The Volokh Conspiracy
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From Singh v. Berger, decided today by the D.C. Circuit, in an opinion by Judge Patricia Millett, joined by Judges Neomi Rao and Michelle Childs:
Jaskirat Singh, Milaap Singh Chahal, and Aekash Singh wish to serve their Nation by enlisting in the United States Marine Corps. They are each fully qualified to enlist, having satisfied the Corps' pre-enlistment criteria. There is just one barrier to their entry. Jaskirat, Milaap, and Aekash are members of the Sikh faith, which requires them, as relevant here, to maintain unshorn hair and beards and to wear certain articles of faith. Those religious practices conflict with the Marine Corps' standard grooming policy for the initial training of newly enlisted recruits, commonly known as boot camp. The Corps has agreed to accommodate Plaintiffs' religious commitments (with some limitations not relevant here) after each of them finishes basic training. But it will brook no exception for the Sikh faith during those initial thirteen weeks of boot camp….
[I]n exercising their "plenary constitutional authority over the military," the Political Branches have repeatedly required the military to carefully balance its need for disciplined uniformity with the religious needs of service members.
For example, Congress responded promptly and directly to the Supreme Court's decision in Goldman v. Weinberger (1986), which rejected a service member's First Amendment claim to wear a yarmulke while in uniform. A statute passed the following year instructed the military not to ban religious apparel in uniform unless it would "interfere with the performance of the member's military duties" or disrupt a "neat and conservative" appearance.
Then, in 1993, Congress enacted the Religious Freedom Restoration Act ("RFRA"). RFRA prohibits the federal government from "substantially burden[ing] a person's exercise of religion" unless the Government "demonstrates that application of the burden to the person" is the "least restrictive means" of furthering a "compelling" interest. As the Government has recognized, RFRA, with its demanding compelling-interest and least-restrictive-means test, "undoubtedly 'applies in the military context.'"
As the Supreme Court has explained, "Congress's express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage." As under the First Amendment, RFRA's "compelling interest test" is an "affirmative defense" for which the Government bears the burden of persuasion, and it subjects governmental action to strict scrutiny. Strict scrutiny is an "exceptionally demanding" test. If the Government can achieve its interests without burdening religion, "it must do so." By subjecting military decisions to RFRA scrutiny, the Political Branches determined, in their expert judgment, that Americans need not surrender their faith to fight for their Nation absent demonstrated necessity.
Since RFRA, Congress and multiple Presidents have doubled down on their commitment to accommodating religion within military life. In the National Defense Authorization Act for Fiscal Year 2013, Congress specifically instructed the military to accommodate the "conscience, moral principles, or religious beliefs" of service members and forbade any disciplinary action based on such beliefs to the extent "practicable." Congress expanded that protection the following year by narrowing the grounds on which the military could justify disciplinary action and by requiring an Inspector General report on freedom of religion and conscience in the military.
Most recently, in 2015, the Political Branches expressly acknowledged the "numerous religious traditions" represented among service members, including "Christian, Hindu, Jewish, Muslim, [and] Sikh," and determined that this diversity "contributes to the strength" of the armed forces and should be "promote[d]."
Citing RFRA, and in line with those directives, the Army, Navy, Air Force, and Coast Guard, as well as their training Academies, each accommodate the Sikh religious practices at issue here during both initial recruit training and military service.
The Marine Corps, though, has refused in this case to make a religious exception to its uniform and grooming requirements for Plaintiffs during boot camp. The Corps' Uniform Regulations require men ordinarily to keep "clean-shaven" faces and prohibit wearing religious articles absent authorization. Also, during boot camp, a male recruit must weekly "have his entire hair length clipped to the scalp[.]" …
As relevant here, Sikhism forbids its adherents to cut the hair on their head or to shave the hair on their face (kesh) and requires men to wear a turban or a patka (a smaller covering) over their heads. Adherents also must wear a specific metal bracelet (kara). Additionally, those who have gone through an initiation ceremony must carry a small ceremonial dagger under their clothes (kirpan), wear specific undershorts (kacchera), and insert a small ceremonial comb in their hair (kanga). All three plaintiffs may not shave their hair and must wear a patka or turban over their heads and a bracelet. Milaap Chahal, having gone through the initiation ceremony, also must wear the dagger, undershorts, and comb….
Between March and November of 2021, Jaskirat Singh, Milaap Chahal, and Aekash Singh sought to enlist in the Marine Corps. They each passed the Armed Services Vocational Battery test, and were otherwise "found to be mentally, morally, and physically qualified for accession in to the Marine Corps." Each then submitted a pre-accession request for a waiver of the requirement that they shave their heads and faces, and permission to cover their heads with a turban or patka and wear a bracelet. Milaap Chahal also asked to be allowed to carry the additional articles of faith under his uniform.
The Marine Corps granted each request in part on substantially identical terms. Citing its "compelling interest" in "instilling in each Marine an identity as part of a team" and in "break[ing] down recruits' individuality," the Corps withheld all accommodations during the thirteen-week basic training program. But the Corps committed to allowing Plaintiffs to wear unshorn hair, neatly tied beards, turbans or patkas, and a steel bracelet after basic training, except "when receiving hostile fire pay or imminent danger pay," or when a battalion or squadron commander determines that "operational necessity" requires a suspension. JChahal's request to wear religious undershorts, a comb, and a ceremonial dagger also was only granted for after basic training, and subject to similar conditions….
The court concluded that the government's rationale didn't pass strict scrutiny:
We note at the outset that the Marine Corps does not assert a compelling interest grounded in any safety concerns for Plaintiffs or their fellow recruits arising from the requested accommodations. Neither does it argue that the presence of unshorn hair or faith articles will interfere physically with the boot camp training regimen. Nor does it contend that unshorn hair, groomed in compliance with Marine Corps standards and covered with a turban or patka, is incompatible with being a Marine after boot camp. Quite the opposite: The Marine Corps stands ready to accommodate Plaintiffs' unshorn hair and religious articles after boot camp and throughout their careers, with limited exceptions not relevant here.
Instead, relying solely on a declaration from Colonel Adam Jeppe, a Marine Corps officer involved in denying Plaintiffs' accommodation requests, the Marine Corps argues that excepting the Plaintiffs from the repeated ritual of shaving their faces and heads alongside fellow recruits, and permitting them to wear a head covering, will impede its compelling interest in forging unit cohesion and a uniform mindset during boot camp. Colonel Jeppe explains that uniformity is crucial to the "psychological transformation" by which civilians acquire the "team mentality," "willingness to sacrifice," and "esprit de corps" that are "the hallmark of the Marine Corps." This transformation does not require that "every [M]arine look[ ] the same." Rather, it requires that recruits (1) follow "the same set of regimented practices," and (2) be "stripped of their individuality." Just as all recruits suspend "individual expression, freedom of movement, and freedom of dietary choices," so too, Colonel Jeppe reasons, must Plaintiffs shed religious practices that symbolize their individual beliefs.
We fully credit the vital importance of training Marines "ready to make the sacrifices necessary" to defend the Nation. And we tread with great care knowing that the "complex, subtle, and professional decisions as to the composition[ and] training" of "military force[s]" are matters of expert "military judgment[ ]" assigned to the Political Branches rather than to the judiciary. For that reason, we "indulge the widest latitude" in considering the Marine Corps' interest in fostering cohesion and unity among its members, which surely qualifies as compelling.
But even giving the widest berth to the Corps' compelling interest in enforcing its grooming and appearance policies generally, RFRA requires us to ask the more particularized question of whether the Corps "has such an interest in denying an exemption" to these specific plaintiffs. "Once properly narrowed," the Marine Corps' explanation founders. More specifically, Colonel Jeppe's claimed compelling need for inflexible grooming uniformity does not stand up against the "system of exceptions" to boot camp grooming rules that the Corps has already created and that seriously "undermine[ ]" the Corps' contention that it "can brook no departures" for Plaintiffs. [The court noted exemptions already given to recruits who suffer from pseudofolliculitis barbae, a condition that is common among black men, and that causes "painful pustules and lesions while shaving"; exemptions given to women recruits; and the lack of similar rules in the Naval Academy, relevant given that "the Marine Corps is part of the Navy." It added: -EV]
[T]he Marine Corps has [also] chosen to moderate its grooming requirements when doing so advances recruitment interests. Specifically, the Corps permits tattoos anywhere on a recruit's body except for their head, neck, or hands—and even that latter restriction is subject to exceptions.
Yet tattoos are a quintessential expression of individual identity. Still, the Corps permits them during boot camp not because tattoos comport with the Corps' interest in stripping recruits of individuality, but because "their prevalence in society creates a potential problem for recruitment," and they "cannot be readily removed[.]"
If the need to develop unit cohesion during recruit training can accommodate some external indicia of individuality, then whatever line is drawn cannot turn on whether those indicia are prevalent in society or instead reflect the faith practice of a minority.
Nor can the Marine Corps tenably rely on the difficulty of tattoo removal to justify the differential treatment. Sikhs have historically endured persecution, torture, and death rather than surrender their faith indicia. So the removal of a religiously commanded article of faith could be far more "difficult" for Plaintiffs than the temporary physical discomfort of a tattoo's excision.
In short, even fully crediting the Marine Corps' overarching compelling interests in developing unit cohesion, stripping individuality, and building a team-oriented state of mind, the Government has not come close to meeting its burden of showing "why it has a particular interest" in denying hair, beard, and religious article exceptions to these Plaintiffs "while making them available to others" in the same or analogous form. In other words, the Corps has not shown, in light of its preexisting exemptions to the grooming process—which go largely unexamined by Colonel Jeppe—that denying these accommodations would have any impact on its claimed interests….
Plaintiffs' prospects of success are even greater because the Marine Corps has failed to demonstrate that denying Plaintiffs the same accommodations during boot camp that they would be given during later service in the Corps is the "least restrictive means" of advancing its interest in developing unit cohesion and a team-oriented mindset. [Details omitted. -EV] …
To sum up, Plaintiffs have demonstrated not just a likely, but an overwhelming, prospect of success on the merits of their RFRA claim. At a general level, the Government has certainly articulated a compelling national security interest in training Marine Corps recruits to strip away their individuality and adopt a team-oriented mindset committed to the military mission and defense of the Nation. But RFRA requires more than pointing to interests at such a broad level. The Marine Corps has to show that its substantial burdening of these Plaintiffs' religion furthers that compelling interest by the least restrictive means.
That is where the Marine Corps has come up very short given (1) the series of exemptions for unshorn head and facial hair already allowed; (2) the absence of any particularized explanation as to why regulating Plaintiffs' maintenance and grooming of their beards and hair would interfere with the development of Marines' fitness in a way that other analogous exemptions have not; and (3) the failure of the Corps to even consider, let alone refute, that less restrictive alternatives would serve the Corps' recruit-training interests.
There may well be ways in which the recruit training needs of the Marine Corps differ from those of the other military branches, and there no doubt are aspects of the training regimen that cannot safely be compromised. But Plaintiffs have persuasively shown that, after almost two years of administrative and legal proceedings, the Marine Corps has not come forward with any justification for denying these requested accommodations during boot camp that could meet RFRA's stringent burden. While the Government remains free to offer further justifications before the district court, it has offered this court no reason to believe that any such representations will change the record in a relevant way….
One function of religious freedom rules is precisely to have the nation benefit—when it's possible to do without serious cost to compelling government interests—from having people of all religions fully participate in public life. That seems particularly apt with regard to the ability to serve in military, and in particular with regard to Sikhs, who are generally seen as having a formidable military tradition.
Congratulations to Eric Baxter (Becket Fund), and Amandeep S. Sidhu, Amrith Kaur Aakre, Giselle Klapper, Daniel H. Blomberg, Diana Verm Thomson, Daniel D. Benson, and Laura Wolk, who represent the plaintiffs.