Born-Again RFRA: Will the Military Backslide on its Religious Conversion?

AuthorBerry, Michael
PositionReligious Freedom Restoration Act of 1993

TABLE OF CONTENTS ABSTRACT 435 TABLE OF CONTENTS 436 I. INTRODUCTION: A TALE OF TWO SIKHS 437 II. RELIGIOUS LIBERTY: A FREEDOM WORTH FIGHTING FOR 439 A. Religion in the Colonial Militia and at the Founding 440 B. Religion and the Armed Forces in a Growing, Diverse Nation 442 III. IN THE BEGINNING: PRE-RFRA FREE-EXERCISE CASES 446 A. Pre-RFRA Supreme Court Precedent in Civilian Cases 446 B. Pre-RFRA Military Treatment of Religious Liberty 449 IV. THE PASSAGE AND INTERPRETATION OF RFRA 453 A. RFRA's Birth and Initial Setback 453 B. RFRA's Interpretation and Evolution 455 1. The Meaning of "Religion" Under RFRA 456 2. Substantial Burdens in RFRA Cases 459 3. The Application of Strict Scrutiny Under RFRA 460 V. RFRA'S APPLICATION WITHIN THE U.S. ARMED FORCES 462 A. The DoD's Long, Unpardonable Delay in Embracing RFRA 463 1. The DoD's Willful Ignorance of RFRA 463 2. The DoD's Long-Overdue Embrace of RFRA 466 B. The Mixed Judicial Response to RFRA in Military Cases 468 1. Early Judicial Consideration of RFRA 468 2. Judicial Difficulties in Applying RFRA to Military Policies 470 VI. LOSING MY RELIGION: WILL THE MILITARY BACKSLIDE ON ITS RFRA CONVERSION? 474 A. Analyzing a RFRA Military Claim Today 474 B. Applying RFRA to Real-World Military Scenarios 477 1. Uniform and Appearance Regulations 478 2. Religious Expression in the Military Workplace 480 3. Religious Issues Related to LGBTQ+ Rights 484 4. Religious Issues Related to Health and Medicine 488 VII. CONCLUSION 491 I. INTRODUCTION: A TALE OF TWO SIKHS

When Ronald Sherwood enlisted in the United States ("U.S.") Navy in 1969, in the midst of a raging war in Vietnam, he probably hadn't expected his career to end in disgrace, convicted of criminal charges due to his religious beliefs. (1) He served four years honorably until, during Thanksgiving break, he had a religious conversion and became a Sikh. (2) That decision would change the trajectory of his military service.

Sikhism--a monotheistic religion founded in India during the fifteenth century--centers on "service, egalitarianism, and engagement in daily life," with Sikhs finding "markers" of their identity in "the Five Ks": "kesh (uncut hair which is typically covered by a turban), kanga (wooden comb), kachha (specially-designed underwear), kara (steel bracelet), and kirpan (strapped sword)." (3) After his religious conversion, Sherwood took the vows of the Sikh faith, including a vow where he promised that he would not "alter his human form from the way the Creator has created it, thereby not removing or permitting to be removed, any hair from the body, and... wearing the unshorn hair on top of the head in a Rishi knot and covered with a cotton cloth known as a turban." (4)

Unfortunately, when Sherwood reported back to military duty, his new religious practices directly conflicted with military uniform regulations, which precluded the wearing of turbans. (5) Unwilling to grant an accommodation, the Navy brought criminal charges against Sherwood at a court-martial. It convicted him of disobeying military regulations and then discharged him from the service. (6) Sherwood later sued the Secretary of the Department of Defense ("DoD"), seeking damages and a declaration that the regulations were unconstitutional as applied to him. (7) In rejecting his claim, an appellate court found that safety requirements for Navy personnel constituted a compelling governmental interest and that the Navy had used the least restrictive means in furthering that interest. (8)

Jumping ahead 35 years, Simratpal Singh--another young Sikh wishing to serve in the military--faced a nearly identical dilemma to the one Sherwood confronted. (9) Singh accepted an appointment to the United States Military Academy at West Point in 2006, (10) but Army policy prohibited long hair and beards. "'[B]elieving he had no other option,'" but feeling "'shame and disappointment in himself,'" Singh "'succumbed under pressure and made the difficult decision to remove his turban, cut his hair, and shave his beard'" so that he could serve in the Army. (11) He graduated from West Point with honors and served as an Army Ranger, receiving several medals, including a Bronze Star for his service in Afghanistan, and attaining the rank of Captain--all the while not maintaining the articles of his faith. (12) In 2015, after meeting Sikh soldiers who had received accommodations for their faith, Singh told his commander that he would begin wearing a turban, unshorn hair, and a beard despite the fact that this conflicted with uniform regulations. (13) While the Army considered how to handle Singh's situation, it granted him a series of temporary religious accommodations. (14)

Eventually, Singh sued the Army in federal court and obtained a temporary restraining order allowing him to maintain the articles of his faith despite the uniform regulations. (15) The district court judge agreed that the Army "unquestionably has a compelling interest in ensuring the health and safety of military personnel," but found that it had failed to use the "least restrictive means" to further that interest, partly because it had "granted permanent religious accommodations in the past to other Sikh soldiers [who had]... served with merit on active duty deployments." (16) Singh's case eventually settled, and he continued to serve, while the DoD modified its regulations to accommodate the needs of Sikh and other religious military members. (17)

Religious servicemembers like Sherwood and Singh have always been present in the armed forces, providing valuable aid in the military's primary mission to fight and win wars. (18) So why the difference in treatment and outcome in these two cases, one litigated in the 1970s and the other in the 2000s? One major reason is the impact of the Religious Freedom Restoration Act ("RFRA"), (19) passed in 1993 but only recently finding its footing in the DoD's regulations. One might say the military has been "born again" into the RFRA world Congress created in the 1990s. (20) But will this conversion last?

This Article details the history of religious liberty cases in the U.S. Armed Forces, both before and after RFRA's passage and eventual acceptance by the DoD, and it poses a series of contemporary hypotheticals to test whether the military's newfound RFRA conversion will persevere. Part II recounts the importance of religion to the founding generation and to servicemembers over the centuries. Part III sets out the trajectory of religious liberty cases prior to the passage of RFRA, as well as the military's reluctance to accommodate religious free exercise in its policies. Part IV discusses the birth of RFRA in 1993, and its evolution over the past 25 years. Part V traces the military's failure to embrace RFRA within military regulations until 2014, and the judicial avoidance of the Act in military cases. Finally, Part VI proposes a series of hypotheticals--derived from the headlines and dealing with religion in the workplace, LGBTQ+ issues, and the COVID-19 pandemic--that are testing the resolve of the DoD to tolerate the religious beliefs of its members in the midst of a rapidly shifting cultural landscape. This Article concludes, however, that the DoD can and should respect the religious beliefs and practices of military members, as RFRA requires, while staying true to recent social change.


    Religion and religious liberty have always served an essential role in society and culture, making them necessary ingredients for good democratic government and a strong military. (21) As Founding Father John Adams predicted, the U.S. Constitution would only be successful if it governed "a moral and religious people." (22) The same can be said of a successful armed forces, where integrity, service, and honor are required to avert the worst atrocities of warfare. (23) Part II of this Article briefly addresses the historic importance of religion at the founding of the nation and in the lives of military members.

    1. Religion in the Colonial Militia and at the Founding

      Perhaps no individual had a greater influence in shaping the U.S. military than George Washington, its first Commander-in-Chief. (24) Even while serving as a young colonel during the French and Indian War (1753-63), he recognized the importance of religious practice within the armed forces, repeatedly requesting chaplains for his troops to preserve "[c]ommon decency... in a camp." (25) When his superiors refused his requests, Washington periodically performed those religious duties himself: reading the Scriptures, offering prayers, and conducting funeral services. (26)

      In the lead-up to American Revolution, Colonial leaders understood that human rights and civil freedoms had developed in Western Civilization largely due to religious principles. (27) They recognized that religion deals with universal values to which humanity has always attained in seeking relationship with a "divine or transcendent authority." (28) Indeed, this understanding was an underlying premise in the revolutionary mind, as seen in the Declaration of Independence's famous statement that, "[a]ll men are created equal and endowed by their Creator with certain inalienable rights." (29)

      During the American Revolution, those involved with the defense of a new nation also understood the importance of religion. (30) After the Battles of Lexington, Concord, and Bunker Hill, Congress established the Continental Army, recommending "all officers and soldiers diligently to attend Divine Service." (31) Congress similarly instructed its fledgling navy that "commanders of the ships of the Thirteen United Colonies are to take care that Divine Service be performed twice a day on board, and a sermon be preached on Sundays." (32)

      With independence achieved, the Constitution's framers included a key religious protection in the founding document: that "no religious test shall ever be required as...

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