Petition — Sherwood v. Brown

_ Supreme Court, U.S.

FILED

AUG 13 1989

20 2 18 MICHAEL RODAK, Je, CLERK

IN THE

Supreme Court of the United States

OcToBeEer TERM, 1980

No.

RONALD B. SHERWOOD,

Petitioner,

Vv.

HAROLD Brown, Secretary of Defense,

J. WILLIAM MIDDENDORF, Secretary of the Navy;

CaPTAIN D. B. PRINGOE, Commanding Officer

Naval Air Station Miramar,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Guru TERATH SINGH KHALSA

Ram Das SINGH KHALSA

708 Montgomery Street

San Francisco, California 94111

(415) 981-1183

Attorneys for Petitioner.

i

QUESTION PRESENTED

Whether Article 0112 NAVY UNIFORM REGULATION

violates the First Amendment to the United States Constitution

when applied to a member of the Sikh religion who is required

by the tenets of his faith to wear a turban instead of the

designated sailor’s cap while serving his country in the United

States Navy?

SUBJECT INDEX

Page

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REASONS FOR GRANTING THE WRIT...............cc:eeeeseeeeeeees 4

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TABLE OF AUTHORITIES CITED

CASES | PAGES

Anderson v. Laird 466 F.2d 283 (D.C. Cir. 1972 ). cert denied, 409

cin senspocandvdduepeunbeesepoiinin’ ee

Braunfield v. Brown 366 U.S. 599 (1961) ...ccccccccccseesesteeceteeeeneeeeees 5

Gillette v. United States 401 U.S. 437 (1971 ).oc.ccceccccccecccceeeetteeeeeeens 5

ey MEE BID, Bog FO Wet be SOD cnscnscdcessvescssrssvsccevdquvecionee 7

Harper v. Virginia Board of Education 383 U.S. 663, 86 S. Ct. 1079 7

EO EPs WBE Dinos snassiejpscancesssssovsacsbanbdeevovessceseseosenees 6

Nixon v. Secretary of the Navy 422 F.2d 934 wccccccccctcceeessteeeeeeeees 6

ee ee ee, ND, SOD C1DTD) ceccsccccvececscvsesscccevecdocsessocesoss 6

Gove V. Hremeeenoy S45 US. G3 ( 1955 )......scscccssscosvecsoveerccsosssseseoes 5.6

ONES OTE, FOS 0 BOTY coc sccccsscuscovcscesocossscecvneacevbsecssesness 5

Shapiro v. Thompson 394 U.S. 618, 89 S.Ct. 1372 voccccccceceseeeeeees 7

Sherbert v. Werner 374 U.S. 398 (1973) ...ccccccccccccscscccsssecccseseseseeeeess 6

Skinner v. Oklahoma ex rel. Williamson 316 U.S. 535, 62 S.Ct.

oro 2, ica isl iedillindinscinhiapenednigubanecibanapheredshgecdebnioke 7

United States ex rel. Toth v. Quarles 350 U.S. 11 (1955)... 5

Wisconsin v. Yoder 406 U.S. 205 (1972) ....cccceeccssecsesseeessseesseeeenees 5,6

REGULATIONS

Army Regulation 600-20, as amended, 1975 ..........cccccceseesseeereeeeees 8

Article 0112, Navy Uniform Regulations .............ccccccceseeeeneeees re

Field Memorandum 75-11, Occupational Health and Safety Divi-

sion, United States Department of Labor ..0...........cccc ce eceeeeeeeeeeeeee 9

STATUTES PAGES

ns 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

ea cts earns oa a soles Ceasauin coeur co daiionontamad ted dedaremepntbueiee

10 U.S.C. § 869

10 U.S.C. § 1552

28 U.S.C. § 1254(1)

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No.

RONALD B. SHERWOOD.

Petitioner,

Vv.

HAROLD Brown, Secretary of Defense,

J. WILLIAM MIDDENDORE, Secretary of the Navy:

CAPTAIN D. B. PRinGot, Commanding Officer

Naval Air Station Miramar,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Ronald B. Sherwood prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit, affirming the decision of

the United States District Court for the Southern District of

California that affirmed the Court Martial decision and the

discharge of Petitioner from the United States Navy for wear-

ing a turban as required by the tenets of his religious beliefs

instead of the approved sailor’s cap as required by Navy

regulations.

2

OPINIONS BELOW

The Opinion of the Court of Appeals, officially reported at

619 F2d 47 (9th Cir. 1980), is printed as Exhibit A in the

Appendix.

The Memorandum Decision and Judgment entered in the

United States District Court were unreported and are attached

as Exhibit B in the Appendix.

JURISDICTION

The judgment of the court of appeals was entered on May

19, 1980. The jurisdiction of this court is invoked under 28

U.S.C. §1254 (1).

REGULATION INVOLVED

ARTICLE 0112 NAVY UNIFORM REGULATIONS (NUR):

1. All Naval personnel shall provide themselves with an

adequate supply of the correct uniforms in these

regulations and are forbidden to possess or wear any

other than the regulation uniform or insignia of their

representative grades, corps, or ratings, or to wear

decorations, metals, badges, or their ribbons in any

way other than prescribed.

STATEMENT OF THE CASE

On or about January 13, 1970, Appellant enlisted in the

United States Navy for a period of four years. On November

22, 1973, while Appellant was stationed at the Naval Air

Station, Miramar, California, he became a member of the Sikh

religion. He vowed to live according to the following

fundamental practices of Sikhism:

(1) A Sikh recognizes that there is one God, Al-

mighty, Omnipotent, Omnipresent and Omniscient,

3

and in such recognition will rise in the ambrosial

hours of the dawn to repeat the praises of the Lord;

(2) in recognition of the perfection of God and only

of God, a Sikh will not alter his human form from the

way the Creator has created it, thereby not removing,

or permitting to be removed, any hair from the body,

and protecting his human form by wearing the

unshorn hair on top of the head in a Rishi knot

and covered with a cotton cloth known as a turban;

(3) the Word of God, the Truth of Truths recorded

in the Siri Guru Granth Sahib, shall be the only Guru

that a Sikh shall recognize, and as such a Sikh shall

bow to no man; (4) a Sikh shall live an honest and

righteous life, being true to the highest ideals of

conscientious living, thus leading a spotless life:

(5) a Sikh shall not be a burden upon others and

must “earn by the sweat of his brow” and share his

earnings with those who are in need. (Affidavit of

RONALD B. SHERWOOD, Clerk’s Transcript on

Appeal at pp. 93-96 and 152-153.)

From that date forward, he wore a turban.

On November 26, 1973, Appellant was ordered to remove

his turban pursuant to Article 0112 of Navy Uniform Regu-

lations ( NUR) which states in relevant part that:

Article 0112: UNIFORMS TO BE PROVIDED AND

WORN

1. All naval personnel shall provide themselves with

an‘ adequate supply of the correct uniforms in

these regulations and are forbidden to possess or

wear any other than the regulation uniform or

insignia of their respective grades, corps, or ra-

tings, or to wear decorations, medals, badges, or

their ribbons in any way other than prescribed.

4

Appellant refused to do so on the grounds that it would violate

the exercise of his religious beliefs.

Appellant was charged with violating Article 92 of the

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §892, for

failure to wear the prescribed uniform. On December 19, 1973,

Appellant was found guilty of violating Article 92 UCMS§J

because of his failure to remove his turban. He was demoted

from Petty Officer Third Class to Seaman Recruit.

On December 20, 1973, he was unilaterally discharged

from the United States Navy for refusal to remove his turban

under conditions which prohibited him from re-enlisting in the

Navy.

Appellant’s administrative appeals to the Judge Advocate

General pursuant to 10 U.S.C. §869 and to the Board for

Correction of Naval Records pursuant to 10 U.S.C. §1552 were

denied.

On January 10, 1977, Petitioner filed a Complaint in the

United States District Court for the Southern District of Califor-

nia seeking a Declaration that the Navy’s refusal to permit him

to wear his turban as a member of the Sikh religion was an

unconstitutional infringement of his First Amendment right to

the free exercise of his religious beliefs. He also sought

reinstatement and monetary damages.

Petitioner’s Complaint was dismissed pursuant to a Motion

for Summary Judgment on or about August 24, 1978. On May

19, 1980, the United States Court of Appeals for the Ninth

Circuit affirmed the judgment of the district court.

REASONS FOR GRANTING THE WRIT

I.

The opinion below presents important constitutional ques-

tions regarding the free exercise of religious beliefs in the

5

context of the dress requirements of the United States Navy. It

thereby presents an issue that affects the rights of an entire

religious community in the United States. as well as the

obligations of the military in allowing members of the Sikh

religion to serve their country in the United States Navy.

Although the regulation in question is neutral on its face, it

nonetheless is unconstitutional as applied in this case and such

attacks are well recognized: .

A regulation neutral on its face may, in its appli-

cation, nonetheless offend the constitutional require-

ment for governmental neutrality if it unduly burdens

the free exercise of religion.

Wisconsin v. Yoder, 406 U.S. 205 at 220 (1972) (Citations

omitted ), see also Gillette v. United States, 401 U.S. 437.462

(1971).

Further. while courts are justifiably reluctant to meddle in

the affairs of the military, Parker v. Levy, 417 U.S. 733.743

(1974), U.S. ex rel. Toth v. Quarles 350 U.S. 11, 17 (1955),

Orloff v. Willoughby, 345 U.S. 83.994 (1953), they do have the

responsibility to determine whether regulations either directly

or indirectly inhibit religious practices. Gillette v. United States,

supra, 401 U.S. at 462, Braunfield v. Brown, 366 U.S. 599 at 607

(1961).

In order for the regulation to withstand the constitutional

attack, the Navy must show by “the clearest kind of imperative,

and lack of alternative’ Anderson v. Laird, 466 F. 2d 283 at

302, «ert. denied 409 U.S. 1076 (1972) its justification for the

exclusion of Sikhs from its ranks:

The essence of all that has been said and written on

the subject is that only those interests of the highest

order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion.

Wisconsin v. Yoder, supra, 406 U.S. at 215.

6

In O'Neill v. Dent, 345 F. Supp. 565 (1973), the court

formulated the test to be used in determining the con-

stitutionality of a military regulation when it collides with

fundamental rights:

| T]he military has always occupied a special position

and Courts have been reluctant to interfere or take

over the job of running the Army. Orloff v. Will-

oughby 345 U.S. 83, 93. Consequently, military

institutions are allowed a certain amount of latitude

of discretion in order to properly discipline and train

their members (Citations) .. . . The Court must

decide whether the deference to military decision is

overcome by the absence of any rational and reason-

able relation of the regulations to legitimate military

objectives. Nixon v. Secretary of the Navy 422 F.2d

934... When the military promulgates a regulation

which collides with individual rights of its members

protected by the Constitution, the Court must deter-

mine whether on balance the interests of the Govern-

ment justify its survival or whether it must yield to

the rights of the individual. In the past the Federal

Courts have reviewed and invalidated various mili-

tary orders which interfered with Constitutional

rights, mainly First Amendment expressional activi-

ties. (Citations). Jd. at 576-577.

The Court went on to apply the “compelli

test’ which placed the burden on the mili

that the regulation was necessary to frovide a compelling

governmental interest and concluded that the regulation in

question (the right of a cadet at a miJitary academy to marry )

State interest”

to demonstrate

1 Sherbert v. Werner, 374 U.S. 398, NAACP v. Button, 371 U.S.

415, Wisconsin v. Yoder, 406 U.S. 205.

7

“failed to demonstrate the clearest kind of imperative” for

interference with the cadet’s fundamental rights.2

The “compelling state interest test” is the appropriate test

when a regulation effects a “fundamental right.”” Harper v.

Virginia Board of Elections 383 U.S. 663, 86 S.Ct. 1079,

Skinner v. Oklahoma ex rel. Williamson 316 U.S. 535, 62 S.Ct.

1110, Griffin v. Illinois 351 U.S. 12, 76 S.Ct. 585, Shapiro v.

Thompson 394 U.S. 618, 89 S.Ct. 1322, and the Free Exercise of

religious beliefs is clearly a “fundamental right.”

Respondents fell far short of demonstrating by the “‘clear-

est kind of imperative” that there was an overriding and

compelling governmental interest in court-martialing and dis-

charging appellant from the United States Navy because he

wore a turban as required by the tenets of the Sikh religion

rather than the sailor’s cap as required by Article 0112 NUR.

The trial court relied exclusively on an affidavit submitted

by Rear Admiral C. J. Sieberlich in formulating its decision.

Admiral Sieberlich contended that Article 0112 NUR was

justified because of the need for neatness, cleanliness, military

image and safety.

The Affidavit was uncorroborated, unsubstantiated, con-

clusionary and did not refer to the position the Petitioner had in

the Navy. The trial court found that there was no evidence that

2The court referred to the concurring opinion in Anderson v.

Laird, 466 F.2d 283:

The question arises whether the Government's use of a

practice that bears a religious impress is saved from uncon-

stitutionality because of an overriding State interest in

effective training of its military officers. That is the hub of

the case as I see it. For the Government to invoke the

possibility of justification it must show the clearest kind of

imperative, and lack of alternative, for the government may

not employ religious means to serve secular interests, how-

ever legitimate they may be, at least without the clearest

demonstration that non-religious means will not suffice. /d.

at 302. (Emphasis added ).

8

justified Article 0112 NUR as applied to Petitioner on the

grounds of neatness or cleanliness. It also refused to find that

uniform appearance within the Navy to maintain discipline and

pride was “‘in itself a sufficiently strong interest to justify the

exclusion of Sikhs from the Navy.” It granted the Motion for

Summary Judgment on the issue of safety.

While the Affidavit spoke of the possible hazards con-

nected with the wearing of a turban in the selected jobs of

aircraft pilots and personnel on flightdecks, it ignored most of

the positions held by naval personnel—i.e., radar technicians,

lawyers, physicians, electrical technicians, cooks, nuclear engi-

neers, carpenters, supply officers, storekeepers, paymasters,

pharmacists, metalsmiths, optical technicians, shore patrol offi-

cers, and Petitioner’s position as a computer technician.

There are obviously endless numbers of additional posi-

tions that Sikhs can maintain without fear of jeopardizing naval

operations.

What makes the opinion below especially unacceptable is

the fact that the United States Army has been presented with

this same matter and has made the following finding:

(3) The appearance policy with regard to members

of the Sikh religion has been reviewed and it is

concluded that it serves the Army no useful purpose

to preclude, for reasons of religious belief, an other-

wise qualified soldier from serving the country. (AR

600-20 )3

AR 600-20 provides that members of the Sikh religion may

serve in the United States Army with turbans rather than the

designated Army hats.

While interest in safety is obviously an important aspect of

naval operations, it is certainly just as important to the United

3A copy of this regulation is attached as Exhibit C in the

Appendix and was part of the record in the courts below.

9

States Army and other military organizations around the world.

The Royal Navy of Great Britain, which certainly recognizes

the legitimate needs of safety in its operations, also permits

Sikhs to join the service and to wear turbans on duty:

Royal Navy officers and ratings of Sikh nationality

and religion are to be permitted to wear uniform

turbans. provided at Crown expense. instead of

caps. . . (Letter from Ministry of Defense of Great

Britain )4

Further, the Occupational Health and Safety Division of

the United States Department of Labor (OSHA) has recog-

nized the legitimacy and necessity of Sikhs to wear turbans and

exempts members of the Sikh religion from wearing hardhats

on federal construction jobs. Field Memorandum Number 75-

11 states in relevant part:

. The Sikh Dharma Brotherhood, with Western

Hemisphere headquarters at 1620 Preuss Road. Los

Angeles, California, has petitioned for exemption

from the “hardhat” requirement on the basis of free

exercise Of religion. The Sikh Dharma Brotherhood

has the following as a part of its creed:

A man shall tie his hair in a rishi knot on the

crown of his head to be covered with a cotton

cloth known as a turban whenever in public. He

is obligated to keep a dastar. (small turban)

when he is without his turban.

. The Sikh Dharma Brotherhood (is) granted an

exemption from wearing hardhats. The granting of

the above exemption is based on the provisions of the

United States Constitution relating to the free ex-

ercise of religion, and the policy expressed in Section

4A copy of said letter is attached as Exhibit D in the Appendix

and was part of the record in the courts below.

10

20(A) (5) of the Williams-Steiger Occupational

Safety and Health Act of 1970 respecting religious

freedom.5

While there may be some positions in the Navy that Sikhs

might not be able to participate in because of the necessity of

wearing a turban, as there would be for a man with less than

20-20 vision, the across-the-board exclusion of all Sikhs, and

Petitioner specifically, violates the free exercise clause of the

First Amendment.

5A copy of said memorandum is attached as Exhibit E in the

Appendix and was part of the record in the courts below.

/

1]

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

the Petition for a Writ of Certiorari should be granted.

Respectfully Submitted,

Dated: August 8, 1980 GURU TERATH SINGH KHALSA

RaM Das SINGH KHALSA

Attorneys for Petitioner

( APPENDICES FOLLOW )

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Exhibit A

may 2

UNITED STATES COURT OF APPEALS

Ri

ees oe FOR THE NINTH CIRCUIT

RONALD B. SHERWOOD,

Appellant, No. 78-2475

HAROLD BROWN, Secretary of OPINION

Defense, J. WILLIAM MIDDENDORF,

Secretary of the Navy; CAPTAIN

D.B. PRINGOE, Commanding Officer,

Naval Air Station Miramar,

)

)

v. )

)

)

)

Appellees. ,

Appeal from the United States District Court

for the Southern District of California

Before: ELY and WALLACE, Circuit Judges, and

KING,* District Judge

PER CURIAM:

Sherwood appeals the dismissal on summary judgment

of his complaint challenging the constitutionality of his

court-martial and discharge from the United States Navy.

In November 1973, four years after he enlisted in the Navy,

Sherwood took the vows of a member of the Sikh religion.

Those vows require, in part, that:

[A] Sikh will not alter his human form from

the way the Creator has created it, thereby

not removing or permitting to be removed,

any hair from the body, and protecting his

human form by wearing the unshorn hair on

top of the head in a Rishi knot and covered

with a cotton cloth known as a turban; ....

*The Honorable Samuel P. King, Chief Judge, United States

District Court for the District of Hawaii, sitting by

designation. |

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Sherwood refused to comply with Article 0112 of

the Nevy Uniform Regulations which precludes the wearing of

turbans by naval personnel. 2/ He was court-martialed and

discharged from the Navy for failure to adhere to the

uniform regulations. On January 10, 1977, Sherwood filed

suit under 28 U.S.C. § 1331 requesting a declaration that

the regulations were unconstitutional as applied to him,

reinstatement in the Navy, and monetary damages.

Government regulations which infringe protected religious

practice are proscribed by the free exercise clause of the

First Amendment unless the Government can demonstrate that

the regulation is the least restrictive alternative to meet

a compelling state need. Wisconsin v, Yoder, 406 U.S. 205,

229 (1972); Cantwell v. Connecticut, 310 U.S. 296, 306-07

(1940).

The District Court concluded that the Navy's

interest in safety was sufficient to meet the compelling

need requirement, and that because all naval personnel are

subject to military duties which implicate the safety

rationale, no less restrictive alternative exists .2/ Based

on the affidavit of a senior naval officer, the District

Court found that:

Whether aboard a shin or aircraft extreme

conditions of confinement make safety the

touchstone of combat readiness and effi-

ciency. . . . [VJirtually all naval

activities are conducted in close proximity

to complex machinery of an often hazardous

nature. Dangerous operating conditions cannot

be tolerated. The accomplishment of an entire

naval mission may be impaired by the failure

of . single individual to perform his assigned

task.

A Sikh cannot, for religious reasons,

wear a helmet. [Citation omitted.] Absence

of a helmet poses serious safety problems

both for the unprotected sailor and for the

crew that depends on him. Pilots and

aircrewmen are required to wear ogg

protective helmets. Sailors working on an

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aircraft carrier flight deck or around

operating aircraft must be similarly

protected. All personnel at battle

stations wear helmets to protect themselves

from missiles such as shrapnel and to

cushion their impact with bulkheads and

overheads caused by a lurching vessel.

A turban does not meet these safety

requirements necessitated by both the

ordinary and extraordinary activities of

the modern, mechanized Navy.

The judgment of the District Court is

AFFIRMED.

ess 8 &8 & F&F BB

FOOTNOTES :

Bs

Article 0112: UNIFORMS TO BE PROVIDED AND WORN

1. All naval personnel shall provide them-

selves with an adequate supply of the correct

uniforms in these regulations and are for-

bidden to possess or wear | other than the

regulation uniform or insignia of their

respective grades, corps, or ratings, or to

wear decorations, medals, badges, or their

ribbons in any way other than prescribed.

2.

At oral argument, Sherwood's attorney conceded

that, on the record, there was no genuine issue of triable

fact. In light of this concession, we are constrained

to accept the"findings of fact"of the District Court,

insofar as those findings are substantially supported

by the record.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RONALD B. SHERWOOD,

Plaintiff

Civil No. 77-8-S

MEMORANDUM DECISION

Vv.

HAROLD BROWN, Secretary

of Defense, et al.,

Defendants.

de

Plaintiff was discharged from the Uniced State

Navy because as a newly converted Sikh his religiously dictated

appearance and wardrobe failed to conform to Navy regulations.

He asks the court to declare that such an application of Navy

regulations represents an unconstitutional infringement of his

right to practice his religion.

On November 22, 1973, plaintiff, Aviation

Electronics Technician Third Class RONALD B. SHERWOOD, United

States Navy, took the vows of a Sikh. He vowed to live accord-

ing to the following fundamental principles of Sikhism:

(1) A Sikh recognizes that there

is One God, Almighty, Omnipotenrc,

Omipresent and iscient, and in

such recognition will rise in the

ambrosial hours of the dawn to re-

peat the praises of the Lord; (2)

in recognition of the perfection

of God and only of God, a Sikh will

not alter his form from the

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way the creator has created it,

thereby not removing, or permitting

to be removed, any hair from the

body, and protecting his human form

by wearing the unshorn hair on top |

of the head in a Rishi knot and

covered with a cotton cloth known

as a turban; (3) the Word of God,

the Truth of Truths recorded in the |

Siri Guru Granth Sahib, shall be

the only Guru that a Sikh shall

recognize, and as such a Sikh shall

bow to no man; (4) a Sikh shall

live an honest and righteous life, |

being true to the highest ideals

of conscientious living, thus lead-

ing a spotless life; (5) a Sikh

shall not be a burden upon others

and must ‘earn | the sweat of his

brow’ and share his earnings with

those who are in need.

Affidavit of RONALD B. SHERWOOD, p. 2. At the time of his vow

plaintiff began wearing a turban and did not cut his hair as is

required by all members of the Sikh faith.

On November 26, 1973, plaintiff returned to

his squadron where an officer ordered him to remove hi.; urban

pursuant to Article 0112 of Navy Uniform Regulations. Plain-

tiff refused to do so on grounds that it would violate his ex-

ercise of his religious freedom. Plaintiff was then charged

with violations of Articles 90 and 92 of the Uniform Code of

Military Justice, 10 U.S.C. §§ 890, 892. Om December 19, 1973

plaintiff was convicted of violating Article 92 of the Uniform

Code of Military Justice, 10 U.S.C. § 892, for failure to wear

the prescribed uniform. He was demoted from Petty Officer Thiz

Class to Seaman Recruit. After again refusing to remove his

turban on December 20, 1973, plaintiff was discharged. Plain-

tiff's appeal pursuant to 10 U.S.C. § 869 was denied by the

Judge Advocate General of the Navy. His application to the

Board for the Correction of Naval Records pursuant to 10 U.S.C

§ 1552 for a reversal of his summary court martial was similar}

denied.

On January 10, 1977, plaintiff filed a

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complaint in this court seeking a declaration that the prohibi-

tion of his turban by the Navy was an unconstitutional infringe-

ment of his First Amendment right to the free exercise of reli,

gion. He also seeks reinstatement to active duty and damages |

in excess of $10,000. Plaintiff has moved for a partial summary

judgment on the constitutionality of the Navy's uniform seguisd

tion as applied in his case. The defendant government opposes

plaintiff's motion and has filed a cross-motion for summary

judgment. At the court's request, the parties have submitted

supplemental affidavits detailing the nature and background of |

the Sikh religion, plaintiff's commitment to that religion, and

the Navy's rationale for its prohibition of non-uniform headgear

such as a Sikh's turban.

After reviewing the memoranda of points and

authorities, affidavits and all papers filed in this action,

the court finds that Article 0112 of Navy Uniform Regulations |

is not unconstitutional as applied to plaintiff RONALD B. SHER-

WOOD, a member of the Sikh religion. Accordingly, the court

denies plaintiff's motion for a partial summary judgment. Be-

cause no issue of material fact remains in dispute, the court

grants defendants’ motion for summary judgment.

THE FREE EXERCISE OF RELIGION

The free exercise of religion guaranteed by

the First Amendment encompasses both the freedom to believe in

and act according to one's religious principles. The freedom

to believe is absolute. Sherbert v. Werner, 374 U.S. 398, 402

(1963); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). me

freedom to act, however, remains subject to regulation for the

protection of society. Cantwell v. Connecticut, supra, 310

U.S. at 304. This “power to regulate must be so exercised as

not, in attaining a permissible end, unduly infringe the pro-

tected freedom." Id. See, e.g., Wisconsin v. Yoder, 406 U.S.

B-3

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205, 220 (1972); Sherbert v. Werner, supra, 374 U.S. at 402; |

Braunfeld v. Brown, 366 U.S. 599, 603 (1961); Reynolds v. United

!

States, 98 U.S. 145, 166 (1879). Thus, the court must determine

whether the Navy's regulations governing its military uniforms

“unduly infringe" upon plaintiff's :ight to practice the Sikh

religion.

THE BURDEN ON PLAINTIFF'S RELIGION

The Navy's policy towards the uniforms of its |

personnel is neutral on its face. No argument has been made

that these regulations are intended to discriminate against

certain religious practices or beliefs. Yet, plaintiff argues

that the Navy's uniform policy is unconstitutional as applied

in this case. Such a constitutional attack on the application

of a governmental regulation has been well recognized by the

Supreme Court.

A regulation neutral on its face

may, in its So nonethe-

less offend the constitutional

requirement for ——— neu-

trality if it unduly burdens the

free exercise of religion.

Wisconsin v. Yoder, supra, 406 U.S. at 220 (citations omitted).

See Gillette v. United States, 401 U.S. 437, 462 (1971). The

facially neutral dress and grooming policy of the Navy certain]

“<

does not directly compel all Sikhs to believe or act in ways

contrary to their religion. Rather, the burden of the regula-

tions on a Sikh is conditional and indirect. That is, if a

member of the Sikh religion chooses to join the Navy, he must

conform to the Navy Uniform Regulations. Compare, e.g., Wisc

sin v. Yoder, supra; Reynolds v. United States, supra. A Sikh

may not practice his religion and be active in the Navy at the

same time.

The conditional nature of this burden on a

Sikh does not, however, free the government to indirectly

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inhibit religious practices. Gillette v. United States, supra ||

401 U.S. at 462; Braunfeld v. Brown, supra, 366 U.S. at 607.

The prohibition of governmental infringement of religious ex-

pressions extends to protect the religious from conditional

denials of benefits and privileges offered by the government. |

Sherbert v. Werner, supra, 374 U.S. at 404. Thus, the Navy can

not cavalierly justify its regulations by inviting the plaintrifif

to join the Army, a branch of the armed forces which exempts

Sikhs in part from its regulations governing a soldier's ap-

pearance. Although the court has no desire to meddle in the

affairs of the military, see Parker v. Levy, 417 U.S. 733, 743

(1974); United States ex rel. Toth v. Quarles, 350 U.S. ll, 17

(1955); Orloff v. Willoughby, 345 U.S. 83, 94 (1953), judicial |

deference to the decisions of the military is not without me

See Anderson v. Laird, 466 F.2d 283, 295 (D.C. Cir. 1972), cert.

denied, 409 U.S. 1076 (1972). The Navy must present a strong

rationale for the application of its dress code to members of

the Sikh religion.

The essence of all that has

been said and written on the sub-

ject is that only those interests

of the highest order and those not

te gitimate claims to the free ex-

excise of religion.

Wisconsin v. Yoder, supra, 406 U.S. at 215 (emphasis added).

THE NAVY'S INTEREST IN THE UNIFORM

APPLICATION OF ITS DRESS CODE

The Navy uniform regulations which govern the

uniforms of all naval personnel are based on several elements

including neatness, cleanliness, safety and military image.

Affidavit of Rear Admiral C. J. Seiberlich, Deputy Chief of

Naval Personnel, United States Navy, p. 1. The Navy has pre-

sented no evidence that the plaintiff was either sloppy or un-

clean. Indeed, the court is not aware of any evidence that

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would contradict the neatness or cleanliness of members of the |

Sikh faith. Thus, the Navy's enforcement of its grooming code

is justified, if at all, on grounds of military image and safety.

A Sikh's turban does not conform to the Navy'

standards for uniform headgear. This nonconformance, the a

argues, detracts from group identification and adversely affects

performance. Id. at p. 4. In support of this argument, the

Navy relies on its experience that a person's "pride in his

military appearance and the military appearance of his unit is

easily translated to pride in his professional performance and

creates a standard for others to follow." Id. Evaluation of

this argument by the court is hampered by the subjective RAEN

of the Navy's assumption that deviant appearance negatively af-

fects discipline, morale and esprit de corps. The court fully

appreciates the tradition of uniform appearance in the military.

The court hesitates, however, to find that uniform appearance

by itself is a sufficiently strong interest to justify the ex: |

clusion cf the Sikhs from the Navy.

The Navy's interest in safety presents a more

compelling interest in support of the Navy's headgear regula-

tions. Whether aboard a ship or aircraft extreme conditions of

confinement make safety the touchstone of combat readiness and

efficiency. Unlike the Army, virtually all naval activities

are conducted in close proximity to complex machinery of an

often hazardous nature. Dangerous operating conditions cannot

be tolerated. The accomplishment of an entire naval mission

may be impaired by the failure of a single individual to stat 5

his assigned task.

A Sikh cannot, for religious reasons, wear a

helmet. Letter from Ram Das Singh Khalsa, attorney for plain-

tiff, to HAROLD BROWN, defendant (Aug. 4, 1977). Absence of a

helmet poses serious safety problems both for the unprotected

sailor and for the crew that depends on him. Pilots and

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aircrewmen are required to wear specially protective helmets. |

Sailors working on an aircraft carrier flight deck or around |

operating aircraft must be similarly protected. All personnel |

at battle stations wear helmets to protect themselves from nis-

siles such as shrapnel and to cushion their impact with bulk-

heads and overheads caused by a lurching vessel. A turban ae

not meet these safety requirements necessitated by both the

ordinary and extraordinary activities of the modern, mechanized

Navy.

The incompatibility of a Sikh's appearance

with the uniform and protective dress of Navy personnel is fur-

ther magnified by the uncut beards and hair of all Sikh —

At the time of his demotion and dismissal, the newly converted |

plaintiff's vow not to cut his hair or beard had not ripened tq

a point of conflict with Navy grooming regulations. However,

the Navy's desire for uniformity and safety directly collides

with these unbending tenets of the Sikh faith.

The conflict between a Sikh's uncut hair and

beard and Navy regulations is manifest. See Article 0111 of

Navy Uniform Regulations. The Navy reemphasizes this conflict

by pointing to the safety aspects of its grooming code. Both

as to male and female naval personnel, Article 0111 provides:

In no case shall the bulk or length

of hair interfere with the proper

wearing of any military headgear.

And while the Navy permits beards to be worn, the “bulk of a

beard shall not exceed 1/2 inch and no individual hair more

than 3/4 inch, and the beard shall be grown in such a manner a

to ensure a proper facial seal of a member of protective masks

required to be used by naval personnel." Affidavit of Rear Ad-

miral C. J. Seiberlich, supra, p. 1. Leakage due to the improper

fitting of such masks over long beards would therefore pose a

serious danger to those who wear an aviator's oxygen mask, a

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fire fighter's breathing apparatus, or a Navy MK-5 gas mask.

Id. Similarly, the Navy argues that long hair and beards in- |

crease the likelihood of safety problems due to the combust ibil-

ity of long hair in oxygen fires, the tendency of long hair to |

catch in the type of machinery common aboard ships, and the sarii-

tary risks of long hair and beards in medical and food service |

areas. Id. at pp. 2-3. Each of these factors underscores the

Navy's strong interest in minimizing threats to the safety of |

its personnel.

It can be argued, of course, that not all Navy

personnel are engaged in dangerous activities which are incon- |

patible with the wearing of a beard, long hair and a turban.

i

It follows from such an argument that the Navy could accommo-

date Sikhs in positions of relative safety. In that way, the

Navy could endure the nonconforming appearance of a Sikh wh le

allowing the individual the full range of religious expression.

The court cannot agree, however, that such an accommodation by |

the Navy is mandated by the First Amendment. Special safety

status for naval personnel of the Sikh faith would deny Sikhs

full opportunities for advancement within the Navy and risk es-

tablishing Sikhs as a specially protected naval class. Neither

result is desirable or necessary under the First Amendment's

protection of the free exercise of religion.

Accordingly, the court finds that the Navy's

interest in a uniform appearance and protective clothing and

headgear for its personnel is sufficiently strong to eae |

plaintiff's desire to wear the turban of a Sikh while in the

Navy. Article 0112 of Navy Uniform Regulations is not uncon-

stitutional as applied to plaintiff RICHARD B. SHERWOOD.

THEREFORE, IT IS ORDERED that plaintiff's

motion for a partial summary judgment is denied and defendants’

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cross-motion for summary judgment is granted.

DATED: April 24, 1978.

Copies to all parties.

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UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

RONALD 8. SHERWOOD, )

12 a

Plaintifé )

13 ) Civ. No. 77-8-S

Vv. )

14 ) JUDGMENT

HAROLD BROWN, Secretar’ )

15 of Defense, et al., )

)

16 Defendants. )

)

17 )

18

19 The court having denied plaintiff's

20 motion for a partial summary judgment and granted defendants’

21 motion for a summary judgment,

IT IS ORDERED, ADJUDGED AND DECREED

23 that the above entitled matter is hereby dismissec.

24 DATEN: April 24, 1978

25

26

27

United States District Cour

28

Copies to the parties

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vrL eareet

s-16-67— 198

B-10

Section VI. APPEARANCE

12 June av. 5/5 by A zp 6! 4 94 7 7 Y., oun

5-39. Appearance. a. The Army is a uniformed

service. Therefore « neat and well-groomed ap-

pearance by-voldiers is Tii isons Whe At), exTendinhy be funds the corners th)

and contributes to building the pride and enprit

essential to an effective military force. A vital

ingredient of the Army's strength and military

effectiveness is the pride and self-discipline which

American soldiers bring to their service. It is the

responsibility of commanders to insure that mili-

tary personnel under their command present a neat

and soldierly appearance, and it is the duty of each

soldier to take pride in his appearance at all times.

6. There are many huir styles which are ac-

ceptable in the Ariny. So long as a soldier's hair is

C 4, AR 600-20

Exhibit C

mustaches are permitted. If « mustache is worm, it

will be kept neatly trimmed and tidy. No portion

routh will full

below « line parullel with the bottom of the lower

lip. Goatees and beards are not authorized.

(4) The wearing of » wig gr“iusir pisce by

male personnel while in ease or on duty is

prohitited except cover’ natural buldness or

physical dishgurution catised by uccident or med-

ical procedure. Whett worn it will conform to the

standard haircut criteria as stated.

(5) Figure 5-1 illustrates various hairstyles,

mustaches und sideburns which are acceptable ec-

cording to these eriteriu. No style lounger than the

kept in a neat manner, the acceptubility of the --“ones illustrated is permitted. DA Poster v00-20

style will be judged solely by the criteria sdeserjbeil

below. oa

ce. Haircuts, without reference to-style, will

conform to the following stundarde

(1) The hair on top of the head will be neatly

groomed. The length and jor bulk of the hair will

not be excessive or present a ragged, unkempt or

extreme appearancy“Huir will present a tapered

appearance and, when combed, it will not full over

the ears or eyebrows or touch the collar except for

the closely gat hair ut the buck of the neck. The

so-called “Aluckcut” fullness in the back is per-

mitted ip modernte degree. In ull cases, the bulk

or ler. gdh of hair will not interfere with the norma’

wear Of all stundur! military headgear.

2) If the individual desires to wear nide-

burps, they will be neatly trimmed. The base will

clean shaven horicumal-line-Sitebur

not ® wnward beyond the lowest part of

the exterior eur opening.

(3) The fuce will be clean shaven except that

depictirs this poliey and the epproved styles in

full color will be distributed to compuny level. The

poster will be promunently displayed on unit bul-

letin boards, in offices, and in barber shop»

d. Male meimbers of the Keserve coniponents

muy Wear a wig or hair piece during unit reining

assembles und when serving on active duty for

truining for periods of 30 days or less or on fii!

time training duty for periods of 40 day» or les .

if it conforms to the standard haircut eritesia

atuted above atl does not interfere with periorin-

ance of duty. When ordered for a perio! of moze,

than 30 days to active duty, active dusty for train-

ing, or full time training duty, the weering of o

wig or hair piece by male membors of the Keserve

components in uniform or on duty is prohibited

except os provide dine -benbove

S=3I-Ckcepiionn to appearance ssehitirste, Govese

tions to appearance standards may be granted! to

members of the Sikh religion in accor lance with

ovisions of section VII.

PE af

Section Vil. PROCEDURES FOR DOCUMENTING RELIGIOUS CELIE!S

5-41. General. The Sikh religion requires the wear

of unshorn hair. Sikhism also requires members to

wear a turban, a steel bracelet, « comb und special

underprnts Recnise Sikhs may desire to enlist in

the Army or service members may convert to

Sikhis a subsequent to enlistinent, the procedures

presented herein have been established.

&-42. Procedures for documenting religious be-

beliefs. If w widier claims that he is unable, by

virtue of being « member of the Sikh religion, to

conform to w provision of Army personal appear-

ance or uniform reyulations, be must—

@. Be instructed by his unit commander to

obtain from the policy muking body of his re-

ligious group, witiun 30 days, & statement which

TAGO 6254

attests that he is a member in good stundinz of

that religious group and thut the religioas practice

in question is a requirement of the religious group

which may not be waiver.

6. Appear before « bourd convened vy the

general court-martinl authority to determine the

member's sincerity and validate the supporting

documentation furnished by the religion. group.

5-43. Exception prior to board proceecin;:s. During

the period in which the documentation is being

obtained, the service member will be ellowed to

conform to his religious practice a» & Lemporary

exception tu personal appearence or uniform

regulations. ‘iis temporary exception to puscy

will not exceed a period of 30 days.

$-13

_ C4, AR 600-zv

5-44. Actions required of the board. a. At the con-

clusion of the 30-day period (or sooner with the

service member's consent) the member will appeur

before « board of three or more commissioned

officers convened by the commanicr exercising

geoeral court-martial jurisdiction. (AR 15-6 will

apply.) Tho purpose of the board wi!! be to make

findings of fact end recommendation». A» a mini-

mum, the board will make tho following tindings

of fact:

(1) Whether the member is a sincere, bone

fide member of the Sikh roligion.

(2) Whether his religious requirements pre-

clude him from complying with the Army's dress

and appearance standards.

6. Based on the findings, the bourd will make

one of the following recommendations:

(1) Thet authorized deviations tu dress and

appearance standards be granted.

(2) Retention on active duty with no excep-

tion to dress end appearznce standurds (determi-

nation of nonsincerity, vtc.).

5-45. Aciions of the GCM conveniny authority.

Upon receipt of the board reconunenidations, the

GCM convening authority will make the finul

determination whether the member will be re-

tained on active duty, with or without exceptions

to dress and appearunco standards. If the GCM

convening authority determines that the member

is a bona fide Sikh, and cannot comply with

appearance standards becouse of sinccre religious

convictions, the member will be given appropriate

written permission to deviute from eppearance

standards. If, in the future, the member's sincerity

or standing within tho Sil:h community becomes

questionable, he may be required to ryuin appear

before a board of officers for reconsideration and

redetermination of his stetus.

S14

4é June 1974

5-46. Authorized exceptions. a. If « decision is

mude by the GOM authority to authorize a devia-

tion from uniforin and appearance standards, such

iv formation shall be filed in the permanent section

vf the MIKI pending «a change to AR 640-10.

6. Exceptions will be yranted for—

(1) The wear of unshorn hair.

(2) The wear of a beard.

(3) The wearing of »pecial underpants.

(4) The wear of the bracelet.

(5) The carryiny of the comb.

(6) Tho wear of a turban except that, when

required, protective hendyear will be worn over

or in lieu of the turban.

¢. Tho actual carrying of the sword is not eu-

thorized because members of the Sikh religion

are perinitted by the tenets of their religion to carry

a sword symbolically (e.., @ photograph thereof,

etc.).

d. Should the GCM convening authority

determine that the service member is not a sincere,

bona fide Sikh, no exception to uniform or appear-

ance st’ wlurds will be granted and the member

sliall be so notified.

¢. Nothing contnined herein is intended to

limit the existing authority of a commander to

recominend or initiate adininistrative separation

proceedings under applicable reyulations.

5-47. Actions prior to enlistment. Those members

of tho Sikh religion who desire to enlist in the

Army and desire an exception to Army uniform

and appearance stundard» as specified above will

' present themselves with the required documenta-

tion before @ board of ollicers convened by the

appropriate GCM convening authority at the

nearest US Army instullxtion. The GCM conven-

ing authority wall then tuke those actions specified

in paragraphs 5-45 und 5-46 prior to the individ-

ual's enlistment.

TAOO 6134

MINISTR*’ OF DEFENCE

Main Buildin. Whitehall London SW1A 2HB

Telephone 01-218 (Direct Dialing)

01-216 9000 (Switchboard)

Your rolerence

burdurni Gahibu

haurtbar huur Khalsu 7

30 hing edwurd's Gurdens DAR Aos/A/

Acton Gets

/Ondon wo YlK IG December 1Y'//

bear S ar damn Sak ba,

honk you vor your letter of 14 Uctober reguenting detuils of

Leivice dress regululions relutiny; to Cikhs.

the following ure extructs from tiervice regulutions coverim; the

weurin,, of turbans:

Koyiul Lavy

Li Officers and ratings of Likh nutionulity and religon ure to be

perwitted to wear unirorm turbans, provided al Crown expense, instead

Oo: cups und to keep their hair long, if they so wish.

She unitorm turbun is to conform to the Indiun Lavy puttern, as

follows:

ue The turban consists of u pugree uid a heudbund

b. the pugree is u strip of any suituble material (soft muslin

is nommolly used) Jon; enough to Oo round the hewd six times,

crosuin, over the centre, and folded to uw uniform width of ubout

23 in. throughoul., lb must cover the huir completely, reacting

to the nape of the neck, and from six overlup,:ing luyers,

evenly vprced and clearly seen on vither side of the head. Lt

is secured by folding ut the back, with no loose ends.

c. ‘the heudband is: a straight band of the sowe muateriul worn

round the toreheud, under the puree, with u triansle oi 1 in

base Bhowim;s in the centre of the forechend where the two sides

of the pusyree separate alter crossing over.

4 nuvy blue pucree und a white headbond ore to be worn vith

blue unitorm, white puyree und blue heudbund with tropical

unisorm.

‘ rny

wikhs enlisted into the British ~rm) ovre to wear un outer turbun

(pagri) of cotton six yards long und thirty two inches wide und an

inner turban (pug) of similar cloth five yards long and eight inches

wide, ‘Tho outer turbun or puri is to be the siwe colour us the top

of the cup, servicy and the inner turban or pug is to be the Lucin;

colour us shown in the wrmy list for the regiwent or corps to which

D-1

he belon;s. he outer wid inner turbuns ure to be provided locally.

The regimental cap bade is to be worn on the rront of Lhe heud-dress.

The cap bade qos sue \g ave to be modified Jocally as requived,.

a

lint’

den the prior uuthority of the liinistry of befence has been yiven

Kat Officers und uirwen of Gilkh nutionulity und relijjioen ure perwitted

to wear turbans of the upproved pattern, instead of caps, and to keep

their hair loms, it they so wish. ‘The cowponents of the turban consist

oF a pugiuvee and headband of ast ensi yn blue colour. whe appropriate

cup bade is to be atrixed to the puyuree with ibs base ut the apex

of the triangle Of the headband.

There are no reyudutions covering the wearin; of the kirpun. 4 hope

the avove inutormution is of assistance to you.

Yours sincerely,

Fikes

D-2

t 5. DEPARTMENT OF LABOK

Ox.upatnmal Safecy and Health Administ: ation

WASHINGTON, DC, 2W.1)

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Fee 4 «Ps

FIELD INFORMATION MEMORANDUM 475- 11

TO: ASSISTANT REGIONAL DIRECTORS/OSH

Subject: Exeirption from Wearing Hard Hats, Old Order Amish

and Sikh Dharma Brotherhood

This memorandum supersedes OSHA Program Directive #100-16,

dated November 15, 1972.

The Old Order Amish requested a determination of the applicability

of OSIIA requirements to the wearing of "hard hats"' while working

in carpentry trades and construction, The Old Order Amish dress

is part of their religious practice. For example, the wide-brimmed

black felt hat is worn by members of the Old Order Amish even when

working, and it is consiciered a breach of Amish religious principlcs

to wear a “hard hat,"

Similarly, the Sikh Dharma Brotherhood, with Western Hemisphere

headquarters at 1620 Preuss Road, Los Angeles, California, has

petitioned for an exemption from the “hard hat"' requirement on the

basis of free excrcise of religion. The Sikh Dharma Brotherhood

has the following as a part of its creed:

"The man shall tie his hair in a Rishi knot on the crown

of his head to be covered by a cotton cloth known as a

turban whenever in public, He will be obliged to keep a

dastar (smull turban) when he is without his turban."

The Old Order Amish and the Sikh Dharma Brotherhood are both

granted an exemption from wearing hard hats. The granting of the

above exemption is based on the provisions iu the United States

Constitution relating to the free exercise of religion, and the policy

expressed in Suction 20(a)(5) of the Williams-Steiuer Occupational

Safcty and Health Act of 1970 respecting religious freedom,

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Citations shall not be issued for failure of members of the Old Order

Amish or the Sikh Dharma Brotherhood to wear hard hats, Employers

of members of these groups shall not be required to provide protective

head equipment for their use as long as such employees have informed

their employers of their religious objection to the wearing of hard hats.

All other requirements of the Act and its standards shall be adhered

to by affected employers and members of the Old Order Amish and

the Sikh Dharma Brotherhood,

a a aioe

Klis cel r Wibse—

Barry J. White

Associate Assistant Secretary

for Regional Programs