On March 25, 1986, the Supreme Court of the United States decided Goldman v. Weinberger, 475 U.S. 503 (1986). Simcha Goldman, an ordained rabbi and an Orthodox Jew, was serving in the United States Air Force. Goldman wore a yarmulke, a head covering required of observant Jews at all times. An Air Force regulation, however, stated that “[headgear] will not be worn … while indoors except by armed security police in the performance of their duties.” At first, Goldman was not prevented from wearing a yarmulke. Later, however, the Air Force cracked down, eventually threatening Goldman with a court-martial if he did not obey the regulation.
Goldman sued on First Amendment grounds. In the District Court, he won a permanent injunction against enforcement of the regulation. The D.C. Circuit reversed, finding that “the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.” The Supreme Court granted certiorari and affirmed by a 5-4 vote. Justice Rehnquist wrote the majority opinion, in which Chief Justice Burger and Justices White, Powell, and Stevens joined. Justice Stevens filed a concurring opinion that was joined by Justices White and Powell. The dissenters, who wrote three separate opinions, were Justices Brennan, Marshall, Blackmun, and O’Connor.
The majority opinion gave great deference to the military, stating that “review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws designed for civilian society.” In particular, regulation of military uniforms “encourage a sense of hierarchical unity” that, along with military discipline, “must be developed in advance of trouble,” not merely on the battlefield.
Goldman argued that a yarmulke was “unobtrusive” and would not undermine military discipline. He offered expert testimony that “religious exceptions to [the regulation] are in fact desirable and will increase morale by making the Air Force a more humane place.”
Justice Rehnquist rejected Goldman’s argument and found his expert testimony “beside the point.” Though preventing yarmulkes would make military life more objectionable for Goldman and others, “[t]he 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.” The regulation “reasonably and evenhandedly regulate[d] dress in the interest of the military’s perceived need for uniformity.” The First Amendment did not override that.
The concurrence written by Justice Stevens expressed sympathy for Goldman, and noted that he might have argued (but did not) that the enforcement of the regulation against him was retaliatory, on the particular facts of his own situation. He fully endorsed the deference to the military articulated by Justice Rehnquist. Justice Stevens also expressed concern that if yarmulkes were permitted based on their unobtrusive “appearance,” it would undermine “the interest in uniform treatment for the members of all religious faiths.”
Justice Brennan criticized the majority’s “credulous deference to unsupported assertions of military necessity.” He mocked the notion that allowing a yarmulke would lead other soldiers to to “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.”
Justice Brennan also noted that the dress code allowed “neat and conservative” rings and an identification bracelet, jewelry that often “associates the wearer with a denominational school or a religious or secular fraternal organization.” If those items were not divisive, Justice Brennan said, it was irrational to believe that a yarmulke, which was also “neat and conservative,” would be.
Justice Brennan also cited the infamous decision in Korematsu v. United States, 323 U.S. 214 (1944), where the Court deferred excessively to “military necessity” in allowing the interment of United States citizens of Japanese ancestry. He concluded by “hop[ing] that Congress will correct this wrong.”
Justice O’Connor largely agreed with Justice Brennan’s views, though she did not join his opinion. She attempted to formulate “an appropriate standard [of review] for a free exercise claim in the military context.” Her test would have required the government to show a “compelling” interest and “substantial harm” to that interest if its view were not upheld. Applying that test to Goldman’s case, Justice O’Connor would have ruled for Goldman.
Justice Blackmun dissented for a different reason. He thought that the Air Force was justified in considering not only the costs of allowing Goldman to wear a yarmulke indoors “but also the cumulative costs of accommodating constitutionally indistinguishable requests for religious exemptions.” But the Air Force had not made “any meaningful showing that either set of costs is significant.”
Congress wasted little time in taking up Justice Brennan’s suggestion and overturning the majority’s dubious decision. On December 4, 1987, in an enactment codified at 10 U.S.C. §774 (“Religious apparel: wearing while in uniform”), Congress provided that except where the wearing of religious apparel “would interfere with the performance of [a wearer’s] military duties,” or where apparel is found, under regulations to be promulgated, not to be “neat and conservative,” any “member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force.” “Religious apparel” was defined as “apparel the wearing of which is part of the observance of the religious faith practiced by the member.”
Simcha Goldman lost his case exactly thirty years ago today. But he helped many others, of all religions, maintain their religious freedom while serving in the military.
