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Case 6.1 Conformity versus Pluralism: Goldman v. Weinberger
(1986)
GOLDMAN
v. WEINBERGER,
SECRETARY OF DEFENSE, ET AL.
SUPREME COURT OF THE UNITED STATES
475 U.S. 503
March 25, 1986, Decided
An Air Force regulation relation to uniforms prohibits members of
the Air Force from wearing headgear while indoors except for
headgear for armed security police in the performance of their
duties. An Air Force officer who was serving as a clinical
psychologist at a mental health clinic on an Air Force base, and who
was an Orthodox Jew and an ordained rabbi, had been wearing a
yarmulke (skullcap) while he was on duty indoors, and he had been
wearing a service cap over his yarmulke while he was outdoors. The
officer was informed by his hospital commander that wearing a
yarmulke while on duty indoors was a violation of an Air Force
regulation relating to uniforms, the officer was ordered to
discontinue wearing a yarmulke while on duty indoors, and the
officer was warned that failure to obey the regulation could subject
hum to a court-martial. In the United States District Court for the
District of Columbia, the officer brought suit against the Secretary
of Defense and others, claiming that application of the Air Force
regulation to prevent him from wearing his yarmulke infringed on his
First Amendment right to free exercise of religion. The District
Court granted the officer injunctive relief against application of
the regulation to his wearing of a yarmulke, but the United States
Court of Appeals for the District of Columbia Circuit reversed,
holing that the Air Force’s interest in uniformity rendered the
strict enforcement of its regulation permissible, and the Court of
Appeals denied a petition for rehearing en banc.
On certiorari, the United States Supreme Court affirmed.
JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner S. Simcha Goldman contends that the Free Exercise Clause
of the First Amendment to the United States Constitution permits him
to wear a yarmulke while in uniform, notwithstanding an Air Force
regulation mandating uniform dress for Air Force personnel. The
District Court for the District of Columbia permanently enjoined the
Air Force from enforcing its regulation against petitioner and from
penalizing him for wearing his yarmulke. The Court of Appeals for
the District of Columbia circuit reversed on the ground that the Air
Force’s strong interest in discipline justified the strict
enforcement of its uniform dress requirements. We granted certiorari
because of the importance of the question…
Petitioner Goldman is an Orthodox Jew and ordained rabbi. In 1973,
he was accepted into the Armed Forces Health Professions Scholarship
Program and placed on inactive reserve status in the Air Force while
he studied clinical psychology at Loyola University of Chicago.
During his three years in the scholarship program, he received a
monthly stipend and an allowance for tuition, books, and fees. After
completing his Ph.D. in psychology, petitioner entered active
service in the United States Air Force as a commissioned officer, in
accordance with a requirement that participants in the scholarship
program serve one year of active duty for each year of subsidized
education. Petitioner was stationed at March Air Force Base in
Riverside, California, and served as a clinical psychologist at the
mental health clinic on the base.
Until 1981, petitioner was not prevented from wearing his yarmulke
on the base. He avoided controversy by remaining close to his duty
station in the health clinic and by wearing his service cap over the
yarmulke when out of doors. But in April 1981, after he testified as
a defense witness at a court-martial wearing his yarmulke but not
his service cap, opposing counsel lodged a complaint with Colonel
Joseph Gregory, the Hospital Commander, arguing that petitioner's
practice of wearing his yarmulke was a violation of Air Force
Regulation (AFR) 35-10. This regulation states in pertinent part
that "[headgear] will not be worn . . . [while] indoors except
by armed security police in the performance of their duties."
Colonel Gregory informed petitioner that wearing a yarmulke while on
duty does indeed violate AFR 35-10, and ordered him not to violate
this regulation outside the hospital. Although virtually all of
petitioner's time on the base was spent in the hospital, he refused.
Later, after petitioner's attorney protested to the Air Force
General Counsel, Colonel Gregory revised his order to prohibit
petitioner from wearing the yarmulke even in the hospital.
Petitioner's request to report for duty in civilian clothing pending
legal resolution of the issue was denied. The next day he received a
formal letter of reprimand, and was warned that failure to obey AFR
35-10 could subject him to a court-martial. Colonel Gregory also
withdrew a recommendation that petitioner's application to extend
the term of his active service be approved, and substituted a
negative recommendation.
Petitioner then sued respondent Secretary of Defense and others,
claiming that the application of AFR 35-10 to prevent him from
wearing his yarmulke infringed upon his First Amendment freedom to
exercise his religious beliefs.
Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of
similar laws or regulations designed for civilian society. The
military need not encourage debate or tolerate protest to the extent
that such tolerance is required of the civilian state by the First
Amendment; to accomplish its mission the military must foster
instinctive obedience, unity, commitment, and esprit de corps. The
essence of military service "is the subordination of the
desires and interests of the individual to the needs of the
service."
These aspects of military life do not, of course, render entirely
nugatory in the military context the guarantees of the First
Amendment. But "within the military community there is simply
not the same [individual] autonomy as there is in the larger
civilian community." In the context of the present case, when
evaluating whether military needs justify a particular restriction
on religiously motivated conduct, courts must give great deference
to the professional judgment of military authorities concerning the
relative importance of a particular military interest. Not only are
courts "'ill-equipped to determine the impact upon discipline
that any particular intrusion upon military authority might
have,'" but the military authorities have been charged by the
Executive and Legislative Branches with carrying out our Nation's
military policy. "[Judicial] deference . . . is at its apogee
when legislative action under the congressional authority to raise
and support armies and make rules and regulations for their
governance is challenged."
The considered professional judgment of the Air Force is that the
traditional outfitting of personnel in standardized uniforms
encourages the subordination of personal preferences and identities
in favor of the overall group mission. Uniforms encourage a sense of
hierarchical unity by tending to eliminate outward individual
distinctions except for those of rank. The Air Force considers them
as vital during peacetime as during war because its personnel must
be ready to provide an effective defense on a moment's notice; the
necessary habits of discipline and unity must be developed in
advance of trouble. We have acknowledged that “[t]he inescapable
demands of military discipline and obedience to orders cannot be
taught on battlefields; the habit of immediate compliance with
military procedures and orders must be virtually reflex with no time
for debate or reflection.”…
To this end, the Air Force promulgated AFR 35-10, a 190 page
document, which states that “Air Force members will wear the Air
Force uniform while performing their duties, except when authorized
to wear civilian clothes on duty.” The rest of the document
describes in minute detail all of the various items of apparel that
must be worn as part of the Air Force uniform. It authorizes a few
individualized options with respect to certain pieces of jewelry and
hairstyle, but even these are subject to severe limitations. In
general, authorized headgear may be worn only out of doors. Indoors,
“[h]eadgear [may] not be worn…except by armed security police in
the performance of their duties.” A narrow exception to this rule
exists for headgear worn during indoor religious ceremonies. In
addition, military commanders may in their discretion permit visible
religious headgear and other such apparel in designated living
quarters and nonvisible items generally.
Petitioner Goldman contends that the Free Exercise Clause of the
First Amendment requires the Air Force to make an exception to its
uniform dress requirements for religious apparel unless the
accouterments create a "clear danger" of undermining
discipline and esprit de corps. He asserts that in general, visible
but "unobtrusive" apparel will not create such a danger
and must therefore be accommodated. He argues that the Air Force
failed to prove that a specific exception for his practice of
wearing an unobtrusive yarmulke would threaten discipline. He
contends that the Air Force's assertion to the contrary is mere ipse
dixit, with no support from actual experience or a scientific study
in the record, and is contradicted by expert testimony that
religious exceptions to AFR 35-10 are in fact desirable and will
increase morale by making the Air Force a more humane place.
The Air Force has drawn the line essentially between religious
apparel that is visible and that which is not, and we hold that
those portions of the regulations challenged here reasonably and
evenhandedly regulate dress in the interest of the military's
perceived need for uniformity. The First Amendment therefore does
not prohibit them from being applied to petitioner even though their
effect is to restrict the wearing of the headgear required by his
religious beliefs.
JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE POWELL join,
concurring.
The interest in uniformity, however, has a dimension that is of
still greater importance for me. It is the interest in uniform
treatment for the members of all religious faiths. The very strength
of Captain Goldman's claim creates the danger that a similar claim
on behalf of a Sikh or a Rastafarian might readily be dismissed as
"so extreme, so unusual, or so faddish an image that public
confidence in his ability to perform his duties will be
destroyed."
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Simcha Goldman invokes this Court's protection of his First
Amendment right to fulfill one of the traditional religious
obligations of a male Orthodox Jew -- to cover his head before an
omnipresent God. The Court's response to Goldman's request is to
abdicate its role as principal expositor of the Constitution and
protector of individual liberties in favor of credulous deference to
unsupported assertions of military necessity. I dissent.
The Government maintains in its brief that discipline is jeopardized
whenever exceptions to military regulations are granted. Service
personnel must be trained to obey even the most arbitrary command
reflexively. Non-Jewish personnel will perceive the wearing of a
yarmulke by an Orthodox Jew as an unauthorized departure from the
rules and will begin to question the principle of unswerving
obedience. Thus shall our fighting forces slip down the treacherous
slope toward unkempt appearance, anarchy, and, ultimately, defeat at
the hands of our enemies.
The contention that the discipline of the Armed Forces will be
subverted if Orthodox Jews are allowed to wear yarmulkes with their
uniforms surpasses belief. It lacks support in the record of this
case, and the Air Force offers no basis for it as a general
propostion. While the perilous slope permits the services
arbitrarily to refuse exceptions requested to satisfy mere personal
preferences, before the Air Force may burden free exercise rights it
must advance, at the very least, a rational reason for doing so.
The Government also argues that the services have an important
interest in uniform dress, because such dress establishes the
pre-eminence of group identity, thus fostering esprit de corps and
loyalty to the service that transcends individual bonds. In its
brief, the Government characterizes the yarmulke as an assertion of
individuality and as a badge of religious and ethnic identity,
strongly suggesting that, as such, it could drive a wedge of
divisiveness between members of the services. First, the purported
interests of the Air Force in complete uniformity of dress and in
elimination of individuality or visible identification with any
group other than itself are belied by the service’s own
regulations. The dress code expressly abjured the need for total
uniformity:
“1) The American public and its elected representatives draw
certain conclusions on military effectiveness based on what they
see; that is, the image the Air Force presents. The image must
instill public confidence and leave no doubt that the service member
lives by a common standard and responds to military order and
discipline.
“2) Appearance in uniform is an important part of this image…
Neither the Air Force nor the public expects absolute uniformity of
appearance. Each member has the right, within limits, to express
individuality through his or her appearance. However, the image of a
disciplined service member who can be relied on to do his or her job
excludes the extreme, the unusual, and the fad.”
It cannot be seriously contended that a serviceman in a yarmulke
presents so extreme, so unusual, or so faddish an image that public
confidence in his ability to perform his duties will be destroyed.
Under the Air Force’s own standards, then, Dr. Goldman should have
and could have been granted an exception to wear his yarmulke.
Implicit in JUSTICE STEVENS' concurrence, and in the Government's
arguments, is what might be characterized as a fairness concern. It
would be unfair to allow Orthodox Jews to wear yarmulkes, while
prohibiting members of other minority faiths with visible dress and
grooming requirements from wearing their saffron robes, dreadlocks,
turbans, and so forth. While I appreciate and share this concern for
the feelings and the free exercise rights of members of these other
faiths, I am baffled by this formulation of the problem. What
puzzles me is the implication that a neutral standard that could
result in the disparate treatment of Orthodox Jews and, for example,
Sikhs is more troublesome or unfair than the existing neutral
standard that does result in the different treatment of Christians,
on the one hand, and Orthodox Jews and Sikhs on the other. Both
standards are constitutionally suspect; before either can be
sustained, it must be shown to be a narrowly tailored means of
promoting important military interests.
As I have shown, that uniformity is illusory, unless uniformity
means uniformly accommodating majority religious practices and
uniformly rejecting distinctive minority practices.
JUSTICE BLACKMUN, dissenting.
…But Goldman’s modest supplement to the Air Force uniform
clearly poses by itself no threat to the Nation’s military
readiness. Indeed, the District Court specifically found that
Goldman has worn a yarmulke on base for years without any adverse
effect on his performance, any disruption of operations at the base,
or any complaints from other personnel….
The Air Force argues that it has no way of distinguishing fairly
between Goldman’s request for an exemption and the potential
requests of others whose religious practices many conflict with the
appearance code, perhaps in more conspicuous ways. In theory, this
argument makes some sense. Like any rules prescribing a uniform, the
Air Force dress code is by nature arbitrary; few of its requirements
could be defended on purely functional grounds. Particularly for
personnel such as Goldman who serve in non-combatant role,
variations from the prescribed attire frequently will interfere with
no military goals other than those served by uniformity itself.
There thus may be no basis on which to distinguish some variations
from others, aside form the degree to which they detract from the
overall image of the service, a criterion that raises special
constitutional problems when applied to religious practices. To
allow non-combat personnel to wear yarmulkes but not turbans or
dreadlocks because the latter seem more obtrusive-or, as Justice
Brennan suggests, less “polished” and “professional,”-would
be to discriminate in favor of this country’s more established,
mainstream religions, the practices of which are more familiar to
the average observer. Not only would conventional faiths receive
special treatment under such an approach; they would receive special
treatment precisely because they are conventional. In general, I see
no constitutional difficulty in distinguishing between religious
practices based on how difficult it would be to accommodate them,
but favoritism based on how unobtrusive a practice appears to the
majority could create serious problems of equal protection and
religious establishment, problems the Air Force clearly has a strong
interest in avoiding by drawing an objective line at visibility.
The problem with this argument, it seems to me, is not doctrinal but
empirical. The Air Force simply has not shown any reason to fear
that a significant number of enlisted personnel and officers would
request religious exemptions that could not be denied on neutral
grounds such as safety, let alone that granting these requests would
noticeably impair the overall image of the service.
In these circumstances, deference seems unwarranted. Reasoned
military judgments, of course, are entitled to respect, but the
military has failed to show that this particular judgment with
respect to Captain Goldman is a reasoned one. If, in the future, the
Air Force is besieged with requests for religious exemptions from
the dress code, and those requests cannot be distinguished on
functional grounds from Goldman’s, the service may be able to
argue credibly that circumstances warrant a flat rule against any
visible religious apparel. That, however, would be a case different
from the one at hand.
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