United States District Court, District of Columbia
AMENDED MEMORANDUM OPINION
AMY BERMAN JACKSON United States District Judge.
Plaintiff Iknoor Singh is a rising junior at Hofstra University and an observant Sikh. In accordance with his religion, plaintiff does not cut his hair or beard, and he wears a turban. He has endeavored to enroll in the Reserve Officers’ Training Corps (“ROTC”) program run by the United States Army at his university, but his religious practices do not conform to Army uniform and grooming standards. Plaintiff sought a religious accommodation that would enable him to enroll in ROTC with his articles of faith intact, but the Army denied the request. Plaintiff contends that the Army’s refusal to accommodate his religious exercise violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and he brought this lawsuit against John McHugh, in his official capacity as Secretary of the United States Army; Lieutenant General James C. McConville, in his official capacity as Deputy Chief of Staff, G-1, United States Army; Brigadier General Peggy C. Combs, in her official capacity as Commanding General, United States Army Cadet Command; and Lieutenant Colonel Daniel L. Cederman, in his official capacity as Commander of the ROTC program at Hofstra University.
In their motion for summary judgment, defendants remind the Court of the doctrine that cautions judges to afford substantial deference to the judgment of military commanders and to decline to interpose their own views in matters involving the composition and training of military officers. In opposing defendants’ motion and advancing his own, plaintiff points out that like all government agencies, the Armed Services are governed by the congressional determination - enshrined in RFRA - to tip the scale in favor of individual religious rights. He notes that even the military must be able to demonstrate that a policy that imposes a substantial burden upon an individual’s ability to practice his religion furthers a compelling government interest, and is the least restrictive alternative available for furthering that interest. In other words, while the Court must accord the military a great deal of respect, particularly in its identification of the compelling interests involved, the defendants still bear the burden to come forward with sufficient evidence to satisfy the strict scrutiny inquiry: does the specific application of Army policy to this plaintiff further the asserted compelling interest and do so in the least restrictive manner?
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, and for the additional reasons set forth below, defendants’ dispositive motions will be denied and 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.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Iknoor Singh is a rising junior at Hofstra University and an adherent of the Sikh faith. Pl.’s Statement of Undisputed Material Facts in Supp. of Cross-Mot. for Summ. J. [Dkt. # 32-2] (“Pl.’s SOF”) ¶ 8; Defs.’ Resp. to Pl.’s SOF [Dkt. # 37-1] (“Defs.’ SOF Resp.”) ¶ 8. In accordance with his religion, plaintiff does not cut his beard or hair, and he tucks his unshorn hair under a turban. Pl.’s SOF ¶ 8; Defs.’ SOF Resp. ¶ 8. Plaintiff maintains the sincere belief that if he cut his hair, shaved his beard, or abandoned his turban, he would be “dishonoring and offending God.” Pl.’s SOF ¶ 8; Defs.’ SOF Resp. ¶ 8.
The Army operates an ROTC program at Hofstra University that plaintiff has sought to join. Pl.’s SOF ¶¶ 9, 13; Defs.’ SOF Resp. ¶¶ 9, 13. Plaintiff hopes to serve in Military Intelligence, and he speaks Urdu, Hindi, and Punjabi, as well as English. Ex. 7 to Decl. of Pl. in Supp. of Pl.’s Mot. for Prelim. Inj. [Dkt. # 3-2, 27-28]. Plaintiff has participated in ROTC as an auditing student but he has not yet enrolled in the program because the Army demands that he first agree to abide by its grooming and uniform regulations by removing his turban, cutting his hair, and shaving his beard. Pl.’s SOF ¶¶ 9, 13; Defs.’ SOF Resp. ¶¶ 9, 13. Plaintiff requested a religious accommodation that would permit him to enroll with his articles of faith intact, and that request has now been formally denied. Letter from Lieutenant General James C. McConville to Pl. (Dec. 19, 2014) [Dkt. # 18-1] (“McConville Letter”) at 1.
The Army initially took the position that the would-be soldier was bound to comply with the grooming and uniform policies before he could enroll in ROTC and that it could not even consider a request for an accommodation until he did so. See Ex. C to Defs.’ Mot. to Dismiss and for Summ. J. [Dkt. # 21-2, 13-14]. On November 12, 2014, before the Army had agreed to consider plaintiff’s accommodation request, plaintiff filed this action and sought: (1) a preliminary injunction requiring the Army to process the accommodation request and ordering a temporary accommodation and “provisional enlistment” if the request was denied; (2) a declaratory judgment that defendants’ refusal to grant plaintiff a religious exemption to the Army’s grooming and uniform standards would violate RFRA; (3) a permanent injunction enjoining defendants from enforcing the Army’s standards insofar as they would require plaintiff to cut his hair, shave his beard, and remove his turban, and ordering defendants to allow plaintiff “to join” the Hofstra ROTC unit; and (4) attorney’s fees and costs. Compl., Request for Relief ¶¶ a-d. The next day, plaintiff filed a motion for a preliminary injunction seeking the preliminary relief identified in the complaint. Pl.’s Mot. for Prelim. Inj. [Dkt. # 3].
While the motion for a preliminary injunction was pending, defendants notified the Court that the Army had changed its position, and that it would process plaintiff’s accommodation request. Defs.’ Opp. to Pl.’s Mot. for Prelim. Inj. [Dkt. # 16] at 1. On December 19, 2014, the request was denied. Notice of Filing of Agency’s Decision on Pl.’s Accommodation Request [Dkt. # 18] (“Decision Notice”); McConville Letter. In light of defendants’ consideration and denial of plaintiff’s request, the Court consolidated the motion for a preliminary injunction with the merits pursuant to Federal Rule of Civil Procedure 65. Minute Order (Dec. 22, 2014).
Defendants filed a motion to dismiss or, in the alternative, for summary judgment on January 20, 2015. Defs.’ Mot. to Dismiss and for Summ. J. (mistakenly labeled “memorandum in support”) [Dkt. # 21] (“Defs.’ Mot.”); Defs.’ Mem. in Supp. of Defs.’ Mot. [Dkt. # 21] (“Defs.’ Mem.”). They took the position that the complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because plaintiff, as a civilian, could not establish that the Army’s decision substantially burdened his religious practice, and because requests for judicially-ordered enlistments are nonjusticiable. Defs.’ Mem. at 1, 3. In the alternative, defendants argued that they were entitled to summary judgment on all of plaintiff’s claims. Id.
On January 27, 2015, plaintiff responded to defendants’ motion with a motion to take discovery pursuant to Federal Rule of Civil Procedure 56(d). Pl.’s Mot. for Disc. [Dkt. # 22]. The matter was fully briefed, and the Court issued an order granting the motion in part and denying it in part. Order (Feb. 3, 2015) [Dkt. # 25]. After the discovery was completed, plaintiff filed an opposition to defendants’ motion to dismiss and for summary judgment, combined with a cross-motion for summary judgment, on March 21, 2015. Pl.’s Cross-Mot. for Summ. J. [Dkt. # 33] (“Pl.’s Mot.”); see also Pl.’s Mem. Opposing Defs.’ Mot. and Supporting Pl.’s Mot. [Dkt. # 32]. Defendants filed a reply and cross-opposition on April 10, 2015, Defs.’ Opp. to Pl.’s Mot. and Reply in Supp. of Defs.’ Mot. [Dkt. # 37] (“Defs.’ Reply”), and plaintiff filed a cross-reply on April 17, 2015. Pl.’s Reply Mem. in Supp. of Pl.’s Mot. [Dkt. # 43] (“Pl.’s Reply”). The Court heard argument on the motions on April 29, 2015.
I. Army Uniform and Grooming Regulations
A. Religious Headgear
The Army’s uniform regulations permit soldiers to wear religious apparel while in uniform, including religious “headgear, ” if the apparel is “neat and conservative” and it will not “interfere with the performance of military duties.” Army Regulation (“A.R.”) 600-20 (Nov. 6, 2014), Regulatory App’x to Defs.’ Mot. [Dkt. # 21-4, 26] (“A.R. 600-20”) at A024. Soldiers in uniform may wear religious headgear if:
1. The religious headgear is subdued in color . . . .
2. The religious headgear is of a style and size that can be completely covered by standard military headgear.
3. The religious headgear bears no writing, symbols, or pictures.
4. Wear of the religious headgear does not interfere with the wear or proper functioning of protective clothing or equipment.
6. Religious headgear will not be worn in place of military headgear under circumstances when the wear of military headgear is required (for example, when the Soldier is outside or required to wear headgear indoors for a special purpose).
Id. “Religious headgear that meets these criteria is authorized irrespective of the faith group from which it originates.” Id.
Soldiers are not authorized to wear religious headgear that does not meet these requirements while in uniform unless they have received a religious accommodation. See Id . at A022. It is the Army’s policy to grant religious accommodation requests related to uniforms “unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, good order, discipline, safety, and/or health, ” the factors that constitute “military necessity.” Id.
Under Army regulations, men’s hair “must present a tapered appearance, ” and, when combed, may “not fall over the ears or eyebrows, or touch the collar, except for the closely cut hair at the back of the neck.” A.R. 670-1 (Sept. 15, 2015, revised Sept. 24, 2015), Ex. 5 to Pl.’s Mot. [Dkt. # 34, 105] (“A.R. 670-1”) at 5. “Males are not authorized to wear braids, cornrows, twists, dreadlocks, or locks while in uniform or in civilian clothes on duty, ” although they may wear wigs “to cover natural baldness or physical disfiguration.” Id. Women are permitted to wear bangs and longer hair, subject to certain requirements, id., and their “hair may be styled with braids, cornrows, or twists.” Id. at 6. Women, but not men, are permitted to use cosmetics, “provided they are applied modestly and conservatively.” Id.
Men are required to “keep their face[s] clean-shaven when in uniform, or in civilian clothes on duty.” A.R. 670-1 at 5. Sideburns are permitted as long as they do not “extend below the bottom of the opening of the ear” and the length of individual hairs does not exceed one-eighth of an inch. Id. Mustaches are permitted as long as they are “neatly trimmed, tapered, and tidy.” Id.
The Army makes exceptions to its hair-related grooming rules for medical reasons, see A.R. 670-1 at 5, and for “operational necessity.” Defs.’ Objections and Resps. to Admiss. Propounded by Pl., Ex. 12 to Pl.’s Mot. [Dkt. # 34, 267] (“Defs.’ Admiss.”) at 4. Medical exemptions are usually related to dermatological conditions such as pseudofolliculitis barbae and acne keloidalis nuchae. Pl.’s SOF ¶ 41; Defs.’ SOF Resp. ¶ 41; see also Technical Bulletin 287, Pseudofolliculitis of the Beard and Acne Keloidalis Nuchae (Dec. 10, 2014), Ex. AA to Defs.’ Reply [Dkt. # 37-2, 38] (“TB MED 287”) at 4. A doctor may authorize a temporary or permanent “shaving profile, ” which permits the affected soldier to wear a beard. TB MED 287 at 11-12. Medically authorized beards are generally limited to one-quarter of an inch, although Army regulations permit a physician to specify that a longer beard is necessary. Id. at 11.
Army records indicate that at least 49, 690 permanent shaving profiles and 57, 616 temporary shaving profiles have been authorized since 2007. See Ex. 9 to Pl.’s Mot. [Dkt. # 34, 226-28]. Defendants state that these shaving profiles are subject to command review. See Stipulation in Lieu of R. 30(b)(6) Testimony, Ex. 10 to Pl.’s Mot. [Dkt. # 34, 230] (“Defs.’ Stip.”) at 1. Defendants do not dispute plaintiff’s contention that the Army has deployed soldiers with shaving profiles for operations in foreign countries and has allowed them to continue wearing their beards during deployment. Pl.’s SOF ¶ 54; Defs.’ SOF Resp. ¶ 54.
Army regulations authorize soldiers to wear tattoos subject to limitations with respect to their size, placement, number, and content. Ex. 5 to Pl.’s Mot. [Dkt. # 34, 110] at 10. But the Army has granted numerous exceptions and waivers to its tattoo policy. For instance, when the Army tightened its tattoo guidelines on March 31, 2014, it grandfathered in 197, 102 soldiers with non-conforming tattoos. Defs.’ Stip. at 2. In addition, since November 2014, the Army has approved at least 183 exceptions to the tattoo policy, including for tattoos with religious themes (for example, images of crosses, biblical verses, and an image of Jesus Christ); tattoos related to aspects of popular culture, such as movies, cartoon characters, and cars (for example, an image of a vampire Mickey Mouse and a Star Wars caricature); tattoos that reflect cultural or ethnic heritage (a family crest, a grandmother’s surname, and Samoan tribal bands); and tattoos reflecting various personal interests (such as images of dragons, words, and symbols). Pl.’s SOF ¶¶ 63-67; Defs.’ SOF Resp. ¶¶ 63-67. Recipients of these tattoo waivers have included prospective Army enlistees, enlisted soldiers, and ROTC cadets. Pl.’s SOF ¶ 68; Defs.’ SOF Resp. ¶ 68.
II. The Reserve Officers’ Training Corps
The mission of the ROTC “is to produce commissioned officers in the quality, quantity, and academic disciplines necessary to meet active Army and reserve component requirements.” A.R. 145-1, Regulatory App’x to Defs.’ Mot. [Dkt. # 21-4, 39] (“A.R. 145-1”) at A037. At Hofstra University, the ROTC program seeks to “recruit, retain, and ultimately commission Second Lieutenants in the U.S. Army who are mentally, physically, and emotionally prepared to lead American Soldiers in order to deter our enemies and, when necessary, fight and win our Nation[‘s] wars.” Decl. of Lieutenant Colonel Daniel Cederman, Ex. B to Defs.’ Mot. [Dkt. # 21-2, 7] (“Cederman Decl.”) ¶ 4.
ROTC classes include “enrolled” cadets and “participating students.” Defs.’ Statement of Material Facts [Dkt. # 21-1] (“Defs.’ SOF”) ¶ 6; Pl.’s Resp. to Defs.’ SOF [Dkt. # 32-14] (“Pl.’s SOF Resp.”) ¶ 6. Enrolled cadets participate in classroom instruction, as well as training outside the classroom. Defs.’ SOF ¶ 6; Pl.’s SOF Resp. ¶ 6. They may wear military uniforms during training, and they are subject to Army grooming standards during ROTC activities. A.R. 145-1 at A067. Participating students are limited to attending ROTC classroom instruction. Cadet Command Pam 145-4, Regulatory App’x to Defs.’ Mot. [Dkt. # 21-4, 111] (“C.C. Pam 145-4”) at A109. They are not authorized to wear uniforms, nor are they subject to Army grooming standards. See id.; see also Defs.’ SOF ¶ 7; Pl.’s SOF Resp. ¶ 7. Students who are not enrolled in ROTC may only attend Hofstra’s military-science course during their first two years of college. Pl.’s SOF ¶ 7; Defs.’ SOF Resp. ¶ 7.
Enrolled cadets are either “contracted” or “non-contracted.” C.C. Pam 145-4 at A113. Non-contracted cadets are not members of the Army, Defs.’ SOF ¶ 8; Pl.’s SOF Resp. ¶ 8, and they must contract with the Army as cadets before their junior year of college in order to continue participating in ROTC activities and to be eligible for ROTC benefits. Pl.’s SOF ¶ 7; Defs.’ SOF Resp. ¶ 7. To be eligible to contract with the Army, enrolled cadets must either complete the “Basic Course, ” or they must attend the Leader’s Training Course, or “Basic Camp, ” during the summer before their junior year of college. See Army Reg. 145-1 at A069; Cederman Decl. ¶ 5. Enrolled cadets compete for a limited number of contracts. See Cederman Decl. ¶ 7; 30(b)(6) Cederman Dep., Feb. 26, 2015, Ex. 1 to Pl.’s Mot. [Dkt. # 34, 31] (“Cederman Dep.”) at 38.
Contracted cadets are members of the Army; they are required to enlist in the Army Reserve, and they agree to accept a commission in the Army if one is offered. Defs.’ SOF ¶¶ 8, 10; Pl.’s SOF Resp. ¶¶ 8, 10. In addition, only contracted cadets may participate in the ROTC “Advanced Course, ” which includes the Military Science III and IV classes, and the Leadership Development and Assessment Course, a paid twenty-nine day session that “gives cadets the chance to practice what they have learned in the classroom, and introduces them to Army life ‘in the field.’” Defs.’ SOF ¶ 9; Pl.’s SOF Resp. ¶ 9; see also Cederman Decl. ¶¶ 3, 5. Contracted ROTC cadets are also eligible to receive scholarships of up to $1, 200 annually for books and expenses, and a $300-$500 per month tax-exempt spending allowance. Pl.’s SOF ¶ 3; Defs.’ SOF Resp. ¶ 3.
III. The Religious Freedom Restoration Act and Department of Defense Instruction 1300.17
“Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014). To this end, RFRA provides that the “[g]overnment shall not substantially burden a person’s exercise of religion” unless it can “demonstrate that application of the burden to the person - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). RFRA further specifies that “the term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Id. § 2000bb-2(1).
Whether a government action substantially burdens a plaintiff’s religious exercise is a question of law for a court to decide. Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247 (D.C. Cir. 2014). “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see also Id . § 2000bb-2(4). If a plaintiff demonstrates the substantial burden to his religious belief, then the government bears the burden of showing that its policy furthers a compelling government interest by the least restrictive means. Id. §§ 2000bb-1(b), 2000bb-2(3); Hobby Lobby, 134 S.Ct. at 2761.
The Department of Defense expressly incorporated RFRA into its own regulations effective January 22, 2014. It amended DoD Instruction (“DoDI”) 1300.17, which addresses “Accommodation of Religious Practices Within the Military Services, ” as follows:
In accordance with section 2000bb-1 of Title 42, United States Code . . . requests for religious accommodation from a military policy, practice, or duty that substantially burdens a Service member’s exercise of religion may be denied only when the military policy, practice, or duty:
(a) Furthers a compelling governmental interest.
(b) Is the least restrictive means of furthering that compelling governmental interest.
DoDI 1300.17, Regulatory App’x to Defs.’ Mot. [Dkt. # 21-4, 6] (“DoDI 1300.17”) at A004.
With respect to the Army, any requests that would require a waiver of grooming and appearance practices must be forwarded to the Secretary of the Army and must be resolved by an official no lower than the Deputy Chief of Staff, G-1. Id. at A005. Requests for accommodation of religious practices are to be “assessed on a case-by-case basis” and “considered based on [their] unique facts; the nature of the requested religious accommodation; the effect of approval or denial on the Service ...