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Military Law,
Constitutional Law

May 2, 2023

Sikhs’ pursuit of religious freedom in the military

The United States military’s dress code requirements preventing Sikhs from having beards and wearing turbans and religious articles are not imbued too far into history.

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

Sikhs have had difficulties as members of the United States military. Their struggle to follow the tenets of their religion while serving in the armed forces intersects competing interests.

On the one hand, courts have long recognized the military cannot function without strict discipline, including stringent dress codes and grooming requirements, that may be unacceptable in a civilian setting. On the other hand, the United States is founded on the belief that we're all free to follow our chosen religious beliefs.

Sikhism is the world's fifth largest religion with 25 million adherents, 700,000 of whom live in the United States. The Sikh religion was founded in the fifteenth century. It stresses the equality of all men and women. The faith rejects caste and class and emphasizes service to humanity. It requires its male followers to wear turbans and forbids all of its followers from cutting their hair. The Sikh turban represents a commitment to equality and justice. Throughout history, Sikhs have chosen death over cutting their hair.

According to SikhNet, Sikhs are less than two percent of India's population. Nonetheless, Sikhs were some of the most highly decorated soldiers of the British armed services during both World Wars. They played a significant role in the memorable battles of El Alamein in the Burma-China front and also in the allied assault in Italy.

The United States military's dress code requirements preventing Sikhs from having beards and wearing turbans and religious articles are not imbued too far into history. An Aug. 22, 1981 New York Times article reports that the Army's 23-year-old policy of granting religious exceptions to its standards on appearance was ended. At that time, only 15 Sikhs were serving in the Army, and the branch explained that the wearing of beards, unshorn hair, turbans and religious bracelets were contrary to Army operational and safety requirements.

This article will discuss how the current state of the Sikhs' quarrel with the military has been affected by both the United States Supreme Court and Congress.

Sherbert v. Verner

In Sherbert v. Verner, 374 U.S. 398 (1963), a woman who was a Seventh-day Adventist was fired by her South Carolina employer because she would not work on Saturday, her Sabbath. South Carolina denied her claim for unemployment compensation benefits because she was unavailable to work on Saturdays. The Supreme Court held that South Carolina could not deny benefits to a claimant who had refused employment due to her religious beliefs because the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in question was narrowly tailored.

Wisconsin v. Yoder

In Wisconsin v. Yoder, 406 U.S. 205 (1972), members of a conservative Amish Mennonite Church were convicted of violating Wisconsin's compulsory school attendance law. The law required a child's school attendance until age 16. The parents declined to send their children to school after they graduated from the eighth grade. Under their Amish faith, they believed it was best to continue informal vocational education designed to prepare them for life within the rural Amish community. They sincerely believed that high school attendance was contrary to the Amish faith and its way of life. They further believed they would endanger their children's salvation by complying with the law. Wisconsin fined the parents $5 for each child.

Mainly relying on its holding in Sherbert, the Supreme Court held that the First and Fourteenth Amendments prevent a state from compelling Amish parents to require their children to attend high school after the age of 16.

Goldman v. Weinberger

In Goldman v. Weinberger, 475 U.S. 503 (1986), the hair covering issue wasn't turbans, It was wearing yarmulkes while in uniform.

Dr. Simcha Goldman, an Orthodox Jew and ordained rabbi, actively served in the U.S. Air Force as a clinical psychologist. He wore his yarmulke under his military hat for years, but at some point, his commander ordered him to cease wearing it while on duty. After Goldman was threatened with court-martial, he filed suit. Goldman claimed that the Air Force regulations at issue infringed upon his First Amendment right to practice his religion.

The United States Supreme Court held in favor of the Air Force, ruling from a principle of judicial deference to military judgment. Justice William Rehnquist explained that uniforms 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." Basically, the high court held the Sherbert test did not apply because the Free Exercise Clause and even the First Amendment did not apply to the military in the same way that it did to civilian society.

Oregon v. Smith

In Oregon v. Smith (1990) 494 U.S. 872, two men used the drug peyote as part of their religious practice. Peyote, a sacrament of the Native American Church, was proscribed by Oregon's controlled substances laws. The men were fired from their employment for illegal drug usage. Oregon denied them unemployment benefits, finding they were disqualified because their violation of the law amounted to misconduct under the unemployment benefits rules. The Supreme Court differentiated the Oregon v. Smith situation from Sherbert and Yoder because the conduct in the earlier cases was not prohibited by law. The high court explained that Oregon may, consistent with the Free Exercise Clause, deny the men unemployment compensation when their job termination resulted from criminal drug use.

Religious Freedom Restoration Act, RFRA

It was that 1990 Oregon v. Smith case that managed to upset both the left and the right. The very liberal American Civil Liberties Union and the very conservative Traditional Values Coalition joined forces with the Christian Legal Society and the American Jewish Congress to support the passage of the Religious Freedom Restoration Act, RFRA. 10 U.S.C. § 774, in 1993.

The RFRA prohibits the government from substantially burdening a person's exercise of religion unless the government can demonstrate the burden is in furtherance of a compelling governmental interest. The statute states that one of its purposes is "to restore the compelling interest test as set forth in Sherbert v. Verner [] and Wisconsin v. Yoder [] and to guarantee its application in all cases where free exercise of religion is substantially burdened."

Over the years following enactment of the RFRA, the Army, Navy, Air Force and Coast Guard issued directives to accommodate Sikh religious practices during both initial recruit training and military service. But not the Marines.

The Marine Corps maintained that exceptions for recruits would make it harder to instill in them a spirit of uniformity. The Marines refused to make a religious exception to its uniform and grooming requirements during boot camp, insisting that men needed to be clean-shaven and not wear religious articles. Every week, recruits had to have their entire hair length clipped to the scalp. After boot camp, however, the Marine Corps has been willing to grant religious accommodations, such as for turbans, unshorn hair and religious articles.

Keep in mind that the Marine Corps is part of the Navy. Many of its officers are educated and trained at the Naval Academy. The Naval Academy accommodates beards, unshorn hair and the wearing of Sikh religious articles.

National Defense Authorization Act for Fiscal Years 2013, 2014 and 2015

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," Pub. L. No. 112-239 § 533 (a)(1). The following year, in Pub. L. No. 113-66 §§ 532-533, Congress expanded that protection 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. In the 2015 National Defense Authorization Act, Pub. L. No. 114-92 § 528, it was expressly acknowledged that Sikhs were among the "numerous religious traditions" represented among service members.

The Inspector General's 2015 Report

Per the 2014 National Defense Authorization Act, the Department of Defense Inspector General submitted its report about freedom of religion and conscience in the military to Congress on July 22, 2015. The report stated that Sikhs needed waivers to grooming, uniform or appearance standards for the duration of their service. It also noted that some faith groups specifically recruited for their language, culture and technical skills, including Sikhs, were burdened by the military's waiver requirements. The report further stated the military did not have any chaplains representing Sikhs.

Singh v .Berger

In a case decided last December, Sikhs who want to both serve in the military and adhere to their religious beliefs were able to subject the Marine Corps to RFRA scrutiny. The legal action was filed by three young Sikh men who want to be Marines, but do not want to abandon the requirements of their religion. They sued the Commandant of the Marine Corps, alleging that the Corps' denial of their requested accommodations during recruit training violates both the RFRA and the First Amendment.

Two days after they filed their complaint, they filed a motion for a preliminary injunction "allowing them to maintain their hair, beards, and religious articles (including the turban) during recruit training and for the pendency of this case." A federal district court denied their motion.

During argument before the appeals court and in the appellate opinion, the court noted that women, men with chronic razor burn and Naval Academy cadets, many of whom go on to be Marine leaders, abide by varying grooming standards. The court further stated that the Marine Corps has 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 the head, neck, or hands, and even sometimes waives those exceptions.

In Singh v. Berger, 56 F.4th 88, 2022, the Court of Appeals for the District of Columbia Circuit reversed the lower court's denial of a preliminary injunction, finding the Sikh plaintiffs had shown an overwhelming likelihood of success on the merits. The court noted that by subjecting military decisions to RFRA scrutiny, politicians determined that Americans need not surrender their faith to fight for their nation absent demonstrated necessity. The case was remanded to the district court for "prompt entry" of a preliminary injunction requiring the Marine Corps to allow the men to enlist without shaving their heads or beards.


Last week, the Marine Times reported that on April 18, a U.S. District Court judge for the District of Columbia issued a preliminary injunction. The injunction lays out guidelines for the Marines that permits two of the three young men to enter Marine boot camp. The third has already contracted with the Army National Guard.

At least until the Singh v. Berger case is decided at trial, persons of the Sikh faith may enter all branches of the military service and still adhere to their articles of faith. But a Sikh Coalition representative told the Marine Times reporter she expects the injunction "will inform how and whether other Sikhs may be accommodated to attend Marine Corps boot camps in the future."


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