Singh v. Berger

Decision Date23 December 2022
Docket Number22-5234
Parties Jaskirat SINGH, et al., Appellants v. David H. BERGER, in his official capacity as the Commandant of the Marine Corps, et al., Appellees
CourtU.S. Court of Appeals — District of Columbia Circuit

Eric S. Baxter argued the cause for appellants. With him on the briefs were Amandeep S. Sidhu, Amrith Kaur Aakre, Giselle Klapper, Daniel H. Blomberg, Diana Verm Thomson, Daniel D. Benson, and Laura Wolk.

Joshua C. McDaniel, Kelsey M. Flores, and Parker W. Knight III were on the brief for amici curiae The Muslim Public Affairs Council and American Islamic Congress in support of appellants.

Jacob T. Spencer, Andrew D. Ferguson, Joshua R. Zuckerman, and John N. Reed were on the brief for amicus curiae Chaplain Jacob Goldstein (ret.) in support of appellants.

David S. Petron and Gordon D. Todd were on the brief for amici curiae Jewish Coalition for Religious Liberty, et al. in support of appellants.

Richard D. Salgado was on the brief for amici curiae The Sikh American Veterans Alliance, et al. in support of appellants.

Sarah M. Harris, Mark S. Storslee, and Jesse T. Clay were on the brief for amici curiae Former Military Officials Eric Fanning, et al. in support of appellants.

Brian J. Springer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Michael S. Raab, Attorney.

Before: Millett, Rao, and Childs, Circuit Judges.

Millett, Circuit Judge:

Jaskirat Singh, Milaap Singh Chahal, and Aekash Singh wish to serve their Nation by enlisting in the United States Marine Corps. They are each fully qualified to enlist, having satisfied the Corps’ pre-enlistment criteria. There is just one barrier to their entry. Jaskirat, Milaap, and Aekash are members of the Sikh faith, which requires them, as relevant here, to maintain unshorn hair and beards and to wear certain articles of faith. Those religious practices conflict with the Marine Corps’ standard grooming policy for the initial training of newly enlisted recruits, commonly known as boot camp. The Corps has agreed to accommodate Plaintiffs’ religious commitments (with some limitations not relevant here) after each of them finishes basic training. But it will brook no exception for the Sikh faith during those initial thirteen weeks of boot camp.

The district court denied Plaintiffsrequest for a preliminary injunction based solely on an analysis of the public interest. We reverse in part and remand for the prompt issuance of a preliminary injunction in favor of Jaskirat Singh and Milaap Chahal, and for reconsideration of Aekash Singh's request for a preliminary injunction in light of this opinion.

I
A

This case arises at the intersection of weighty competing interests. On the one hand, "no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting." Chappell v. Wallace , 462 U.S. 296, 300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Plus the "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments" that courts generally are ill-equipped to second guess. Gilligan v. Morgan , 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) ; see also Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To inculcate the importance to service members of sacrificing "personal preferences and identities in favor of the overall group mission[,]" the military has long had an interest in "the strict enforcement of its uniform dress requirements."

Goldman v. Weinberger , 475 U.S. 503, 504, 508, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986).

On the other hand, the cost of military service has never entailed the complete surrender of all "basic rights[.]" Chappell , 462 U.S. at 304, 103 S.Ct. 2362 (internal quotation marks and citation omitted); see also Rostker v. Goldberg , 453 U.S. 57, 67, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) ("[W]hen it acts in the area of military affairs," "Congress remains subject to the limitations of the Due Process Clause[.]"); Parker v. Levy , 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ("[M]embers of the military are not excluded from the protection granted by the First Amendment[.]").

Of particular relevance here, in exercising their "plenary constitutional authority over the military," see Chappell , 462 U.S. at 302, 103 S.Ct. 2362, the Political Branches have repeatedly required the military to carefully balance its need for disciplined uniformity with the religious needs of service members.

For example, Congress responded promptly and directly to the Supreme Court's decision in Goldman v. Weinberger , 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986), which rejected a service member's First Amendment claim to wear a yarmulke while in uniform, id. at 509–510, 106 S.Ct. 1310. A statute passed the following year instructed the military not to ban religious apparel in uniform unless it would "interfere with the performance of the member's military duties" or disrupt a "neat and conservative" appearance. See Pub. L. No. 100–180 § 508, 101 Stat. 1019, 1086–1087 (1987) (codified at 10 U.S.C. § 774 ).

Then, in 1993, Congress enacted the Religious Freedom Restoration Act ("RFRA"), Pub. L. No. 103–141 (codified at 42 U.S.C. § 2000bb et seq. ). RFRA prohibits the federal government from "substantially burden[ing] a person's exercise of religion" unless the Government "demonstrates that application of the burden to the person" is the "least restrictive means" of furthering a "compelling" interest. See 42 U.S.C. § 2000bb–1(b)(1)(2). As the Government has recognized, RFRA, with its demanding compelling-interest and least-restrictive-means test, "undoubtedly ‘applies in the military context.’ " United States Navy Seals 1–26 v. Biden , 27 F.4th 336, 346 (5th Cir. 2022) (quoting United States v. Sterling , 75 M.J. 407, 410 (C.A.A.F. 2016), cert. denied , ––– U.S. ––––, 137 S. Ct. 2212, 198 L.Ed.2d 657 (2017) ); see also Application for Partial Stay at 22–24, Austin v. United States Navy Seals 1–26 , ––– U.S. ––––, 142 S. Ct. 1301, 212 L.Ed.2d 348 (2022) (government acknowledging that RFRA applies to military decisionmaking); Religious Liberty in the Military Services, Department of Defense Instruction 1300.17 at 1–3 (Jan. 22, 2014) (applying 42 U.S.C. § 2000bb–1 to religious accommodations); Religious Liberty in the Military Services, Department of Defense Instruction 1300.17 at 1–2 (Sept. 1, 2020), J.A. 548–549 (describing its purpose as, in part, to "[i]mplement[ ] requirements" of RFRA and "to provide, in accordance with the RFRA, that DoD Components will normally accommodate practices of a Service member based on a sincerely held religious belief").

As the Supreme Court has explained, "Congress's express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage." Gonzales v. O Centro Espirita Beneficiente União do Vegetal , 546 U.S. 418, 429–430, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (" O Centro "). As under the First Amendment, RFRA's "compelling interest test" is an "affirmative defense" for which the Government bears the burden of persuasion, and it subjects governmental action to strict scrutiny. See O Centro , 546 U.S. at 424, 429–430, 126 S.Ct. 1211. Strict scrutiny is an "exceptionally demanding" test. Holt v. Hobbs , 574 U.S. 352, 364, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 728, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) ). If the Government can achieve its interests without burdening religion, "it must do so." Fulton v. City of Philadelphia , ––– U.S. ––––, 141 S. Ct. 1868, 1881, 210 L.Ed.2d 137 (2021) ; see also Hobby Lobby , 573 U.S. at 728, 134 S.Ct. 2751. By subjecting military decisions to RFRA scrutiny, the Political Branches determined, in their expert judgment, that Americans need not surrender their faith to fight for their Nation absent demonstrated necessity.

Since RFRA, Congress and multiple Presidents have doubled down on their commitment to accommodating religion within military life. 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." See Pub. L. No. 112–239 § 533(a)(1) (codified at note preceding 10 U.S.C. § 1030 ). Congress expanded that protection the following year 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. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66 §§ 532 –533, 127 Stat. 672, 759–760.

Most recently, in 2015, the Political Branches expressly acknowledged the "numerous religious traditions" represented among service members, including "Christian, Hindu, Jewish, Muslim, [and] Sikh," and determined that this diversity "contributes to the strength" of the armed forces and should be "promote[d]." National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114–92 § 528, 129 Stat. 726, 814; see also JOSEPH R. BIDEN, NATIONAL SECURITY STRATEGY 21 (Oct. 2022) ("We will strengthen the effectiveness of the force by promoting diversity and inclusion[.]").

Citing RFRA, and in line with those directives, the Army, Navy, Air Force, and Coast Guard, as well as their training Academies, each accommodate the Sikh religious practices at issue here during both initial recruit training and military service. Department of the Navy Bureau of...

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