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In the United States District Court for the District of Columbia IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIMRATPAL SINGH, 8818 Moverly Ct. Springfield, VA 22152 Civil Action No. Plaintiff, __________ v. ASHTON B. CARTER, in his official COMBINED MEMORANDUM capacity as Secretary of Defense, IN SUPPORT OF 1400 Defense Pentagon APPLICATION FOR Washington, DC 20301 TEMPORARY RESTRAINING ORDER AND THE UNITED STATES DEPARTMENT APPLICATION FOR OF DEFENSE, PRELIMINARY INJUNCTION 1400 Defense Pentagon Washington, DC 20301 PATRICK J. MURPHY, in his official capacity as Acting Secretary of the U.S. Army, 101 Army Pentagon Washington, DC 20310 LIEUTENANT GENERAL JAMES C. MCCONVILLE, in his official capacity as Deputy Chief of Staff, G-1, U.S. Army 300 Army Pentagon Washington, DC 20310 THE UNITED STATES DEPARTMENT OF THE ARMY, 101 Army Pentagon Washington, DC 20310 Defendants. TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................3 The Sikh Faith ............................................................................................................................3 Captain Singh’s Commitment to the Sikh Faith ........................................................................5 Captain Singh’s Decision to Join the Military ...........................................................................6 Captain Singh’s Military Service ...............................................................................................9 Captain Singh’s Decision to Become Fully Observant............................................................11 Captain Singh’s Effort to Obtain an Accommodation .............................................................12 The Army’s Uniform and Grooming Regulations and their Exemptions ................................15 Other Sikhs in the Army ..........................................................................................................20 STANDARD FOR GRANTING TEMPORARY AND PRELIMINARY INJUNCTIVE RELIEF .....................................................................................22 ARGUMENT .................................................................................................................................23 I. Captain Singh is likely to succeed on his RFRA claim. ....................................................23 A. Captain Singh is sincerely compelled by his faith to remain an observant Sikh. ............................................................................................25 B. The Army’s uniform and grooming regulations substantially burden Captain Singh’s religious expression. ..............................................................27 C. The Army has no compelling interest in forcing Captain Singh to abandon his articles of faith to continue serving his country. .................................28 1. Accommodating Captain Singh’s hair and turban does not further the Army’s interest in uniformity, unit cohesion, good order, discipline, or health and safety. ..........................................................30 2. Army regulations provide broad categorical exemptions, and the Army has granted hundreds of thousands of individualized exceptions, to its uniform and grooming policies. .................................................32 3. The Army cannot identify anything unique about Captain Singh’s service assignment at Fort Belvoir that would compel cutting his hair or shaving his beard or removing his turban. ...................35 i D. Even if the Army did have a compelling interest here, forcing Captain Singh to violate his faith is not the least restrictive means of furthering that interest. ................................................................36 II. Captain Singh is likely to succeed on his Free Exercise Clause claim. .............................37 III. Captain Singh is likely to succeed on his Equal Protection claim. ....................................38 IV. The remaining factors all weigh in favor of granting temporary and preliminary injunctive relief. .......................................................................................40 A. Captain Singh will suffer irreparable harm absent injunctive relief. ...........................41 B. The balance of harms weighs in Captain Singh’s favor. .............................................42 C. The public interest favors granting an injunction. .......................................................43 V. The Court should not require security .........................................................................44 CONCLUSION ..............................................................................................................................44 ii INTRODUCTION Plaintiff Simratpal Singh, a Captain in the United States Army, seeks immediate relief from this Court to prevent Defendants from infringing his Constitutional rights. Specifically, Captain Singh seeks to enjoin Defendants from a making his continued service in the military subject to unprecedented, non-standard testing requirements that target him solely because of his religious beliefs. Captain Singh is an adherent of Sikhism and currently has a temporary accommodation from the Army to wear unshorn hair, a beard, and a turban, as required by his faith. That temporary accommodation ends on March 31. But after months of suggesting the accommodation would likely be made permanent—as has routinely happened for Sikh soldiers in the past—on Wednesday, February 24, Defendants abruptly informed Captain Singh that, because of his Sikh religion, he must immediately undergo extraordinary, targeted, repetitive testing ostensibly to ensure he can properly wear a combat helmet and safety mask. See Compl. ¶ 15, Exhibit 16 ((Memorandum from Debra S. Wada, Assistant Secretary of the Army (Manpower and Reserve Affairs) to Commanding General, U.S. Army Corps of Engineers (Feb. 23, 2016)) (“the Wada Memorandum”). Captain Singh was initially instructed to schedule his own gas mask fit testing, which was scheduled to take place at Fort Belvoir, Virginia, (Captain Singh’s home base) consistent with the Army’s standard practices and procedures (as outlined in A.R. 350-1). Brushing aside this standard gas mask testing—which is applied to all Army soldiers—Captain Singh was informed on the afternoon of Friday, February 26 that he was under orders to report early the next week, on Tuesday, March 1, for the helmet testing contemplated in the Wada Memorandum. Then at 8:00 PM that same evening, he was ordered that after the helmet testing at Fort Belvoir on Tuesday morning, he would be required to report to Aberdeen Proving Grounds in Maryland, where he would undergo three days of intensive safety-mask testing. No other soldiers in the 1 Army have been treated in this manner or subjected to tests similar to those detailed in the Wada Memorandum as a condition for remaining in the Army. Soldiers routinely select their own helmets and determine for themselves whether they fit. And as for safety masks, soldiers who wear permanent beards for medical reasons or under separate rules for Special Forces are not subject to discriminatory testing like that being pushed on Captain Singh. Captain Singh is more than willing to undergo the same safety testing as all other soldiers, but he objects to Defendants treating him differently because of his Sikh religion. Under its own regulations, the Army is obligated to consider Captain Singh’s request for a religious accommodation on the same terms it would consider any other accommodation, be it for medical, religious, or other reasons. But unless the Court enjoins the Army’s proposed testing today, Defendants will instead be allowed to blatantly discriminate against Captain Singh tomorrow solely because of his religion. Captain Singh thus requests an immediate injunction against Tuesday’s pretextual, discriminatory testing. Once the testing is enjoined, Captain Singh seeks a further injunction directing the Army to make his religious accommodation permanent. The military’s discriminatory treatment of Captain Singh because of his religion is entirely unlawful. The Religious Freedom Restoration Act (RFRA) forbids the military from suppressing a soldier’s religious exercise unless it has a compelling interest that cannot be met in a less restrictive way. The Department of Defense’s and the Army’s own regulations likewise place “high value” on soldiers’ right to exercise their religion, promising that religious accommodations “will” be granted, so long as mission readiness is not compromised. Here, there is no legitimate argument that Captain Singh’s articles of faith could adversely impact his military service as an Assistant Operations Officer for the 249th Engineer Battalion at Fort Belvoir, a point that is underscored by his service while observing his Sikh articles of faith for 2 the past three months. Moreover, the Army essentially concedes that, at all times, it has roughly 100,000 soldiers—including officers—who are allowed for medical reasons to maintain beards and that those beards “should not ordinarily require any functional limitations” on soldiers’ performance of their duties. To be clear, observant Sikhs have fought in the United States Army since World War I. It was only in the 1980s that the Army began strictly enforcing a beard ban. And even since that time, a number of Sikhs have continued
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