# Petition — Sherwood v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 919

## Text

_ 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
chi cds cheuspdnnnsndaon tb beuediaamenesishgortasanaiien 2
Sa ih 5 2. sce demeamnspacksasesactoenapaapsbiinonhs 2
I ID 654s 5 ssesicnbscrmssconsussbunesvericusdbabeneeans 2
EY COOMA PRIDES wrociinsconossnbauedncdetonsscsucsdsvadsvboosevdenbenses 2
REASONS FOR GRANTING THE WRIT...............cc:eeeeseeeeeeees 4
cian ol issn cd bance tobhnasduiveasce sabdncoutaebediesteouiiacil 11
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.

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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.

B-9

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a

5
6
1
8
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
29
30
31
32
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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0239%3A1. Public record. Not legal advice.