Opening up ROTC to Sikhs

Sikhs have a long and proud tradition of serving in the British Army: 65,000 fought in World War I and 300,000 fought in World War II. As part of their faith Sikhs believe they must grow a beard, have long hair and cover the latter with a turban. Does Britain prevent its Sikh soldiers from following their faith while in uniform? No. Then why did the United States Army refuse to allow Iknoor Singh, an observant Sikh, to enroll in its ROTC program at Hofstra unless he cut off his beard, trimmed his head hair and ceased wearing his turban? Allegedly, the need for uniformity in the Army, the better to build unit cohesion and promote morale, good order and discipline. Fortunately, last month a federal district court ruled the Army violated the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., and directed it to accept Singh into the program, Singh v. McHugh, No. 1:14-cv-01906 (D.D.C. June 6, 2015). You should recognize the RFRA. It was center stage in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014). In fact, the district court cited the Supreme Court decision several times. You would think the Army would embrace Singh. He is a good student and speaks Urdu, Hindi and Punjabi, in addition to English. He wants to serve in military intelligence. The Army does require its soldiers, and by extension those enrolling in ROTC, to be "clean-shaven," excepting for a neat mustache. Hair "must present a tapered appearance" and not touch the collar. While in uniform a soldier must wear the headgear the Army issues. Singh requested a religious accommodation to these rules, which would permit him to enroll in ROTC and participate in its activities, keeping intact his articles of faith. The request went to a lieutenant general. He denied it for the reasons cited above and "health and safety." Tracking compliance with grooming standards is "one of the most important mechanisms" for "assess(ing) a soldier's competence and attention to detail," he wrote. Under the RFRA, a federal government action that "substantially burden(s) a person's exercise of religion" fails unless the government can demonstrate the action furthers "a compelling governmental interest" and "is the least restrictive means of furthering" that interest, 42 U.S.C. § 2000bb-1(b). This test is the familiar strict scrutiny. The focus is on the individual. "Broadly formulated interests" are insufficient. The government must explain the harm in granting a specific exemption to a particular religious claimant. The Army conceded its denial of an accommodation substantially burdened Singh's exercise of religion. He had to choose between enrolling in ROTC, a government benefit, and following his religion. Instead, the Army reminded the court that in military matters the judiciary traditionally defers to the military. The court responded it would give deference to the Army's designation of the governmental interests. However, the RFRA still requires it to perform the strict scrutiny analysis. The statute explicitly tips the scale in favor of protecting religious exercise, the identity of the government actor notwithstanding. The court acknowledged maintaining military readiness, unit cohesion and discipline within the officer corps were compelling governmental interests. But, requiring Singh to adhere to the Army's standards on grooming and headgear did not further these interests, it held. The Army makes many exceptions to the standards, such as beards for medical reasons - 100,000 granted since 2007 - and tattoos. Its toleration of these "idiosyncratic deviations" undermined the lieutenant general's assertion "the even-handed enforcement of grooming standards" is critical "to instill the self-discipline necessary for military effectiveness." As for Singh's possible lack of self-discipline and attention to detail, the court pointed out he sought an accommodation because he faithfully adhered to the strict dictates of his religion. The Army did not consider the source of his request, and therefore its decision lacked the individual assessment the RFRA requires. Further undermining the Army's case was the fact four Sikh men had served with tremendous success. The Army granted the four the same accommodation denied to Singh. Finally, a less-restrictive alternative existed. The Army could grant Singh a temporary accommodation while in school. He would enroll in ROTC and the Army would have the opportunity to observe him and determine whether his articles of faith actually interfered with his performance. The Army had granted a Sikh corporal such a temporary accommodation to attend occupational school. A temporary accommodation is not a guarantee of a commission and can be revoked if circumstances change. Singh was willing to accept a temporary accommodation. We need good officers and good intelligence analysts. We should not be turning away very capable candidates because of their faith. Hopefully our Army has learned a lesson and will do as the British Army has done for decades grant Sikhs a religious accommodation. ----- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Jul 10, 2015