The USAF adopted a policy that allowing Dr. Simcha Goldman to wear a yarmulke in service would be an act of insurrection that could weaken the very foundations of the military.
Their argument was that to ensure discipline, the military is scrupulous about uniformity. All recruits have the identical haircut, wear the same uniform and are monitored to see that there is constant conformity. Any deviation from the standard could undermine the all-essential esprit de corps and fray the fabric of order and obedience.
Compared to Judge Robinson who permitted Goldman to wear a yarmulke in uniform, the appeals court’s three-judge panel showed more deference to the military’s arguments about uniformity, esprit de corps and teamwork. In 1984 Judges Swygert, Mikva and Edwards reversed the earlier decision of the lower court and allowed the Air Force to enforce its regulations that prevented Goldman from wearing his yarmulke while in uniform. In writing the opinion, Judge Swygert stated that the judges were “persuaded that the peculiar nature of the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.” Judge Swygert summarized: “The free exercise clause of the first amendment guarantees both the freedom to believe and the freedom to act, but only the former is absolute; conduct is regulable for a permissible reason.”
The Court of Appeals’ reversal was surprising because the three judges were liberal diehards. Among them was Abner Mikva, formerly head of the Congressional Jewish caucus. One of his daughters was a reform rabbi in Chicago. And another one of Judge Mikva’s daughters had clerked for Judge Swygert. Judge Mikva disclosed to Nathan Lewin in a private conversation years later that his daughters were appalled by his vote in favor of the Air Force’s regulations.
The appeals court refused to review en banc[i] (the full panel of eleven judges) on August 10, 1984. The eleven judges included a star-studded cast of characters: Judges Ruth Bader Ginsburg, Robert Bork, Antonin Scalia and Kenneth Starr.
Although the law had spoken and had sided with the military, Simcha Goldman remained adamant that a soldier should be entitled to wear a yarmulke in the armed forces. Thus, even though he was no longer in the Air Force – the military had denied him a re-appointment because of the yarmulke dispute and he chose not to contest it – making the issue personally academic, he still appealed his case to the U.S. Supreme Court.
To the surprise of many, the Court granted certiorari (willingness to review the decision of the lower court) in 1985. This would be the first time that the Supreme Court considered a service member’s “Free Exercise”[ii] claim.
The case was titled Goldman v. Weinberger, as Casper Weinberger,[iii] the Secretary of Defense, was the lead defendant. The oral argument was heard in January, 1986.
Premier constitutional lawyer, Mr. Nathan Lewin, petitioned on behalf of Goldman – and every other service members’ First Amendment rights that were circumscribed by the military. So as not to confuse the issue, nor distract the justices with allegations of retaliatory motives that Justice Stevens’ alluded to, Lewin limited the suit exclusively to the constitutional issue.
(To be continued)
Chodesh Tov – have a pleasant month!
[i] Interestingly, two of the judges who dissented from denial of en banc review were future U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia. When Justice Ginsburg was appointed, President Clinton explicitly said in a press conference discussing her appointment that when he met with her prior to the appointment he talked to her about her vote favoring the yarmulke as he is personally very interested in issues of religious liberty. Antonin Scalia was a dear friend of Nathan Lewin’s from their years in law school together when both served as editors of Harvard Law Review. Judge Ken Starr – the youngest member of the Court of Appeals at the time – wrote a very stirring defense of the right to wear a yarmulke in the military when he dissented from the vote to deny rehearing en banc. In disagreeing with the majority, Judge Starr stated: “I am unable to agree that the needs of the military warrant vitiating the very liberties which the armed services have valiantly defended in the two centuries of the Nation’s history.” From that point on Ken Starr and Nathan Lewin developed a deep personal friendship. Starr is best known for becoming the future solicitor general and U.S. independent counsel for the Whitewater investigation.
[ii] Referring to the clause in the First Amendment that protects religious beliefs and actions made on behalf of those beliefs.
[iii]Weinberger’s confidential letter in the case of Jonathan Pollard has been repeatedly cited as the reason for the severe sentence that Judge Aubrey Robinson imposed. Rumor had it that Weinberger was fiercely opposed to the wearing of a yarmulke in the military.