Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

Supreme Court Denies Cert. In RFRA Challenge To Court Martial

The U.S. Supreme Court yesterday denied review in Sterling v. United States,(Docket No. 16-814, cert. denied 6/5/2017) (Order List).  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA of a substantial burden to sincerely held religious beliefs in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  Fox News reports on the Supreme Court's action.

Bahamas Constitution Protects Muslim Military Officer From Mandatory Christian Prayer

In Commodore Royal Bahamas Defence Force v Laramore, (Privy Council, May 8, 2017), the UK Judicial Committee of the Privy Council (a court of final appeal from Bahamas courts) held it unconstitutional under the Bahamian constitution to require a Muslim member of the Royal Bahamian Defence Force to participate in Christian prayers. At issue are the "ceremonial prayers" in regular weekly colours parades.  From 1993 to 2006, non-Christians could fall out during the prayers. A 2006 Memorandum ended that accommodation. Law & Religion UK has more on the decision.

Defense Department Expands List Of Recognized Faith and Belief Groups

Section 533 of the National Defense Authorization Act of 2013 called on the military to accommodate the conscience and moral beliefs, as well as religious beliefs, of members of the Armed Forces.In a Memorandum dated March 27, 2017, the Pentagon, after review by the Armed Forces Chaplains Board, issued an expanded list of faith and belief groups, expanding on a list (at pg. 46) last updated in 2013.  The new list includes Pagan and Humanist, as well as listing separately a number of religions that were previously consolidated under a broader classification. The American Humanist Association this week issued a press release "applaud[ing] the Department of Defense (DoD) for recognizing Humanism as a belief system protected by the Department’s ethical standards."

No Bivens Claim By Vet Denied Psychological Care Because of Anti-Gay Views

In Waksmundski v. Williams, (SD OH, Feb. 27, 2017), Marine Corps veteran John Waksmundski who had been receiving psychological counseling for a number of years at a VA Hospital from defendant Dr. Crystal Williams sued when Williams excluded him from a new therapy group she was forming. She also refused to serve any longer as his counselor.  Waksmundski claims that the exclusion flowed from statements he made in a group therapy session expressing his opposition, based on his Catholic religious beliefs, to gays in the military and gay marriage. The denial of care created significant psychological damage.  Waksmundski sued claiming violations of his 1st Amendment speech and religion rights as well as his equal protection rights under the 14th Amendment. The court dismissed his claims, holding that the Veterans’ Judicial Review Act "is a comprehensive remedial scheme that precludes Bivens claims for damages against VA employees premised on the assertion that the employees denied, or interfered, with a party’s benefits."

Army Grants Greater Dress and Grooming Accommodation For Sikhs and Muslims

The Army yesterday issued Directive 2017-03 revising Army uniform and grooming standards to allow greater religious accommodation, particularly for Sikh and Muslim members of the Army. The new directive allows religious accommodation to be granted at the brigade level to Sikhs to wear a turban or under-turban/patka, with uncut beard and uncut hair.  For Muslims, brigade-level approval is allowed for hijabs. The Directive allows a similar religious accommodation for beards, which would affect Muslims, Orthodox Jews, and perhaps soldiers of other religious faiths.  Certain exceptions apply, particularly in relation to those who need to wear protective masks. Also, without the need for granting of a religious accommodation, the Directive allows women to wear dreadlocks and individuals to wear certain religious bracelets. The Atlantic reports on the new Directive.

Cert Filed In RFRA Case Decided By Armed Forces Court of Appeals

On Dec. 23, a petition for certiorari (full text) was filed with the U.S. Supreme Court in United States v. Sterling.  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  The petition for review by the Supreme Court frames the question presented as:

whether the existence of a forced choice between what religion and government command is necessary to establish a "substantial burden" under the Religious Freedom Restoration Act.

Independent Journal Review reports on the filing of the cert. petition.

GITMO Judge Defers Lifting Order Accommodating Muslim Detainees After Remarks By Top Brass

As previously reported, early last year a military judge at Guantanamo Bay issued an interim order requiring authorities to stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants had been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.  AP now reports that this past Thursday the military judge, Army Col. James Poh, issued a 39-page ruling (not yet publicly released) saying that he will eventually lift the order.  However he postponed doing so for six months to show his displeasure at criticism of the original order leveled by Defense Secretary Ash Carter and Joint Chiefs of Staff Chairman Gen. Joseph Dunford during testimony before Congress in October. They called the judge's order outrageous.  Poh says that this kind of statement could be seen as an improper attempt to influence the Military Commission.  In his ruling, he said in part:

These comments were entirely inappropriate. They crossed the line. Senior military leaders should know better than to make these kinds of comments in a public forum during an ongoing trial.

He added that he did not take this step lightly, and might lift the order sooner if senior military officials took "appropriate action."

UPDATE: Here is the full text of the Military Commissions' ruling in United States v. Khalid Shaikh Mohammad, (MCTJ, April 28, 2016).

Army Grants Sikh Soldier Accommodation After His Preliminary Court Victory

As previously reported, last month the D.C. federal district court issued a preliminary injunction barring the Army from subjecting Sikh Army officer Simratpal Singh to any non-standard or discriminatory testing for his helmet and gas mask.  Now without mentioning the court decision, the Army has issued a Memorandum (full text) dated March 30 granting Singh an accommodation, subject to various conditions. The Memorandum from Assistant Secretary of the Army Debra Wada to Singh reads in part:

I have considered your request for a religious accommodation to permit you to wear a beard, turban, and uncut hair in observance of your Sikh faith.... I grant your request for an exception to Army personal appearance and grooming standards, subject to the limitations described below....

While assigned or performing non-hazardous duties, you may wear a beard, turban, and uncut hair in a neat and conservative manner that presents a professional and well-groomed appearance. The bulk or your hair, beard, or turban may not be such that it impairs your ability to wear the Army Combat Helmet ... or other protective equipment....

Because of the Army's strong interest in maintaining good order and discipline, the Army intends to develop clear uniform standards applicable to Soldiers who have received a religious accommodation. Until such standards are published, you may wear a black turban (or under turban, as appropriate).... 

The Memorandum goes on to specify precise hair and beard lengths, and says that Singh's commander is to provide quarterly assessments of the effect of the accommodation on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness. West reports on the Army's action.

UPDATE: Stars and Stripes reported on April 11 that 3 additional Sikh enlistees have been granted similar accommodations.

Sikhs Sue Over Army Accommodation of Religious Practices

A lawsuit was filed yesterday by three observant Sikhs who have enlisted in the Army, but who are encountering difficulties in obtaining accommodation to allow them to continue to wear beards, uncut hair, and turbans.  The 54 page complaint (full text) in Singh v. McConville, (D DC, filed 3/29/2016), alleges in part:

[T]he Army has a long pattern and practice of discriminating against Sikhs.... The Army’s regulations promise that soldiers whose religious exercise poses no significant obstacle to the military’s mission will be generously accommodated.... [H]owever, the regulations themselves are defective and foster religious discrimination on a number of levels.... [T]hey force soldiers who need religious accommodations to violate their religious beliefs before they can apply for an accommodation, even if their religious exercises would clearly have no impact on the military’s compelling interests.

The regulations are also ... require soldiers to reapply for a religious accommodation every time they have a “transfer of duty stations, or other significant change in circumstances”..... The ambiguity in the regulations also creates an environment where the Army feels free to delay resolving requests for accommodation for long periods of time, leaving future soldiers in limbo and potentially forcing them to forgo other education and career opportunities while they wait for the Army’s decision.

Becket Fund issued a press release announcing the filing of the lawsuit.

Court Enjoins Army From Requiring Special Testing of Sikh Officer

In Singh v. Carter, (D DC, March 3, 2016), the D.C. federal district court, invoking RFRA, granted a preliminary injunction protecting religious rights of an Army officer.  The Army had ordered a decorated Sikh Army captain to undergo costly specialized testing with his helmet and protective mask to assure that his religiously required head covering, beard and uncut hair will not interfere with the functions of the helmet and mask. The court said:

At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer.

Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing.

See prior related posting.

Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban.  According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing.  According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments.  Becket Fund issued a press release announcing the filing of the lawsuit.

Army Grants Accommodation For Sikh Combat Soldier To Wear Beard

According to a New York Times report yesterday, the U.S. military for the first time has granted a Sikh combat soldier a religious accommodation to allow him to grow a beard and serve with uncut hair under his turban.  Captain  Simratpal Singh, a West Point graduate and Bronze Star winner who led a platoon of combat engineers in clearing roadside bombs in Afghanistan, previously reluctantly shed his beard and long hair.  But recently while on leave he stopped shaving.  Now the Army has granted him (with certain conditions) a one-month temporary exemption (full text of Army memo) while it considers whether to make the accommodation permanent.  Since 2009, three other Sikhs, two Muslims and a Jewish rabbi have been granted religious accommodations to wear beards, but none of them were in combat units.  They were either chaplains or specialized medical personnel.  Some believe that Capt. Singh's case could serve as precedent for other Sikhs, Muslims and others who wish to adhere to their religious traditions while in the Army.

Court Upholds Military Reprimand To Enlistee For Objecting To Same-Sex Wedding

In Wilson v. James, (D DC, Oct. 13, 2015), the D.C. federal district court dismissed RFRA, 1st and 5th Amendment and various other challenges by an enlisted member of the Utah Air National Guard to letters of reprimand he received for his opposition to a same-sex wedding ceremony held at West Point's chapel.

After reading about the wedding ceremony, Layne Wilson, a Mormon, sent an e-mail using his military account to a major whom he believed to be the chaplain at the U.S. Military Academy, saying in part: "Our base chapels are a place of worship and this [is] a mockery to God and our military core values." His commander issued a letter of reprimand for this, which led to Wilson to rebuke his commander on Facebook, posting: "You embarrass me, our country, and our unit!!!...." That led to a second letter of reprimand and suspension of Wilson's security clearance. Wilson sued, bringing, in the court's words, "a bevy of claims." Rejecting Wilson's RFRA claim, the court said in part:

A substantial burden on one’s religious beliefs—as distinct from such a burden on one’s exercise of religious beliefs—does not violate RFRA....

Admittedly, the First LOR likely chilled Plaintiff’s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage.... Plaintiff only contends that, under LDS doctrine, homosexuality is a sin.... His religious belief, however, does not become a protected religious exercise under RFRA simply because Plaintiff expressed it through speech.

Rejecting Wilson's free speech claim, the court held:

An email from an enlisted member of the military that protests the decision of a senior military official outside the sender’s chain of command and urges that official to reverse his decision receives no First Amendment protection.

Inspector General Issues Report On Protection of Conscience Rights In the Military

Last week (July 22), the U.S. Department of Defense Inspector General issued a report on Rights of Conscience Protections for Armed Forces Service Members and Their Chaplains.  The 2014 Defense Authorization Act called for the report, which was to focus on the extent to which the Armed Forces are complying with regulations designed to protect the conscience, moral principles and religious beliefs of members of the military and military chaplains.  In a posting earlier this week, God and Country Blog is critical of the report for looking too narrowly at issues regarding negative consequences short of formal reprimands flowing from religious expression.

Pentagon Changing Ban On Service By Transgender Individuals

In a statement (full text) yesterday, Secretary of Defense Ash Carter announced that the military is changing its policy that currently bans service by transgender men and women.  He said in part:

The Defense Department's current regulations regarding transgender service members are outdated and are causing uncertainty that distracts commanders from our core missions.... Today, I am issuing two directives to deal with this matter. First, DoD will create a working group to study over the next six months the policy and readiness implications of welcoming transgender persons to serve openly.... At my direction, the working group will start with the presumption that transgender persons can serve openly without adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified. Second, I am directing that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who will make determinations on all potential separations.

Time reporting on the Pentagon's decision says that it is estimated that 15,500 transgender individuals are currently serving.  In his statement, Secretary Carter said: "transgender men and women in uniform have been there with us, even as they often had to serve in silence alongside their fellow comrades in arms." [Thanks to Mark Goldman for the lead.]

Court Orders Religious Accommodation For Sikh Student Seeking To Enter ROTC Program

In Singh v. McHugh, (D DC, June 12, 2015), the D.C. federal district court ordered the Army to grant a religious accommodation to dress and grooming requirements to allow a Sikh college student to enroll in the ROTC program at Hofstra University.  The court relied heavily on the Supreme Court's decision this term in Holt v. Hobbs in refusing to completely defer to military judgment, saying in part:

The Court finds that defendants have failed to show that the application of the Army’s regulations to this plaintiff and the denial of the particular religious accommodation he seeks further a compelling government interest by the least restrictive means. Therefore ... judgment will be entered in favor of the plaintiff. The Court accords substantial deference to the Army’s judgments concerning the essential role that uniformity plays in military training and effectiveness. But given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies, its successful accommodation of observant Sikhs in the past, and the fact that, at this time, plaintiff is seeking only to enroll in the ROTC program, the Army’s refusal to permit him to do so while adhering to his faith cannot survive the strict scrutiny that RFRA demands. This decision is limited to the narrow issue presently before the Court – plaintiff’s ability to enroll in ROTC with his turban, unshorn hair, and beard – and it does not address plaintiff’s eventual receipt of a contract or an Army commission.

Court Martial Conviction For Refusal To Remove Biblical Quotes From Desk Upheld

In United States v. Sterling, 2015 CCA LEXIS 65 (NMCCA, Feb. 26, 2015), the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  According to the court;

appellant's duties included sitting at a desk and utilizing a computer to assist Marines experiencing issues with their Common Access Cards. The appellant printed three copies of the biblical quote "no weapon formed against me shall prosper" on paper in 28 point font or smaller. The appellant then cut the quotes to size and taped one along the top of the computer tower, one above the computer monitor on the desk, and one above the in-box. The appellant testified that she is a Christian and that she posted the quotation in three places to represent the Christian trinity.

The court rejected defendant's free exercise and RFRA defenses, holding:

the definition of a "religious exercise"[in RFRA]  requires the practice be "part of a system of religious belief." ...  Personal beliefs, grounded solely upon subjective ideas about religious practices, "will not suffice" because courts need some reference point to assess whether the practice is indeed religious.... For these reasons, we reject the appellant's invitation to define "religious exercise" as any action subjectively believed by the appellant to be "religious in nature.

Here, the appellant taped a biblical quotation in three places around her workstation, organized in a fashion to "represent the trinity." While her explanation at trial may invoke religion, there is no evidence that posting signs at her workstation was an "exercise" of that religion in the sense that such action was "part of a system of religious belief." 

Former Navy Instructor Sues Claiming Anti-Muslim Bias

CAIR has announced the filing last week of a religious discrimination lawsuit against the United States Navy on behalf of a former barracks instructor whose reenlistment was blocked.  The complaint (full text) in Berts v. Mabus, (ED CA, filed 12/23/2014) alleges that the plaintiff Jonathan Berts, an African-American Muslim, was denied his request to wear a beard as a religious accommodation. For four years prior to making has religious accommodation request, Berts had worn a beard under a medical waiver. He alleges that after his religious accommodation request was denied, his commander refused to promote him, subjected him to questions about his beard, to racist and anti-religious jokes, and questioned his loyalty to the United States.  He was removed from his teaching duties and assigned to watch duty in a roach-infested building guarding piles of old office equipment.  Berts claims his treatment burdened his religious exercise in violation of RFRA and the Administrative Procedure Act and seeks a return to active duty along with an accommodation to allow him to grow a beard.