Toor v. Berger

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SUKHBIR SINGH TOOR, et al.,

Plaintiffs,

V.

Civil Case No. 22-1004 (RJL)

DAVID H. BERGER, et al.,

Nem! Nome! Nee Nee “re “ree ee “eee” “ee”

Defendants.

MEMORANDUM OPINION

(August &4, 2022) [Dkt. #16]

Plaintiffs, one United States Marine Corps (“Marines” or “Marine Corps”) Captain

and three qualified Marines recruits, seek religious accommodations from the Marine

Corps. Devout Sikhs, plaintiffs claim that they are obligated by their faith to maintain an

unshorn beard and hair, to wear a turban, and to wear other religious articles—practices

that conflict with the Marine Corps’ uniform and grooming policies, in particular for those

recruits undergoing basic training (i.e., boot camp). After the Marine Corps granted in part

and denied in part plaintiffs’ individual requests for religious accommodations, plaintiffs

filed this action alleging that the failure to accommodate their religious beliefs and exercise

violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.,

and the First and Fifth Amendments to the U.S. Constitution. The three recruits now move

for preliminary relief to “prevent[{] the Marine Corps from enforcing its uniform and

grooming policy as to their religious articles of faith” so that they may enter basic training

while maintaining their religious practice. Pls.’ Memo. in Support of Application for

Prelim. Inj. (“P.I. Memo.”) [Dkt. #16-1] at 2.

Because plaintiffs have failed to show that the balance of the equities and the public

interest support the extraordinary remedy of a preliminary injunction, plaintiffs’ Motion

for a Preliminary Injunction is hereby DENIED.

BACKGROUND

A. Factual Background

Plaintiffs Sukhbir Singh Toor, Milaap Singh Chahal, Jaskirat Singh, and Aekash

Singh wish to serve as Marines “without having to abandon their faith as devout Sikh

Americans.” Complaint (“Compl.”’) [Dkt. #1] at J 1. According to plaintiffs, Sikhism is a

monotheistic religion that originated in the Punjab region of South Asia and believes in

“one God that is all loving, all pervading, and eternal” and whose “love is obtained through

grace and sought by service to mankind.” Compl. {§ 73, 76. “Sikhs wear external articles

of faith to bind them to the beliefs of the religion,” including unshorn hair (kesh), “a small

wooden comb” (kanga), “an iron or steel bracelet” (kara), “a special, boxer-style

undershort” (kacchera), and “a small knife” (kirpan). Compl. J§ 78-79. “[R]emoval of

hair from the body” is “one of four major taboos”—a list which also includes adultery.

Compl. § 82. Each of the four plaintiffs claims that he is obligated by his faith to maintain

an unshorn beard and hair, to wear a turban, and to wear other religious articles. See

generally Compl. { 234; see also Compl. Jf 94, 96 (Captain Toor); { 125 (Chahal); J§ 152—

53 (Jaskirat Singh); { 171, 174, 176 (Aekash Singh).

Plaintiff Toor has served in the Marine Corps since 2017 and is currently a Captain.

Compl. 18-19. After seeking and receiving, in part, a religious accommodation

allowing him to wear a beard and turban, Captain Toor has twice appealed the Marines’

decision, which currently prevents him from maintaining his beard “when deployed and

receiving hostile-fire or imminent-danger pay.” Compl. ff 18, 23-25.

The remaining three plaintiffs are prospective Marines who are “qualified applicants

for accession into the Marine Corps through the Delayed Entry Program,” which allows

recruits to postpone training for a specified period. Compl. 7] 27, 29. “They are fully

qualified to begin recruit training, having passed the Initial Strength Test and the Armed

Service Vocational Aptitude Battery (ASVAB) test and having been accepted into the

Marine Corps pending resolution of their request for a religious accommodation.” Compl.

428. Each recruit has sought a similar religious accommodation to maintain his unshorn

hair and beard, to wear a turban, and to carry other religious articles. See Compl. {¥ 31-

37. After the Marine Corps denied the three recruits any accommodation during recruit or

basic training, they appealed the decisions. See id. Although each of the three recruits is

qualified to begin recruit training, plaintiff Aekash Singh’s passage of the entrance exam

will expire in September 2022 (Compl. J 205); plaintiff Jaskirat Singh’s passage will expire

in October 2022 (Joint Status Report [Dkt. #19]); and plaintiff Milaap Singh Chahal’s

passage will expire in June 2023 (Compl. ¥ 149).

B. Procedural Background

Seeking declaratory and injunctive relief and nominal and compensatory damages,

Captain Toor and the three recruits sued the U.S. Department of Defense and its Secretary,

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the U.S. Department of the Navy and its Secretary, the Commandant and Assistant

Commandant of the Marine Corps, and the Deputy Commandant of Manpower and

Reserve Affairs (collectively, “defendants” or “Marines” or “Marine Corps’). See

generally Compl. They allege that the Marine Corps’ failure to accommodate their

religious beliefs and exercise (1) violates RFRA; (2) burdens plaintiffs’ religious exercise

in violation of the First Amendment to the U.S. Constitution; (3) intentionally

discriminates against plaintiffs because of their religious exercise in violation of the First

Amendment; (4) violates the Free Speech Clause of the First Amendment by prohibiting

plaintiffs from expressing their faith; (5) violates plaintiffs’ fundamental right to free

exercise of religion in violation of the Fifth Amendment to the U.S. Constitution;

(6) discriminates against plaintiffs in violation of the Equal Protection Clause of the Fifth

Amendment; and (7) impairs plaintiffs’ property and liberty interests in violation of the

Fifth Amendment. See Compl. J 233-92.

The three recruits, Milaap Singh Chahal, Jaskirat Singh, and Aekash Singh, now

“move for a preliminary injunction for the pendency of this lawsuit” to “prevent[]

[djefendants from forcing them to violate their sincere religious beliefs ... in order to

commence their basic training.”! Pls.’ Mot. for Prelim. Inj. (“P.I. Mot.”) [Dkt. #16] at 1.

' Because Captain Toor has already completed basic training, he does not request preliminary relief.

Accordingly, “plaintiffs” refers only to the three recruits for the remainder of this Memorandum Opinion.

See P.I. Memo. at 1 n.1.

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LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a

preliminary injunction must show that (1) “he is likely to succeed on the merits”; (2) “he

is likely to suffer irreparable harm in the absence of preliminary relief’; (3) “the balance

of equities tips in his favor’’; and (4) “‘an injunction is in the public interest.” Jd. at 20. The

court “must balance the competing claims of injury and must consider the effect on each

party of the granting or withholding of the requested relief.” Jd. at 24 (citation and

quotation marks omitted). Where, as here, “‘the Government is the opposing party,’” “the

balance of equities and public interest[] factors ... ‘merge.’” Karem v. Trump, 960 F.3d

656, 668 (D.C. Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).

ANALYSIS

Plaintiffs ask this Court to enjoin the Marine Corps from enforcing their uniform

and grooming policies against plaintiffs during recruit training while their suit proceeds.

In their view, they are “entitled to a preliminary injunction allowing them to maintain their

hair, beards, and religious articles (including the turban)” while in recruit training because

“(alll four factors ... line up in their favor.” P.I. Memo. at 18. Defendants disagree,

arguing that the Court should deny plaintiffs’ request for “mandatory preliminary

injunctive relief altering the status quo” because every factor weighs against plaintiffs.

Defs.’ Memo. in Opp. to Pls.’ Mot. for Prelim. Inj. (“Opp.”) [Dkt. #35] at 8.

A. Likelihood of Success on the Merits and Irreparable Harm

Plaintiffs argue that they are likely to succeed on their RFRA, Free Exercise, and

Equal Protection claims. See generally P.I. Memo. at 20-35. And, they explain, their

showing on the first factor also satisfies the irreparable-harm prong because the loss of

First Amendment freedoms and rights provided by RFRA constitutes irreparable injury.

P.I. Memo. at 36-37. Not surprisingly, defendants disagree on both counts. See generally

Opp. at 8-26.

RFRA. The Religious Freedom Restoration Act provides that the “Government

shall not substantially burden a person’s exercise of religion even if the burden results from

a rule of general applicability.” 42 U.S.C. § 2000bb-1(a). “Ifthe Government substantially

burdens a person’s exercise of religion, under the Act that person is entitled to an exemption

from the rule unless the Government ‘demonstrates 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.’” Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 694-95 (2014) (quoting 42 U.S.C. § 2000bb-1(b)).

RFRA applies to the Federal Government and its agencies, see Hobby Lobby, 573 U.S. at

695, including the military, see 42 U.S.C. § 2000bb-2(1) (defining “government” to include

any “branch, department, agency, instrumentality, and official ... of the United States’’).

Under RFRA, the “Government bears the burden of proof on the ultimate question of ...

constitutionality,” such that the plaintiffs at the preliminary-injunction stage “must be

deemed likely to prevail unless the Government has shown that respondents’ proposed less

restrictive alternatives are less effective than” enforcing the challenged policy. Gonzales

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v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (internal

quotation marks omitted). The statute requires courts to look “beyond broadly formulated

interests” and “scrutinize[] the asserted harm of granting specific exemptions to particular

religious claimants.” O Centro, 546 U.S. at 431.

Free Exercise. The First Amendment provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof].]” U.S.

Const. Amend. I. “[L]aws incidentally burdening religion are ordinarily not subject to

strict scrutiny under the Free Exercise Clause so long as they are neutral and generally

applicable.” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876 (2021). But a law that

does “not meet the requirement of being neutral and generally applicable” must satisfy

strict scrutiny. Fulton, 141 S. Ct. at 1877 (citing Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 531-32 (1993)). The “Government fails to act neutrally

when it proceeds in a manner intolerant of religious beliefs or restricts practices because of

their religious nature.” Fulton, 141 S. Ct. at 1877 (citing Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, 138 S.Ct. 1719, 1730-32 (2018)). And “[a] law is not

generally applicable if it ‘invite[s]’ the government to consider the particular reasons for a

person’s conduct by providing ‘a mechanism for individualized exemptions’” or “if it

prohibits religious conduct while permitting secular conduct that undermines the

government’s asserted interests in a similar way.” Fulton, 141 S. Ct. at 1877 (quoting

Empl. Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 884 (1990)); see also

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (“As

the Court put it more than 50 years ago, ‘[i]t is too late in the day to doubt that the liberties

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of religion and expression may be infringed by the denial of or placing of conditions upon

a benefit or privilege.’” (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963))).

If a law triggers strict scrutiny, it “can survive ... only if it advances ‘interests of the

highest order’ and is narrowly tailored to achieve those interests.” Fulton, 141 S. Ct. at

1881 (quoting Lukumi, 508 U.S. at 546). To evaluate whether the government has a

compelling interest, the court asks “not whether the [government] has a compelling interest

in enforcing its ... policies generally, but whether it has such an interest in denying an

exception to [the plaintiff].” Fulton, 141 S. Ct. at 1881.

Equal Protection. The Due Process Clause of the Fifth Amendment prohibits the

federal government from “denying to any person the equal protection of the laws.” United

States v. Windsor, 570 U.S. 744, 774 (2013). Ifa restriction “disadvantage[s] a suspect

class or impinge[s] on the exercise of a fundamental right,” it is “subject to strict scrutiny.”

Davis v. District of Columbia, 158 F.3d 1342, 1345 (D.C. Cir. 1998). Ifa classification

“do[es] neither,” it is “subject only to review for rationality.” Jd. “[T]he free exercise of

religion is a fundamental constitutional right.” Johnson v. Robison, 415 U.S. 361, 375 n.14

(1974).

“The loss of First Amendment ‘freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.’” Pursuing America’s Greatness v. Fed’l

Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016) (quoting Mills v. District of

Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)); see also Roman Catholic Diocese of

Brooklyn v. Cuomo, 141 8. Ct. 63, 67 (2020) (same). “[T]he same is true of rights afforded

under the RFRA, which covers the same types of rights as those protected under the Free

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Exercise Clause.” Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 129

(D.D.C. 2012). A showing of likelihood of success on the merits of a RFRA claim thus

also demonstrates sufficiently “that [plaintiffs] will be irreparably injured absent injunctive

relief.” Roman Catholic Archbishop of Wash. v. Bowser, 531 F. Supp. 3d 22, 46 (D.D.C.

2021); see also Capitol Hill Baptist Church v. Bowser, 496 F. Supp. 3d 284, 301 (D.D.C.

2020) (“The conclusion that [plaintiff] is likely to succeed on the merits of its RFRA claim

therefore also suffices to show that the Church will be irreparably harmed without

injunctive relief.”’).

Each of plaintiffs’ claims under RFRA and the Constitution undoubtedly presents

questions of great complexity and immense importance to both plaintiffs and defendants.

On the one hand, plaintiffs assert that they are sincerely compelled “to observe Sikh

religious practice,” a belief that defendants’ policies “substantial[ly] burden” by putting

plaintiffs “to the choice of giving up their religious beliefs or giving up the opportunity to

serve in the Marine Corps altogether” despite being recruits fully qualified to begin their

basic training. P.I. Memo. at 21, 23. Indeed, defendants “do[] not contest for purposes of

this motion that [p]laintiffs’ request is rooted in sincerely held religious beliefs and that

conforming to the discipline of uniformity during recruit training will burden those

beliefs.” Opp. at 2. On the other hand, the Marine Corps has outlined its interests in

“mission accomplishment, unit cohesion, and good order and discipline,” each of which

“depend|[s] on the shared identity as ‘Marines’ that is forged in basic training.” Opp. at 9.

And, of course, the broader need to protect national security—a goal in which the Marine

Corps plays a unique role—is readily apparent.

Addressing the merits of these claims—perhaps most importantly, determining

whether defendants have demonstrated that their policies are the least restrictive means of

furthering a compelling governmental interest—will require further litigation and rigorous

consideration, to say the least.2 But, as explained below, I need not address these

arguments now. Even if plaintiffs have shown a likelihood of success on the merits and

irreparable injury, any such showing would be defeated by the remaining factors. Indeed,

consideration of the public interest alone requires denial of plaintiffs’ requested injunctive

relief at this preliminary stage. How so?

B. Balance of Equities and Public Interest

Here, “the [defendants’] harm and the public interest are one and the same, because

the government’s interest is the public interest.” Pursuing America’s Greatness, 831 F.3d

at 511; see also Nken, 556 U.S. at 435. Broadly, “enforcement of an unconstitutional law

is always contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir.

2013). But, of course, there also exists a “public interest in national defense” that is rooted

in the military’s ability to conduct its training. Winter, 555 U.S. at 24.

To say the least, the Marine Corps is “the chief expeditionary force of the United

States military, tasked with moving quickly to meet the Nation’s security needs in

? Given the importance of the issues at stake, the Court expects the parties to submit within 10 days of the

filing of this Memorandum Opinion a joint proposal for future proceedings to continue this litigation in an

efficient and accelerated manner.

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dangerous and contingent environments.” Opp. at 1. In defendants’ view, “a strict

discipline of uniformity” is “one essential measure for accomplishing the [Marine] Corps’

training project,” during which recruits are “strip[ped] ... of their individuality and civilian

identity[.]” Opp. at 1. United States Marine Corps Colonel Adam L. Jeppe, who serves as

the Branch Head of the Manpower Military Policy Branch at the Marine Corps’

headquarters in Quantico, Virginia, stated that “[t]he mission of U.S. Marine Corps recruit

training is to transform civilians into U.S. Marines through a thorough indoctrination into

Marine Corps history, customs and traditions, and by imbuing them with the mental, moral

and physical foundation necessary for successful service to [Marine] Corps and country.”

Decl. of Adam L. Jeppe, Ex. A to Defs.” Memo. in Opp. to Pls.’ Mot. for Prelim. Inj.

(“Jeppe Decl.”) [Dkt. #35-1] at 9. “[E]ach recruit,” Colonel Jeppe described, “is stripped

of their individuality in order to provide the necessary foundation to be a U.S. Marine and

function as a team.” Jeppe Decl. at 10. The “uniform” and “grooming standards and

conduct” are some of the “tools” used “to instill and maintain this team mindset.” Jeppe

Decl. at 10-11. And, Colonel Jeppe explained, “[t]his uniformity is vital to the recruit

transformation process and an essential building block of the esprit de corps and dedication

that is the hallmark of the Marine Corps.” Jeppe Decl. at 11. Specifically, “uniformity

assists the Marine Corps in making Marines because it facilitates the formation of a team

mentality, willingness to sacrifice, and an initial inculcation of good order and discipline

amongst recruits.” Jeppe Decl. at 11.

Colonel Jeppe further stated that “uniformity is a tried and proven Marine Corps

training method that fosters the psychological transformation from individual to Marine.”

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Jeppe Decl. at 11. His declaration outlines the Marine Corps’ interest in mission

accomplishment, which requires successful training that transforms recruits into Marines.

The Marines have thus “credibly alleged” that “training in [the] manner” that would be

required by the requested injunction will “pose a serious threat to national security” by

disrupting defendants’ well-established method of transforming recruits through the

discipline of uniformity. See Winter, 555 U.S. at 33.

Ensuring successful training and mission accomplishment and protecting national

security must be weighed aaaiist plaintiffs’ asserted interests. There is a “vital public

interest in safeguarding religious freedoms protected by the Constitution and by statutes

enacted by Congress.” Roman Catholic Archbishop of Wash., 531 F. Supp. 3d at 47. Here,

plaintiffs contend that defendants’ policy presents “a coercive choice to abandon either

their religious beliefs or the ability to serve their country as Marines” in violation of the

U.S. Constitution and RFRA. P.I. Memo. at 2. And plaintiffs also argue that excluding

Sikh Americans from the Marine Corps contravenes defendants’ stated “strategic objective

of building a diverse force to meet a peer threat.” P.I. Memo. at 39 (quoting LtGen David

Ottignon & BGen Jason Woodworth, Diversity, Equity & Inclusion: Why This is Important

to the Corps as a Warfighting Organization, https://perma.cc/9S26-ZQDL).

In this case, however, I find that “the balance of equities and consideration of the

overall public interest” favor defendants’ position. See Winter, 555 U.S. at 26. To be sure,

“military interests do not always trump other considerations.” Jd. at 26. But at this

preliminary stage—where plaintiffs’ requested relief would require the military to conduct

basic training in a manner that it credibly alleges will ““ccompromise[]” the Marine Corps’

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“national defense mission,” Opp. at 27—the public interest clearly favors the defendants.

Indeed, given “the burden the preliminary injunction would impose on the [Marine Corps’ ]

ability to conduct ... training exercises” in the military’s curated manner, awarding an

injunction at this early stage would pose a “documented risk to national security.” Winter,

555 U.S. at 24, 31.5. A risk that the balance of equities and public interest do not support!

CONCLUSION

For all the foregoing reasons, plaintiffs’ [Dkt. #16] Motion for Preliminary

Injunction is hereby DENIED. An order consistent with this decision accompanies this

Memorandum Opinion.

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