observant Sikh aspirant to military service in the U.S. Army JAG Corps, certain preclusive provisions of the Army’s appearance regulations constitute a substantial burden on said individual’s exercise of religion. Under RFRA, the Army can justify such a burden only by demonstrating that its appearance regulations (1) further a compelling governmental interest, and (2) are the least restrictive means of furthering that interest. As suggested by the Supreme Court in Gonzales, the plain language of RFRA indicates that passing the compelling interest test is a prerequisite to reaching the least restrictive means test. The Army’s appearance regulations are designed to promote two governmental interests: uniformity and safety among Army personnel. The following subsections treat each interest in turn.
1. Does the Army Have a Compelling Interest in Uniformity?
As noted earlier, RFRA’s legislative history uniformly contemplated that the compelling interest test would be applied neither “more stringently [n]or more leniently than it was prior to Smith.” Before Smith, the U.S. District Court for the District of Columbia in Bitterman applied a compelling interest test to appearance regulations that precluded an observant Jewish member of the Air Force from wearing a yarmulke. In the course of upholding the contested regulations, the District Court presaged RFRA’s legislative history by observing that its own application of the compelling interest test was “tempered by the substantial deference to be accorded military judgments as to the appropriate ways in which to further a compelling interest.” According to the District Court, creating exceptions to uniformity in the Air Force would adversely impact the efficiency of the Air Force, a compelling interest which depends on the preservation of other similarly compelling interests, such as discipline and esprit de corps. This reasoning tracked that of the Joint Service Study Group on Religious Practice, which ultimately counseled against visible departures from uniformity in the military. Without more, one might conclude that the Army could overcome a RFRA challenge to its appearance regulations by heeding the instruction of RFRA’s legislative history and adopting the reasoning of Bitterman; however, as argued below, there is reason to doubt the Army’s claim that its interest in uniformity is compelling under RFRA.
In the face of a RFRA challenge to Army appearance regulations, the Army must begin by asserting not merely an interest but a compelling interest in preserving uniformity within its ranks. In other words, the Army must assert a compelling interest in the uniform application of its appearance standards–in disallowing appearance exceptions to appearance regulations within its ranks. Although the U.S. Supreme Court has acknowledged “that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA,” the Army must affirmatively “demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.” As discussed above, the Joint Study Group concluded on the basis of extensive research that uniformity has a psychological and behavioral impact on operational effectiveness within the military. This research formed the basis for the Joint Study Group’s ultimate conclusion that “it would be unwise to permit visible exceptions to uniform dress and appearance standards.” By implication, this research forms the basis for an argument against the accommodation of observant Sikhs in the Army JAG Corps. Without more, and to the extent that the Army adopts the reasoning of the Joint Study Group, it is conceivable that the Army would carry its burden of demonstrating a compelling interest in preserving uniformity in the face of a challenge by an observant Sikh aspirant to JAG Corps service. Notwithstanding this, Gonzales offers a roadmap for demonstrating that the Army’s asserted interest in preserving uniformity is not compelling.
In Gonzales, the U.S. Supreme Court applied RFRA to the federal government’s application of the Controlled Substances Act to a religious sect whose beliefs require the consumption of a regulated hallucinogen. The government asserted “a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen [could] be made to accommodate the sect’s sincere religious practice.” In response, the Court noted that the government itself had previously recognized an exception to the Controlled Substances Act for religion-based peyote use among Native Americans. The peyote exception, according to the Court, “fatally undermine[d] the government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.” Furthermore, according to the Court, “the [g]overnment’s argument for uniformity . . . rest[ed] not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law.” On these grounds, the Court ultimately concluded that the government failed to demonstrate a compelling interest in barring the sect’s religious use of the hallucinogen at issue.
With respect to the issue of uniformity, what Gonzales teaches is that an asserted interest in uniformity is not compelling to the extent that exceptions are made to the asserted interest. In other words, if the Army asserts a compelling interest in preserving uniformity through uniform application of its appearance standards, its assertion is undercut to the extent it can be shown that exceptions are being made to the uniform application of its appearance standards. There are, in fact, several such exceptions. Most pertinently, the U.S. Army has accommodated observant Sikhs, even after the implementation of preclusive appearance regulations. This directly undermines the Army’s argument that it has a compelling interest in disallowing exceptions to its appearance standards. Military authorities have suggested that uniformity has a psychological and behavioral impact on operational effectiveness within the military. If the presence of observant Sikhs in the Army has not already undermined its operational effectiveness, it is not obvious why admitting additional Sikhs would do so in the future; an argument to the contrary would be in the nature of a slippery-slope, which was rejected by the U.S. Supreme Court in Gonzales as a legitimate foundation for demonstrating a compelling governmental interest. The Army’s dress regulations aim to “maintain uniformity” within the Army and ensure that personnel “avoid an extreme or unmilitary appearance.” The presence of observant Sikhs in the Army suggests that they have successfully avoided “an extreme or unmilitary appearance,” and it is not clear why additional Sikh could not do the same.
Apart from the presence of at least some observant Sikhs in the U.S. Army, the Army’s own appearance standards admit of additional exceptions with respect to facial hair, which is an integral part of an observant Sikh’s religious identity. Although Army regulations require males to “keep their face[s] clean-shaven when in uniform or in civilian clothes on duty,” an exception is provided when “appropriate medical authority prescribes beard growth.” As well, males are allowed to keep mustaches. If non-Sikh Army personnel can maintain facial hair without undermining uniformity to the detriment of operational effectiveness, it is not clear why Sikh personnel would do so by maintaining facial hair in accordance with their religious beliefs.
For the foregoing reasons, the Army does not have a compelling interest in preserving uniformity by excluding observant Sikhs from its ranks. If, as this essay suggests, the Army cannot demonstrate that its appearance regulations further a compelling governmental interest in preserving uniformity, it is neither necessary nor even possible to determine whether those regulations satisfy RFRA’s least restrictive means test. According to RFRA, “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person–(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The plain language of RFRA implies that passing the compelling interest test is a prerequisite to reaching the least restrictive means test, and it is demonstrably the case that the Army has not asserted a compelling interest in disallowing appearance exceptions to its appearance regulations.
2. Does the Army Have a Compelling Interest in Safety?
As noted earlier, RFRA’s legislative history uniformly contemplated that the compelling interest test would be applied neither “more stringently [n]or more leniently than it was prior to Smith.” Before Smith, the U.S. Court of Appeals for the Ninth Circuit in Sherwood applied the compelling interest test to Navy appearance regulations that formed the basis for the discharge of an observant Sikh who refused to wear a safety helmet in compliance with said regulations. The court in Sherwood noted that safety helmets are designed to protect sailors from violent impacts and that turbans do not afford such protection. On this ground, the court in Sherwood concluded that the Navy’s interest in promoting safety within its ranks was compelling. This essay does not argue against this conclusion. Neither does this essay argue against the importance of requiring the use of other protective equipment, particularly gas masks. As noted by the Joint Service Study Group on Religious Practice, safety standards not only “directly affect the individual’s health and well-being,” but also “affect the ability of the individual to perform a task. This, in turn, influences the accomplishment of the unit’s mission in both peace and war.” What this essay argues against, however, is the proposition that the Army’s appearance regulations constitute the least restrictive means of promoting the Army’s concededly compelling interest in promoting safety.
3. Do Army Appearance Regulations Constitute the Least Restrictive Means of Promoting Safety?
One court explained the least restrictive means inquiry as follows: “[i]f the compelling state [interest] can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest.” The court in Sherwood concluded that the helmet requirement at issue in that case was the least restrictive means of promoting safety among Navy personnel because allowing an observant Sikh to wear a turban in place of a protective helmet “poses serious safety problems both for the unprotected sailor and for the crew that depends on him.” In other words, in the view of the court in Sherwood, it would have been impossible for the Navy to assure the safety of an observant Sikh sailor–or even the safety of his colleagues–if he were allowed to wear a turban in place of a protective helmet while on duty. This essay agrees that the Army has a compelling interest in promoting safety among its personnel, including JAG Corps officers, who have been deployed in such dangerous settings as Vietnam and Iraq. This essay also agrees with the result in Sherwood; however, as explained below, the result in Sherwood need not be replicated in every case in which an observant Sikh insists on wearing a turban in uniform. The complainant in Sherwood refused to wear any helmet, but it is conceivable that observant Sikhs will wear helmets as safety requires, as long as they can also wear some form of turban.
As indicated earlier, at least some observant Sikh officers have served in the U.S. Army after the implementation of preclusive appearance regulations. Their presence in the Army is evidence that religious requirements are compatible with safety requirements. By law, members of the U.S. military are allowed to wear religious apparel if wearing it does not “interfere with the performance of the member’s military duties. . . .” For example, according to the Department of Defense, “[a] yarmulke may be worn with the uniform whenever a military cap, hat, or other headgear is not prescribed.” Even when other headgear is prescribed, “[a] yarmulke may also be worn underneath military headgear as long as it does not interfere with the proper wearing . . . [or] functioning . . . of the prescribed headgear.” As mentioned earlier, observant Sikhs keep their uncut hair combed and tied underneath a turban, which can range in style, size, and fit. In situations where safety helmets are required, it is possible for an observant Sikh to wear a helmet over a smaller and tighter headdress; this practice can be observed among Sikh athletes and would be analogous to that of an observant Jew who wears a yarmulke underneath a helmet. If turbans can be worn underneath helmets without subjecting their wearers to more danger than normal, then the Army cannot justifiably argue that disallowing any form of turban constitutes the least restrictive means of promoting its interest in safety.
Although the Department of Defense allows military members to wear religious apparel in certain circumstances, it officially excludes hair from its definition of “religious apparel.” This exclusion may have been motivated by concerns about the ability of bearded individuals to properly wear protective gas masks. According to the Joint Service Study Group on Religious Practice, it is not possible for a bearded individual to properly wear a gas mask. Accordingly, even if an observant Sikh demonstrates that he can properly wear a safety helmet over a turban, it is not obvious that he can properly wear a gas mask over his uncut beard. In order to succeed under RFRA, the U.S. Army would have to demonstrate that an observant Sikh cannot wear a gas mask without imperiling himself or those around him; if such a demonstration fails, this failure could prove that the Army can promote safety without impairing the exercise of Sikhism.
As indicated earlier, many observant Sikhs secure their uncut beards with hair gel, elastic cords, or a combination of both; the effect is to fix a beard closely to the contours of the face. It is accordingly possible that an observant Sikh could modify his beard in such a way as to enable the formation of a protective seal for the purpose of properly wearing a gas mask. Additionally, as mentioned earlier, the Army allows personnel to maintain beards when “appropriate medical authority prescribes beard growth.” If Army personnel are permitted to maintain beards for medical reasons, and if such personnel can properly wear gas masks, then it might be possible for observant Sikhs to do so. That there already are observant Sikhs in the U.S. Army might constitute additional evidence that Sikh religious requirements are compatible with safety requirements. Significantly, however, these Sikhs are “not [to] be assigned permanent change of station or temporary duty out of . . . [the continental United States] due to health and safety considerations.” This assignment restriction may have been motivated by concerns about exposing observant Sikhs to environments in which the use of gas masks would be more than a remote possibility. Because JAG Corps officers are deployed around the world, observant Sikh members of the JAG Corps could find themselves in environments of the sort that military officials determined would be unsafe for observant Sikhs. This determination argues against the accommodation of observant Sikhs in the U.S. Army JAG Corps; however, as explained below, the foregoing argument need not be regarded as fatal to a case for accommodation.
The United Kingdom’s Ministry of Defense has adopted a more inclusive approach to religious accommodation than the United States, and this approach provides useful guidance in regard to facial hair and gas masks. This approach also poses potential obstacles to observant Sikh aspirants to military service in the United States. According to the Ministry of Defense’s Guide on Religion and Belief in the MOD and Armed Forces, Sikhs in the United Kingdom are permitted to serve in their nation’s armed forces and are permitted to maintain uncut hair. Notwithstanding this, Sikhs must maintain “short neatly trimmed beards” that must be modified or removed “to such an extent as to enable the correct wearing of a respirator or breathing apparatus.” According to the Ministry of Defense, “[a]n effective seal on a respirator can only be achieved when the skin is clean shaven. In an operational environment (including training in preparation for operational deployment) where there is a [nuclear, biological, or chemical] threat Muslims, Sikhs and indeed all personnel with beards, would need to shave.”
The Guide requires Sikhs to trim their beards and also asserts that an effective respiratory seal can only be achieved on clean-shaven skin; however, the requirement appears to be motivated by the assertion. The Guide might plausibly be read to suggest that an effective respiratory seal can only be achieved when facial hair does not “come[ ] between the sealing surface of the facepiece and the face. . . .” If an observant Sikh can modify his beard–and do so without trimming it–to such an extent as to prevent facial hair from interrupting the formation of a respiratory seal, then the Guide itself might have gone too far in prescribing that observant Sikhs trim their beards. In other words, Sikh aspirants to military service should not be presumed to be incapable of safely wearing gas masks without being given an opportunity to demonstrate such capability.
If the Guide does not go too far–if it is plainly impossible for a bearded individual to properly wear a gas mask without shaving his beard to some extent–then, at best, the Guide embodies an approach to safety that enables observant Sikhs to undertake military service without sacrificing all of their visible religious commitments, as they presumptively must in order to join the U.S. Army JAG Corps. If the U.S. Army adopted the British approach to religious accommodation, then observant Sikh personnel would likely be able to wear turbans, maintain uncut hair, and maintain at least some facial hair. Whether this concession would be acceptable to an observant Sikh is a matter for his own conscience; however, to the extent that the British approach enables a Sikh to observe his religious traditions and safely wear a gas mask, it appears to demonstrate that existing Army regulations regarding facial hair and gas masks are not the least restrictive means of promoting safety among Army personnel.
Observant Sikh lawyers do not presumptively enjoy the right to join the U.S. Army Judge Advocate General (JAG) Corps because Sikh religious requirements do not comport with the Army’s appearance regulations. This essay argued that the Army’s appearance regulations violate the Religious Freedom Restoration Act (RFRA). Under RFRA, government may substantially burden an individual’s exercise of religion only if it demonstrates that its application of the burden furthers a compelling governmental interest by the least restrictive means. The Army’s appearance regulations aim to promote two interests–uniformity and safety. In the course of furthering those interests, the Army’s appearance regulations also prevent observant Sikhs from joining the U.S. Army JAG Corps. Observant Sikh males wear turbans and refrain from cutting their hair. Both requirements purportedly interfere with the Army’s interests in uniformity and safety. This essay argued to the contrary by demonstrating (1) that, under RFRA, the Army does not have a compelling interest in disallowing appearance exceptions to its appearance regulations, and (2) that, under RFRA, the Army’s appearance regulations do not constitute the least restrictive means of promoting safety. With respect to uniformity, the presence of observant Sikhs in the Army and the Army’s own flexible approach to its appearance regulations undercut the notion that the Army has a compelling interest in disallowing exceptions to its appearance regulations. With respect to safety, observant Sikhs should be permitted to demonstrate that they can safely wear smaller turbans underneath their helmets when helmets must be worn and should be permitted to demonstrate that they can safely wear gas masks when gas masks must be worn. Because the Army’s appearance regulations violate RFRA, they must be amended to allow for the accommodation of observant Sikhs in the U.S. Army JAG Corps.
a belief in a personal God, the omnipotent Creator of the universe, a Being beyond time and human comprehending yet seeking by His grace the salvation of man and for this purpose revealing Himself in His own creation. To the offer of salvation man is called to respond by a life of meditation on the divine self-revelation and of conformity to it. If man responds he progressively grows into the likeness of God and ultimately into an ineffable union with [Him]. If he refuses he follows the path of spiritual death and remains firmly bound to the wheel of transmigration.
Id. at 5-6.
The Khalsa is best described as an order, as a society possessing a religious foundation and a military discipline. The religious base was already in existence and a military tradition had been developed, but something much stronger was required. The military aspect had to be fused with the religious, and this Guru Gobind Singh achieved by promulgating the Order of the Khalsa….
W.H. McLeod, The Evolution of the Sikh Community, in Sikhs and Sikhism, supra note 5, at 1, 4.
With his people being persecuted by Mogul warlords, [Guru] Gobind [Singh] formed a fierce fraternity of “warriors of God” known as the Khalsa (Pure). As the Sikhs cleaved to [Guru] Gobind [Singh’s] martial principles, the tales of their valor and ferocity became legion. They routed the Afghans at the Battle of Attock in 1813, and in 1849 they delivered a stinging defeat to the British at the Battle of Chillianwala. After they were forced to succumb to superior British firepower six weeks later, the Sikhs became among the sturdiest and trustiest men of the British army: during the great Indian Mutiny of 1857, the raj was kept alive by their support. After the British slaughtered nearly 400 civilians, many of them Sikhs, at Amritsar in 1919, the warriors changed allegiances and joined the crusade to bring down the raj. Sikh soldiers and policemen have, to this day, loyally protected their Hindu compatriots all over India.
Pico Iyer, The Lions of Punjab, Time, Nov. 12 1984, at 53.
While uniformity will not, in itself, establish cohesion and military spirit in the absence of other factors, both sociological studies and historical experience clearly indicate it does play a very important role in creating and maintaining the spirit of a military force. The potential negative impacts on identification and discipline, on cohesion and esprit de corps, and on the public image of the military services would outweigh the possible benefits to the individuals involved or to the service of permitting visible religious expression within the military context.
[A]doption of assignment restrictions…would, in essence, create two classes within the military: the majority, subject to all the demands the military makes on its members (including worldwide assignment and the possibility of serving in a combat environment), and a visible minority, exempt from certain of the more onerous demands of the institution but eligible for all of its benefits. The impact of such an arrangement on the attitude of both groups can only be speculated, but it seems likely the overall effect would harm military esprit de corps.
Id. at 16-17. In practice, observant Sikhs in the U.S. Army are subject to assignment restrictions. Army Reg. 600-20, supra note 23, at 34 (“[S]oldiers previously granted authority to wear unshorn hair, unshorn beard, or permanent religious jewelry will not be assigned permanent change of station or temporary duty out of [the Continental United States] due to health and safety considerations.”).
In adopting the religious apparel accommodation legislation, Congress indicated that it is more disposed to protect servicemembers’ religious apparel interests than is the Department of Defense. Yet both the legislative process and the statute which it produced demonstrate congressional caution when dealing with the military’s internal regulations. Congress took three years to adopt the accommodation statute. Before legislating its own solution, Congress called for the Department of Defense to study the issue, a clear but almost unheeded signal for the Department of Defense to adopt religious apparel accommodation regulations. When Congress did finally act, it chose not to legislate specific regulations. Instead, Congress relied on the Department of Defense to carry out a loosely defined policy of accommodation. Congress has thus shown itself to be sensitive to both servicemembers’ liberty interests and the military’s needs.
Sullivan, supra note 29, at 147.
[M]ilitary commanders should consider the following factors along with any other factors deemed appropriate in determining whether to grant a request for accommodation of religious practices…
 The importance of military requirements in terms of individual and unit readiness, health and safety, discipline, morale, and cohesion.
 The religious importance of the accommodation to the requester.
 The cumulative impact of repeated accommodations of a similar nature.
 Alternative means available to meet the requested accommodation.
 Previous treatment of the same or similar requests, including treatment of similar requests made for other than religious reasons.
Id. at 4.
(d) HAIR, BEARDS, AND TURBANS OF SIKHS- The Secretary concerned may not regulate the length of hair, or the appearance of facial hair, of a member of the armed forces who is a Sikh if that regulation would abridge the exercise of the religious faith of that member under the tenets of the Sikh religion. The Secretary concerned may not determine under subsection (b)(2) that a turban worn as an item of religious apparel by a member who is a Sikh is not neat and conservative.
[I]n order to withstand judicial review, the regulation in question, although presumptively valid, must protect a substantial governmental interest overshadowing the First Amendment right that is being circumscribed. Further, the regulation must regulate no more conduct than is reasonably necessary to protect the substantial governmental interest asserted; yet this strict standard of review is to be tempered by the substantial deference to be accorded military judgments as to the appropriate ways in which to further a compelling interest….
Id. at 723-24. In its opinion, the District Court inconsistently characterized the governmental interest at issue as “a substantial governmental interest,” a “substantial compelling governmental interest,” a “compelling governmental interest,” id. at 724, and “an important governmental interest.” Id. at 726.