A shield for swords.

• Author: Bhachu, Amarjet S.

1. Introduction

   Sikhs are known for their distinctive appearance. A Sikh gentleman, dressed in a turban, is easily visible in a crowd. That gentleman, however, may be equipped with more than meets the eye. According to traditional religious practice, Sikhs are required to wear a sword or dagger, called a kirpan, on their person. This practice presents a potential problem: Many states criminalize the mere possession of a deadly weapon,(1) and others prohibit carrying concealed weapons.(2)

   A kirpan, which may range from the size of a small dagger to a full-length sword, can be considered a deadly weapon(3); and while some Sikhs wear their kirpans in plain view, others prefer to conceal their kirpans underneaths their clothes.(4)

   Thus, Sikhs may find themselves in a quandary: abandon their religion or break the law. Is there a solution to this dilemma? Does that famous constitutional guarantee, the First Amendment,(5) or any federal law permit Sikhs to proclaim their faith by wearing their kirpans despite a state law to the contrary?

   In order to address this issue, this Note first familiarizes the reader with the significance of the kirpan, which is itself a product of state-based religious intolerance. There is some irony, then, in the prospect that an ancient religious practice, born out of religious intolerance, may be banned by a modern-day government that purports to protect religious freedom.

   Second, this Note analyzes whether the right to wear a kirpan is protected under the First Amendment, and concludes that it is not. Contrary to prior precedent, the Supreme Court no longer closely scrutinizes neutral, generally applicable laws that infringe upon religious practice. Therefore, a general criminal law prohibiting the possession of a kirpan would withstand scrutiny under the First Amendment.

   Third, this Note analyzes whether the right to carry a kirpan would prevail under the Religious Freedom Restoration Act of 1993(6) (RFRA). A review of state and federal cases suggests that a weapons law that effects a complete prohibition on kirpans violates RFRA. Although such a measure serves a compelling state interest in safety, it is not narrowly tailored, as RFRA requires. In some instances, however, special circumstances may make a complete prohibition on kirpans narrowly tailored.

   Finally, this Note analyzes how other common law countries -- India, the United Kingdom, and Canada -- have confronted the kirpan issue in order to determine what lessons can be learned from them. These countries demonstrate that absent special circumstances, a wholesale ban on kirpans is unnecessary to fulfill a state's compelling interest in safety. Because a complete prohibition on kirpans is unnecessary to fulfill safety concerns, any state law banning kirpans would fail RFRA because it would not be narrowly tailored. Therefore, a Sikh's right to carry a sword should be shielded from encroachment by the state.

   2. The Significant of the Kirpan

      The practice of carrying kirpans is related to the past religious persecution of the Sikhs. The practice can be traced to events occurring in 1675. At that time, Northern India was under the suzerainty of the Mughals, invaders from the west. Emperor Aurangzeb sat on the throne of the Mughal Empire. Aurangzeb, being a zealous Muslim, sought to convert the native Indian population to Islam.

      He instituted a number of policies discouraging the practice of any religion but Islam. For instance, Aurangzeb ordered the demolition of Hindu temples and, in their place, he built mosques.(7) Force also was employed to encourage non-believers to adopt Islam(8); Aurangzeb told the Northern Indians to accept Islam or die.(9) According to historical accounts of this period, the residents of Kashmir faced this unsavory choice.(10) Uncertain as to how to meet this ultimatum, the leaders of the Hindu community in Kashmir sought the advice of Guru Tegh Bahadur, the Ninth Guru of the Sikhs, who was a respected religious figure. After considering the Kashmiris' plight, Guru Tegh Bahadur arrived at a solution. The Guru told the Kashmiris to issue the following challenge to the Emperor: If Aurangzeb could convert the Guru to Islam, then the Kashmiris would accept Islam; if the Emperor was unable to convert the Guru, then the Kashmiris were to be left alone, free to practice their own religion.(11)

      Aurangzeb duly accepted this challenge; Guru Tegh Bahadur was summoned to the Emperor's court and was asked to accept Islam or death.(12) The Guru refused to renounce his own religion, and, as a consequence, the Emperor ordered the Guru's execution.(13) After the Guru was publicly beheaded, no Sikh stepped forward to collect the Guru's body. Just as Peter renounced Christ three times before the cock crowed twice,(14) the Sikhs pr-esent at the execution refused to step forward from the crowd, fearing the consequences of announcing themselves as the Guru's followers.(15)

      The events of that day are considered to be one reason why Sikhs were given a distinct outward appearance by Guru Gobind Singh, the Tenth Guru.(16) In the wake of his father's death, Guru Gobind Singh formed a new religious order, known as the Khalsa, and asked all Sikhs to accept baptism. Upon entry into the Khalsa, Sikhs were to wear five symbols that would identify them as members: uncut hair (kes), a comb worn in the hair (kangha), a steel bracelet (kara), short breeches (kachh), and a sword or dagger (kirpan).(17) While each symbol holds independent significance, these symbols collectively were intended by Guru Gobind Singh to ensure ready identification of a Sikh. As one scholar explains,

      the dominant tradition emphasises [sic] the importance of a visible identity,

      one which makes it impossible for any Sikh to remain anonymous or

      concealed.

      When Guru Tegh Bahadur was executed most of the Sikhs who were

      present ... shrank from their duty of assisting and defending their

      Master ....

      This they could do because they wer-e outwardly indistinguishable from the

      general populace. The nature of the discipline required by membership of the

      new order ensured that concealment would no longer be possible. A Sikh of the

      Khalsa was to be visibly and unmistakably a Sikh, his identity proclaimed for

      all the world to see.(18)

      The kirpan is thus a part of the religious identity of a Sikh,(19) but, like the other four symbols, it has significance beyond contributing to the distinctive appearance of the Sikh. According to one Sikh scholar, the kirpan is an "instrument of compassion" to be used "to protect and safe-guard [the] dignity or honour of others."(20) It also is a tool to defend against the religious oppression of tyrants like Aurangzeb. The kirpan, then, is not only part of the identity of a Khalsa Sikh, but an instrument of self-defense.

      In a sense, it would be ironic if a modern government could outlaw the possession of a kirpan. Guru Tegh Bahadur's challenge to the Emperor was driven by the principle that it was wrong for the state to interfere with the religious practices of its subjects. In fact, Guru Tegh Bahadur's "martyrdom is seen not only as the act of a man dying resolutely for his own faith but on behalf of Hinduism and religious liberty as a principle."(21) The kirpan is a product of Guru Tegh Bahadur's defiance of religious tyranny, as well as a means to protect against such tyranny in the future. It is strange that a religious practice, which has its roots in resistance to centuries-old, state-led religious persecution, may itself be endangered by a modern-day government. Fortunately, the United States is not completely indifferent to individual religious rights; the First Amendment and RFRA are two shields standing in the way of measures that restrict religious freedom. Each will be discussed in turn.

   3. Kirpans and the First Amendment

      The First Amendment would not protect kirpan-carrying Sikhs because of recent developments in First Amendment jurisprudence. United States federal courts have had little opportunity to deal with kirpans in the past; nevertheless, the right of a Sikh to carry a kirpan was mentioned in the United States Supreme Court case of Sherbert v. Verner.(22) In his concurring opinion, Justice Douglas noted that the "[r]eligious scruples of a Sikh require him to carry a regular or a symbolic sword"(23) and observed that "many people hold beliefs alien to the majority of our society -- beliefs that are protected by the first Amendment but which could easily be trod upon under the guise of `police' or `health' regulations reflecting the majority's views."(24) Sherbert established the benchmark by which free exercise claims would be judged. Specifically, the Court concluded that, in order for the government to prevail against a free exercise claim, the government must show that (1) the law is supported by a compelling state interest and (2) alternative forms of regulation that are less restrictive of First Amendment rights are unavailable.(25)

      The Sherbert rule was superseded by Employment Division, Department of Human Resources of Oregon v. Smith.(26) Smith involved a state statute that prohibited the use of peyote, a hallucinogen used by certain Native Americans for sacramental purposes.(27) The respondents, two Native Americans, were fired from their jobs at a drug rehabilitation clinic because of their use of peyote and were subsequently denied unemployment compensation.(28) They claimed that the denial of unemployment compensation, which was based on their use of peyote, violated their free exercise rights under the First Amendment. The Court concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"(30) The Court, therefore, denied the respondents' claim because they sought relief from a generally applicable...