CAIR Sues Navy over Religious Accommodation

Update: To answer one of the issues below, Berts has now said

He had practiced Islam throughout his Navy career, Berts said in a Jan. 7 phone interview, but had become more observant by early 2011.

“I celebrated Islamic holidays, I fasted during holidays, I prayed,” he said. “I started to get a deeper sense of faith and started to try to live my religion a bit more.”

The Council on American-Islamic Relations (CAIR) has filed a lawsuit (PDF) against the US Navy on behalf of Jon Berts, a former Sailor who was denied a request for a beard for his religious faith. Ordinarily, this might fall under the auspices of the other religious accommodation issues that have arisen this year, but there are several aspects of Berts’ story that are slightly unusual:

Jonathan Berts of Fairfield applied to wear a beard in January 2011, but Defense Department policy did not allow religious exemptions from grooming requirements…

First, the policy citation isn’t entirely true. It is true that DoDI 1300.17 (more here) didn’t characterize grooming standards as “apparel,” but it was still possible to obtain a waiver for a beard — as other members of the military did.

Second, note the date: Berts was honorably discharged three years ago, so it seems a bit odd that he’s only filing a legal objection now. (The lawsuit doesn’t cite any ongoing grievance process in which he has been involved.)  Further, he made his request five years after his medical shaving waiver expired, and nine years after he’d enlisted. The lawsuit does not explain whether Berts was a recent convert or had a change in religious faith that altered his need for a beard — but something presumably changed.  While not necessarily prejudicial, it is an odd unexplained fact that he made the request many years into his career.

Also, a large portion of the lawsuit focuses on the “hostile work environment” created by superiors who used derogatory terms toward him after he made the request. While that may add fuel to a public relations fire, it isn’t really germane to the US military’s policy on beards to which he seeks exception.

The suit says Berts’ mistreatment — which allegedly includes reassignment and denial of promotion — began after his accommodation request, implying it was caused by his faith and request.  At the same time, the suit indicates one superior “repeatedly questioned Plaintiff about his beard…” That wording may indicate Berts was already wearing a beard, despite the fact that military policies require troops to adhere to current policies until they obtain a waiver.

If that is the case, reassignment and denial of promotion might have been required, not a sign of a “hostile work environment,” and would likely occur even today, despite the lawsuit’s attempt to say last January’s policy update would have substantially affected Berts’ status. (For a point of reference, a few months after the policy changes, the Army said only two requests were made for beards, and both were denied. An Air Force chaplain was permitted with a beard later in the year.)

Religious freedom should certainly be protected, and free exercise should be encouraged to the extent the mission allows. There are a few gaps in the backstory of this lawsuit, however, that need to be filled to fully understand the situation.