Attorneys for Maj. Nidal Hasan have largely cited the First Amendment in their argument to prevent the accused Fort Hood shooter from being forcibly shaved.
But a previous Supreme Court ruling appears to trump the contention of Hasan’s defense team that military regulations infringe on his freedom of religion.
On Wednesday, the U.S. Court of Appeals for the Armed Forces ordered all proceedings at Fort Hood halted so the high court could review a petition filed by Hasan’s defense.
Goldman v. Weinberger
U.S. Army prosecutors had not responded as of Friday. When they do, they likely will cite the case of Goldman v. Weinberger, a 1986 Supreme Court case that upheld the military’s right to impose regulations on uniformed appearance that go against religious beliefs.
Duke University law professor Scott L. Silliman said the Goldman v. Weinberger ruling applies to Hasan. It involved former U.S. Air Force officer S. Simcha Goldman, who was a practicing Orthodox Jew and an ordained rabbi.
Goldman sued the defense secretary after the Air Force disciplined him for wearing a yarmulke while on duty, as required under the Orthodox Jewish faith.
Like Hasan’s petition, Goldman argued that the free exercise clause of the First Amendment prohibits the military from limiting how individuals practice their religion.
But in ruling against Goldman, Chief Justice William Rehnquist wrote that the nature of the armed forces places the enlisted outside of the norms of civilian society.
“The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment,” Rehnquist stated.
Ultimately, yarmulkes were allowed in the armed forces after Congress passed a law in 1987 permitting them.
That law does not apply to beards grown for religious purposes. The Army has granted a few exceptions, and some soldiers are permitted to grow closely cropped beards because of a skin condition, Silliman said.
“I would be very surprised if (the appeals court) said he has the right to wear a beard in a court-martial,” said Silliman, who was one of the Air Force’s highest ranking attorneys before retiring in 1993. President Barack Obama appointed Silliman to be a federal appellate judge on the United States Court of Military Commission Review in 2011.
But Hasan’s former defense attorney John Galligan said the defense may have another avenue to allow Hasan in the courtroom with a beard.
Galligan said barring Hasan from the courtroom may violate the Sixth Amendment, which guarantees a fair trial and requires that a defendant has the right to cross examine any accusers or witnesses.
The presiding judge has said removing Hasan from the court during his court-martial creates concerns that any conviction would be overturned on appeal.
Reversals of death penalty convictions already have a high occurrence in military courts because of lack of experience by defense counsel, Galligan said. And Hasan’s lawyers are no different.
Defense attorney Maj. Joseph T. Marcee said as much during a pretrial hearing Tuesday while arguing for a trial delay. Only lead defense attorney Lt. Col. Kris R. Poppe has any experience with a capital trial.
“Each and every one of these issues is going to be another appellate assignment of error. It’s going to make the Loving case look like a misdemeanor,” said Galligan, referencing the 1989 death penalty court-martial of Dwight Loving, whose case went all the way to the Supreme Court.
Though case law may not support allowing Hasan a beard, Galligan said Gross should allow it to make matters easier.
“It’s a reversible ruling and absolutely stupid,” he said.