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religious attire that have been enacted elsewhere in the wake of 9/11. Part IV will
conclude.
Before we begin this discussion, a few cautionary statements are in order. First,
the scope of this Article is limited to challenges to turbaned Sikhs in the context of the
post-9/11 backlash in America. As a result, it does not focus on other groups that have
also been subject to acts of hate and to calls to integrate, including Muslims, Arabs, and
South Asians.
17
Second, this Article does not dismiss the difficult circumstances that the
country finds itself in following the terrorist attacks in Washington, New York, and
Pennsylvania. Third, this Article acknowledges that those circumstances have given way
to encouraging developments, with the backlash reportedly waning,
18
leading public
figures to appeal for tolerance
19
and reach out to targeted groups,
20
and federal courts
17
This is not an exclusive list of communities subject to post-9/11 discrimination. See
Volpp, supra note 3, at 1599 n.2 (“Persons of many different races and religions have
been attacked as presumably appearing ‘Middle Eastern, Arab, or Muslim.’ South Asians,
in particular, along with Arabs and persons of Middle Eastern descent, have been subject
to attack, although Latinos and African Americans have also been so identified.”).
18
See Eric Treene, American Muslims and Civil Rights: Testimonies and Critiques, 19
J.L. & RELIGION 89, 89 (2003-2004) (“After 9/11 we saw a sharp spike in bias-crimes
against Muslims and Arab-Americans, as well as those perceived to be Muslim or Arab,
such as Sikhs, who are targeted because of their distinctive turbans. Thankfully, this spike
in bias crimes has subsided to roughly pre-9/11 levels, although we do not have accurate
statistics on bias crimes against Arab and Muslim Americans before 9/11 to provide a
baseline for comparison.”); Stephen J. Ellmann, Changes in the Law Since 9/11: Racial
Profiling and Terrorism, 19 N.Y.L. SCH. J. HUM. RTS. 305, 360 n.43 (2003) (“A count by
my research assistant of the airport incident reports, however, strongly suggests that this
problem has now been addressed[.]”) [hereinafter Ellmann].
19
See Press Release, President Pledges Assistance for New York in Phone Call with
Pataki, Giuliani, White House, Sept. 13, 2001, available at
http://www.whitehouse.gov/news/releases/2001/09/20010913-4.html (“our nation must
be mindful that there are thousands of Arab Americans who live in New York City who
love their flag just as much as the three of us do. And we must be mindful that as we
seek to win the war that we treat Arab Americans and Muslims with the respect they
deserve. I know that is your attitudes, as well; it’s certainly the attitude of this
government, that we should not hold one who is a Muslim responsible for an act of
terror.”). See also, Continuing Story: Elected Officials Respond to Backlash The
Pluralism Project, http://www.pluralism.org/news/index.php?xref=Elected+Officials+Res
pond+to+Backlash (other statements by elected officials responding to backlash post
September 11).
20
See Hon. Mary Murphy Schroeder, Guarding Against the Bigotry that Fuels Terrorism,
48 FED. LAW. 26, 27 Dec. (2001) (noting that “by visiting a mosque soon after the
attacks, the President sent a good signal.”).
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writing in defense of pluralism and the religious freedom of Sikhs.
21
That said, this
Article discusses ongoing challenges to the Sikh turban despite these efforts. Moreover,
remaining challenges may intensify and new ones may arise if future attacks occur. Thus,
attempts to foster understanding of Sikh identity and the Sikh experience continue to be
relevant and necessary.
22
See U.S. v. James, 328 F.3d 953, 957 (7th Cir. 2003) (“Tolerance usually is the best
course in a pluralistic nation. Accommodation of religiously inspired conduct is a token
of respect for, and a beacon of welcome to, those whose beliefs differ from the
majority’s[.]”). See also Multani v. Commission scolaire Marguerite-Bourgeoys, Multani
c. Marguerite-Bourgeoys, 264 D.L.R. 4th 577 (2006) (The Court held that “an absolute
prohibition against wearing a kirpan infringes the freedom of religion of the student in
question under section 2(a) of the Canadian Charter of Rights and Freedoms [hereinafter
Canadian Charter]. The infringement cannot be justified under section 1 of the Canadian
Charter, since it has not been shown that such a prohibition minimally impairs the
student’s rights.”).
22
The potential for racial violence arguably exists as long as the possibility of war or
crisis exists, thus rendering individual incidents of a backlash worthy of our attention,
such that we may learn from our mistakes and refuse in the future to manifest national
anger, fear, and ignorance in the form of discriminatory actions. See William H.
Rehnquist, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 221 (2000) (arguing
that the nation’s past will not repeat itself); see also Mark V. Tushnet, Defending
Korematsu? Reflections on Civil Liberties in Wartime, 2003 WIS. L. REV. 273, 273
(2003) (arguing that we have learned from our past mistakes only not to repeat those
precise mistakes, rather than more general lessons).
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I. Sikhism and the Sikh Turban
Truth is high, but higher still is truthful living.
23
- Guru Nanak
A. Founding and Early Development of Sikhism
In 1469, a man named Nanak was born in Punjab—the region now split between
present-day northwest India and eastern Pakistan.
24
Historians contend that Nanak lived
in a time of “tumult of hate and falsehood” involving Hindus and Muslims, where tension
existed between the two communities and where the religious practices of both groups
were generally becoming more ritualistic and less meaningful.
25
At the age of 30, Nanak
emerged from a period of intense meditation with a vision of unity and spiritual
renaissance: “There is no Hindu, there is no Mussulman,” he declared.
26
According to Sikh history, at this age, Nanak also penned a brief verse that is
recognized as the fundamental summation of Sikh philosophy and theology. Hence, this
verse is called the mul mantar, or “root formula.”
27
The importance of the mul mantar in
Sikhism is clear, as it serves as the opening passage to the Sikh holy book, the Sri Guru
Granth Sahib, which totals 1,430 pages.
28
The text of the mul mantar, as translated to
English, is as follows:
God is only One.
His name is True.
He is the Creator.
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He is without fear.
He is inimical to none.
He never dies.
He is beyond births and deaths.
He is self-illuminating.
He is realized by the kindness of the True Guru.
Repeat his Name.
He was True in the Beginning.
He was True when the ages commenced and has ever been True.
He is also True now.
Nanak says that He will certainly be True in the future.
29
In addition, Nanak established what are generally understood to be the three
essential aspects of Sikh life: 1) remembering and meditating upon God’s Name (naam
japna); 2) living a truthful and honest life (kirat karni); and 3) giving one’s resources and
labor to help others in the community, particularly the less fortunate (vand ke chhakna).
30
These three activities blend solitary reflection with active service to society.
31
Nanak also believed in the equality of all people, including the downtrodden.
32
This was a groundbreaking principle, given the rigid social hierarchy that existed at the
time.
33
As a result of this doctrinal tenet, Nanak contended that every person, regardless
of circumstance, could realize God by following the three aforementioned rules. He also
rejected all forms of caste systems
34
and extolled the equality of the sexes, a progressive
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position at the time.
35
Nanak spread his message across South Asia and the Middle East, traveling from
the foothills of the Himalayan Mountains to Baghdad and as far south as Sri Lanka.
36
Mardana, a Muslim and a trained musician, usually accompanied Nanak.
37
Nanak’s
teachings were thus recited to music, making the hymns easier for the masses to
memorize.
38
Nanak became the first of ten teachers, or Gurus, whose disciples were named
“Sikhs,” literally students or seekers of truth.
39
Nanak, the man, is therefore called “Guru
Nanak.” While Nanak and the Gurus are revered by Sikhs, Nanak made it clear that the
Gurus were “ordinary” men, not supernatural figures to be idolized.
40
The nine Gurus that followed Nanak continued to develop his message and
expanded the faith’s base.
41
The fifth Guru, Arjun, was a prolific proponent of Nanak’s
philosophy and authored a majority (2,218) of the hymns that are in the Sri Guru Granth
Sahib, Sikhism’s holy text.
42
Importantly, Arjun is known for refusing to give in to the
demands of the Mughal
43
Emperor of the time, Jahangir, who was concerned about the
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