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Opinion The South Carolina Religious Freedom Act, the Citadel and a Muslim cadet’s request to wear a headscarf

Cadets practice for their weekly parade on the Citadel campus in Charleston, S.C. (Mic Smith/Associated Press)

The Citadel, a public military college run by South Carolina, “will not allow a Muslim student to wear a hijab, an exception she had requested to the required uniform to keep her head covered, in keeping with her faith.” (See Susan Svrluga’s article in The Post.)

A statement from the college president, Lt. Gen. John Rosa, explained that the uniform is central to the leadership training at the college, as cadets give up their individuality to learn teamwork and allegiance to the corps, and its leaders concluded that they could not grant an exception to the required dress. …
At the Citadel, students are expected to leave behind their individuality — and almost all of their possessions — and form opinions based on character rather than appearance. Allowing one student to wear something completely different struck many as antithetical to that mission. And some objected, as well, because exceptions have apparently not ever been made for other religions. Christian cadets have been told not to display crosses, for example.

It sounds like the school is not discriminating based on religion, so the policy likely doesn’t violate the Free Exercise Clause. It might violate the Free Speech Clause, which generally applies to public universities, and which would protect the wearing of expressive symbols, such as crosses and possibly headscarves that communicate a religious identity; but the Free Speech Clause has been read as quite limited when it comes to the military (Parker v. Levy (1974)), and it might be read the same way as to state military colleges.

But South Carolina has a South Carolina Religious Freedom Act, which bans more than just religious discrimination — rather, like the federal Religious Freedom Restoration Act and similar laws in other states), the South Carolina law generally requires religious exemptions even from generally applicable rules (such as uniform policies):

The State may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is:
(1) in furtherance of a compelling state interest; and
(2) the least restrictive means of furthering that compelling state interest….
This chapter applies to all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether adopted before or after the effective date of this act [except those related to inmate litigation].

This provision by its term covers all South Carolina government actions, with one explicit exception for jail and prison inmates. There is no exception for the Citadel or the South Carolina military more broadly. While the Supreme Court concluded, in Goldman v. Weinberger (1986), that the Free Exercise Clause strict scrutiny test doesn’t apply to the military, the South Carolina Religious Freedom Act appears to offer broader protection. (State legislatures, of course, can provide people with more protection than the Constitution requires.)

Now the government’s rationale for imposing a categorical uniform policy may be plausible, even reasonable. But I don’t think it is the least restrictive means of serving a compelling government interest — a deliberately demanding test, which the Supreme Court has interpreted forcefully, in recent cases such as Gonzales v. O Centro (2006), Burwell v. Hobby Lobby Stores (2014), and Holt v. Hobbs (2015). To satisfy this test, the government would essentially have to show that rejecting this exemption request would necessarily and substantially undermine the effectiveness of its military education. And I doubt this is so, especially since the U.S. military views some religious departures from the uniform policy (though not all) as compatible even with active-duty military service. It’s hard to see that allowing a few cadets to wear religious headscarves — or beards or crosses or other religious symbols — would do much to substantially interfere with military training. (Note that the Citadel doesn’t seem to be arguing that the headscarf poses any physical safety risks.)

Maybe such Religious Freedom Restoration Acts are a bad idea, and legislatures shouldn’t generally authorize courts to carve out religious exemptions this way. But the South Carolina legislature has spoken here, and what it says cuts in favor of the exemption for the headscarf.

UPDATE: Note that the South Carolina Religious Freedom Act applies when a generally applicable rule (e.g., the uniform policy) is a condition on a valuable benefit — such as a Citadel education — and not just when the rule is a categorical do-this-or-you’ll-go-to-jail requirement. We know this because the Act expressly endorses the reasoning of Sherbert v. Verner (1963):

The purposes of this chapter are to:
(1) restore the compelling interest test as set forth in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), and to guarantee that a test of compelling state interest will be imposed on all state and local laws and ordinances in all cases in which the free exercise of religion is substantially burdened; and
(2) provide a claim or defense to persons whose exercise of religion is substantially burdened by the State.

And Sherbert involved a condition on a valuable benefit (there, unemployment compensation). In that case, Adele Sherbert was told that she couldn’t get unemployment compensation unless she was willing to work Saturdays, something she wouldn’t do because she was a Seventh-Day Adventist. The state argued that Sherbert wasn’t being ordered to work Saturdays, but was just being told that Saturday work was a condition of a government benefit. But the Court disagreed:

[T]he disqualification for benefits [clearly] imposes [a] burden on the free exercise of appellant’s religion…. [I]t is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry…. Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.

The same logic would apply here; denial of a Citadel education for wearing a headscarf “substantially burden[s]” the religious practice, just as denial of unemployment benefits for not working Saturdays substantial burdens that religious practice.