In July 1981, Judge Aubrey E. Robinson granted Simcha Goldman a temporary restraining order preventing the Air Force from enforcing its headgear regulation. After a full hearing in September 1981, Robinson again ruled in favor of Goldman, enjoining the Air Force from enforcing its uniform regulations that prevented Goldman from wearing his yarmulke while in uniform. Robinson held that the regulations violated the First Amendment’s free exercise of religion clause and noted that the military failed to show any objective studies showing that religious exemptions would erode morale in the military.
It looked like Simcha Goldman had won his own private battle; the court upheld his right to wear a yarmulke in service and the Air Force did not challenge this ruling. Then suddenly things starting moving like a force of air.
The wing commander at the March Air Force base decided that there should be no exceptions to their regulations. This sentiment was conveyed to the Strategic Air Command (SAC) who apprised the Under Secretary of the Air Force. The Under Secretary walked out of his office in the Pentagon, headed left down the corridor a full 27 yards and then deposited the request upon the desk of the Secretary of the Air Force.
There wasn’t all that much further that this could climb other than out the door of the Pentagon and across the Potomac four miles to the White House. Prudency urgently demanded that some arresting sobriety be applied. Judge Robinson’s decision applied to Dr. Simcha Goldman only. The injunction addressed the petitioner exclusively and could impact on no other serviceperson.
If the Air Force were to launch an appeal and the court would reject it, the Goldman decision would then become the law for all. A betting man probably would have rejected such odds and consequences; but then again, a betting man is not a military man. Indeed.
The Secretary of the Air Force and the Secretary of Defense appealed the District Court decision to the United States Court of Appeals for the District of Columbia Circuit. The government in its appeal argued that wearing a yarmulke in the military was an obstacle to uniformity, esprit de corps and teamwork.
Goldman’s defense was that the military’s regulations violated the protection afforded in the First Amendment to the Constitution, which states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
When may the government enforce a law that burdens an individual’s free exercise of their religious beliefs is a question that has been the source of fierce legal debate. Goldman’s counsel, Mr. Nathan Lewin, argued that Goldman’s privilege of free exercise in this case should be analyzed under the standard enunciated in the Supreme Court’s 1963 decision Sherbert v. Verner.
The Sherbert case started in 1957 when Adell Sherbert became a member of the Seventh-Day Adventist Church, a Christian denomination that teaches that Saturday, not Sunday, is the proper day for the Christian Sabbath, and accordingly Saturday is the day of rest. Two years after this affiliation, the workweek at the mill where she was employed in Spartanburg, South Carolina changed to six days; and Sherbert refused to work on Saturday causing her to be discharged from her employment.
Sherbert looked for Monday-to-Friday work with the other three mills in Spartanburg but failed to find suitable employment. She then filed for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. The South Carolina Employment Security Commission denied the request claiming that her religious justification for refusing suitable Saturday work was not adequately compelling.
Judgment was based on the state law which provides that, to be eligible for benefits, a claimant must be “able to work and…available for work;” and a claimant is ineligible for benefits “if…he has failed, without good cause…to accept available suitable work when offered him by the employment office or the employer….” In other words, the Commission only provided unemployment benefits to people for whom work was not available, not to people who were unavailable to work.
Sherbert sued, claiming that the denial of benefits was an unconstitutional infringement of her First Amendment right to the free exercise of religion. The Court of Common Pleas for Spartanburg County rejected this claim and found for the Employment Security Commission (ESC). Sherbert then appealed this decision to the South Carolina Supreme Court, which affirmed the lower court’s decision by rejecting the appellant’s contention that the South Carolina statute abridged her right to the free exercise of her religion.
(To be continued)
Chodesh Tov – have a peasant month!