Photo Credit: Rabbi Hanoch Teller

In April, 1981 Rabbi Dr. Simcha Goldman was forbidden from wearing a yarmulke while serving in the US Air Force. He brought the matter to court, suing the Secretary of Defense, Caspar Weinberger, on behalf of the Air Force for having violated his First Amendment rights under the Free-Exercise clause. The Air Force countered that it had strong interests in maintaining a rigid uniform requirement to maintain esprit de corps and teamwork.

The legal irony was that when Goldman sued the military he was already out of service, hence the issue of the yarmulke was moot; courts deal with actual problems, not theoretical ones. However, since Goldman was prompted to take emergency leave consequential to the Air Force’s refusal to allow him to wear a yarmulke in service, he lost several days of work and compensation to the tune of $100.

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Goldman was suing over the civil rights issue, but as Dovi Butler from COLPA was putting together the case for him, the attorney asked if there was anything else that he wanted to throw in. The $100 was an afterthought, but only because of this, the theoretical – and no longer pertinent issue of the yarmulke – was resuscitated.

This paltry $100 over which the case was convened would result in the expenditure of tens of thousands of dollars on Uncle Sam’s tab in court-related expenses.

Goldman sought to acquire a permanent injunction along the lines of the temporary restraining order, and the Air Force – after initially waffling – resolved that it would fight. Their decision contained an inherent gamble, as the temporary restraining order, and the permanent injunction that Goldman sought, would have awarded him alone the right to wear a yarmulke in service. But if the Air Force was to lose their challenge, this might open a floodgate of requests for head coverings from turbans to taqiyahs to kafiyehs – all with a legal precedent from a district court.

And yet, and yet, the Air Force had made their decision and decided to call in the big guns. We’re talking very big and top guns, respectively. 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.

All stops were unplugged for the Air Force’s appeal. At tax-payer’s expense, Captain Simcha Goldman was flown from California to Washington D.C. to give a deposition. It is extremely unusual – nearly unprecedented – for the defendant being sued to cover the expenses of the plaintiff. It also demonstrates how determined the Air Force was to high-handedly quash this lawsuit.

It might also be assumed that they believed (Simcha’s words) Goldman to be a big mouth, and he would inevitably say something in the deposition that could be used against him.

In order to fortify their case, for which they were going to great lengths and sparing no expense, the Department of Defense felt it essential to bone up on their knowledge of Jewish law as it pertained to wearing a yarmulke. Farcically, the authority they employed to instruct them was a Jewish Conservative chaplain, hardly an expert in the intricacies of halacha.

The thrust of the Air Force’s defense was that the Constitution only protected a genuine religious law; not a personal preference. Wearing a yarmulke, they argued, was not the law. This was to be established by subjecting Goldman to a battery of questions formulated by their expert non-scholar, argued by a military lawyer absolutely clueless about what he was trying to prove before judges even more in the dark, unfamiliar with the terms and not comprehending the concepts.

Here is some of the legal wizardry marshaled by the Air Force’s Litigation Dream Team to highlight how arbitrary and non-binding Jewish law is.

*Orthodox Jews do not eat meat and milk together, yet they are not required to have two separate refrigerators. Are they?!

A: The prohibition is to consume meat and milk together; not to store them together. Refrigerators have not been known to do the former.

*Do you wear tzitzis as prescribed by the Biblical Verse Numbers 15:38.

A: I do

*So why are you concealing them?

A: To display them openly would be a violation of military protocol and uniform regulation.

*“Aha!” cried the prosecution with an exult of victory, “if you compromise on this issue, why were you so intransigent on the yarmulke issue?”

A: The requirement to wear tzitzit may be fulfilled whether they are concealed or not. There is no way to cover the head in a concealed way.

This would have and should have been an adequate answer, but Simcha Goldman decided to get legalistic and elaborated that not all of the commandments have the same weight. Some are biblical, some are rabbinic. Some rabbinic laws may actually carry more weight than a biblically ordained law.

Goldman plowed on inducing the kind of excitement reserved for a logarithm chart. Despite the judges’ best efforts, one magistrate’s eyes were glazed, another looked about as numb as a guy doped up for a bypass and the third seemed oddly unenriched by the fine distinctions between rabbinic and biblical law. But this was not about to stop Team Air Force.

*Do you wear a yarmulke when you take a shower?

A: A yarmulke is meant to display fear of Heaven when one is out and about. There is no need to cover one’s head in the privacy of a shower, nor is it in any way practical.

*JAG’s military lawyer grasped at the straw. Do you mean to imply that there is no requirement to fear Heaven in a shower?

Instead of replying the obvious, which would have – admittedly – required some halachic clarification which would have surely been lost on the judges, Goldman flustered. In this moment of indecision. another question was fired causing the plaintiff to reply, “I do not know.”

*What do you mean, “You do not know? You are a rabbi; you must know the answer.”

Nathan Lewin, who represented Goldman in the hearing, could take no more of this and wisely retorted, “Not every lawyer knows the answer to every legal question.”

In summation it would be fair to say that although the courtroom had all the excitement of a mausoleum on a slow day, witnesses recalled that although the Defense’s Talmudic arguments did not score any points, they were nonetheless humor-inducive.

Just like in the restraining order, Judge Aubrey Robinson ruled again in favor of Goldman in a decision rendered in April, 1982. The main attorneys for Dr. Goldman were Nathan Lewin and Dovi Butler; Dennis Rapps wrote the brief. The judge noted that the military failed to show any objective studies conveying that religious exemptions would erode morale in the military.

(To be continued)

Chodesh Tov – have a pleasant month!

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