Beards in the Army – A First Amendment Lesson

This Friday, after nearly two years of requests for accommodation, Rabbi Menachem Stern will be sworn into the U.S. army as a chaplain––with a full beard.(1) Stern went so far as to file a lawsuit when his efforts to receive an exception to the Army’s no-beard policy failed.(2) Now, exactly one year after the suit was first filed, the rabbi and the Army reached an out-of-court settlement, whereby the Army agreed to grant a waiver that will allow Rabbi Stern to keep his beard while serving as a chaplain.

What is interesting about this case is that having a beard is not necessarily required by Jewish law. Although a man is certainly prohibited from shaving certain parts of his face with a razor,(3) trimming one’s beard with scissors or shaving with an electric shaver are permitted according to many authorities. (For a detailed discussion of the laws of shaving, click here.) Nevertheless, there are those who maintain, based on kabbalah, that one may not trim his beard at all.(4) Also, it is my understanding that Lubavitcher chassidim do not trim their beards, even with a scissors, because the Tzemach Tzedek (the 3rd Lubavitcher Rebbe) ruled that it is prohibited.(5) This explains why Rabbi Stern, a Chabad rabbi, has insisted on keeping his beard.

Although it may not be required by Jewish law, wearing a beard in the army appears to be protected by the Free Exercise clause of the First Amendment. In 1973, the Air Force ordered Rabbi Michell Geller, a chaplain, to remove his beard.(6) The chaplain sued, asking the court to declare that the Air Force regulation prohibiting facial hair was unconstitutional, as applied to him, because it violated his First Amendment right to free exercise of religion. One of the Air Force’s counterarguments was that wearing a beard is not actually required by Jewish law. In its decision, the court stated an oft-recited, but important principle of “free exercise” claims:

There is no requirement that the religious practice be absolutely mandated in order to elevate plaintiff’s claim to a level of constitutional significance. It is not the province of the Courts to dictate which practices are or are not required in a particular religion. See, Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (decided June 21, 1976); Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). The Court is persuaded by the record as presently constituted that the wearing of beards, although not required, is a well established religious tradition among members of the Jewish faith and that plaintiff wore his beard in furtherance of that religious practice.

Notes:

(1) Bearded Rabbi Allowed in Army, MiamiHerald.com, Mon. Dec 5, 2011.

(2) Stern v. Secretary of the Army,

(3) See Vayikra [Leviticus] 19:27; Shulchan Aruch, Yoreh Dei’ah § 181.

(4) See Be’er Heiteiv, Yoreh Dei’ah § 181; Birchei Yosef, ad loc.

(5) See Responsa Tzemach Tzedek, Yoreh Dei’ah § 93.

(6) Geller v. Secretary of Defense, 423 F.Supp. 16 (D.D.C. 1976). Rabbi Geller was represented by Nathan Lewin, the same attorney who represented Rabbi Stern.

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6 Comments

Filed under American Law, Halacha / Jewish Law, News

6 responses to “Beards in the Army – A First Amendment Lesson

  1. Pingback: News & Links | Hirhurim – Torah Musings

  2. CA

    Sorry, I think what you said is inaccurate.

    Shaving is prohibited by Jewish law, according to many poskim, most importantly (in this case), Tzemach Tzedek of Lubavitch, who is one of the Rebbeim and poskim of the Lubavitch community. It is prohibited because according to him it constitutes begged isha.

    Now, there is an opposite opinion allowing shaving without a razor. The existence of such an opinion is recognized by Tzemach Tzedek too: there is a famous teshuva of whether one is allowed to eat meat from a Russian shoichet who moved to Germany and started shaving. The answer is “no”. At the same time, one is allowed to eat shechita of German shoichtim, even though they shave. The point is that Yekke Jews have opinions to rely on to allow shaving, and that’s their halachic standard. But with the Russian Jew, we see a yerida in his halachic standard, making his yiras shomayim suspect.

    Now, the above is not a Kabbalistic ruling. It is a Halachic ruling, based on Halachic sources and logic. It is not like multiple other examples of when a posek says: “You should do X because it says so in Kabbala” (e.g., Aruch HaShulchan on washing mayim achroinim, if I am not mistaken). Tzemach Tzedek’s opinion may have been driven by Kabbala on an abstract level, but that doesn’t make it “Kabbalistic”.

    Now, there is a Kabbalistic idea against trimming the beard (for explanation see here), but that has to do with shaping a beard, so that it will look even. Most people would agree that according to Tzemach Tzedek, halachically, as long as one maintains a beard, trimming it (as long as it’s not trimmed all the way to nothing) is allowed, although TT would advise against it, based on Kabbala.

    So, as far as this chaplain is concerned, Jewish Law says that one is not allowed to shave his beard. If he was asked to trim it, he would say that “his religious beliefs” (i.e., Kabbala) don’t allow it.

    Interestingly, during the Civil War, there was no standard in facial hair. Most people, both soldiers and officers, had some sort of facial hair (beard, mustaches, muttonchops, elaborate combinations thereof, etc.).

    • Thanks for the clarification. I did not mean to imply that the Tzemach Tzedek’s ruling was based on kabbalah, only that it is another reason why many men (particularly Lubavitch) do not trim/shave their beards, even with scissors.

  3. CA

    I think the website that you quoted is sadly deficient in sources. Who are the “most poskim” who permit shaving? Who are the poskim who don’t allow it? Anyway, does it matter — shouldn’t one ask his personal posek anyway?

    The logic in Rav Moishe’s teshuva allowing shaving is unclear to me. See here. Any explanations are welcome.

    • Of course one should ask his own posek regarding the halachah as applied to him. My point was that there many different opinions regarding the use of scissors and electric shavers. Neither I nor the article that I cited said that “most poskim” permit shaving.

  4. NY

    It is very interesting to see Islamic Law scholars have the same discussion till today! Among them the overwheming majority do not allow shaving entirely. Trimming is allowed by many and grooming it is a must! However, some very prominent scholars like the late Ibn Baz Mufti of Saudi Arabia do not allow trimming at all!
    NY

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