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Not all constitutional rights are standard military issue

American soldiers swear to defend the Constitution, but does the Constitution always defend them?

The Pentagon: Photo by David B. Gleason (Wikimedia Commons)

The Army is a profession. A Soldier’s appearance measures part of his or her professionalism. Proper wear of the Army uniform is a matter of personal pride for all Soldiers. It is indicative of esprit de corps and morale within a unit.—Army Regulation 670-1

The history of military uniforms in the United States began in 1779 when the first regulations for the Continental Army were compiled at the direction of then-General George Washington.  As the nature and mission of the military has changed in the last 235 years, military uniform and appearance standards have also changed drastically.   The most recent change occurred on March 30, 2014 when updates to Army Regulation 670-1, “Wear and Appearance of Army Uniforms and Insignia,” officially took effect.  The updates have generated backlash from soldiers who allege that the new rules are discriminatory.

Thorogood’s lawsuit seeks to have the new tattoo regulations declared unconstitutional.

On May 1, 2014, Staff Sergeant Adam Thorogood filed a lawsuit in the U.S. District Court for the Western District of Kentucky, claiming that the new rules would prevent him from advancing in his career because of his tattoos.  Thorogood spent ten years as a sniper in the active duty Army before transferring to the Kentucky Army National Guard so that he could go to college to take aerospace courses and become a pilot.  His dream is to fly helicopters with “The Night Stalkers,” the 160th Special Operations Aviation Regiment out of Fort Campbell, Kentucky.

In order to become an Army helicopter pilot, Thorogood must be eligible for appointment to an officer position.  Thorogood had intended to apply for a warrant officer position before the new regulations took effect.  The new regulations apply to warrant officers, whose position focuses more on the technical aspects of a job, the same as they do to commissioned officers, whose focus is on commanding troops and filling staff duty positions.  Starting in July 2014, all applicants for warrant officer positions must be in compliance with the new tattoo regulations.  This has created a problem for Thorogood who has eleven tattoos, three of which are now unauthorized under the new rules.

Thorogood’s lawsuit seeks to have the new tattoo regulations declared unconstitutional.   Robin May, an attorney representing Thorogood, has argued that the new rules are unconstitutional as ex post facto laws and violate the free speech rights of her client.  In addition, Thorogood is seeking $100 million in damages.

Sergeant Jasmine Jacobs of the Georgia Army National Guard petitioned the White House for a reexamination of the restrictions, writing that “changes to AR 670-1 offer little to no options for females with natural hair.”

Tattoos are not the only form of personal expression subjected to greater restrictions under the Army’s new regulations.  Rules related to hairstyles, particularly for female soldiers, also underwent substantial changes.  African-American women were hit hardest by the changes, including a rule that braids in hairstyles with more than two braids must be ~1/4 inch in diameter and show no more than 1/8 inch of the scalp between braids, a rule requiring that the bulk of hair could not protrude more than two inches from the scalp, and a rule banning “twist” hairstyles.

Sergeant Jasmine Jacobs of the Georgia Army National Guard petitioned the White House for a reexamination of the restrictions, writing that “changes to AR 670-1 offer little to no options for females with natural hair.”  Army spokesman Paul Prince defended the rules, citing concerns about uniformity of appearance and the ability of soldiers with non-conforming hairstyles to properly wear required headgear.  Though the petition did not ultimately get the number of signatures needed to compel a response from the White House, it did gain the support of sixteen female members of the Congressional Black Caucus, who urged Defense Secretary Chuck Hagel to reconsider the rules.  Jacobs separated from the Guard in April.

Despite congressional intervention, some religious groups have had a difficult time complying with the regulations.

Soldiers whose religious beliefs require departures from military appearance regulations have recently had greater success in securing exemptions.  In 1986 the Supreme Court came down on the side of the Air Force in Goldman v. Weinberger, ruling that an Orthodox Jewish officer could not wear a yarmulke in violation of a regulation which prohibited wearing head coverings indoors.  The military’s interest in “foster[ing] instinctive obedience, unity, commitment, and esprit de corps” in order to accomplish its mission outweighed Goldman’s need for religious expression.  Congress responded to the Goldman decision by enacting 10 U.S.C. § 774 which allows military members to wear “neat and conservative” religious articles while in uniform.

Despite congressional intervention, some religious groups have had a difficult time complying with the regulations.  Sikh men, whose faith prohibits them from cutting their hair or beards and requires them to wear dastaars (turbans), have long had trouble joining the Army.  From 1948 until 1984, Sikhs were allowed to serve while adhering to the tenets of their faith.  In 1984, the Chief of Staff of the Army eliminated the exception to the regulation that had permitted Sikhs to serve.  Current Sikh soldiers were grandfathered in, with the last two retiring at the rank of colonel in the late 2000s.

In December 2009, the Army granted exceptions to Sikh men for the first time in twenty-five years, allowing dentist Captain Tejdeep Singh Rattan and doctor Captain Kamaljeet Singh Kalsi to keep their articles of faith while in uniform.  Both were granted waivers to the appearance regulations thanks to extensive lobbying efforts by Sikh advocacy organizations.  Ultimately forty-nine members of Congress signed on to a letter to then-Secretary of Defense Robert Gates, asking him to reconsider Rattan and Kalsi’s cases.  Both men have adjusted well to military life and have found ways to adapt to regulation requirements, including designing unique lightweight turbans that allow them to securely wear Kevlar helmets.

The Army has not reserved religious exemptions for exemplary soldiers only.  Former Army psychiatrist Nidal Hasan, who was convicted and sentenced to death for killing thirteen people in a shooting rampage at Fort Hood, Texas in 2009, was allowed to keep his beard unshorn during his court martial.  Judge Colonel Gregory Gross had held Hasan in contempt six times for refusing to attend hearings clean-shaven and ordered that he be forcibly shaved before trial.  The U.S. Court of Appeals for the Armed Forces vacated the order and allowed Hasan to keep the beard for the duration of the court-martial, which he claimed he had grown for religious reasons.  Hasan was only forced to shave after the trial when he became a prisoner at the United States Disciplinary Barracks, the military’s maximum-security prison at Fort Leavenworth, Kansas.

Current and prospective soldiers should be aware that regulations are subject to change and must be prepared to adapt to any new requirements.

The Army’s increased willingness to provide religious exemptions for soldiers has led military leaders to reconsider restrictions on religious articles in uniform.  In January 2014, the Pentagon released a new policy on religious accommodation, requiring all branches of the military to “accommodate individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) of service members,” except in cases where doing so would hinder unit cohesion or battle readiness.  The policy is expected to make service easier for troops who must keep their hair and beards long or wear particular items of clothing, particularly Sikhs and believers in certain Islamic and Judaic sects.  Some also believe that the policy could pave the way for exemptions for less prevalent religious practices, such as those associated with the Wiccan faith, piercings, and tattoos.

Though the Army has recently been more open to rewarding exemptions to appearance regulations than in the past, the perceived importance of uniformity to an effective military force makes it unlikely that the regulations will be relaxed in other cases any time soon.  Current and prospective soldiers should be aware that regulations are subject to change and must be prepared to adapt to new requirements.

Katherine Doering Custis, Editor-in-Chief Emeritus
About Katherine Doering Custis, Editor-in-Chief Emeritus (19 Articles)
Katherine Doering Custis served as the Editor-in-Chief of the Campbell Law Observer during the 2014-2015 school year. Katherine holds a Bachelor of Arts in Political Science and a Master of Public Administration from North Carolina State University. She has worked with the North Carolina National Guard, Office of the Staff Judge Advocate; North Carolina Administrative Office of the Courts, Research and Planning Division; City of Raleigh, City Attorney's Office; North Carolina General Assembly, Research Division, and Hon. James C. Hudson, Supervising Judge of Suffolk County (NY) Court. She is a native of Southold, NY and now resides in Knightdale, NC. Katherine graduated from Campbell Law School in May 2015.
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