Singh v. Berger

A Firm Faith Tradition 

For centuries, Sikhs have lived according to the teachings of the gurus, which instruct them to shun evil and seek self-mastery, to regard God’s creation as sacred, and to always defend the weak and helpless. Many devout Sikhs live out their religious duty to defend the defenseless by serving with distinction in militaries around the world while maintaining their articles of faith, including unshorn hair. But Sikhs who seek to serve in the U.S. Marine Corps find themselves forced to choose between their religious obligations and their calling to do good. 

Uniformity with Exceptions  

Aekash Singh, Jaskirat Singh, and Milaap Singh Chahal faced a horrible dilemma when they sought to join the Marine Corps: shave and abandon their religious beliefs or go home. Even though the recruits passed all the medical and physical tests required to join, the Marine Corps argues that they must shave their beards to begin basic training because having a “uniform appearance” is necessary during recruit training. But other Marines are allowed to grow out their beards for medical reasons, and the Army, Air Force, and United States Military Academy permit religious beards during initial training.  

 The Marine Corps has been relaxing its uniformity standard for years specifically to promote greater diversity, allowing more diverse hairstyles, updating its dress code to better accommodate women, and even loosening longstanding bans on tattoos. In addition, the Marine Corps has recently granted Marines—including those in bootcamp—more leeway to grow a beard to combat “razor bumps,” a painful medical condition that inflames the face and neck after a close shave. And the U.S. Army and the U.S. Air Force have long been able to accommodate Sikh servicemembers—beards and all—without compromising mission readiness or safety.  

A Longstanding Defense 

Fortunately, the Constitution and the Religious Freedom Restoration Act (RFRA) ban the federal government from restricting religious freedom unnecessarily. This means that denying religious accommodations by asserting a need for uniformity while granting lots of other secular exceptions is not only unfair but unlawful as well. Sikhs shouldn’t have to choose between their faith’s teachings that encourage their military service, and their religious understanding of God’s requirements for their physical appearance. Their lawsuit simply asks the government to provide them with religious accommodations equal to those granted to Marines for secular reasons. 

In August 2022, a D.C. district court ruled in Toor v. Berger that the three Marine recruits should not be protected with religious accommodations while the case is ongoing. Aekash Singh, Jaskirat Singh and Milaap Singh Chahal appealed the decision to the U.S. Court of Appeals for the District of Columbia, asking the court to allow them to enter basic training while keeping their articles of faith. On December 23, 2022, the D.C. Circuit Court ruled to protect the three Sikh recruits’ faith while their case continues. Judge Millett wrote for the court, saying that the Marines Corps has never explained “why the Corps cannot apply the same or similar [religious] accommodations that the Army, Navy, and Air Force, and Coast Guard provide.” 

Captain Toor, Aekash Singh, Jaskirat Singh and Milaap Chahal are represented by Becket, Winston & Strawn, and the Sikh Coalition. Jaskirat Singh is also represented by Baker Hostetler. 

Importance for Religious Liberty: 

  • Individual freedom: For generations, people have sought out the United States as a place where they could freely live out their individual beliefs. That freedom does not end where military service begins: the Constitution, federal law, and the traditions of the armed forces all recognize that American servicemembers serve their country best when their own religious freedoms are protected.  

 

Photo Credit: Sikh Coalition

Chahal v. Seamands

The United States Military Academy at West Point will now accommodate Sikh soldiers, allowing them to wear their essential articles of faith, after two young men persisted for the right to serve their country without being forced to abandon their articles of faith. 

Called to serve their country 

Cadet Arjan Singh Ghotra has been preparing to serve in the U.S. Army since high school. He volunteered for both the Civil Air Patrol and the Virginia Defense Force, and won the Virginia Defense Force Medal for his service at age 17. When he became eligible in 2015, Cadet Ghotra enlisted in the Virginia Army National Guard. After completing one year in the National Guard he applied to, and was accepted at, West Point.   

Like Cadet Ghotra, Cadet Ugrian Singh Chahal knew at a young age that he wanted to serve his country through the military. Inspired by a family history of army service and the service members he met growing up near the Selfridge Air National Guard Base in Michigan, Cadet Chahal worked hard and, like Cadet Ghotra, gained admission to West Point in 2016. 

Denied the ability to serve both God and Country   

From World War I until 1981, the U.S. Army allowed observant Sikhs to serve honorably in the U.S. military while maintaining their articles of faith. But a 1981 policy change banned observant Sikhs from military service simply because they wore turbans and unshorn hair and beards—two of the articles of faith required by their religion.  

As observant Sikhs, Cadets Ghotra and Chahal asked for accommodations that would permit them to continue their service to their country at West Point without having to abandon their articles of faith. Their requests were denied. They were left with the heartbreaking choice: to serve their country or to follow their faith. 

Making room for faith in the ranks 

When Cadet Ghotra realized in March 2016 that he would not be able to participate in practice drills at West Point because of the prohibition on his articles of faith, he submitted his request for a religious accommodation. But because the Army refused to respond, Becket, the Sikh Coalition, and McDermott Will & Emery stepped in to challenge the Army’s policy.  

At a court hearing in August, the Army conceded that it had no legitimate grounds for denying Sikhs the full opportunity to serve their country at West Point and issued new guidelines allowing them to maintain their articles of faith while serving.   

Cadets Ghotra and Chahal are the first two fully-observant Sikh men to serve at West Point. 

Singh v. McConville

Soldiers of faith and service

Specialist Kanwar Bir Singh, Specialist Harpal Singh, and Private Arjan Singh Ghotra are three Sikh soldiers who can now freely serve in the U.S. Army while following their faith.

Specialist Kanwar Singh was highly regarded for his ROTC service during college and achieved the highest possible score on the military entrance exam when applying to join the Massachusetts Army National Guard. Specialist Harpal Singh is fluent in Punjabi, Hindi, and Urdu, all three of which are highly sought after by the Army. He also has significant expertise in telecommunications technologies, having deployed around the world—including to Ghana, Russia, and the Middle East—to develop telecommunications systems. Private Arjan Ghotra joined the Virginia Army National Guard at age seventeen after serving for several years in the Civil Air Patrol and the Virginia Defense Force.

All three men exemplify the values of the Army. Yet all three faced discrimination for wearing turbans, unshorn hair, and beards according to their faith.

Discriminating against the faithful

These three soldiers sought their rights under the Religious Freedom Restoration Act (RFRA). Passed in 1993 by President Clinton, RFRA prohibits the Army from suppressing a soldier’s sincere religious exercise without a compelling government reason.

In this instance the government had no good reason for discriminating against Sikh Americans. Nearly 100,000 soldiers have exemptions from the Army’s beard ban for medical reasons. Our military’s Special Forces commonly wear beards on the front lines in Afghanistan. And observant Sikhs have always served, and continue serving, in the militaries of the United Kingdom, Canada, Australia, India, and elsewhere. Canada’s current Secretary of Defense is a fully-bearded Sikh, who previously served alongside American forces in Afghanistan.

Becket defends Sikh soldiers

This is the second lawsuit launched by Becket in defense of Sikh Americans seeking to serve the country. In Singh v. Carter, Becket also represented decorated Army Captain Simratpal Singh, who filed a similar suit against the Army for the right to keep his beard according to his faith.

In March 2016, Becket filed a lawsuit on behalf of Specialist Kanwar Bir Singh, Specialist Harpal Singh, and Private Arjan Singh Ghotra and their right to serve in the Army without abandoning their Sikh faith.

In April 2016, the Army took a historic step toward allowing Sikhs to serve in the military by accommodating Specialist Kanwar Singh, Specialist Harpal Singh, and Private Arjan Ghotra, at least long enough for them to complete basic training. In January 2017, that victory was made permanent when the Army issued new regulations stating that Sikh soldiers will not be forced to abandon their religious turbans, unshorn hair, or beards throughout their military career.

Importance to religious liberty: 

  • Individual freedom:  Individual religious exercise encompasses more than just thought or worship—it involves visibly practicing the signs of one’s faith. Religious individuals must be free to follow their faith in all aspects of life, especially those who serve in our military to defend the freedom of all Americans. 
  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square. 
  • RFRA: The Religious Freedom Restoration Act ensures that the government cannot burden the religious exercise of individuals or groups to violate their deeply held beliefs without compelling interest or when there are reasonable alternatives to doing so.  

Singh v. Carter

Torn between serving country and living out faith 

Military service has a rich legacy within the Sikh tradition: observant Sikhs have served in the U.S. military from at least World War I through the Vietnam War. For Captain Simratpal “Simmer” Singh, a committed Sikh, the legacy is also personal, as military service runs strong in his family. Endorsed by his local congressman, Simmer was accepted into West Point in 2006. But a 30-year ban on beards threatened Simmer’s ability to serve. 

As a child, Simmer Singh wore the  patka, a small turban worn by Sikh children to cover their unshorn hair. In high school, he began wearing a full turban and beard—also core “articles of faith” in the Sikh religion—to remind him of the inherent dignity and equality of every individual before God. He expected to wear these articles of faith to his death – until he joined the Army. Simmer believed that he would be given a religious accommodation for his unshorn hair, beard, and turban, but on Reception Day he was told he had to cut his hair and shave or leave the Academy. Compelled on the spot to choose between serving his country and his faith—a decision no American should have to make—he chose to serve, committing to reclaim his articles of faith at the earliest opportunity. 

Captain Singh went on to serve with distinction for more than ten years. He completed both Ranger School and Special Forces Assessment and Selection Courses, received a Bronze Star Medal for clearing IEDs in Afghanistan, and attained his bachelor’s and master’s degrees in engineering. 

RFRA protects Sikhs who serve 

In 2015, Simmer learned about his rights under the Religious Freedom Restoration Act (RFRA), a federal statute passed by a bipartisan Congress and signed by President Clinton in 1993 with the support of an extensive coalition of religious and civil rights groups. RFRA prohibits the Army from suppressing an individual’s sincere religious exercise without a compelling government reason. 

In this case, the Army had no good reason for discriminating against Sikh Americans by banning their religious beard, since it gave nearly 100,000 soldiers exemptions from its beard ban for medical reasons. Special Forces Operators commonly wear beards on the front lines in Afghanistan. And observant Sikhs have continually served in the militaries of the United Kingdom, Canada, Australia, India, and throughout the world. In fact, Canadian Minister of National Defense Harjit Singh Sajjan is a fully-bearded Sikh and previously served alongside American forces in Afghanistan. 

Victory for Sikh soldiers 

In October 2015, Becket, along with the Sikh Coalition and the law firm McDermott Will & Emery, petitioned the Army to grant Captain Singh a religious accommodation. In December 2015, the Army  issued  a one-month accommodation under RFRA, but then shortly after, ordered Simmer to undergo a series of discriminatory tests that other soldiers who wore beards for medical reasons were not required to complete. 

On February 29, 2016, Becket, McDermott, and the Sikh Coalition  filed a lawsuit  on Simmer’s behalf to block the discriminatory testing and to obtain a permanent accommodation.  Days later, in a rare move against the Army, the court ordered the Department of Defense to cease all discriminatory testing against Captain Singh because of his religious beard and granted him  temporary protection  while the case was ongoing. In March 2016, Becket filed a similar lawsuit in  Singh v. McConville  on behalf of Specialist Kanwar Bir Singh, Specialist Harpal Singh, and Private Arjan Singh Ghotra and their right to serve in the Army without abandoning their Sikh articles of faith. 

Following the court ruling, the Army granted Simmer a longer accommodation that allowed him to serve with his religious beard, unshorn hair, and turban for up to one year. On January 4, 2017, that victory became permanent when the Army issued new regulations stating that Sikh soldiers will not be forced to abandon their religious turbans, unshorn hair, or beards throughout their military career.

Importance to religious liberty: 

  • Individual freedom:  Individual religious exercise encompasses more than just thought or worship—it involves visibly practicing the signs of one’s faith. Religious individuals must be free to follow their faith in all aspects of life, especially those who serve in our military to defend the freedom of all Americans. 
  • Public Square: Because religion is natural to human beings, it is natural to human culture. It can, and should, have an equal place in the public square. 
  • RFRA: The Religious Freedom Restoration Act ensures that the government cannot burden the religious exercise of individuals or groups to violate their deeply held beliefs without compelling interest or when there are reasonable alternatives to doing so.  

Tagore v. Department of Homeland Security

In April 2005, Kawal Tagore reported to her IRS job, as she always did. But that day was different: her supervisor sent her away from the office and told her not to return.

Ms. Tagore had recently been formally initiated into the Sikh faith and thus begun carrying a kirpan, one of the five articles of faith that Sikhs are required to carry. A kirpan resembles small, blunt knife – symbol meant to remind Sikh believers of their commitment to a just and humane society.

Even though she went through security without a problem, and even though the building contained sharper, more dangerous blades than Ms. Tagore’s kirpan—scissors, box cutters and cake knives—Ms. Tagore was banned from the federal building. She worked from home for about nine months before she was fired altogether.

Becket defended Ms. Tagore’s right to wear her kirpan. In November 2014, the federal government agreed to settle the case and change its nationwide policies to accommodate Sikh federal employees – a victory for Sikh Americans and religious freedom.

 

Tommy DeForest, Alabama

Tommy DeForest was a Sikh high school student in Alabama who wanted to wear a patka, the headcovering required by the Sikh faith. Good Hope High School barred him from attending school with his patka, citing its “no hats” policy. Becket sent a letter to the superintendent and argued that forcing a student to chose between his religious convictions and receiving a public education violates the right to free exercise of religion. We pointed to the Alabama Religious Freedom Amendment to Alabama’s constitution, which says that the “[g]overnment shall not burden a person’s freedom of religion even if the burden results from a rule of general applicability.” While the reasoning behind a no hats policy in public schools may be fine, it should not restrict the religious freedom of students, be they Jewish, Sikh, or something else. The school backed down, and Tommy was able to return to school and continue practicing his faith.

Jasvir Singh v. France, Bikramjit Singh v. France

“In France, the idea of “school uniform” has been turned into “school uniformity,” much to the detriment of religious minorities.

On September 2, 2004, France’s loi sur laïcité (law on secularism) took effect, banning religious attire in all state schools. This law reads:

Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit.

In public [primary and secondary schools], the wearing of symbols or clothing through which the pupils ostensibly manifest a religious appearance is prohibited.

The ban on all symbols or clothing that create a “religious appearance” means that students cannot wear yarmulkes, large crucifixes, Sikh turbans, or of course Islamic headscarves, the actual target of the legislation. The word “ostensibly,” however, allows pupils to continue the traditional French practice of wearing small Christian crucifixes.

Since the law came into effect, at least 639 problematic cases have arisen. Of these, 550 have been “resolved,” as the Education Ministry puts it, in most cases by female Muslim pupils ultimately agreeing not to wear bandanas or Islamic headscarves while in school.

But not all students acquiesce to checking their religion at the door. At least 48 children have been expelled from school, mostly Muslim girls who have refused to take off their headscarves, along with 3 Sikh boys who refused to remove their turbans.

As is typical for this sort of law, the enforcement has had far wider scope than the actual text of the law demands. Many schools and teachers who misunderstand the scope of the “secularism law” have prohibited teachers who are members of the clergy from wearing religious garb such as cassocks that they have worn for centuries. One school initially banned a Christmas tree (though it is unclear how pupils might wear it), until it decided that the tree was a pagan rather than a Christian symbol.

Perhaps the worst example of the law’s chilling effects on speech came when teachers at a school in northern France returned 1300 boxes of St. Nicholas Day chocolates to the mayor of the town who had, in accordance with long tradition, sent them to the pupils. The reason? The chocolates’ foil wrappers had tiny crosses on them.

The secularism law strikes at the heart of public religious expression because it does not allow students to identify themselves as believers in a certain faith. Because many students are required by their religion to identify themselves through symbols or clothing, the prohibition forces them to violate their most closely held beliefs. Moreover, by banning religious speech while allowing similar non-religious speech (for example, students are still able to wear clothing that reflects their political beliefs), the state has determined that religious speech is inferior to all other speech. The law also discriminates against religious believers and religious speech because it allows non-believers to wear bandanas or beards, while forbidding religious pupils from doing the same things.

The secularism law clearly violates France’s obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. Both of these international covenants protect the right of every human being to “manifest [his or her] religion or belief” “in public or private”–something the secularism law explicitly forbids.

The Becket Fund collaborated with the Sikh human rights group United Sikhs and European human rights lawyers in advising the three French Sikh boys who have been expelled from school for wearing the turban their religion requires. In December 2007, France’s highest court, the Conseil d’Etat, ruled that the ban on Sikh turbans in French schools was legal because it was not “excessive” and because the ban promoted secularism. In 2009, the European Court of Human Rights upheld France’s decision in the case of Jasvir Singh and Ranjit Singh.

Amandeep Singh v. Greenburgh Central School District

Amandeep Singh, a ninth-grade honor student in New York, was reprimanded and suspended indefinitely for wearing a kirpan—a ceremonial religious item worn by members of the Sikh faith—to school.

Meet Amandeep Singh, a high school honor student and a faithful Sikh

Amandeep Singh became a baptized Sikh at age eight, requiring him, like 20 million other Sikhs worldwide, to follow the five Sikh articles of faith. The best known of these is the requirement to wear hair uncut in a turban. Another lesser known requirement is to wear a kirpan, an item shaped like a sword that reminds Sikhs of their duty to speak out against injustice and stand up for the defenseless. In deference to school security concerns, school-age children like Amandeep typically wear a very small, blunt kirpan that is completely harmless.

For over seven years, Amandeep attended local public schools and continuously observed all five articles of his faith, including the wearing of the kirpan, without any incident. Many of his teachers were aware of his kirpan and specifically commended him for his dedication to his faith. None ever told him that his kirpan–which was duller than a butter knife and secured underneath his clothes–posed any sort of danger.

School officials ban a Sikh article of faith

Without explanation, school officials suddenly reversed course in February 2005 and declared Amandeep’s kirpan to be a prohibited “weapon.” Moreover, they refused to allow him to set foot on school grounds unless he abandoned his article of faith.

Becket intervened on Amandeep’s behalf, meeting with school district officials to explain the kirpan’s religious significance and Amandeep’s rights under the First Amendment. The district quickly changed course, agreeing to allow Amandeep to continue his education without compromising his faith.

This was a victory not only for Amandeep and other Sikhs, but also for students of all faiths to freely exercise religion in public schools.

Guru Nanak Sikh Society of Yuba City v. County of Sutter

The Guru Nanak Sikh Society began its effort to build a Sikh temple when it applied for a conditional use permit for a property it owned  in Yuba City, California. The site was located in a residential zone designated for large lot single family homes, where the zoning ordinance permits churches and other religious institutions only with a conditional use permit.

County staff found that the project would be consistent with the county’s general plan and recommended approval of the application with conditions that would minimize potential conflicts with residences in the area. But on April 4, 2001 the County Planning Commission voted unanimously to deny the CUP application, responding to complaints from neighbors regarding “noise and traffic.”

So the Guru Nanak Sikh Society began searching for a different property. In 2002 they bought property in an area of the county zoned for agricultural land. The  Society applied for a conditional use permit seeking approval for expansion and use of an existing house as a Sikh temple. As with the previous application, the Society stipulated that no more than 75 people would occupy the facility at any one time.

Once again, the county staff found the proposed use consistent with the county’s general plan and recommended approval of the application. But once again, neighbors complained, citing traffic and property value concerns. This time, however, the Planning Commission approved the CUP on a vote of 4-3.

The complaining neighbors now appealed the Planning Commission decision to the County Board of Supervisors. County staff recommended that the Board deny the appeal and uphold the Planning Commission’s approval of a CUP. But following a public hearing the Board voted unanimously to deny the use permit.

On August 19, 2002, represented by Michael Barrette, the Guru Nanak Sikh Society filed suit against the county and members of the County Board in U.S. District Court, alleging more than 20 violations of state and federal law, including RLUIPA. On November 19, 2003, Senior Judge Lawrence Karlton issued a 47 page decision in which he found that the County has violated RLUIPA, and upheld the constitutionality of RLUIPA’s land use provisions.

“There can be no doubt that plaintiff’s challenge concerns ‘religious exercise’ within the meaning of RLUIPA,” Judge Karlton wrote. “Defendants argue that plaintiff has failed to satisfy its burden because it ‘does not identify a single religious belief mandated by its faith that is inhibited (much less, substantially burdened) on account of the use permit denial. . . . This argument flies in the face of both the record and common sense. Plaintiff’s permit application itself details the ways in which the temple is required to facilitate Sikh religious practices. . . . Congress’s decision to enact RLUIPA necessarily recognizes the fact that religious assembly buildings are needed to facilitate religious practice, and the possibility that local governments may use zoning regulations to prevent religious groups from using land for such purposes. It is for this reason that challenges of zoning ordinances are expressly contemplated by the statute. The use of the land does not have to be a ‘core religious practice.'”

On December 12, 2003, Sutter County filed a notice of appeal to the Ninth U.S. Circuit Court of Appeals.

On June 9, 2004, Becket filed an amicus curiae brief with the Ninth Circuit. The brief stated that the denial by Sutter County’s Board of Commissioners to issue a building permit to the Sikhs violated the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) because it “substantially burdened” the free exercise of religion.

The Ninth Circuit Court of Appeals followed Becket’s argument, holding that the Guru Nanak Sikh society had the right to build a place of worship in their neighborhood.

“This resounding victory for the Sikh group has nationwide implications for a wide range of cases dealing with religious land interests,” said Jared N. Leland, spokesman for Becket, “and it will echo especially loudly in California.”