By Deborah Karpatkin and Peter Goldberger

This article was published in the Spring 2016 issue of On Watch. 

Much has been written about the Hobby Lobby cases, both before and after those important June 2014 Supreme Court decisions.[2]  Those favoring robust enforcement of the Affordable Care Act (“ACA”), and full access to reproductive services under the ACA, were understandably concerned by the Court’s ruling that the individually held sincere religious beliefs of the owners of private corporations would allow the corporations to avoid providing contraceptive services to their employees and the employees’ dependents, notwithstanding the requirements of the ACA regulations.  Those concerned about legal protections for religious liberty looked to the cases for their favorable decision on whether closely-held, for-profit corporations would to enjoy “free exercise” rights under the 1993 Religious Freedom Restoration Act (“RFRA”)[3] based on their owners’ sincere religious beliefs.

For this article, we examine Hobby Lobby and RFRA from the perspective of another interested constituency: advocates for the rights of military conscientious objectors.  Would the Supreme Court’s interpretation of RFRA lay the groundwork for reconsidering the legal treatment of the military COs?  Do principles of free exercise of religion, as denigrated by the Supreme Court’s First Amendment case law but robustly guaranteed by RFRA, allow a service member release from military service obligations on any basis beyond what is currently allowed by the conscientious objector regulations?   This article explores RFRA, Hobby Lobby, and some recent cases, for insight into these and related questions.

Some background: the RFRA and Hobby Lobby

Supported by a broad coalition of groups and adopted by a near-unanimous Congress, RFRA was enacted to override Supreme Court law narrowly interpreting the Free Exercise Clause of the First Amendment, and reinstating previous Supreme Court law calling for a “compelling interest”/”least restrictive means” test.[4]  RFRA accordingly requires exceptions for religious objectors to laws that on their face are “neutral toward religion” but nevertheless burden the religious exercise of some of those subject to those laws.  RFRA mandates that if a person’s religious freedom is burdened by a federal law that is facially neutral towards religion, the government must prove that the burden is both “in furtherance of a compelling governmental interest” and also “the least restrictive means of furthering that compelling governmental interest.”[5]  If the government fails to meet this burden, the individual is entitled to an exemption from what the federal law would otherwise require. Alternatively, the court might (at least arguably) order the government to alter its standards or procedures to ensure a “less restrictive means” than that currently provided by statute or regulation.

In Hobby Lobby, the Supreme Court held by a 5-4 vote that if the government wants to ensure contraceptive coverage to the companies’ employees, RFRA requires that it do so without the objecting employers’ participation.  In reaching its ruling, the Supreme Court gave guidance on how RFRA was to be applied to individual cases.  First, RFRA applies to “a person’s” exercise of religion.  The Court in Hobby Lobby concluded that “person” included the plaintiffs in those cases, notwithstanding that they were private, for-profit businesses.  Second, RFRA’s protection of the exercise of religion is intended to be construed broadly: “the exercise of religion shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”[6]  Third, RFRA claims must be considered on an individual basis.  The statute “requires the government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person – the particular claimant whose sincere exercise of religion is being substantially burdened.”  Accordingly, courts must “loo[k] beyond broadly formulated interests … and scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants.”[7]  Fourth, the Court affirmed its well established precedent regarding determinations of the sincerity of religious belief, noting its past holdings “that courts must not presume to determine …the plausibility of a religious claim.”[8]

Neither RFRA nor Hobby Lobby refers specifically to military conscientious objectors.  Nevertheless, the statute and the decision invite advocates to consider how its conclusions may affect the interpretation and application of the military regulatory scheme facing servicemen and women who seek CO status.[9]

Are military CO regulations governed by the Hobby Lobby ruling?

Let us start with the question whether Hobby Lobby and RFRA will even be held to apply to military CO regulations.  More generally, we know that military regulations are not per se exempt from RFRA, which expressly applies to all federal laws, departments, and agencies.  As its legislative history makes clear, Congress specifically intended RFRA to apply to the military: “Under the unitary standard set forth in [RFRA], courts will review the free exercise claims of military personnel under the compelling governmental interest test.”[10]  But while applicable to military personnel generally, and while some recent decisions are encouraging (see below), RFRA’s application to the regulations concerning military COs in particular cannot be assumed.  The CO regulations concern military personnel decisions, and courts have historically given the military enormous leeway in how they run their personnel operations.  Typically, military rules or regulations affecting military personnel matters – and discharge categories and processes are viewed by courts as military personnel matters – are typically upheld after at best a very deferential review.

Some insight into how the Supreme Court sees this issue came in its January 2015 decision in the Holt v. Hobbs.[11] Holt challenged, on religious freedom grounds, a regulation barring a Muslim inmate from growing a half-inch beard.  Prison administrators’ decisions generally receive the same kind of deference in court as do military personnel actions, as both are seen as unique institutions with particular expertise in the security issues that each of them deals with.  But in Holt, applying its Hobby Lobby reasoning, the Court ruled unanimously for the inmate.  It did not defer to the security concerns raised by the prison administrators.  Indeed, prison officials could hardly articulate a good reason for banning a ½ inch beard, when ¼ inch beards were permitted.  The Court made clear that its ruling was specific to the case’s particular facts and left room for a different ruling in future cases.  Even if the law does not permit “unquestioning deference” to prison administrators, the majority asserted, “courts must not blind themselves to the fact that the analysis is conducted in the prison setting.” After Holt and Hobby Lobby, then, it still remains to be seen how much deference courts will allow the military in applying RFRA to military CO regulations.

Two post-Holt decisions have held that RFRA applies to military personnel decisions.  Both decisions concerned the Army’s refusal to allow a religious accommodation for an observant Sikh who wished to keep his turban and unshorn hair, contrary to Army regulations.  Both decisions ruled in favor of the plaintiff.

In Iknoor Singh v. McHugh,[12] plaintiff, an observant Sikh college student, wanted to enroll in ROTC.  His religious practices, requiring that he not cut his hair or beard, and wear a turban, did not conform to the Army’s uniform and grooming standards. He sought a religious accommodation to allow his enrollment; the Army denied his request.  The district court granted plaintiff’s claim under RFRA.

Iknoor Singh’s application of RFRA’s standards warrants careful attention. In this case, there was no dispute that the Army’s grooming and uniform rules, and its refusal to grant Mr. Singh and accommodation to allow him to keep his beard and long hear, and wear his turban, “substantially burdened [Plaintiff’s] exercise of religion.”[13] The court had no difficulty in ruling that RFRA applies to the military, citing to RFRA’s legislative history,[14] and determined that the free exercise claims of military personnel are reviewed under the “compelling governmental interest” test.  Then the court turned to the heart of the case:  how to apply RFRA’s “strict scrutiny” standard to the Army, given the “known backdrop of longstanding precedent involving judicial deference to military authorities charged with the management of military affairs.”[15]

To make its “compelling interests” argument, the Army claimed that its grooming standards were a matter of military necessity, urging that they were needed for good order and discipline, uniformity, unit cohesion, morale, safety, and the like.  But the court examined those arguments carefully, and rejected them.  As a factual matter, the court noted that the Army had permitted numerous exceptions to its grooming and uniform policies; and that the Army had granted religious accommodations to other Sikh soldiers, without negative consequences.

Addressing the second RFRA prong, the court also ruled that the Army not established that refusing Mr. Singh accommodation was the least restrictive means of advancing its interests.   Noting that this was an “exceptionally demanding” standard, the court flatly rejected the Army’s argument that there was no less restrictive means “to promote and maintain teamwork, motivation, discipline, esprit de corps and image, within the context of an officer development program.” [16]

Leaning heavily on Holt v. Hobbs, Singh v. McHugh found its guidance in the Supreme Court’s instruction that courts could not “defer to [the] mere say-so” of officials who say that they cannot accommodate a religious request, and that RELUIPA “demands so much more.”[17]  Citing Holt, the court declined to give “unquestioning acceptance” to the military’s justifications for its grooming policies.

Sadly, Mr. Singh’s victory did not result in a cleared path for other Sikh military men.  In Singh v. Carter, Captain Simratpal Singh, a West Point graduate, was forced to seek a TRO preventing the Army from subjecting him to non-standard and discriminatory testing for his helmet and gas mask.  After the TRO was granted, on RFRA grounds, the Army issued Captain Singh a religious accommodation.[18]  Like the court in the Iknoor Singh case, the court was skeptical of, and rejected, the Army’s arguments seeking to justify the special testing they were trying to impose on the plaintiff.  The court concluded: “the proposed restriction on the plaintiff’s right to free exercise by way of the individualized, intensive helmet and gas mask testing is not the least restrictive means of furthering the government’s interest in helmet and gas mask safety.”[19]

The Singh cases’ skepticism about the Army’s reasons for denying religious accommodation in the RFRA context may offer some guidance to lawyers and advocates for military conscientious objectors.  The court’s refusal to give “unquestioning acceptance” to the military’s justifications for its actions, and refusal to “defer to the mere say-so” of military officials, can be a reference point for the sort of judicial oversight sought, but not always achieved, by lawyers representing military COs.  For COs, the burdensome “clear and convincing evidence” and “basis in fact” standard of review sets a high bar to succeed on judicial review.[20]  As discussed further below, RFRA may present opportunities for challenging that high bar.

The burdensome regulations facing military COs

Military CO applicants must proceed through a burdensome and rigorous regulatory process to be recognized as a conscientious objector.  RFRA may give applicants a basis for challenging those burdensome regulations.  Many aspects of the military CO regulations impose enormous burdens on the religious beliefs of the person seeking CO status.  As lawyers and advocates well know, the application form is lengthy and complex.  It demands written answers to probing, personal questions requiring that the applicant’s most private and deeply held religious, spiritual, moral and ethical beliefs be explicated and explained. The applicant’s claims are then investigated, including interviews by both a chaplain (often of a totally different faith tradition) and a psychologist or psychiatrist.  The entire process is premised on skepticism about the applicant’s sincerity and motives, leading to a “hearing” before an “investigating officer” of the very institution from which the CO is seeking separation.  The applicant bears a heavy burden of persuasion in an environment that is far from neutral.  There are then multiple levels of review, and in the end the application can be denied if there is any “basis in fact” at all to turn it down.   This process necessarily takes many months, sometimes more than a year.

Hobby Lobby and the Wheaton College case,[21] decided on the same basis a week later, suggest that RFRA may also protect against burdensome processes for allowing religious exemptions from government programs. And of particular significance to military COs, RFRA explicitly places the burden on the government to prove its inability to accommodate any sincere objector, not the other way around.  CO applicants who are particularly burdened by the CO process – especially where there is delay or other abuse of the process – may want to consider invoking RFRA’s protections, either during the CO process, or on habeas appeal.   Even more generally, as the Simratpal Singh case suggests, will the government be able to prevail against the argument that the burdensome CO process is the “least restrictive means” of processing a CO applicant for discharge, when other applicants for military discharge do not face such a burdensome process?

“War in any form” and noncombatants only?

The military regulations also define in advance only two very narrow categories of objection that will be honored – an absolute scruple against participating in “war in any form” and a refusal to use or train with weapons (“noncombatant status”).  Those with equally sincere religious objections to participation in particular wars or kinds of wars, or to use or train with particular kinds of weapons, as well as religious objectors to other aspects of military life or the military mission, are not protected at all. Here again is an inconsistency with RFRA, which extends its protections equally to all religious objections to government-imposed obligations, without pre-defined limitations.

The requirement that a CO be opposed to participation in “war in any form” has previously been tested at the Supreme Court.  In 1971, during the Supreme Court’s most sympathetic era for Free Exercise claims, the Court nevertheless rejected, over a single dissent, a First Amendment challenge to the draft law and military regulations’ refusal to accommodate selective objectors such as those who adhere to a “just war” theory.[22]   That the objectors’ claims were denied in Gillette, applying a constitutional compelling interest/least restrictive means analysis may not be  determinative, because  RFRA’s “statutory phrase ‘exercise of religion’,” according to the Hobby Lobby majority, is not necessarily “tied to this Court’s pre-[1990] interpretation of that Amendment.”[23]

Hobby Lobby and CO’s with non-mainstream beliefs

Hobby Lobby also offers support for the argument advocates often advance on behalf of military COs – that what matters is the CO applicant’s own personal religious convictions, even if those beliefs are illogical, religiously disputed, or not mainstream.  The Supreme Court majority opinion focuses on the ability of the objecting parties to conduct business in accordance with “their religious beliefs” (emphasis in original).[24]  The court explicitly declines to analyze or question the content or plausibility of those beliefs, and declined to consider whether the beliefs were “mistaken” or “insubstantial,” even though the objecting business-owners themselves made scientific (not theological) claims (which experts disputed) to explain their opposition to certain forms of birth control as “abortifacients.”[25] Military CO applicants’ claims, by contrast, are frequently disputed or rejected on grounds of logical inconsistency or lack of “depth,” a standard which the Supreme Court in Hobby Lobby suggests is not permitted under RFRA.

Not all post-Hobby Lobby RFRA cases are wins for the RFRA claimant in a military environment, and this is especially so where the military RFRA claimant has non-mainstream beliefs.  Invoking RFRA does not automatically produce a favorable result.  In United States v. Sterling,[26] an enlisted member of the Marine Corps was disciplined for putting a sign with a biblical quote in three places on her work station, visible to those coming by her work station to read them.  She testified that she was a Christian, and that she posted the quotation in three places to represent the Christian trinity. She refused an order to remove the signs. A military judge determined that the signs were contrary to good order and discipline.  On appeal, Sterling invoked RFRA, but her argument was rejected, on the grounds that her placement of the signs on her workstation was not “religious exercise” because it was not “part of a system of religious belief” and did therefore not trigger RFRA.[27]  The case is now pending appeal.  Sterling’s RFRA argument may well be weak for other reasons.  But given her testimony, the ruling that the workstation signs do not qualify as “religious exercise” and were not part of a “system of religious belief” is dubious and concerning.

Less concerning is the court’s decision in Wilson v. James.  There, plaintiff, an enlisted member of the Utah National Guard, claimed a RFRA violation when he was disciplined for an email he sent to a high level officer at West Point, from his military email account, protesting same-sex weddings in the West Point chapel.  According to Wilson, the discipline substantially burdened the exercise of his religion (Latter Day Saint).  The court rejected his RFRA claim, on the grounds that the discipline did not burden any “religious action or practice.”  In so ruling, the court distinguished a burden on “religious action or practice,” protected by RFRA, from mere offense to “religious belief,” not protected by RFRA.[28] While the court acknowledged that the discipline may have chilled plaintiff’s speech about his religious beliefs, plaintiff did not assert that LDS religious doctrine required him to assert dissent to same sex marriage. Accordingly, applying RFRA standards, speech was not religious exercise; and even if it were, the discipline did not substantially burden the exercise of plaintiff’s religious exercise, because the requirement that plaintiff not use his military email for such speech was appropriate. [29]

Hobby Lobby and the refusal of non-combatant assignments

Hobby Lobby offers analysis to support military COs who refuse non-combatant assignments on the basis that those assignments make it possible for other servicemembers to wage war.  Hobby Lobby acknowledges “a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”[30]  While the Supreme Court majority here was referring to the rule under which the objecting employer need only advise the government of the name of its insurance provider, as a result of which the insurer would provide coverage for birth control to the objectors’ employees at no additional cost to the employer, this argument may be made with equal force on behalf of military COs who share the religious belief in the sin of “complicity.”

Hobby Lobby and “non-religious” CO’s

RFRA, by its terms, protects only “religious exercise.”  Perhaps the most severe limitation in present military CO regulations applies to those applicants whose conscientious objection to participation in war is not grounded in traditional religious belief and practice, but instead derives from equivalent moral and/or ethical beliefs.  According to applicable military regulations, those CO applicants can be approved, but they first must demonstrate that their moral/ethical opposition to participation in war, to quote the Army regulation, was “gained through training, study, contemplation, or other activity comparable in rigor and dedication to the processes by which traditional religious convictions are formulated.”[31]  No similar “study, contemplation … rigor and dedication” test is imposed on CO applicants who base their beliefs on a more traditional religious foundation.  Advocates for military COs have long struggled against this double standard and the resulting high hurdles placed before non-religious objectors.

The military’s position on non-religious COs is derived from Supreme Court decisions addressing conscientious objector claims under the draft.  The Selective Service law allowed CO status for those opposed to war by reason of what it referred to “religious training and belief.”  It may seem strange that a law using the term “religious” would be interpreted to include beliefs that the holders of those beliefs label differently.  Yet the Supreme Court in Welsh v. United States (1970) and United States v. Seeger (1965),[32] interpreted the statutory language to include not only CO applicants whose beliefs were based on formal religious training and belief in a Supreme Being, but also whose beliefs were based on ethical and moral principles held with the strength of more traditional religious beliefs. If similar reasoning were applied, Hobby Lobby’s interpretation of RFRA also could also mean equal treatment for these “non-religious” military COs.

One RFRA case to date has been brought by an applicant with “non-religious” beliefs.  In Heap v. Carter, a Dr. Heap, an atheist Humanist Celebrant, applied to be a Navy chaplain and was rejected.  Asserting claims under, inter alia, RFRA, Dr. Heap claimed that the Navy rejected him as a Chaplain because the Navy did not recognize Humanism as a religion. The court dismissed Dr. Heap’s RFRA claim, because he could not show that “becoming a Humanist Navy chaplain is dictated by the tenets of Humanism or that by not becoming a Navy chaplain he is somehow in violation of the tenets of Humanism.  Rejecting Heap from the Navy chaplaincy does not put substantial pressure on Dr. Heap to modify his behavior and violate his beliefs.”  Nor had Dr. Heap shown that “becoming a Navy chaplain is part of the core belief system of Humanism.”  Accordingly, the court concluded the government had not substantially burdened Dr. Heap’s religious exercise.[33]  Dr. Heap also argued that his application to become a chaplain was rejected because he did not affiliate with an approved religion; the court rejected this argument as speculative.  Significantly, the court did not reject Dr. Heap’s argument that as an atheist humanist, he had a claim under RFRA.


The Supreme Court’s Hobby Lobby opinion, reinforced by the Court’s subsequent decision in Holt, and other recent cases, offers a sympathetic interpretation of RFRA’s guarantee of individualized exemption from obligations imposed by federal laws for all those with religious scruples. Obviously, this is a dynamic and contested area of law, which is far from settled. As this article was written, additional RFRA cases involving ACA objectors were awaiting decision at the Supreme Court. The Supreme Court has now sent them all back to lower courts for further consideration in light of some changed and/or refined positions of the parties. Zubick v. Burwell, No. 14-1418 (and consolidated cases) (argued March 23, 2016).  Based on the broad reading given in Hobby Lobby and other recent cases, advocates now have new arguments available to address the many burdens and challenges faced by military COs in the current legal and regulatory scheme.


Deborah Karpatkin is a lawyer in private practice in New York City, and Peter Goldberger is a lawyer in private practice in Ardmore, PA. Both are members of the Military Law Task Force.  Both have worked on a number of conscientious objector cases, for many years, and have represented many conscientious objectors in hearings and in habeas corpus litigation.


[1] A version of this article previously appeared in Vo. 72,  No.  1 of the Reporter for Conscience’ Sake, published by the Center on Conscience & War.

[2] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. —, 134 S. Ct. 2751, 189 L. Ed. 2d 265 (2014) (decided jointly with Conestoga Wood Specialties Corp. v. Burwell).

[3] 42 U.S.C. §2000bb et seq.

[4] Congress overturned the interpretation of the First Amendment the Supreme Court announced in Employment Division v. Smith, 494 U.S. 972 (1990), see 42 U.S.C. §2000bb(a)(4), and it codified and reinstated the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972).

[5] 42 U.S.C. §2000bb-1(a)-(b).

[6] RFRA, 42 U.S.C. §2000cc-3(g): Hobby Lobby, 134 S.Ct. at 2762, 2772.

[7] Hobby Lobby, 134 S.Ct. at 2779, quoting Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-31 (2006)

[8] Hobby Lobby, 134 S.Ct. at 2778 (quoting earlier authority).

[9] These questions are not new.  Advocates for military conscientious objectors have for some years argued that RFRA requires greater protection for military conscientious objectors. The Center for Conscience & War made this argument in its amicus petition to the Supreme Court in support of certiorari on behalf of Augustin Aguayo (S.Ct. docket #07-607).

[10] S. Rep. No. 103-11, at 12 (1993).

[11] 574 U.S. —, 135 S. Ct. 853, 190 L. Ed.2d 747 (2015).  Holt was brought under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), RFRA’s “sister statute.”  135 S. Ct. at 859.

[12] 109 F. Supp. 3d 72 (D.D.C. 2015).

[13] 42 U.S.C. §2000bb-1(a).  The government did at first argue that because Plaintiff was a civilian, the Army regulations did not apply to him.  That argument lost steam when the Army processed and denied Plaintiff’s request for accommodation.

[14] Id. at 88.

[15] Id. at 89.

[16] Iknoor Singh v. McHugh, id. at 101.

[17] Holt, 135 S.Ct. at 866.

[18] Simratpal Singh v. Carter, 2016 U.S. Dist. LEXIS 26990 (D.D.C. 2016)

[19] Id. at *38.

[20] See, e.g., Aguayo v. Harvey, 476 F. 3d 971 (D.C. Cir. 2007) (habeas denied); Hanna v. Secretary, 513 F. 3d 4 (1st Cir. 2008) (habeas granted); Watson v. Geren, 569 F. 3d 115, reh. en banc denied, 587 F. 3d 156 (2d Cir. 2009 (habeas granted) Kanai v. McHugh, 638 F. 3d 251 (4th Cir. 2001) (habeas denied)

[21] Wheaton College v. Burwell, 573 U.S. —, 134 S. Ct. 2806 (2014) (order on application for injunction).

[22] Gillette v. United States, 401 U.S. 437 (1971).

[23]  134 S.Ct. at 2772.

[24] 134 S.Ct. at 2778.

[25] 134 S.Ct. at 2759.

[26] NMCAA 201400250

[27] Id. at *14 -15.

[28] 2015 U.S. Dist. LEXIS 138984, at *22.

[29] Id. at *25.

[30] 134 S.Ct. at 2778.

[31] AR 600-43 ¶1-5a(5)(b).

[32] 398 U.S. 333 (1970); 380 U.S. 163 (1965).

[33] Heap v. Carter, 112 F. Supp. 3d 402, 422 (E.D. Va. 2015).