DoD Policy Breeds Questions

January 30, 2014
BY Alina Dain Sharon/JNS.org
Loosened restrictions may still violate religious apparel statute

The Pentagon has issued a directive that loosens restrictions for U.S. troops who wish to wear religious garments, such as head scarves, turbans and yarmulkes, with their military uniforms or to grow beards. But while the Department of Defense’s new policy should in some cases benefit Jews, Muslims, Sikhs, and members of other faiths, men and women in the military must still seek special approval from their commanders to be allowed to wear religious garments, and such requests can still be denied.

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

Constitutional lawyer Nathan Le-win said in an email that despite the loosening of the restrictions, the requirement for soldiers to seek permission from their military departments for religious clothing and beards, or the existence of “any requirement
of prior approval,” violates religious apparel statute 10 USC 774, passed by Congress in 1996.

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

The Department of Defense decision conjures echoes of the case of Rabbi Menachem Stern, who was sworn in as a U.S. army chaplain in 2011 following the resolution of his lawsuit against the Army. The Army had refused to amend its “no-beard” policy for several years, but finally decided it wasn’t “going to take a chance with a lawsuit because they didn’t know what the judge could do,” Lewin, who represented Stern pro bono, said at the time. Sens. Charles Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.), and former Sen. Joseph Lieberman (I-Conn.) had all advocated for Stern’s cause.

Lewin won a similar case for Rabbi Michell Geller in 1976. But in 1986, the U.S. Supreme Court ruled 5-4 against an Orthodox rabbi represented by Lewin who was told by the Air Force he could not wear a yarmulke indoors while he was in uniform and on duty at his base.

Then came the 1996 statute under which, said Lewin, the military can only later prohibit a soldier if it deems that the religious clothing item or facial hair interferes with “the performance of the member’s military duties” or if the item is determined to be “not neat or conservative.”

Jews in Green, an independent organization representing Jews serving across the Department of Defense, applauded the new Pentagon policy.

“The new policy doesn’t make any drastic changes nor does it allow any items previously prohibited,” said Jews in Green spokesman Jason Rubin. “However, it does clarify the process for granting religious accommodation and potentially opens the door for observant Jews to serve and observe mitzvot with greater ease.”

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