Members of the military take an oath to support and defend the Constitution of the United States. However, due to the nature of the military lifestyle and the inherent requirements for discipline and uniformity, military members may not enjoy the same range of constitutional protections as other members of society. In Goldman v. Weinberger, the Supreme Court weighed the free exercise of religion rights of service members against the requirements for uniformity in the military.
Captain (Dr.) Simcha Goldman was an Orthodox Jew whose religion required him to wear his yarmulke at all times. He served in the Navy as a chaplain from 1970 until 1972. After he completed his Ph.D. in psychology, he joined the Air Force as a psychologist. Between 1977 and 1981, Goldman served honorably as an Air Force officer and wore his yarmulke at all times, even in uniform, with no incident. In 1981, based on Air Force uniform regulations, his commander ordered Goldman not to wear the yarmulke outside the hospital in which he worked. Goldman asked his commander to reconsider or to allow him to wear civilian clothes to work, rather than his uniform, so that he could wear his yarmulke without violating the regulation. His commander denied the request.
Goldman sued in federal district court, and the court ordered the Air Force to allow him to wear his yarmulke while in uniform. The district court used reasoning based on the Supreme Court’s prior decision in Rostker v. Goldberg, 453 U.S. 57 (1981). In Rostker, the Court held that it was permissible for Congress to exclude women from mandatory Selective Service registration. Congress had made a deliberate decision in weighing the equal protection and due process rights of women vs. the need to raise combat forces (women are precluded from most ground combat roles in the military). Congress decided that an all-male draft was the appropriate mechanism to raise combat forces, and the Supreme Court deferred to the judgment of Congress. However, in this case, the Air Force had not conducted a deliberative process and had not weighed the competing interests of the Free Exercise Clause with the need for uniformity; therefore, the district court would not defer to the regulations of the Air Force in the matter.
The government appealed the decision to the federal appeals court. The appeals court reversed the decision. The appeals court held that rather than balance the competing interests of the Free Exercise Clause and uniformity, it would simply determine whether the regulation served legitimate military ends and had appropriate accommodations for individuals. Since the regulation served a valid military purpose, and there were some exceptions for religious purposes (such as wearing religious apparel, in uniform, during religious services), the appeals court ruled that the Air Force could strictly enforce its regulations. Goldman requested a rehearing of the entire court of appeals, but it was denied. Interestingly, two future Supreme Court justices, Ruth Bader Ginsburg and Antonin Scalia, were on the appeals court and voted to rehear the case (in favor of Goldman).
Goldman appealed to the Supreme Court. In a five-to-four decision, the Supreme Court upheld the appeals court and ruled that the Free Exercise Clause did not require the Air Force to grant an exemption from the uniform regulation. The Court relied on Chappell v. Wallace, 462 U.S. 296 (1983); Parker v. Levy, 417 U.S. 733 (1974); and Orloff v. Willoughby, 345 U.S. 83 (1953). Taken together, these cases articulate the principle that members of the military have constitutional rights, but due to the special nature of military service, those rights are not the same as those other members of society; the military is a separate society. Furthermore, when courts decide cases regarding military matters, the courts should show great deference to the military and its rules. The Supreme Court showed deference and held that the Free Exercise Clause did not require a uniform exemption.
If this case had been decided just a few months later, when Chief Justice Burger retired (he had voted with the five-vote majority) and Justice Scalia joined the Court, there likely would have been a different outcome. Based on Justice Scalia’s vote on the appeals court, it is reasonable to assume the four-vote minority would have become a five-vote majority.
The following year, Congress responded and created a statutory right to a uniform exemption. It passed a law that requires the military to permit wear of religious apparel, in uniform, as long as wearing the item does not interfere with military duties and it is ‘‘neat and conservative.’’
JAMES G. HARWOOD
References and Further Reading
Cases and Statutes Cited