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Military Dress and the First Amendment

First Amendment protections not as broad for military

The application of the Free Exercise Clause of the First Amendment to the armed services is not nearly as broad as it is in the civilian context. In 1986, the United States Supreme Court ruled that the military could prohibit the wearing of yarmulkes by Jewish soldiers when in uniform. In response to the lawsuit filed by an officer who was an Orthodox Jew, the military argued that the dress code was necessary to maintain discipline. The officer claimed that disciplinary action taken against him violated his First Amendment right to the free exercise of his religion, as well as his right to free speech. Three years later, Congress would overturn the policy. Generally, a court’s First Amendment review of military rules and actions will be far more deferential than when a court reviews “civilian” laws.

In the 1986 case, the Court did not question the decision of military authorities to prohibit the wearing of a yarmulke. Until 1986, military personnel who were practicing Sikhs were permitted to keep their beards, long hair, and turbans. As of 1986, the armed forces no longer gave religious waivers for uniform and grooming rules.

Armed Services cite need for security and appearance standards

In 1999, the United States Army banned any religious headgear that was too large to fit completely under standard issue military headgear. The Army said that the policy was not meant to discriminate against personnel on the basis of religion, but was based on the need to maintain uniform standards of appearance. The Marine Corps and the Navy have put a similar policy in place. Recently, an Army staff sergeant was ordered to remove her khimar, which is a traditional Muslim headscarf. The staff sergeant claimed that her religious beliefs required her to wear the khimar. It has been suggested that an inequitable situation arises under the policy because a smaller piece of religious attire, such as a skullcap or a yarmulke, can be worn under the standard issue headgear, in contrast to a larger headscarf or turban.

In 2001, a female fighter pilot claimed that a dress code enforced only for female service members stationed in Saudi Arabia violated her right to the free exercise of religion. The Air Force officer sued the United States Department of Defense for requiring her to wear clothing worn by Muslim women when she left the base. The policy was defended as necessary for security because women in Saudi Arabia can be punished for violating Muslim dress codes. The suit was eventually dropped after the Air Force restored the officer’s career prospects.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.


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