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A Chabad-Lubavitch rabbi's legal victory could, almost literally, change the face of the U.S. Army’s chaplaincy.
Rabbi Menachem Stern will be sworn in as an army chaplain on Friday, following the resolution of his lawsuit against the army. For several years, the army refused to budge on its “no-beard” policy, but finally decided it wasn’t “going to take a chance with a lawsuit because they didn’t know what the judge could do,” said prominent constitutional law attorney Nathan Lewin, who represented Stern pro bono.
Lewin said in an interview that the most sweeping argument in Stern’s favor was that the no-beard policy—which prohibits anyone from being accepted to the army unless they are clean-shaven—violates both the U.S. Constitution, which guarantees free exercise of religion in the First Amendment, and the 1993 Religious Freedom Restoration Act, which states that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
Outside of simply preventing Stern from wearing a “religiously mandatory” beard, according to his Chabad tradition, the army’s violation was “aggravated by the fact that it was implemented in the case of a chaplain,” Lewin said.
“Bizarre as it may sound, the army was saying ‘We’ll allow you to be a religious mentor in the army only if you violate your religious convictions,’” Lewin told JointMedia News Service.
In 1976, Lewin won a similar case for Rabbi Michell Geller, an Air Force chaplain. Additionally, Army Reserve Chaplain (Col.) Rabbi Jacob Goldstein has served with his beard since 1977.
Why, then, did Stern have trouble to begin with? It all depends on the individuals who are in charge, and the current army leadership simply decided it didn’t want bearded personnel, Lewin said.
Goldstein—who has been deployed to areas including Bosnia, South Korea, Afghanistan, and Guantanamo Bay, Cuba—explained in an interview that he received a special letter from Gen. Bernard W. Rogers, constituting a lifetime exception to the no-beard policy. Goldstein put the letter in his pocket as soon as he received it, and kept it on him at all times for a couple of years.
“As a young lieutenant, it was the smart thing to do,” Goldstein told JointMedia News Service.
Goldstein said it’s possible that he “came in under the radar” and wasn’t challenged about his beard because the army didn’t want to cause any further trouble after Rabbi Geller’s 1976 lawsuit with the air force. However, the army clearly re-tightened its policy over time, he said, leading to Stern’s case.
While Geller’s 1970s case didn’t set an ironclad precedent for practices by the armed forces, Lewin said Stern v. Secretary of the Army should accomplish that.
“They know that we mean business,” Lewin said. “I don’t think they’ll be able to distinguish any future Jewish chaplains from Rabbi Stern.”
Rabbi Sanford Dresin—an army chaplain for 27 years who serves as director of military programs for the Aleph Institute, a Florida-based endorsing agency for Jewish chaplains that also assists Jewish inmates and their families—said in an interview that Stern’s victory carries more weight than Goldstein’s permission to wear a beard because “this decision involved a negotiated settlement outside of court,” while Goldstein’s letter was a gesture by the “very sympathetic” Gen. Rogers.
“[Goldstein’s status] never became a precedent, it was sort of a one-time thing,” Dresin told JointMedia News Service.”
Lewin said additional legal arguments for Stern included the fact that three Sikhs and two Muslims with beards were previously accepted into the army, meaning the army discriminated against a Jewish applicant in Stern; an existing army exemption for medical beards; and the army’s “irrational” policy that if you shave your beard you can join, and then stay in the army even if you re-grow the beard afterward.
Dresin said he didn’t serve with a beard in the army because he comes from a Modern Orthodox background and it “wasn’t an issue” for him. However, having a beard is “non-negotiable in the world of Chabad,” Dresin said.
‘Shlichut in uniform’
U.S. Senators Charles Schumer (D-NY), Kirsten Gillibrand (D-NY) and Joe Lieberman (CT) all advocated for Stern’s cause, while Lewin and Dresin attended meetings at the Pentagon with top army officials and army lawyers who persisted in rejecting Stern’s request. Stern received preliminary approval for acceptance in 2009, but since then was twice notified that his swearing-in would be delayed due to the facial hair issue.
Last December, Stern filed his federal lawsuit, and Lewin said it was likely that the army’s attorneys finally told the army “Look, you’re much smarter if you simply settle this case and allow Rabbi Stern to become a chaplain even with his unshaved beard.’”
“A soldier, whether they’re Jewish or not, will see someone who is serious and standing by his faith without compromise,” Stern told Chabad.org. “They’ll respect that person and come to trust him.”
Dresin cited a shortage of Jewish chaplains in the military and explained that he thinks Chabad emissaries, or “shluchim”—who currently work in 77 countries—are ideal for filling that void because of their “selfless, can-go anywhere” attitude.
“We see the military chaplaincy as shlichut in uniform,” Dresin told JointMedia News Service.
Goldstein, who said he is excited for what Stern’s victory might mean for “future generations of Jewish chaplains,” agreed.
“They would make a much better fit [as army chaplains than other rabbis],” Goldstein said of Chabad rabbis. “The military is a pretty big shock.”