Beards and kippot still require Army’s OK

Despite a Pentagon directive loosening restrictions for U.S. troops who wish to wear religious garments or beards with their military uniforms, men and women in the military must still seek special approval from their commanders, and such requests can still be denied.

Constitutional law attorney Nathan Lewin said that the requirement to seek permission — for such things as head scarves, turbans, and yarmulkes — violates religious apparel statute 10 USC 774. Passed by Congress in 1996, the LAW allows members of the armed forces to “wear an item of religious apparel while wearing the uniform of the member’s armed force.”

“The new policy states that military departments will accommodate religious requests of service members unless a request would have an adverse effect on military readiness, mission accomplishment, unit cohesion and good order and discipline,” Navy Lt. Cmdr. Nathan J. Christensen, a Pentagon spokesman, said in a statement.

“All requests for accommodation of religious practices will be assessed on a case-by-case basis… Each request must be considered based on its unique facts, the nature of the requested religious accommodation, the effect of approval or denial on the service member’s exercise of religion, and the effect of approval or denial on mission accomplishment, including unit cohesion,” Christensen said.

Col. (ret.) Rabbi Sanford Dresin, director of military programs for the Aleph Institute and Aleph’s ecclesiastical endorser to the Department of Defense, said the loosening of restrictions is a “terrific thing,” but it remains to be seen how the changes will be implemented.

Aleph Institute is one of three endorsing agencies for Jewish chaplains in the military.

The new rules benefit Muslims, Sikhs and members of other faiths, as well as Jews.

The Department of Defense decision conjures echoes of the case of Rabbi Menachem Stern, who was sworn in as a U.S. army chaplain in December 2011 following the resolution of his lawsuit against the army. The army had refused to budge for Stern on its “no-beard” policy for several years, but finally decided it wasn’t “going to take a chance with a lawsuit because they didn’t know what the judge could do,” Lewin, who represented Stern pro bono, said at the time.

Lewin won a similar case for Rabbi Michell Geller in 1976. But in the 1986 U.S. Supreme Court case Goldman v. Weinberger, an Orthodox rabbi represented by Lewin was told by the U.S. Air Force he could not wear a yarmulke indoors while he was in uniform and on duty at his base. The rabbi argued that this policy violated his freedom of religion, which is protected under the First Amendment. The Supreme Court, however, upheld the military’s policy in a 5-4 vote.

Justice William Rehnquist’s majority opinion in that case stated the military is a “specialized society separate from civilian society,” and that to “accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.”

Then came the passage of 10 USC 774 in 1996. Under that statute, Lewin said, the Department of Defense “is not authorized to institute a system under which prior approval has to be obtained to wear an item of religious apparel,” although the military can later prohibit a soldier if it deems that the religious clothing item or facial hair interferes with “the performance of the member’s military duties,” or “not neat or conservative.”

“If approval is denied, the applicant can go up the ladder within the military service to seek approval. If he or she goes directly to court, the service may claim that he or she has to exhaust internal military remedies, but I think there is a good argument if the applicant is denied the right to wear religious clothing (or a beard) while the process is ongoing that this is an infringement of a freedom-of-religion right that warrants immediate relief in a court,” said Lewin.

Jews in Green, an independent organization representing Jews serving across the Department of Defense that is not affiliated with the Department of Defense itself, applauded the new Pentagon policy.

“The new policy doesn’t make any drastic changes....However, it does clarify the process for granting religious accommodation, and potentially opens the door for observant Jews to serve and observe mitzvot with greater ease,” Jason Rubin, a spokesman for Jews in Green, told JNS.org.

Rubin added that the policy loosens regulations on religious observances such as Shabbat and dietary considerations.

“Perhaps the most important thing about the update is that it shows the DoD’s recognition that religious observance is something that is important to our service members, and by making reasonable accommodations we can be a stronger and more effective force because of it,” he said.