Although the court had sided with the military, Simcha Goldman remained adamant that a soldier should be entitled to wear a yarmulke in the armed forces and appealed his case all the way up 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 right of Free Exercise as protected by the Constitution. 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.
The argument had already been made in the District Court that a yarmulke in no way deters military performance. Compelling proof was provided by the example of the Israel Defense Forces, reputed to be one of the most proficient armies in the world, where wearing a yarmulke is never discouraged.
The Court rendered its 5-4 decision in March, 1986 rejecting Goldman’s challenge to the uniform regulations. The court relied in large part on its prior holdings that “the military is, by necessity, a specialized society separate from civilian society.” The majority concluded, “The Air Force has drawn the line essentially between religious apparel which is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and even-handedly regulate dress in the interest of the military’s perceived need for uniformity. The First Amendment therefore does not prohibit them from being applied to petitioner even though their effect is to restrict the wearing of the headgear required by religious beliefs.”
Writing the main opinion, Justice William Rehnquist emphasized that “courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.”
“The desirability of dress regulations in the military,” Rehnquist continued, “is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment… The First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.”
Chief Justice Warren Burger joined Rehnquist’s opinion and Justice John Paul Stevens authored a concurring opinion, which was joined by Justices Byron White and Lewis Powell. Justice Stevens, however, appeared more sensitive to Goldman’s religious-freedom claims, writing that he presented “an especially attractive case for an exemption from the uniform regulations.” He also noted that there apparently was a “retaliatory motive” against Goldman in the case.
There were four dissenting votes in the case, all but Justice Thurgood Marshall wrote separate opinions.
Justice Blackmun based his dissent on the Air Force’s failure to produce “even a minimally credible explanation for its refusal to allow Goldman to keep his head covered indoors.” He blasted the Court’s ruling for following a new standard of review that he deemed “subrational-basis standard – absolute, uncritical deference to the professional judgment of military authorities.” Justice Sandra Day O’Connor wrote that “the Government can present no sufficiently convincing proof in this case to support an assertion that granting an exemption of the type requested here would do substantial harm to military discipline and esprit de corps.”
Justice William Brennan, who was always a strong believer in religious freedom, wrote the strongest dissent, “I find it totally implausible the suggestion that the overarching group identity of the Air Force would be threatened if Orthodox Jews were allowed to wear yarmulkes with their uniforms.”
Justice Brennan concluded that the decision was devastating for “patriotic Orthodox Jews.” And, “we must hope that Congress will correct this wrong.”
Justice Brennan was right on both counts. The Goldman decision became the cause of considerable criticism by legal scholars who feared that the ruling would remove the judiciary from the task of balancing the military’s needs against service members’ liberty interests. Accordingly, Congress, with a lot of help from Mr. Nathan Lewin, would act to ensure religious accommodations for service members.
Once again we encounter the Midas touch of Nathan Lewin: even when he loses the battle, he usually wins the war. As his interest and focus are always the long-term goals, he always keeps his eye on the prize. Thus, despite his immersion in the Goldman case, he simultaneously began investigating contingencies, so that even if the constitutional court battle was lost, the legislative and statutory right will be won.
(To be continued)
Chodesh Tov – have a pleasant month!