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On The Front Lines

The Rutherford Institute Secures Court Victory Against Dept. of Defense on Behalf of Lt. Col. Martha McSally, U.S. Fighter Pilot

U.S. District Court Denies Motion to Dismiss Case of U.S. Servicewoman Forced to Wear Muslim Garb

U.S. District Court Judge James Robertson has denied Secretary of Defense Donald Rumsfeld's motion to dismiss the case of a U.S. Air Force pilot forced to wear Muslim garb when off base in Saudi Arabia. Attorneys for The Rutherford Institute filed suit in December 2001 on behalf of Lt. Col. Martha McSally, a decorated pilot with the U.S. Air Force who was challenging a military policy requiring servicewomen stationed in Saudi Arabia to wear when off base the Muslim abaya, a black head-to-toe robe worn in certain Muslim cultures and perceived as a sign of subordination to men. The suit, filed against Rumsfeld and the U.S. Department of Defense, charged that the military's dress policy violates McSally's constitutional rights to equal protection and the freedoms of religion and speech. The Department of Defense filed a motion to dismiss the case in February 2002, arguing that by amending its dress policy to "strongly encourage," rather than require, servicewomen to wear the abaya, it had rendered moot the issues in McSally's case. In acknowledging that the Defense Department's "strongly encouraged" policy may still violate McSally's constitutional rights, Judge Robertson has cleared the way for the case to proceed to trial.

The Rutherford Institute, working in conjunction with McSally and leaders on Capitol Hill, sought to resolve the issue of the unconstitutional dress policy through judicial and legislative means. This past summer, members in both the U.S. Senate and House of Representatives voted unanimously in favor of an amendment to prohibit the Department of Defense from requiring or even formally urging servicewomen stationed in Saudi Arabia to wear the Muslim abaya. The amendment to the DoD Authorization Bill, which was sponsored by Senator Bob Smith (R-NH) and largely based on language drafted by attorneys for The Rutherford Institute, prevents any member of the Armed Forces or employee of the United States from requiring or encouraging that the abaya be worn and from retaliating against those who choose not to wear it. The amendment also instructs the Secretary of Defense and those acting in his stead to provide each female member of the Armed Forces stationed in Saudi Arabia with information regarding the abaya prohibition. Finally, the amendment prohibits the use of federal funds for the procurement of abayas.

"Judge Robertson's decision is an important step in vindicating Martha McSally's claims," said John W. Whitehead, president of The Rutherford Institute. "Hopefully, from here, we can gain a final decision protecting service women like Lt. Col. McSally from discrimination."

The Rutherford Institute is an international, nonprofit civil liberties organization committed to defending constitutional and human rights.

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Nisha N. Mohammed
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