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The End of Bias Against Religious Service Members

LTC Arthur C. Zeidman (USAR, Ret)

The culmination of years of movement to greater accommodation of religious belief by uniformed members of the United States military services has finally reached critical mass, effective September 1, 2020. DoD Instruction 1300.17, “Religious Liberty in the Military Services” superseded the February 10, 2009 “Accommodation of Religious Practices Within the Military Services” version of the same regulation, and everything herein came be understood by looking at the title of the reg, before 2020 and effective 2020. Religious expression has changed from a reluctant accommodation to a celebrated liberty. That simple change, acknowledging and celebrating practices as a wholesome liberty versus an accommodated practice, shows that the legacy of Goldman v. Weinberger, 475 U.S. 503 (1986) was finally repudiated.

Rabbi Simcha Goldman was an Orthodox rabbi, and a reserve Air Force officer who worked as a psychologist for the Air Force when active. For many years he wore a yarmulke and no one objected. However, in one case, he testified against a prosecutor’s position in a criminal trial, and the prosecutor pressed court-martial charges against Goldman for, inter alia, violating Air Force uniform regulations (AFR 35-10), which prohibited the wear of headgear from a uniform indoors with a few exceptions. Rabbi Goldman was a Navy chaplain from 1970 to 1972 and wore a yarmulke on active duty without incident. He then attended the graduate school and obtained a Ph.D in clinical psychology, and returned to active duty with the Air Force as a psychologist. For several years, his wearing of a yarmulke was either overlooked or tolerated until he testified on behalf of an airman in a court-martial. The trial counsel (prosecutor) notified Dr. Goldman’s commander, who ordered Goldman to stop wearing the kippah. When he refused, Goldman received a letter of reprimand, and sued the Department of Defense. The case ended up in the U.S. Supreme Court, which ruled against Goldman, citing “military necessity” among its reasons to uphold the Air Force (and by analogy), Army, Navy and Coast Guard regulations prohibiting beards as part of the grooming standards.

Congress responded to the Goldman case in the 1988 National Defense Authorization Act, allowing wear of modest religious gear while in uniform. However, this was a uniform statute, and did not automatically apply to other religious practices. Typical service regulations included Army Regulation 670-1, which allowed the wear of religious laundry and headgear. However, other requests for “accommodation” of religious practices required high command authority, and the requests weren’t always granted. Common reasons for non-accommodation included military efficiency and training and sensitivity to hostile policies of host nations. For example, Jewish military chaplains stationed in Saudi Arabia during Desert Storm (1991) were ordered to remove religious branch insignia, avoid celebrating public mass, and were to call themselves “morale officers,” rather than chaplains. These efforts were largely ignored, and Jewish chaplains served with distinction, wore their “Ten Commandments” insignia, held religious services and obtained kosher food.

Over time, given pressure from numerous denominations, especially Chabad affiliate Aleph Institute, and with advocacy by Sikh service members and with the support of Christian fundamentalists, greater freedom gradually evolved until all services were allowing greater access to religious practice. After the Navy signed on in early 2019, the Department of Defense standardized military religious accommodation by substantially enumerating service members’ rights to religious practice. The nightmare is over for those who seek to serve forces of good in heaven and here on earth.

The Army and Air Force started to change the dynamic around 2017, opening doors for greater allowance for religious practice, and this benefitted observant Jews, Sikhs and Christians. Finally, in March 2020, the Navy also caught up, and on September 1, 2020, DoD effectuated Instruction 1300.17, requiring:

  1. Bias in favor of allowing religious observance
  2. Narrow exceptions based on military necessity, civilian law or public or personal safety.
  3. Quick decisions on accommodations at lowest levels unless larger policies are affected.

What is the current status of religious practice in the military?

It is generally allowed, unless a contrary policy, national or combat security or safety is involved. Service members may not require a chaplain to perform at a ceremony which violates his beliefs. Usual practices should be accommodated. This includes Shabbos observance, kashrus, yarmulkes, tzitzis and beards. It includes excusal from conflicting duties (such as work on Shabbos in peacetime). Unless approved at a low level, requestors can get a quick response. The default position is that approvals will be freely given.

Some groups have opposed these accommodations, alleging that they cross a “wall of separation between “church” and “state.” Despite its popular belief, there is no “wall” between church and state. The First Amendment begins:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….

That is the entire language. No wall of separation, no prohibition of religious expression.

While some groups advocate against any religious expression in the military expressing fears about proselytizing and coercion to religious observance, the current administration has now taken steps to make official that religious practices are to be respected, and approved where possible.

Some practical notes for soldiers, sailors, airmen and marines: Request accommodations early for things like Sabbath duty exceptions, Jewish holiday observances, kosher, yarmulkes and beards. Expect to be treated respectfully, but if not, remember the possibility that courts may intervene on your behalf.