Rabbi reflects on role in military religious-freedom case

It might seem odd that a head covering in the military would lead to a legal dispute that ended up in the Court of Last Resort. But that’s exactly what happened when military officials infringed on the religious liberty of ordained rabbi S. Simcha Goldman in the U.S. Air Force in the early 1980s.

From 1970 to 1972, Goldman wore the yarmulke, a symbol of significance for those of the Orthodox Jewish faith, in the U.S. Navy while he serving as a chaplain. Nobody said anything about it.

In 1973, Goldman entered the Armed Forces Health Professions Scholarship Program, completing his Ph.D. in clinical psychology in 1977. After that, he entered active service as a captain at March Air Force Base in Riverside, Calif. Once again he wore his yarmulke for several years without incident. He did not attract attention or controversy in part because when outdoors he wore the yarmulke underneath his service cap.

However, in April 1981, Goldman served as a defense witness in a court-martial hearing. In that hearing, Goldman took a position adverse to that of the prosecutor. The prosecutor retaliated, according to Goldman, by complaining about the yarmulke.

“The motive of the attorney who filed the complaint (about the wearing of the yarmulke at a military trial) was certainly retaliatory,” Goldman said. “I clashed with this military prosecutor in a recent court-martial as a defense witness. I showed him up in court when he tried to play with my testimony. He then filed the complaint.”

The attorney complained that Goldman had violated an Air Force regulation providing that “headgear will not be worn … while indoors except by armed security police in the performance of their duties.”

A colonel then ordered Goldman to stop wearing the yarmulke. After Goldman complained to the Air Force general counsel, the colonel prohibited Goldman from wearing the yarmulke even inside the hospital. The colonel also withdrew a positive recommendation that he had given Goldman with respect to continuing his term of active service.

To Goldman, removing the yarmulke was unacceptable.

“The yarmulke is an important part of what I was and am,” he says. “I had worn the yarmulke for three and a half years in the Air Force without incident. I did a good job. Wearing a yarmulke in a hospital did not interfere with the base mission of launching nuclear-armed B-52s at a moment’s notice.”

“I didn’t like how I was being treated,” Goldman recalls. “The lack of appreciation for the human side of the issue really touched a nerve with me.”

Goldman enlisted the services of experienced D.C. attorney Nathan Lewin. “I thought there was an important principle at stake about religious freedom in general and religious freedom in the military,” Lewin says.

Federal lawsuit, lower court decisions
It touched enough of a nerve that Goldman filed a federal lawsuit, contending that Air Force officials had violated his First Amendment rights under the free-exercise clause. The Air Force contended that it had strong interests in maintaining a rigid uniform requirement to maintain esprit de corps and teamwork.

A federal district court judge agreed with Goldman. In July 1981, Judge Aubrey E. Robinson granted Goldman a preliminary injunction, preventing the Air Force from enforcing its headgear regulation.

“There can be no doubt that Plaintiff’s insistence on wearing a yarmulke is motivated by his religious convictions, and is therefore entitled to First Amendment protection,” Robinson wrote. “Because of the seriousness of the First Amendment allegations, and resulting pressure on Plaintiff to abandon his religious observances, injunctive relief is appropriate.” Judge Robinson also ordered the Air Force to withdraw a letter of reprimand and negative performance evaluation given Goldman.

After a trial in September 1981, Robinson again ruled in favor of Goldman in April 1982. Robinson noted that the military failed to show any objective studies showing that religious exemptions would erode morale in the military.

The secretary of defense and the secretary of the Air Force appealed the district court decision to the U.S. Circuit Court of Appeals for the District of Columbia. The appeals court’s three-judge panel showed more deference than had Robinson to the military’s arguments about uniformity, esprit de corps and teamwork.

“Although we must not abdicate our responsibility to review the constitutional challenge, we cannot lightly substitute our judgment whether a closer accommodation of religious interests would be possible given the military interests in order and obedience,” the appeals court wrote in its May 1984 opinion.

The appeals court concluded that “the peculiar nature of the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.”

“I was surprised by the court of appeals’ decision, particularly because we had won before the district court,” Lewin recalls. He sought en banc (or full panel) review by the appeals court, but it denied such review in August 1984.

Interestingly, three judges dissented from the denial of en banc review. Those three judges were none other than future U.S. Supreme Court Justices Ruth Bader Ginsberg and Antonin Scalia, and Ken Starr, future solicitor general and U.S. independent counsel for the Whitewater investigation.

U.S. Supreme Court: Goldman v. Weinberger
Though he had left the military, Goldman still felt strongly about his right to wear a yarmulke in the armed services. He appealed his case to the U.S. Supreme Court, which agreed to hear it. The Court heard oral argument in Goldman v. Weinberger (Caspar Weinberger was named lead defendant because he was then secretary of defense) in January 1986.

During oral argument, Goldman said, “I recall the time box with the red and green lights. I am a very analytical person and I’m not sure the oral-argument process before the Court was a great process for getting at the truth.” Lewin, who has argued 27 cases before the Supreme Court, recalls that several of the justices appeared hostile, including then Justice (now Chief Justice) William Rehnquist.

The Court didn’t take long to issue its decision, which it did in March 1986. The result was a narrow 5-4 loss for Goldman. Writing the main opinion, Rehnquist emphasized that “courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.”

“The 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,” Rehnquist continued.

He added that “the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.” Chief Justice Warren Burger joined Rehnquist’s opinion.

Justice John Paul Stevens authored a concurring opinion, which was joined by Justices Byron White and Lewis Powell. Stevens appeared more sensitive to Goldman’s religious- freedom claims, writing that he presented “an especially attractive case for an exemption from the uniform regulations.” He also noted that there apparently was a “retaliatory motive” against Goldman in the case.

However, Stevens voted against Goldman, primarily because he believed that the rigid dress code served the interest of “uniform treatment for the members of all religious faiths.”

Justices William Brennan, Harry Blackmun, Sandra Day O’Connor and Thurgood Marshall dissented. All but Marshall wrote separate opinions.

Blackmun blasted the Court’s ruling for following a new standard of review that he termed “subrational-basis standard — absolute, uncritical deference to the professional judgment of military authorities.”

“I find it totally implausible the suggestion that the overarching group identity of the Air Force would be threatened if Orthodox Jews were allowed to wear yarmulkes with their uniforms,” Brennan wrote.

In his conclusion, Brennan said the decision was devastating for “patriotic Orthodox Jews.” He wrote that “we must hope that Congress will correct this wrong.”

Congress did “correct the wrong” by enacting a provision in 1987 called in some circles the Religious Apparel Amendment. Lewin helped draft the language of the bill that Congress eventually adopted. The federal law, 10 U.S.C. § 774, provides for a general rule that “a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force.”

Significance of Court’s decision
Legal experts see the Goldman v. Weinberger decision primarily as a case standing for the general principle that First Amendment rights are circumscribed in the military.

“When you put this case together with O’Lone (O’Lone v. Shabazz, a 1987 case about religious freedom in prison), you see that free expression is tempered in certain contexts,” said Robert O’Neil, founder of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression. “It reflects something that I find in the Native American cases — a reluctance on the Court’s part to give credibility to non-Christian faiths.”

O’Neil said that despite the statute passed by Congress overruling the decision, the spirit of the Goldman decision, characterized by deference to the military, lives on.

“My sense is that broad deference to the military is alive and well and would be so even without the heightened sense of awareness as a result of Afghanistan and the war in Iraq,” says O’Neil.

Lewin sees the case as granting “extreme deference” to the military.

For his part, S. Simcha Goldman has had and continues to have a successful and fulfilling career and life. After leaving the Air Force shortly after filing his lawsuit, he continued to practice psychology. He ran a residential drug-treatment program for 11 years.

He currently works for a nonprofit comprehensive mental health agency and has a small private practice that focuses on marital and relationship counseling. Proudly, he says he’s “collecting grandchildren,” with “ten so far.”

Goldman does not regret his decision to go to court against the Air Force. “The experience itself and the impact it had on my family and me were very meaningful in my life.”

“First Amendment rights are very important,” he says. “Although people share much in common, they also differ significantly. At times, it can be a challenge to maintain a democracy without creating a ‘tyranny of the majority’ or of the minority. If our society isn’t constantly vigilant in clearly defining our constitutional freedoms as questions and challenges are raised, the goals of ‘life, liberty and the pursuit of happiness’ for all of our citizens I believe will be ultimately endangered.”

Goldman adds: “I think that America is still coming to grips with how to have a rule of law and realize cultural and religious diversity.”

Goldman should be remembered for his devotion to his religious faith and his commitment to waging a First Amendment battle all the way to the Supreme Court. His battle eventually led to a federal law that provided more protection for religious liberty for those in the armed services.

“On the one hand I was happy that Congress recognized (that) the minority religious need reasonable accommodation even by the Armed Forces,” Goldman said. “On the other hand, I was still disappointed because since it was a statutory, rather than a constitutional right, the statute could be changed, if Congress wished.”

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