Congressman Stephen J. Solarz eloquently explained the need for congressional action to enable a serviceman to wear a yarmulke while in uniform. To counter the arguments that wearing a yarmulke would threaten uniformity and reduce military cohesion, Solarz quoted Air Force regulations, “Neither the Air Force nor the public expects absolute uniformity in appearance. Each Member has the right, within limits, to express individuality…”
“Air Force regulations,” argued Solarz, “do not permit the wearing of a yarmulke, yet they allow wearing of up to three rings and one identification bracelet of non-uniform design.” Couldn’t the same standard be applied to the wearing of religious apparel?
Solarz cited chaplain, Rabbi Jacob Goldstein, who served in Grenada and received a citation from the Army which praised him for “meritorious achievement” and “unique dedication to duty.” Surely Goldstein would not have been commended had his yarmulke undermined military discipline.
Ever since, federal law, 10 U.S.C. § 774 enacted in 1988 exactly one year after the narrow loss in the Supreme Court reads, “a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force.”
After Congress passed the law[i], Representative Solarz sent a letter to Justice Brennan thanking him for his dissenting opinion and enclosed a camouflage yarmulke. Two days later Justice Brennan invited Nathan Lewin to his chambers for lunch.
Over a fruit-intensive, kosher lunch, Justice Brennan explained that he would be traveling to Israel to accept an honorary degree from Hebrew University and would appreciate an overview of the country. Nathan complied with a typically brilliant description.
When the meeting was just about over, the renowned justice added[ii], “Congressman Solarz mailed me one of those camouflage head coverings that you had made up, thanking me for my dissent. My curiosity was aroused so I removed the yarmulke from the envelope and put it on. No sooner had I donned the skull cap and I forgot about it and sat the rest of my day wearing it.
“When I left my chambers I was still wearing the yarmulke, which surely raised the eyebrows of my law clerks, who later told me that they were too embarrassed to question me. I went to my car in the garage, all the time unaware that I had become a visual sensation.”
“I drove home and must have been in the house for at least five minutes before my wife questioned, ‘Bill, what do you have on your head?’ Obviously I had forgotten about it, which shows how comfortable[iii] and unobtrusive it is.”
After relating this anecdote, Mr. Lewin suggested that his honor (the only Catholic on the Supreme Court) take the yarmulke with him to Israel, for you never know how you may find a use for it.
Half a year after Justice Brennan’s trip to Israel, Elyakim Rubinstein, who would later become Israel’s Attorney General and vice president of Israel’s Supreme Court was in Washington. Nathan knew Elyakim from when he had served as the Deputy Chief of Mission in the Israeli Embassy in Washington. Indeed, it was at that time that Ambassador Rubenstein attended the Supreme Court hearing on the yarmulke, wearing his kippa.
Rubinstein met Justice Brennan during the latter’s visit to Israel, and referring to the Goldman case, the future Attorney General commented, “I’m so glad that I live here, because I wear my yarmulke everywhere – even in the army.” To which Justice Brennan retorted, “Me, too!” and subsequently slipped his hand into his pocket, and donned the camouflage kippa[iv]!
Chodesh Tov – have a pleasant month!
[i] Several servicemen have written Rabbi Goldman and thanked him for being the pathbreaker that brought about this legislation.
[ii]This is my memory of Mr. Lewin’s memory (a safe bet) of Justice Brennan’s comments.
[iii] This would probably be the appropriate place to insert a different story that occurred to Nathan Lewin when he was assisting Chabad in the Court of Appeals for the Eighth Circuit in the late 1980s. The Chabad case was going to be heard at 2:00 in the afternoon and since Nathan was unfamiliar with any of the three judges, he entered the courtroom in the morning to observe them. The Chief Judge was Theodore McMillion an African American who was sporting a… yarmulke! It was, well, strange. During lunch, Chabad asked Mr. Lewin how it looked for their case. “I don’t know,” he responded honestly, “but the chief judge is wearing a yarmulke.” The case proceeded in the afternoon and there was a very active argument, which ultimately Chabad won. Before Mr. Lewin could accept his congratulations, Judge McMillion, peering down from his throne thundered, “One minute. Maybe I ought to say something so that people don’t think I am biased. The yarmulke you see on my head is not worn for any religious reason. I sit under the air conditioning duct and my balding pate is cold. A colleague of mine suggested wearing a yarmulke, and I have been wearing it in court ever since.”
[iv] The shock of Brennan’s clerks upon seeing the august justice walking around in a yarmulke surely paled to the astonishment of Judge Rubenstein. This is a story that Nathan Lewin is fond of relating, and has even been retold in the presence of Justice Brennan.