Jaskirat Singh v. David Berger

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 29, 2022 Decided December 23, 2022
No. 22-5234
JASKIRAT SINGH, ET AL.,
APPELLANTS
v.
DAVID H. BERGER, IN HIS OFFICIAL CAPACITY AS THE
COMMANDANT OF THE MARINE CORPS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01004)
Eric S. Baxter argued the cause for appellants. With him
on the briefs were Amandeep S. Sidhu, Amrith Kaur Aakre,
Giselle Klapper, Daniel H. Blomberg, Diana Verm Thomson,
Daniel D. Benson, and Laura Wolk.
Joshua C. McDaniel, Kelsey M. Flores, and Parker W.
Knight III were on the brief for amici curiae The Muslim
Public Affairs Council and American Islamic Congress in
support of appellants.
2
Jacob T. Spencer, Andrew D. Ferguson, Joshua R.
Zuckerman, and John N. Reed were on the brief for amicus
curiae Chaplain Jacob Goldstein (ret.) in support of appellants.
David S. Petron and Gordon D. Todd were on the brief for
amici curiae Jewish Coalition for Religious Liberty, et al. in
support of appellants.
Richard D. Salgado was on the brief for amici curiae The
Sikh American Veterans Alliance, et al. in support of
appellants.
Sarah M. Harris, Mark S. Storslee, and Jesse T. Clay were
on the brief for amici curiae Former Military Officials Eric
Fanning, et al. in support of appellants.
Brian J. Springer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Michael S. Raab, Attorney.
Before: MILLETT, RAO, and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Jaskirat Singh, Milaap Singh
Chahal, and Aekash Singh wish to serve their Nation by
enlisting in the United States Marine Corps. They are each
fully qualified to enlist, having satisfied the Corps’ pre-
enlistment criteria. There is just one barrier to their entry.
Jaskirat, Milaap, and Aekash are members of the Sikh faith,
which requires them, as relevant here, to maintain unshorn hair
and beards and to wear certain articles of faith. Those religious
practices conflict with the Marine Corps’ standard grooming
policy for the initial training of newly enlisted recruits,
3
commonly known as boot camp. The Corps has agreed to
accommodate Plaintiffs’ religious commitments (with some
limitations not relevant here) after each of them finishes basic
training. But it will brook no exception for the Sikh faith
during those initial thirteen weeks of boot camp.
The district court denied Plaintiffs’ request for a
preliminary injunction based solely on an analysis of the public
interest. We reverse in part and remand for the prompt issuance
of a preliminary injunction in favor of Jaskirat Singh and
Milaap Chahal, and for reconsideration of Aekash Singh’s
request for a preliminary injunction in light of this opinion.
I
A
This case arises at the intersection of weighty competing
interests. On the one hand, “no military organization can
function without strict discipline and regulation that would be
unacceptable in a civilian setting.” Chappell v. Wallace, 462
U.S. 296, 300 (1983). Plus the “complex, subtle, and
professional decisions as to the composition, training,
equipping, and control of a military force are essentially
professional military judgments” that courts generally are ill-
equipped to second guess. Gilligan v. Morgan, 413 U.S. 1, 10
(1973); see also Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 24 (2008). To inculcate the importance to service
members of sacrificing “personal preferences and identities in
favor of the overall group mission[,]” the military has long had
an interest in “the strict enforcement of its uniform dress
requirements.” Goldman v. Weinberger, 475 U.S. 503, 504,
508 (1986).
4
On the other hand, the cost of military service has never
entailed the complete surrender of all “basic rights[.]”
Chappell, 462 U.S. at 304 (internal quotation marks and
citation omitted); see also Rostker v. Goldberg, 453 U.S. 57,
67 (1981) (“[W]hen it acts in the area of military affairs,”
“Congress remains subject to the limitations of the Due Process
Clause[.]”); Parker v. Levy, 417 U.S. 733, 758 (1974)
(“[M]embers of the military are not excluded from the
protection granted by the First Amendment[.]”).
Of particular relevance here, in exercising their “plenary
constitutional authority over the military,” see Chappell, 462
U.S. at 302, the Political Branches have repeatedly required the
military to carefully balance its need for disciplined uniformity
with the religious needs of service members.
For example, Congress responded promptly and directly
to the Supreme Court’s decision in Goldman v. Weinberger,
475 U.S. 503 (1986), which rejected a service member’s First
Amendment claim to wear a yarmulke while in uniform, id. at
509–510. A statute passed the following year instructed the
military not to ban religious apparel in uniform unless it would
“interfere with the performance of the member’s military
duties” or disrupt a “neat and conservative” appearance. See
Pub. L. No. 100–180 § 508, 101 Stat. 1019, 1086–1087 (1987)
(codified at 10 U.S.C. § 774).
Then, in 1993, Congress enacted the Religious Freedom
Restoration Act (“RFRA”), Pub. L. No. 103–141 (codified at
42 U.S.C. § 2000bb et seq.). RFRA prohibits the federal
government from “substantially burden[ing] a person’s
exercise of religion” unless the Government “demonstrates that
application of the burden to the person” is the “least restrictive
means” of furthering a “compelling” interest. See 42 U.S.C.
§ 2000bb–1(b)(1)–(2). As the Government has recognized,
5
RFRA, with its demanding compelling-interest and least-
restrictive-means test, “undoubtedly ‘applies in the military
context.’” United States Navy Seals 1–26 v. Biden, 27 F.4th
336, 346 (5th Cir. 2022) (quoting United States v. Sterling, 75
M.J. 407, 410 (C.A.A.F. 2016), cert. denied, 137 S. Ct. 2212(2017)); see also Application for Partial Stay at 22–24, Austin
v. United States Navy Seals 1–26, No. 21A477, 142 S. Ct. 1301(March 7, 2022) (government acknowledging that RFRA
applies to military decisionmaking); Religious Liberty in the
Military Services, Department of Defense Instruction 1300.17
at 1–3 (Jan. 22, 2014) (applying 42 U.S.C. § 2000bb–1 to
religious accommodations); Religious Liberty in the Military
Services, Department of Defense Instruction 1300.17 at 1–2
(Sept. 1, 2020), J.A. 548–549 (describing its purpose as, in part,
to “[i]mplement[] requirements” of RFRA and “to provide, in
accordance with the RFRA, that DoD Components will
normally accommodate practices of a Service member based
on a sincerely held religious belief”).
As the Supreme Court has explained, “Congress’s express
decision to legislate the compelling interest test indicates that
RFRA challenges should be adjudicated in the same manner as
constitutionally mandated applications of the test, including at
the preliminary injunction stage.” Gonzales v. O Centro
Espirita Beneficiente União do Vegetal, 546 U.S. 418, 429–430
(2006) (“O Centro”). As under the First Amendment, RFRA’s
“compelling interest test” is an “affirmative defense” for which
the Government bears the burden of persuasion, and it subjects
governmental action to strict scrutiny. See O Centro, 546 U.S.
at 424, 429–430. Strict scrutiny is an “exceptionally
demanding” test. Holt v. Hobbs, 574 U.S. 352, 364 (2015)
(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,
728 (2014)). If the Government can achieve its interests
without burdening religion, “it must do so.” Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1881 (2021); see also Hobby
6
Lobby, 573 U.S. at 728. By subjecting military decisions to
RFRA scrutiny, the Political Branches determined, in their
expert judgment, that Americans need not surrender their faith
to fight for their Nation absent demonstrated necessity.
Since RFRA, Congress and multiple Presidents have
doubled down on their commitment to accommodating religion
within military life. In the National Defense Authorization Act
for Fiscal Year 2013, Congress specifically instructed the
military to accommodate the “conscience, moral principles, or
religious beliefs” of service members and forbade any
disciplinary action based on such beliefs to the extent
“practicable.” See Pub. L. No. 112–239 § 533(a)(1) (codified
at note preceding 10 U.S.C. § 1030). Congress expanded that
protection the following year by narrowing the grounds on
which the military could justify disciplinary action and by
requiring an Inspector General report on freedom of religion
and conscience in the military. See National Defense
Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66
§§ 532–533, 127 Stat. 672, 759–760.
Most recently, in 2015, the Political Branches expressly
acknowledged the “numerous religious traditions” represented
among service members, including “Christian, Hindu, Jewish,
Muslim, [and] Sikh,” and determined that this diversity
“contributes to the strength” of the armed forces and should be
“promote[d].” National Defense Authorization Act for Fiscal
Year 2016, Pub. L. No. 114–92 § 528, 129 Stat. 726, 814; see
also JOSEPH R. BIDEN, NATIONAL SECURITY STRATEGY 21
(Oct. 2022) (“We will strengthen the effectiveness of the force
by promoting diversity and inclusion[.]”).
Citing RFRA, and in line with those directives, the Army,
Navy, Air Force, and Coast Guard, as well as their training
Academies, each accommodate the Sikh religious practices at
7
issue here during both initial recruit training and military
service. Department of the Navy Bureau of Personnel
Instruction (BUPERSINST) 1730.11A at 4, 9 (March 16,
2020); Army Directive 2017–03 at 1, 3–5 & Enclosure at 2–4
(Jan. 3, 2017); Department of the Air Force Instruction 36–
2903 at 148 (Feb. 7, 2020); Coast Guard Commandant
Instruction (COMDTINST) 1000.15 at 4–6 (Aug. 30, 2021).
The Marine Corps, though, has refused in this case to
make a religious exception to its uniform and grooming
requirements for Plaintiffs during boot camp. The Corps’
Uniform Regulations require men ordinarily to keep “clean-
shaven” faces and prohibit wearing religious articles absent
authorization. See Marine Corps Order 1020.34H §§ 1001 ¶ 6,
1004 ¶ 4 (May 1, 2018) (“Marine Corps Uniform
Regulations”). Also, during boot camp, a male recruit must
weekly “have his entire hair length clipped to the scalp[.]” Id.
§ 1004 ¶ 7a(1)(a)(2); Jeppe Decl. ¶ 17, J.A. 721.
B
Sikhism is a monotheistic faith with over 25 million
adherents worldwide, making it the fifth-largest religion in the
world. Religious Accommodations in the Armed Forces:
Hearing Before the H. Comm. on Armed Services, 113th Cong.
107 (2014) (statement for the record of the Sikh Coalition)
(“Sikh Coalition Testimony”). Plaintiffs, like many Sikhs,
view their faith as one of “courageous warriors against
injustice,” Compl. ¶ 184, J.A. 39, and Sikhs have served with
distinction in the United States military since at least World
War I, Sikh Coalition Testimony at 108.
As relevant here, Sikhism forbids its adherents to cut the
hair on their head or to shave the hair on their face (kesh) and
requires men to wear a turban or a patka (a smaller covering)
8
over their heads. See Compl. ¶¶ 78–79, 82, J.A. 25–26; Sikh
Coalition Testimony at 107. Adherents also must wear a
specific metal bracelet (kara). Compl. ¶ 79, J.A. 25–26.
Additionally, those who have gone through an initiation
ceremony must carry a small ceremonial dagger under their
clothes (kirpan), wear specific undershorts (kacchera), and
insert a small ceremonial comb in their hair (kanga). Compl.
¶ 79, J.A. 25–26; Pl. Opening Br. 10 n.4; see also Tagore v.
United States, 735 F.3d 324, 328–329 (5th Cir. 2013)
(discussing the kirpan); Cheema v. Thompson, 67 F.3d 883,
884 (9th Cir. 1995) (discussing Sikh articles of faith),
overruled on other grounds by City of Boerne v. Flores, 521
U.S. 507 (1997). All three plaintiffs may not shave their hair
and must wear a patka or turban over their heads and a bracelet.
Milaap Chahal, having gone through the initiation ceremony,
also must wear the dagger, undershorts, and comb. Pl. Opening
Br. 10–11 n.4.
Plaintiffs are lifelong Sikhs for whom the failure to
comply with those faith obligations would be intolerable.
Cutting one’s hair, for example, is “as reprehensible as
adultery,” as Milaap Chahal attested in his administrative
appeal. J.A. 170. Throughout history, Sikhs have chosen death
over cutting their hair. Compl. ¶ 85, J.A. 27; see also Sikh
Coalition Testimony at 107 (“[D]enying a Sikh the right to
wear a turban and maintain unshorn hair * * * is perceived by
followers as the most humiliating and hurtful physical injury
that can be inflicted upon a Sikh.”).
Between March and November of 2021, Jaskirat Singh,
Milaap Chahal, and Aekash Singh sought to enlist in the
Marine Corps. They each passed the Armed Services
Vocational Battery test, and were otherwise “found to be
mentally, morally, and physically qualified for accession in to
the Marine Corps.” Marine Corps Instruction 1730.9 § 4.3
9
(July 12, 2021) (defining a “qualified applicant”); Defs.’
Answer ¶ 27, J.A. 748 (agreeing that Plaintiffs “have been
determined to be ‘qualified applicants’ for accession pursuant
to Marine Corps Order 1730.9”); id. ¶¶ 62–63, 138, 205, J.A.
752, 760, 767. Each then submitted a pre-accession request for
a waiver of the requirement that they shave their heads and
faces, and permission to cover their heads with a turban or
patka and wear a bracelet. Milaap Chahal also asked to be
allowed to carry the additional articles of faith under his
uniform.
The Marine Corps granted each request in part on
substantially identical terms. Citing its “compelling interest”
in “instilling in each Marine an identity as part of a team” and
in “break[ing] down recruits’ individuality,” the Corps
withheld all accommodations during the thirteen-week basic
training program. J.A. 59; J.A. 165–166; J.A. 236. But the
Corps committed to allowing Plaintiffs to wear unshorn hair,
neatly tied beards, turbans or patkas, and a steel bracelet after
basic training, except “when receiving hostile fire pay or
imminent danger pay,” or when a battalion or squadron
commander determines that “operational necessity” requires a
suspension. J.A. 59; J.A. 164; J.A. 236. Chahal’s request to
wear religious undershorts, a comb, and a ceremonial dagger
also was only granted for after basic training, and subject to
similar conditions. J.A. 165.
Each Plaintiff timely filed an administrative appeal that
has remained pending for ten to fourteen months.
After receiving no further response on their administrative
appeals, Plaintiffs filed suit in April 2022 against the
Commandant of the Marine Corps and other senior Department
of Defense officials. As relevant here, the complaint alleges
that the Marine Corps’ denial of their requested
10
accommodations during recruit training violates RFRA and the
First Amendment. Two days after filing their complaint,
Plaintiffs filed a motion for a preliminary injunction “allowing
them to maintain their hair, beards, and religious articles
(including the turban) during recruit training and for the
pendency of this case.” Mot. Prelim. Inj. at 19, ECF No. 16,
Toor v. Berger, No. 22–1004 (D.D.C. April 13, 2022).
The district court denied preliminary relief. While
recognizing that the Government faced a strict-scrutiny burden
under RFRA, the district court found it “unnecessary” to
address the Plaintiffs’ likelihood of success on the merits or
their irreparable injury because the Government “credibly
alleged” that granting the preliminary injunction would “pose
a serious threat to national security” by disrupting training
methods. Mem. Op. 10–12, J.A. 822–824.
Plaintiffs filed an interlocutory appeal and subsequently
moved for an injunction pending appeal or, in the alternative,
an expedited appeal. We granted expedition. We have
jurisdiction under 28 U.S.C. § 1292(a)(1).
II
A preliminary injunction is an extraordinary remedy that
requires a moving party to make a “clear showing” that (1) it
has a likelihood of success on the merits, (2) the balance of
equities favors preliminary relief, (3) an injunction is in the
public interest, and (4) it will likely suffer irreparable harm
before the district court can resolve the merits of the case. See
Archdiocese of Wash. v. Washington Metro. Area Transit
Auth., 897 F.3d 314, 321 (D.C. Cir. 2018) (quoting League of
Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)); see
also Winter, 555 U.S. at 22.
11
Preliminary injunctions are generally a “stopgap measure”
meant only to “preserve the relative positions of the parties”
until trial. Sherley v. Sebelius, 689 F.3d 776, 781–782 (D.C.
Cir. 2012) (quotation omitted). After all, “deciding whether to
grant a preliminary injunction is normally to make a choice
under conditions of grave uncertainty.” O Centro Espirita
Beneficiente União do Vegetal v. Ashcroft, 389 F.3d 973, 1015
(10th Cir. 2004) (en banc) (McConnell, J., concurring).
Bearing in mind that a grant of preliminary relief could prove
to be “mistaken” once the merits are finally decided, id. at
1017, courts are institutionally wary of granting relief that
disrupts, rather than preserves, the status quo, especially when
that relief cannot be undone if the non-movant ultimately wins
on the merits. Id. at 1014–1015; see Dorfmann v. Boozer, 414
F.2d 1168, 1173 & n.13 (D.C. Cir. 1969). When the injunction
addresses military affairs, courts “give great deference to the
professional judgment of military authorities concerning the
relative importance of a particular military interest.” Winter,
555 U.S. at 24 (quoting Goldman, 475 U.S. at 507).
Each of these weighty circumstances is at play in this
case. The proposed injunction would alter “the last
uncontested status” before this suit: the Corps’ longstanding
policy of refusing to accommodate religious objections to
shaving during boot camp. See Huisha-Huisha v. Mayorkas,
27 F.4th 718, 733 (D.C. Cir. 2022) (emphasis and quotation
omitted). And Plaintiffs could start and finish their thirteen-
week training before the district court can render a final
determination on the merits, making the relief granted
potentially conclusive on that claim in their complaint.
Although the Government did not ask the district court or
this court at the motion stage to apply a heightened standard for
preliminary relief, many of our sister circuits have adopted
more stringent criteria for injunctions that alter the status quo
12
or grant irreversible relief. See Silvertop Assocs. Inc. v.
Kangaroo Mfg. Inc., 931 F.3d 215, 218 n.1 (3d Cir. 2019) (A
“heightened mandatory injunction standard” applies if the
injunction “request[s] * * * substantially all of its relief in a
way that the relief could not later be undone” or does not
“maintain the status quo.”); Edmo v. Corizon, Inc., 935 F.3d
757, 784 n.13 (9th Cir. 2019) (“Because mandatory
preliminary injunctions go well beyond the status quo pendente
lite, they are particularly disfavored and are not issued in
doubtful cases.”) (formatting modified and quotation omitted);
In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th
Cir. 2003) (“Mandatory preliminary injunctions [generally] do
not preserve the status quo and normally should be granted only
in those circumstances when the exigencies of the situation
demand such relief.”) (quoting Wetzel v. Edwards, 635 F.2d
283, 286 (4th Cir. 1980)), abrogated on other grounds by eBay
Inc. v. MercExchange, LLC, 547 U.S. 388 (2006); Prairie Band
of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246–1250
(10th Cir. 2001) (noting that a heightened standard applies if
“the effect of the order, once complied with, cannot be
undone”) (quotation omitted); Boucher v. Greenfield Sch. Bd.,
134 F.3d 821, 826 n.6 (7th Cir. 1998) (“A preliminary
injunction that would give the movant substantially all the
relief he seeks is disfavored, and courts have imposed a higher
burden on a movant in such cases.”); Tom Doherty Assocs., Inc.
v. Saban Ent., Inc., 60 F.3d 27, 35 (2d Cir. 1995) (“[I]f a
preliminary injunction will make it difficult or impossible to
render a meaningful remedy to a defendant who prevails on the
merits at trial, then the plaintiff should have to meet the higher
standard of substantial, or clear showing of, likelihood of
success to obtain preliminary relief.”).
While we believe that, on the record before us, Plaintiffs
would prevail under any of those heightened tests for a
preliminary injunction, we decline to reformulate the
13
traditional test set out by the Supreme Court in Winter, which
considered preliminary injunctive relief aimed at the military.
555 U.S. at 12, 20. Instead, Winter shows that the established
test for preliminary relief is sufficiently flexible to take account
of all the concerns implicated by the nature of the relief sought
here. After all, “[f]lexibility rather than rigidity has [long]
distinguished” equity jurisdiction. Weinberger v. Romero-
Barcelo, 456 U.S. 305, 312 (1982) (quotation omitted).
Winter, for its part, already obligates courts to carefully
“balance the competing claims of injury[,]” and to weigh the
“effect on each party of the granting or withholding of the
requested relief.” 555 U.S. at 24 (quoting Amoco Prod. Co. v.
Village of Gambell, 480 U.S. 531, 542 (1987)). Properly
understood, the “public consequences [of] employing the
extraordinary remedy of injunction[,]” Romero-Barcelo, 456
U.S. at 312, necessarily include the risk that the relief requested
will cause unusual disruption if granted in error, for example
by disturbing the status quo in a way that cannot readily be
undone.
III
Applying Winter’s test and taking full account of the
additional headwinds the Plaintiffs’ request for status-quo-
altering and potentially claim-concluding relief faces, we hold
that Jaskirat Singh and Milaap Chahal have clearly
demonstrated the appropriateness of preliminary injunctive
relief. They have shown not just a likelihood of success, but
an overwhelming one, on the merits of their RFRA claim. The
balance of equities and the public interest weigh strongly in
favor of issuing the injunction. And they are now suffering and
will continue to suffer grave, immediate, and ongoing injuries
to the exercise of their faith. As for Aekash Singh, he shares
that same likelihood of success and balance of interests, but it
14
is unclear on the current record whether he needs injunctive
relief before the district court can rule on the merits.
A
Plaintiffs “not only have a substantial likelihood of success
on the merits—it is difficult to imagine them losing.” Alabama
Ass’n of Realtors v. Department of Health & Hum. Servs., 141
S. Ct. 2485, 2488 (2021).
RFRA forbids the federal government—including the
Marine Corps—from “substantially burden[ing] a person’s
exercise of religion” unless it shows that burden is “in
furtherance of a compelling governmental interest” and is the
“least restrictive means” of doing so. 42 U.S.C. §§ 2000bb–
1(a), (b); O Centro, 546 U.S. at 431. In meeting that standard,
the Marine Corps cannot rely on “broadly formulated
interests.” Hobby Lobby, 573 U.S. at 726 (quoting O Centro,
546 U.S. at 431). Instead, the Corps must demonstrate the
specific harm that “would”—not could—result from “granting
specific exemptions to particular religious claimants.” O
Centro, 546 U.S. at 431 (quoting Wisconsin v. Yoder, 406 U.S.
205, 236 (1972)); see also United States v. Alvarez, 567 U.S.
709, 725 (2012) (requiring a causal relationship between the
restriction imposed and the interest served).
The Marine Corps does not dispute either the sincerity of
the Plaintiffs’ faith or the Complaint’s explanation of why
maintaining unshorn hair and carrying religious articles is an
inviolable aspect of their religious exercise.
The Marine Corps also acknowledges that refusing the
Plaintiffs any religious accommodation during boot camp—
which is their only route into service in the Corps—imposes a
substantial burden on the exercise of their faith. See Gov’t
15
Opp. Prelim. Inj. at 2, ECF No. 35, Toor v. Berger, No. 22–
1004 (D.D.C. May 25, 2022) (“[T]he Government does not
contest for purposes of this motion that Plaintiffs’ request is
rooted in sincerely held religious beliefs and that conforming
to the discipline of uniformity during recruit training will
burden those beliefs.”); see id. at 8–9 (arguing only that the
denial was “the least restrictive means” of furthering “the
compelling interests of mission accomplishment, unit
cohesion, and good order and discipline”). The Plaintiffs are,
in effect, penalized through the outright denial of their desired
military careers solely for practicing their faith.
So the Plaintiffs’ likelihood of success comes down to
whether the Marine Corps has demonstrated a compelling
interest accomplished by the least restrictive means in refusing
to accommodate their faith for the thirteen weeks of boot camp.
The Marine Corps has failed to meet its burden on both fronts.
1
We note at the outset that the Marine Corps does not assert
a compelling interest grounded in any safety concerns for
Plaintiffs or their fellow recruits arising from the requested
accommodations. Neither does it argue that the presence of
unshorn hair or faith articles will interfere physically with the
boot camp training regimen. Nor does it contend that unshorn
hair, groomed in compliance with Marine Corps standards and
covered with a turban or patka, is incompatible with being a
Marine after boot camp. Quite the opposite: The Marine Corps
stands ready to accommodate Plaintiffs’ unshorn hair and
religious articles after boot camp and throughout their careers,
with limited exceptions not relevant here. J.A. 59
(memorandum from David A. Ottignon, Deputy Commandant
for Manpower and Reserve Affairs, to Jaskirat Singh); J.A.
165–166 (memorandum from Ottignon to Milaap Chahal); J.A.
16
236–237 (memorandum from Ottignon to Aekash Singh); see
also J.A. 735 (recommendation from Religious
Accommodation Review Board that the Corps “approve
[Aekash Singh’s] request following successful completion of
Recruit Training”); J.A. 739 (same for Jaskirat Singh); J.A. 743
(same for Milaap Chahal).
Instead, relying solely on a declaration from Colonel Adam
Jeppe, a Marine Corps officer involved in denying Plaintiffs’
accommodation requests, the Marine Corps argues that
excepting the Plaintiffs from the repeated ritual of shaving their
faces and heads alongside fellow recruits, and permitting them
to wear a head covering, will impede its compelling interest in
forging unit cohesion and a uniform mindset during boot camp.
Colonel Jeppe explains that uniformity is crucial to the
“psychological transformation” by which civilians acquire the
“team mentality,” “willingness to sacrifice,” and “esprit de
corps” that are “the hallmark of the Marine Corps.” Jeppe
Decl. ¶¶ 18–19, J.A. 721. This transformation does not require
that “every [M]arine look[] the same.” Prelim. Inj. Hr’g Tr. at
17:24–18:1, J.A. 791–792; see also Inj. Pending App. Oral
Arg. Tr. 33:14–19. Rather, it requires that recruits (1) follow
“the same set of regimented practices,” Gov’t Br. 33, and (2)
be “stripped of their individuality,” Gov’t Br. 20 (quoting
Jeppe Decl. ¶ 17 , J.A. 720). Just as all recruits suspend
“individual expression, freedom of movement, and freedom of
dietary choices,” so too, Colonel Jeppe reasons, must Plaintiffs
shed religious practices that symbolize their individual beliefs.
Jeppe Decl. ¶ 24, J.A. 723.1
1
But see Oral Arg. Tr. 57:23–58:3 (When asked at oral argument
whether the Marine Corps accommodates dietary restrictions at boot
camp, counsel for the Corps responded: “My understanding, in
general, is that * * * the food that is provided generally
accommodates people’s dietary restrictions.”).
17
We fully credit the vital importance of training Marines
“ready to make the sacrifices necessary” to defend the Nation.
Jeppe Decl. ¶ 23, J.A. 722. And we tread with great care
knowing that the “complex, subtle, and professional decisions
as to the composition[ and] training” of “military force[s]” are
matters of expert “military judgment[]” assigned to the
Political Branches rather than to the judiciary. Gilligan, 413
U.S. at 10; see Austin v. United States Navy Seals 1–26, 142 S.
Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). For that
reason, we “indulge the widest latitude” in considering the
Marine Corps’ interest in fostering cohesion and unity among
its members, which surely qualifies as compelling.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645
(1952) (Jackson, J., concurring).
But even giving the widest berth to the Corps’ compelling
interest in enforcing its grooming and appearance policies
generally, RFRA requires us to ask the more particularized
question of whether the Corps “has such an interest in denying
an exemption” to these specific plaintiffs. Fulton, 141 S. Ct. at
1881; see also O Centro, 546 U.S. at 431 (requiring courts to
examine “the asserted harm of granting specific exemptions to
particular religious claimants”). “Once properly narrowed,”
Fulton, 141 S. Ct. at 1881, the Marine Corps’ explanation
founders. More specifically, Colonel Jeppe’s claimed
compelling need for inflexible grooming uniformity does not
stand up against the “system of exceptions” to boot camp
grooming rules that the Corps has already created and that
seriously “undermine[]” the Corps’ contention that it “can
brook no departures” for Plaintiffs. Id. at 1882.
First, the Marine Corps makes medical exemptions from
the required shaving of facial hair during boot camp. As the
Navy Surgeon General’s “senior dermatology medical
advisor” attests, recruits with pseudofolliculitis barbae
18
(“PFB”) develop painful pustules and lesions when shaving.
Decl. Capt. Josephine Nguyen, MC, USN (“Nguyen Decl.”),
J.A. 730–732. PFB is a “common” condition “that occurs
mainly in men of African descent.” Id. ¶ 2, J.A. 730. One
study by a Navy surgeon suggests that “approximately 45 to
83% of the African American male population” may suffer
from PFB. See Jorge Garcia-Zuazaga, Pseudofolliculitis
barbae: Review and Update on New Treatment Modalities,
168 MILITARY MED. 561, 561 (2003).
The Corps has a detailed protocol for excepting recruits
with PFB from the shaving regimen. Recruits in boot camp
experiencing a flare-up “typically” receive a “no-shave”
waiver for four to eight weeks—that is, for one-third to more
than one-half of their basic training. Nguyen Decl. ¶ 5, J.A.
732. “[O]nce shaving bumps subside and after clearance by
medical,” recruits with mild forms of the condition are allowed
to maintain a beard as long as it is “neatly trimmed[.]” Marine
Corps Order 6310.1C (“PFB Treatment Protocol”) att. 1 ¶ 1h
(Oct. 9, 2012), J.A. 260. Recruits with “moderate” cases may
forgo shaving or clipping altogether and instead use chemical
products to remove the hair if able. Id. att. 1 ¶ 2, J.A. 261–262.
If the PFB flare-ups continue with clipping or chemicals, an
additional four-week exemption from hair removal is
available—which would then exempt the recruit from
removing facial hair for virtually the entire boot-camp training
period. Id. att. 1 ¶ 3a, J.A. 263.
These medical exemptions directly undermine the Corps’
claimed compelling interest in subjecting Plaintiffs to “the
same set of regimented practices” as their peers. Cf. Gov’t Br.
33. Recruits with PFB routinely will go days or weeks—or
almost all of boot camp in some cases—without shaving
alongside fellow recruits. That is because skin has to heal and
beards have to grow in before clippers or chemicals can even
19
be attempted. See PFB Treatment Protocol ¶ 5d, J.A. 258. Yet
the Marine Corps nowhere argues or even suggests that
Marines who endure the rigors of recruit training while also
managing painful PFB come out of boot camp with any less
commitment to unit cohesion, self-sacrifice, or discipline than
those who shave daily.
To be sure, regimentation remains for the recruits in that
each one must adhere to the Marine Corps’ prescribed
grooming protocol. But shaving, it turns out, is not an
indispensable component of that regimen. Instead, the daily
facial grooming ritual to which Colonel Jeppe refers already
involves recruits undertaking varied methods to contain their
facial hair. Most will shave, some will clip, some will apply
chemicals, and some will do nothing for days or weeks.
Plaintiffs too would be subject to a regimented daily
grooming ritual that would obligate them to neatly groom and
tie their beards on the terms prescribed by the Corps—
presumably the same terms that would govern their post-boot
camp grooming obligations. See J.A. 59 (providing that, for
Jaskirat Singh, when authorized, his “beard must be maintained
in a neat and conservative manner, as determined by [his]
squadron or battalion commander[,]” and that it must be no
more than two inches in length, rolled or tied); J.A. 234 (same
for Aekash Singh); J.A. 166 (same for Milaap Chahal, except
that the beard length with tying is limited to ¼ of an inch); see
also U.S. Navy Bureau of Personnel Instruction
(BUPERSINST) 1730.11A ¶ 5(d)(4)(c) (March 16, 2020), J.A.
84 (requiring beards to be “rolled, tied[,] and/or otherwise
groomed to achieve a length not to exceed 2 inches when
measured from the bottom of the chin”); Army Directive 2017-
03, Enclosure at 2–3 (Jan. 3, 2017), J.A. 125–126 (same);
Department of the Air Force Instruction 52–201 att. 7 (June 23,
20
2021) (same); Coast Guard Commandant Instruction
(COMDTINST) 1000.15 ¶ 11c(4) (Aug. 30, 2021) (same).
Yet Colonel Jeppe’s declaration fails to explain why
allowing these three recruits to tightly tie up their beards would
interfere with the necessary development of a Marine mindset
during boot camp in a way that growing or clipping beards does
not.
Instead, the Corps says that medical exemptions are
different because recruits with skin conditions are required to
shave before arriving at recruit training. But that statement
fails to explain how having a clean-shaven face before
“ship[ping] to Boot Camp,” Jeppe Decl. ¶ 30a, J.A. 726, is
indispensable to the formation of a Marine over the course of
boot camp. Colonel Jeppe’s declaration, in other words, fails
to connect recruits’ initial appearance upon arrival with those
day-in and day-out training rituals and regimens for thirteen
weeks that he says are so crucial to unit cohesion and stripping
away individuality. See Jeppe Decl. ¶ 20, J.A. 721. After all,
the central purpose of recruit training is to change that
individual who shows up on the first day into a fully
committed, fit, and able Marine ready for the distinct rigors of
service in the Corps.
So the Corps’ proffered rationale fails to establish the
“direct causal link between the restriction imposed and the
[compelling-interest] injury to be prevented” required by
RFRA’s strict scrutiny test. Alvarez, 567 U.S. at 725.
Of course, the reason for exemption would differ between
medically exempt and religiously exempt recruits. But that is
RFRA’s point: Government must, if able, afford religious
exercise equal stature with other interests that it
accommodates. See Tandon v. Newsom, 141 S. Ct. 1294, 1297
21
(2021) (per curiam) (rejecting regulations that “treat[ed] some
comparable secular activities more favorably than at-home
religious exercise,” without “conclud[ing] that those activities
pose a lesser risk” of harm); see also Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)
(“It is established in our strict scrutiny jurisprudence that a law
cannot be regarded as protecting an interest of the highest order
when it leaves appreciable damage to that supposedly vital
interest unprohibited.”) (internal quotation marks and citation
omitted; formatting modified).
Second, the Marine Corps exempts female recruits from
shaving and from cutting their hair altogether. Marine Corps
Uniform Regulations § 1004 ¶ 7b(1)(a), J.A. 303 (prescribing
short, medium, and long hairstyles for women). Women are
allowed instead to wear their hair in several styles. It may be
short, medium, or long in length; styled with bangs or layers;
and worn in braids, twists, or locs. Id. § 1004 ¶ 7b(1)(b), J.A.
303–305. (“Locs” appears as “locks” in the Marine Corps
Uniform Regulations.) Women Marines may dye their hair if
it “result[s] in natural colors” that “complement the person’s
complexion,” and they may wear a natural-looking wig that
otherwise complies with regulations. Id. § 1004
¶¶ 7b(1)(b)(3), (7), J.A. 305.
As the Government notes, women’s hairstyles within these
categories are regulated in various ways. See Gov’t Br. 31–32.
For instance, bangs cannot be so long that they fall into a
Marine’s line of sight, and there are limitations on the bulk of
tied-up hair of two to three inches. Marine Corps Uniform
Regulations § 1004 ¶¶ 7b(1)(a)(2)–(3), J.A. 303.
But what matters here is that female recruits plainly do not
engage in the same daily or weekly grooming rituals as one
another—let alone as male recruits do. At the same time, they
22
still undergo the regimen of daily conforming their hair to
dictated and detailed standards. See, e.g., Marine Corps
Uniform Regulations § 1004 ¶ 7b(1)(a)(3), J.A. 303 (“Long
hair will be neatly and inconspicuously fastened or pinned,
except that bangs may be worn.”); id. § 1004 ¶ 7b(1)(b), J.A.
303–304 (requiring hair to “be styled so as not to interfere with
the proper wear of all uniform headgear” and listing hairstyles
“not authorized for wear in uniform”); id. § 1004
¶ 7b(1)(b)(1)(e), J.A. 304 (“When worn secured, individual
braids and twists will be small in diameter (no more than 3/8
inch), and will be tightly interlaced/twisted to present a neat,
professional military appearance.”).
Women, in other words, do not engage in a daily facial
shaving ritual or even a common-among-females hair styling
regimen. Nonetheless, they emerge from boot camp as full-
fledged Marines who are as committed to unit cohesion,
stripped of individuality, and ready to defend the Nation as are
male recruits.
Notably, the Marine Corps has been mandated by law to
integrate its male and female recruit training, and that process
has already begun. See National Defense Authorization Act of
2020, Pub. L. No. 116–92 § 565, 113 Stat. 1198, 1395–1396
(2019) (codified at note preceding 10 U.S.C. § 8431); see also
Oral Arg. Tr. 59. Yet Colonel Jeppe’s declaration nowhere
addressed how denying Plaintiffs an exemption to shaving and
haircut rituals can be a compelling necessity for developing
Marines when male recruits either already do or soon will train
alongside recruits that neither shave nor conform to a single
buzzcut hair style.
Third, Colonel Jeppe explains that the Corps has a
compelling interest in minimizing exemptions to its grooming
policies because the “most important element in the Marine
23
Corps’ conduct of expeditionary operations is * * * a team-
oriented state of mind” at a “whole-of-force level.” Jeppe Decl.
¶¶ 25, 31, J.A. 724, 726–727.
While, as a court, we take as given the Corps’ judgment
about the need for a singular whole-of-force mindset, that
claimed interest is troublingly disconnected from the Corps’
own leadership recruitment process. Specifically, the Marine
Corps is part of the Navy. 10 U.S.C. § 8063(a). So many of
its officers are educated and train at the Naval Academy. Yet
the Naval Academy accommodates beards, unshorn hair, and
the wearing of the same Sikh religious articles at issue here.
Gov’t Br. 27 (“[T]he Navy has adopted more permissive
accommodations policies at the Academy[.]”); Defs.’ Answer
at ¶ 218, J.A. 769 (admitting that “midshipmen at the U.S.
Naval Academy may maintain beards and religious head
coverings in certain circumstances”). Notably, those
accommodations make no apparent exception for the arduous
initial months of the Naval Academy’s plebe summer.
Likewise, the other military Academies’ accommodation
policies do not change during the Army’s and Air Force’s basic
training for cadets, or the Coast Guard’s swab summer.
Memorandum from Steven W. Gilland, Brigadier General,
Commandant of Cadets to Brigade Tactical Officer, U.S. Corps
of Cadets ¶¶ 2–4, ECF No. 13 Ex. A, Chahal v. Seamands, No.
17–12656 (E.D. Mich. Aug. 24, 2017) (permitting cadets at
“the United States Military Academy” to wear “a turban/under-
turban in a matching camouflage pattern,” among other
accommodations for cadets with accommodations for “uncut
beard and uncut hair”); Air Force Cadet Wing Instruction 36–
3501 ¶ 6.2.1.2.1 (Aug. 12, 2020) (“Cadets may * * *
grow/wear * * * beards * * * with an approved religious
accommodation request using the process outlined in [Air
Force Instruction] 36–2903.”); Coast Guard Commandant
Instruction (COMDTINST) 1000.15 ¶¶ 4, 11c (Aug. 30, 2021)
24
(applying religious accommodation policy to “Coast Guard
Academy cadets”).
The Government advises that, after graduating from the
Naval Academy, cadets who wish to enter the Marine Corps
must go through a four-week Leatherneck training program and
then six months at The Basic School. Gov’t Br. 27–28. Yet in
denying Plaintiffs their accommodations, the Marine Corps
never addressed the fact that those expeditionary officers might
be accommodated through their training. See Oral Arg. Tr.
42:21–25 (Q: “You’re not aware that [religious
accommodations] are stripped away, having been granted for
four years, including summers working with the Marines?” A:
“Not aware of that, Your Honor.”); see also Gov’t Br. 26
(“[R]eligious apparel that is not visible or apparent in
uniform”—like the comb, ceremonial knife, and undershorts
sought to be worn by Milaap Chahal—“is permitted in some
instances” during Officer Candidates School.).
Fourth, the Marine Corps has chosen to moderate its
grooming requirements when doing so advances recruitment
interests. Specifically, the Corps permits tattoos anywhere on
a recruit’s body except for their head, neck, or hands—and
even that latter restriction is subject to exceptions. Marine
Corps Bulletin 1020 at 3 (Oct. 29, 2021), J.A. 64 (“Marines or
applicants with tattoos or brands outside of the authorized areas
* * * may request an exception to policy to the appropriate
adjudicating authority,” although they are “not likely to be
approved.”).
Yet tattoos are a quintessential expression of individual
identity. Still, the Corps permits them during boot camp not
because tattoos comport with the Corps’ interest in stripping
recruits of individuality, but because “their prevalence in
25
society creates a potential problem for recruitment,” and they
“cannot be readily removed[.]” Jeppe Decl. ¶ 32(a), J.A. 727.
If the need to develop unit cohesion during recruit training
can accommodate some external indicia of individuality, then
whatever line is drawn cannot turn on whether those indicia are
prevalent in society or instead reflect the faith practice of a
minority. See Larson v. Valente, 456 U.S. 228, 245 (1982)
(“Free exercise thus can be guaranteed only when legislators
* * * are required to accord to their own religions the very same
treatment given to small, new, or unpopular denominations.”);
cf. Railway Exp. Agency v. New York, 336 U.S. 106, 112 (1949)
(Jackson, J., concurring) (“The framers of the Constitution
knew, and we should not forget today, that there is no more
effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which
officials would impose upon a minority must be imposed
generally.”).
Nor can the Marine Corps tenably rely on the difficulty of
tattoo removal to justify the differential treatment. Sikhs have
historically endured persecution, torture, and death rather than
surrender their faith indicia. See, e.g., A. Walter Dorn &
Stephen Gucciardi, The Sword & the Turban: Armed Force in
Sikh Thought, 10 J. MILITARY ETHICS 52, 64–66 (2011). So the
removal of a religiously commanded article of faith could be
far more “difficult” for Plaintiffs than the temporary physical
discomfort of a tattoo’s excision.
In short, even fully crediting the Marine Corps’
overarching compelling interests in developing unit cohesion,
stripping individuality, and building a team-oriented state of
mind, the Government has not come close to meeting its burden
of showing “why it has a particular interest” in denying hair,
beard, and religious article exceptions to these Plaintiffs “while
26
making them available to others” in the same or analogous
form. See Fulton, 141 S. Ct. at 1882. In other words, the Corps
has not shown, in light of its preexisting exemptions to the
grooming process—which go largely unexamined by Colonel
Jeppe—that denying these accommodations would have any
impact on its claimed interests. See Alvarez, 567 U.S. at 725;
O Centro, 546 U.S. at 431.
2
Plaintiffs’ prospects of success are even greater because the
Marine Corps has failed to demonstrate that denying Plaintiffs
the same accommodations during boot camp that they would
be given during later service in the Corps is the “least restrictive
means” of advancing its interest in developing unit cohesion
and a team-oriented mindset. Hobby Lobby, 573 U.S. at 691.
Specifically, the Marine Corps has not shown that its
approach is “narrowly tailored” in pursuit of those interests.
Hobby Lobby, 573 U.S at 719 n.30; see Church of the Lukumi
Babalu Aye, 508 U.S. at 546. A government policy is not
narrowly tailored when it is either overinclusive or
underinclusive—and on this record, the Corps’ policy is both.
See Holt, 574 U.S. at 367; see also Church of the Lukumi
Babalu Aye, 508 U.S. at 546. The Corps likewise has wholly
failed to explain how its asserted national security harms
“would” result just from accommodating these Plaintiffs in a
manner similar to exemptions already made on a daily basis.
See O Centro, 546 U.S. at 431 (quoting Yoder, 406 U.S. at 236).
At the outset, the Corps’ claimed inability to depart from
uniform shaving and haircuts is materially undermined by the
already noted exemptions for medical beards, women’s
hairstyles, at least some aspects of officer training, and tattoos.
That itself is powerful evidence that the Corps’ policy is not
27
narrowly tailored. See Holt, 574 U.S. at 367–368 (finding that
the Government failed to explain “why its grooming policy is
substantially underinclusive” when it rejected petitioner’s
request to grow a ½-inch beard as part of his religious
observance while it permitted ¼-inch beards for medical
reasons and hair of ½-inch length on heads); see also Church
of the Lukumi Babalu Aye, 508 U.S. at 547 (“[T]he ordinances
are underinclusive to a substantial extent with respect to each
of the interests that respondent has asserted, and it is only
conduct motivated by religious conviction that bears the weight
of the governmental restrictions.”); Hobby Lobby, 573 U.S. at
728.
In addition, the Marine Corps has provided no evidence
that it even considered less restrictive alternatives. While the
Corps need not refute every conceivable option to show its
policy is the least restrictive means of advancing a compelling
interest, it must at minimum explain why obvious and available
alternatives are not workable. Holt, 574 U.S. at 365–367. Even
when RFRA requires great deference, as it surely does here, the
Government still must provide “persuasive reasons” for
rejecting readily at hand alternatives, especially those that have
been proven to work in analogous circumstances. See id. at
368–369.
The Plaintiffs have convincingly shown that the Marine
Corps has failed to grapple with that aspect of the least-
restrictive-means requirement. For example, nowhere do the
Marine Corps’ accommodation denials, Colonel Jeppe’s
declaration, or the Government’s briefs in this court explain
why the Corps cannot apply the same or similar
accommodations that the Army, Navy, Air Force, and Coast
Guard provide in recruit training, both at boot camp and in the
Academies.
28
The Navy, for example, allows members to seek an
accommodation to wear unshorn hair and a beard for religious
reasons, provided that the beard is neatly groomed or tied, and
it permits Sikhs to retain their other articles of faith. Its
standards and procedures governing religious accommodations
provide that sailors may apply to wear a turban, among other
religious head coverings, and that unless safety requires
otherwise, a sailor granted such an accommodation is not
required to wear military headgear on top of their religious
head covering. A sailor can seek permission to wear unshorn
hair in a patka or turban and a beard, provided that beards are
“worn in a neat and conservative manner” and do not exceed
two inches in length or may be groomed to not exceed two
inches. Bureau of Navy Personnel Instruction (BUPERSINST)
1730.11A ¶ 5(d)(4) (March 16, 2020), J.A. 84.2
Given that the Marine Corps is part of the Department of
the Navy and designed for “service with the fleet,” 10 U.S.C.
2
The Army, Air Force, and Coast Guard have similar policies. The
Army maintains the same guidelines for beard length and
appearance. Army Directive 2017–03 Enclosure at 2–3 (Jan. 3,
2017), J.A. 125–126. In addition, “[a]n accommodated Soldier may
wear a turban (or under-turban or patka, as appropriate) made of a
subdued material in a color that closely resembles the headgear for
an assigned uniform[,]” so long as the head covering is “worn in a
neat and conservative manner that presents a professional and well-
groomed appearance.” Id. at 3, J.A. 126. The Air Force may also
approve accommodations for turbans, beards, and unshorn hair with
the same guidelines as the other branches. See Religious Freedom in
the Department of the Air Force, Department of the Air Force
Instruction (DAFI) 52–201 at 32–33 (June 23, 2021) (template for
“turban, uncut beard and hair approval memorandum”). The Coast
Guard also allows waivers of its grooming policy for turbans,
unshorn hair, and beards if neatly groomed. Military Religious
Accommodations, Coast Guard Commandant Instruction
(COMDTINST) 1000.15 §§ 11(c)(4), (6) (Aug. 30, 2021).
29
§ 8063(a), the Marine Corps’ failure to consider the
accommodations made by the Navy takes much air out of its
least-restrictive-means claim. We are left with no explanation
why accommodations work for sailors but not Marines serving
on the same ships or at the same bases. Perhaps there is a
reason. But the Marine Corps has not voiced it at any point
over the last nearly two years of litigation and has no apparent
plans to do so. See Defs. Objs. & Resps. Pls.’ 1st Set Interrogs.
at 2, ECF No. 66–1, Toor v. Berger, No. 22–1004 (D.D.C. Dec.
12, 2022) (opposing discovery on religious accommodation
practices “outside of the Marine Corps” because they are “of
tangential, if any, relevance to the claims at issue in this
case[.]”).
That void leaves this court no basis to conclude that
similar accommodations would be inimical to developing
excellent and team-oriented Marines. See Holt, 574 U.S. at
368–369 (“‘While not necessarily controlling, the policies
followed at other well-run institutions would be relevant to a
determination of the need for a particular type of restriction.’
That so many other prisons allow inmates to grow beards while
ensuring prison safety and security suggests that the
Department could satisfy its security concerns through a means
less restrictive than denying petitioner the exemption he
seeks.”) (quoting Procunier v. Martinez, 416 U.S. 396, 414
n.14 (1974)).
The Marine Corps instead relies on its status as the only
fully “expeditionary” unit within the military. Jeppe Decl.
¶¶ 25, 31, J.A. 723–724, 726–727. Such expeditionary service,
Colonel Jeppe explains, may require quick responses “to a
broad variety of crises and conflicts across the full spectrum of
military operations anywhere in the world.” Jeppe Decl. ¶ 25,
J.A. 723–724.
30
That may well be true. But the expeditionary function of
Marines after they complete boot camp or the Academy is
orthogonal to the only issue in this case, which is whether
accommodations will be provided to recruits in Marine boot
camp. No one in boot camp is deploying on a military
expedition.
To the extent Colonel Jeppe means that rigid grooming
requirements are required to develop an “expeditionary
mindset,” Jeppe Decl. ¶¶ 25, 26, 28, J.A. 724–725, that claim
cannot be reconciled with the exemptions already made for
other Marine recruits’ beards, hair, and other individual
physical indicia. More specifically, Colonel Jeppe offers no
word of explanation as to why accommodating Sikh beards that
are neatly groomed and tied, or unshorn hair neatly wrapped in
a patka or turban, would impair the development of the Marine
expeditionary mindset in a way that beards grown by
individuals with PFB or unshorn hair worn by women recruits
or officers has not.
Colonel Jeppe likewise offers no support for his concern
that accommodating these Plaintiffs could have a “cumulative
impact” on the Corps’ “whole-of-force” expeditionary
mindset, see Jeppe Decl. ¶¶ 10c, 31, J.A. 717, 726, that would
outstrip the effects of the exemptions already allowed. See O
Centro, 546 U.S. at 435–436 (rejecting “the classic rejoinder of
bureaucrats throughout history: If I make an exception for you,
I’ll have to make one for everybody, so no exceptions”);
Yellowbear v. Lampert, 741 F.3d 48, 62 (10th Cir. 2014)
(Gorsuch, J.) (“It can’t be the case that the speculative
possibility that one exception conceivably might lead to others
is always reason enough to reject a request for the first
exception.”) (emphasis omitted).
31
On top of that, the Corps nowhere wrestles with its own
history of flexible grooming and uniform requirements. The
Marine Corps has been an “expeditionary” force since its
creation in 1775. See 3 JOURNALS OF THE CONTINENTAL
CONGRESS, 1774–1789 at 348 (1904–1937); An Act for the
establishing and organizing a Marine Corps § 6, 1 Stat. 594,
596 (1798) (“[T]he [M]arine [C]orps established by this act,
shall, at any time, be liable to do duty in the forts and garrisons
of the United States, on the sea coast, or any other duty on
shore, as the President, at his discretion, shall direct.”); Oral
Arg. Tr. 61:15–19, 61:25–62:07.
Yet the Corps’ current policy forbidding facial hair has
been in place only since 1976. MARINE CORPS UNIFORM
REGULATIONS (1976) §§ 1101.1(a), (b). For at least the first
150 years of the Corps’ history, including through the
Revolutionary War and two World Wars, beards were fully
compatible with the Marine Corps’ mission success and
expeditionary mindset. General Order, in REGULATIONS FOR
THE UNIFORM AND DRESS OF THE NAVY AND MARINE CORPS OF
THE UNITED STATES (1852) (permitting beards if not “worn
long”); UNIFORM REGULATIONS, U.S. MARINE CORPS § 32
(1917) (“[A] mustache, or beard and mustache, may be worn at
discretion.”); UNIFORM REGULATIONS, U.S. MARINE CORPS
§ 32 (1912) (same); see also ROBERT H. RANKIN, UNIFORMS OF
THE SEA SERVICES 129 (1962) (describing changes in the
Corps’ uniform hair styles over time, including a “queued”
ponytail during the early Republic); see generally UNIFORM
REGULATIONS, U.S. MARINE CORPS (1937) (making no
mention of facial hair).
That is not to say that military practices cannot evolve over
time. They certainly can. But RFRA requires that a claim of
inflexible necessity not completely ignore past practice. Said
another way, the Marine Corps’ admission that the grooming
32
policy being enforced against Plaintiffs has only been part of
developing Marine recruits for “decades,” Jeppe Decl. ¶ 27,
J.A. 724–725, raises least-restrictive-means question marks
that the Corps, on this record, has left unaddressed and
seemingly unconsidered.
Finally, the Plaintiffs have shown that the Corps’ flat
refusal to permit Plaintiffs’ other articles of faith, even those
that are invisible to the eye because they are worn under
clothing or head wear (the comb, ceremonial knife, and
undershorts), similarly fails narrow tailoring. The Marine
Corps has not offered a single word of defense for that aspect
of the decision denying accommodations either in its appellate
brief or in its earlier opposition to Plaintiffs’ request for an
injunction pending appeal. Gov’t Br. 14–45; Gov’t Resp. in
Opp. to Pl. Mot. For Inj. Pending App. 8–22. In addition, the
other military branches and the Corps’ own regulations have
long permitted the wearing of discreet religious wristbands and
other articles of faith during military service. See MARINE
CORPS UNIFORM REGULATIONS § 1101.4 (1983) (allowing
“inconspicuous wristwatches, watchbands and rings” while in
uniform). Such silence does nothing to meet RFRA’s
demanding burden of least-restrictive-means justification for
substantial burdens on religious exercise.
*****
To sum up, Plaintiffs have demonstrated not just a likely,
but an overwhelming, prospect of success on the merits of their
RFRA claim. At a general level, the Government has certainly
articulated a compelling national security interest in training
Marine Corps recruits to strip away their individuality and
adopt a team-oriented mindset committed to the military
mission and defense of the Nation. But RFRA requires more
than pointing to interests at such a broad level. Holt, 574 U.S.
33at 363. The Marine Corps has to show that its substantial
burdening of these Plaintiffs’ religion furthers that compelling
interest by the least restrictive means. That is where the Marine
Corps has come up very short given (1) the series of
exemptions for unshorn head and facial hair already allowed;
(2) the absence of any particularized explanation as to why
regulating Plaintiffs’ maintenance and grooming of their
beards and hair would interfere with the development of
Marines’ fitness in a way that other analogous exemptions have
not; and (3) the failure of the Corps to even consider, let alone
refute, that less restrictive alternatives would serve the Corps’
recruit-training interests.
There may well be ways in which the recruit training needs
of the Marine Corps differ from those of the other military
branches, and there no doubt are aspects of the training regimen
that cannot safely be compromised. But Plaintiffs have
persuasively shown that, after almost two years of
administrative and legal proceedings, the Marine Corps has not
come forward with any justification for denying these
requested accommodations during boot camp that could meet
RFRA’s stringent burden. While the Government remains free
to offer further justifications before the district court, it has
offered this court no reason to believe that any such
representations will change the record in a relevant way. See
Oral Arg. Tr. at 31:14–17 (“The * * * Government won’t
change its reasons[.]”); Defs. Objs. & Resps. Pls.’ 1st Set
Interrogs. at 2, ECF No. 66–1, Toor v. Berger, No. 22–1004
(D.D.C. Dec. 12, 2022) (“[T]he parties agree that the ‘core
factual issues are not in dispute at this stage of the litigation.’”)
(quoting Joint R. 26(f) Report & Disc. Plan at 1, ECF No. 54,
Toor v. Berger, No. 22–1004 (D.D.C. Sept. 21, 2022)).
Because RFRA claims “should be adjudicated in the same
manner as constitutionally mandated applications” of the strict
34
scrutiny test, we need not address the Plaintiffs’ likelihood of
success on their First Amendment claim, which would at most
require the application of the standard that RFRA already
imposes on the Corps’ denial of accommodations. O Centro,
546 U.S. at 430; see Jarkesy v. S.E.C., 803 F.3d 9, 25 (D.C.
Cir. 2015) (“Out of respect for the political branches, courts
generally avoid ruling on constitutional grounds when
possible.”) (citing Ashwander v. Tennessee Valley Auth., 297
U.S. 288, 346–347 (1936) (Brandeis, J., concurring)).
B
On this record, the public interest and the balance of
equitable considerations weigh strongly in favor of granting an
injunction. The balance of the equities and the public interest
“merge when, as here, the Government is the opposing party,”
so we address them together. Karem v. Trump, 960 F.3d 656,
668 (D.C. Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418,
435 (2009)) (formatting modified).
On the Plaintiffs’ side of the balance is the weighty public
interest in the free exercise of religion that RFRA protects.
Though we do not address the Plaintiffs’ likelihood of success
on their First Amendment claim, when it comes to the balance
of interests, we can fairly take note of the parallelism between
RFRA and the First Amendment, which imposes the same strict
scrutiny test as RFRA on governmental actions that selectively
exclude religious exercise from exemptions afforded to others
for secular reasons. See, e.g., O Centro, 546 U.S. at 429–430;
Church of the Lukumi Babalu Aye, 508 U.S. at 546–547;
Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008).
Indeed, the Marine Corps’ defense against the Plaintiffs’ First
Amendment–based request for a preliminary injunction simply
incorporates in one paragraph its insufficient defense under
RFRA. Gov’t Br. 34–35.
35
So when viewed through the lens of RFRA, much like
under the First Amendment, the Plaintiffs have demonstrated a
weighty public interest in vindicating their claim to fair
treatment in the Marine Corps’ exemption process. Cf., e.g.,
Karem, 960 F.3d at 668 (“[E]nforcement of an unconstitutional
law is always contrary to the public interest.”) (quoting Gordon
v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)).
On the Government’s side of the balance, we accord
relevant weight to the nature of the requested injunction as one
that will change the status quo in military training during
litigation and could grant potentially dispositive relief on a
central claim in the case because of boot camp’s relatively short
duration.
We conclude those interests are outweighed in this case by
the Plaintiffs’ convincing showing of the Marine Corps’ broad
failure to demonstrate, at this preliminary stage, a rational
connection between its asserted training interests and the
failure to extend to Plaintiffs the same type of accommodations
it already affords others for secular reasons. The declaration
from Colonel Jeppe also fails entirely to address whether less
restrictive means could accommodate both the Corps’ own
needs and those of Plaintiffs.
To be sure, Colonel Jeppe’s declaration asserts that
accommodating the Plaintiffs would imperil the national
security by interfering with the training of Marines for their
expeditionary role and the rigors of service in the Corps. Jeppe
Decl. ¶ 27, J.A. 724–725. Needless to say, protecting the
national security is an interest of paramount concern. See
Winter, 555 U.S. at 24–25. And courts are loath to second-
guess the judgments of the Political Branches in that regard.
See id. at 24.
36
But unlike Winter, the “most senior officer[]” in the
military, 555 U.S. at 24, to speak on this issue—the
Commander in Chief—has voiced a profound national interest
in diversity within the military. See JOSEPH R. BIDEN,
NATIONAL SECURITY STRATEGY 21 (Oct. 2022); Jim
Garamone, Biden Showcases the Strength, Excellence of
American Military Diversity, U.S. DEP’T OF DEFENSE (March
8, 2021), https://www.defense.gov/News/News-Stories/
Article/Article/2529262/biden-showcases-the-strength-excelle
nce-of-american-military-diversity/ (last visited Dec. 16,
2022). Even more, three different Presidents have joined with
four different Congresses over the last 35 years to codify into
law the imperative that military commanders make military
service compatible with diverse religious traditions, “including
Christian, Hindu, Jewish, Muslim, [and] Sikh” faiths. Pub. L.
No. 114–92 § 528; see 42 U.S.C. § 2000bb–1(b); 10 U.S.C.
§ 774; Pub. L. No. 113–66 §§ 532–533; see also Remarks at a
Joint Reserve Officer Training Corps Commissioning
Ceremony, 1 PUB. PAPERS 596 (May 17, 2007) (statement of
President George W. Bush praising “the great diversity of the
American people” represented in the Armed Forces).
In addition, Colonel Jeppe’s superiors within the Marine
Corps have themselves stressed that “the readiness and mission
success of our * * * Marine Corps” is “inextricably linked” to
its diversity. Memorandum for Assistant Secretaries of the
Navy, General Counsel, Commandant of the Marine Corps,
and Chief of Naval Operations, Department of the Navy
Diversity, Equity, and Inclusion Going Forward 1 (Nov. 15,
2021), J.A. 543; see also JOSEPH R. BIDEN, NATIONAL
SECURITY STRATEGY 21 (Oct. 2022) (“[P]romoting diversity
and inclusion” will “strengthen the effectiveness of the
military.”).
37
Importantly, Plaintiffs have shown at this preliminary
stage that the accommodations they seek will both increase
religious diversity in the Marine Corps and fully comport with
military training needs. Colonel Jeppe’s lone declaration does
not demonstrate otherwise or even address those instructions
from Presidents and Congresses. Under these unusual
circumstances, and given the courts’ respect for the Political
Branches’ expertise in handling military matters, the public
interest and the balance of equities in this case weigh decisively
in favor of preliminary relief.
Finally, while the record establishes that preliminary relief
is warranted, this decision in no way prejudges the
Government’s ability going forward to defend its policy on the
merits before the district court. Sherley, 689 F.3d at 782 (“To
the extent an appellate court predicts, without making a
definitive legal conclusion, that the plaintiffs probably or likely
will or will not succeed on the merits, it cannot be said that the
court ‘affirmatively decided’ the issue such that it would bind
an appellate court at a later stage of the litigation.”) (quoting
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir.
1995)).
C
Two of the plaintiffs—Jaskirat Singh and Milaap Chahal—
also have demonstrated that they are currently suffering
continuing irreparable harm. “The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
op.)). At least when, as here, the Government has not argued
that there is any relevant daylight between the RFRA and First
Amendment analyses, then a comparably irreparable injury
38
applies to violations of RFRA. Hobby Lobby Stores v.
Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013) (en banc), aff’d,
573 U.S. 682 (2014); Jolly v. Coughlin, 76 F.3d 468, 482 (2d
Cir. 1996).
Still, preliminary relief is the rare exception, and even in
claims of constitutional or RFRA violations, a preliminary
injunction will issue only if the asserted harm will certainly
accrue “in the absence of preliminary relief”—that is, before
the district court can resolve the case on the merits. Winter,
555 U.S. at 20. The asserted irreparable injury, in other words,
must be ongoing or “imminen[t].” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)
(quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.
Cir. 1985) (per curiam)) (emphasis omitted).
Milaap Chahal and Jaskirat Singh have made that showing.
The Corps recognizes that they are otherwise fully qualified to
enlist in the Marine Corps, and they would join the Corps
immediately but for the Corps’ refusal to extend existing hair
and shaving exemptions to their exercise of faith or to
accommodate their religious articles. Notice of Supp., att. 1
¶ 9, ECF No. 60, Toor v. Berger, No. 22–1004 (D.D.C. Nov.
29, 2022); id. att. 3 ¶ 6. Each day that the Marine Corps refuses
to let them take the oath of enlistment unless they surrender
their faith inflicts an irreversible and irreparable harm. They
are forced daily to choose between their religion and “the
performance of [the] supreme and noble duty of contributing to
the defense of the rights and honor of the nation,” Arver v.
United States, 245 U.S. 366, 390 (1918), and are subjected to
the “indignity” of being unable to serve for reasons that, on this
record, “bear[] no relationship to their ability to perform,” Roe
v. Shanahan, 359 F. Supp. 3d 382, 419–420 (E.D. Va. 2019)
(quoting Elzie v. Aspin, 841 F. Supp. 439, 443 (D.D.C. 1993)).
39
The appropriateness of injunctive relief at this time is less
clear for Aekash Singh. To be sure, he has the same likelihood
of success on the merits and the balance of interests equally
favors him. He also persuasively alleges that the Marine Corps
already inflicted irreparable harm when he attempted to swear
into the Corps and was told he could not unless he promised to
cut his hair and remove his turban. Compl. ¶ 188, J.A. 40. But
redress for that past injury does not depend on obtaining
preliminary relief now. As for his present or future intention
to join the Corps, counsel has advised this court that Aekash
Singh may have postponed his plans to enlist until at least 2024.
See Pl. Opening Br. 24; Notice of Supp., att. 2 ¶ 4, ECF No. 60,
Toor v. Berger, No. 22–1004 (D.D.C. Nov. 29, 2022). Because
this factual issue bearing on when Aekash Singh now plans to
enlist was not raised before the district court, we leave it to that
court on remand to determine whether his injury is currently or
will be imminently sufficient to warrant the issuance of
preliminary relief.
IV
Plaintiffs have shown both an overwhelming likelihood of
success on the merits and that the balance of the equities and
public interest weigh in their favor. Jaskirat Singh and Milaap
Chahal have also shown ongoing irreparable injury. For those
reasons, we reverse the district court’s denial of preliminary
injunctive relief for Jaskirat Singh and Milaap Chahal and
remand to the district court for the prompt entry of a
preliminary injunction requiring the Marine Corps to allow
them to enlist without shaving their heads or beards and while
bearing those articles of faith that the Government failed to
argue against on appeal.
We remand for further consideration of Aekash Singh’s
request for a preliminary injunction in light of this opinion and
40
the declaration recently filed in district court addressing the
timing of his desired accession into the Marine Corps.
So ordered.