GOLDMAN v. WEINBERGER, SECRETARY OF DEFENSE, ET AL.
No. 84-1097
Supreme Court of the United States
Argued January 14, 1986-Decided March 25, 1986
475 U.S. 503
Nathan Lewin argued the cause for petitioner. With him on the brief were David J. Butler and Dennis Rapps.
JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the
Petitioner Goldman is an Orthodox Jew and ordained rabbi. In 1973, he was accepted into the Armed Forces Health Professions Scholarship Program and placed on inactive reserve status in the Air Force while he studied clinical psychology at Loyola University of Chicago. During his three years in the scholarship program, he received a monthly stipend and an allowance for tuition, books, and fees. After completing his Ph.D. in psychology, petitioner
*Briefs of amici curiae urging reversal were filed for the American Jewish Committee et al. by Samuel Eric Hans Ericsson, Kimberlee Wood Colby, Samuel Rabinove, and Richard T. Foltin; for the American Jewish Congress et al. by Ronald A. Krauss and Marc D. Stern; for the Anti-Defamation League of B‘nai B‘rith by Daniel P. Levitt, Justin J. Finger, and Jeffrey P. Sinensky; and for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell.
W. Charles Bundren, Guy O. Farley, Jr., John W. Whitehead, Thomas O. Kotouc, Wendell R. Bird, and William B. Hollberg filed a brief for the Rutherford Institute et al. as amici curiae.
Until 1981, petitioner was not prevented from wearing his yarmulke on the base. He avoided controversy by remaining close to his duty station in the health clinic and by wearing his service cap over the yarmulke when out of doors. But in April 1981, after he testified as a defense witness at a court-martial wearing his yarmulke but not his service cap, opposing counsel lodged a complaint with Colonel Joseph Gregory, the Hospital Commander, arguing that petitioner‘s practice of wearing his yarmulke was a violation of Air Force Regulation (AFR) 35-10. This regulation states in pertinent part that “[h]eadgear will not be worn . . . [w]hile indoors except by armed security police in the performance of their duties.” AFR 35-10, ¶1-6.h(2)(f) (1980).
Colonel Gregory informed petitioner that wearing a yarmulke while on duty does indeed violate AFR 35-10, and ordered him not to violate this regulation outside the hospital. Although virtually all of petitioner‘s time on the base was spent in the hospital, he refused. Later, after petitioner‘s attorney protested to the Air Force General Counsel, Colonel Gregory revised his order to prohibit petitioner from wearing the yarmulke even in the hospital. Petitioner‘s request to report for duty in civilian clothing pending legal resolution of the issue was denied. The next day he received a formal letter of reprimand, and was warned that failure to obey AFR 35-10 could subject him to a court-martial. Colonel Gregory also withdrew a recommendation that petitioner‘s application to extend the term of his active service be approved, and substituted a negative recommendation.
Petitioner argues that AFR 35-10, as applied to him, prohibits religiously motivated conduct and should therefore be analyzed under the standard enunciated in Sherbert v. Verner, 374 U. S. 398, 406 (1963). See also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972). But we have repeatedly held that “the military is, by necessity, a specialized society separate from civilian society.”
Our review of military regulations challenged on
These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the
The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war because its personnel must be ready to provide an effective defense on a moment‘s notice; the necessary habits of discipline and unity must be developed in advance of trouble. We have acknowledged that “[t]he inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” Chappell v. Wallace, supra, at 300.
To this end, the Air Force promulgated AFR 35-10, a 190-page document, which states that “Air Force members will wear the Air Force uniform while performing their military duties, except when authorized to wear civilian clothes on duty.” AFR 35-10, ¶1-6 (1980). The rest of the document describes in minute detail all of the various items of apparel that must be worn as part of the Air Force uniform. It authorizes a few individualized options with respect to certain pieces of jewelry and hairstyle, but even these are subject to severe limitations. See AFR 35-10, Table 1-1, and ¶1-12.b(1)(b) (1980). In general, authorized headgear may
Petitioner Goldman contends that the Free Exercise Clause of the
But whether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment. Quite obviously, to the extent the regulations do not permit the wearing of religious apparel such as a yarmulke, a practice described by petitioner as silent devotion akin to prayer, military life may be more objectionable for petitioner and probably others. But the
The judgment of the Court of Appeals is
Affirmed.
JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE POWELL join, concurring.
Captain Goldman presents an especially attractive case for an exception from the uniform regulations that are applicable to all other Air Force personnel. His devotion to his faith is readily apparent. The yarmulke is a familiar and accepted sight.1 In addition to its religious significance for the wearer, the yarmulke may evoke the deepest respect and admiration-the symbol of a distinguished tradition2 and an
JUSTICE BRENNAN is unmoved by the Government‘s concern that “while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor do dreadlocks to a Rastafarian.” Post, at 519. He correctly points out that “turbans, saffron robes, and dreadlocks are not before us in this case,” and then suggests that other cases may be fairly decided by reference to a reasonable standard based on “functional utility, health and safety considerations, and the goal of a polished, professional appearance.” Ibid. As the Court has explained, this approach attaches no weight to the separate interest in uniformity itself. Because professionals in the military service attach great importance to that plausible interest, it is one that we must recognize as legitimate and rational even though personal experience or admiration for the performance of the “rag-tag band of soldiers” that won us our freedom in the Revolutionary War might persuade us that the Government has exaggerated the importance of that interest.
The interest in uniformity, however, has a dimension that is of still greater importance for me. It is the interest in uniform treatment for the members of all religious faiths. The very strength of Captain Goldman‘s claim creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed as “so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed.” Post, at 518. If exceptions from dress code regulations are to be granted on the basis of a multifactored test such as that proposed by JUSTICE BRENNAN, inevitably the decisionmaker‘s evaluation of the charac-
services and the educational role of the military in teaching the young defenders of our country the principles of liberty require acceptance of petitioner‘s religious observance“).
As the Court demonstrates, the rule that is challenged in this case is based on a neutral, completely objective standard-visibility. It was not motivated by hostility against, or any special respect for, any religious faith. An exception for yarmulkes would represent a fundamental departure from the true principle of uniformity that supports that rule. For that reason, I join the Court‘s opinion and its judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Simcha Goldman invokes this Court‘s protection of his
I
In ruling that the paramount interests of the Air Force override Dr. Goldman‘s free exercise claim, the Court overlooks the sincere and serious nature of his constitutional claim. It suggests that the desirability of certain dress regulations, rather than a
The Court also attempts, unsuccessfully, to minimize the burden that was placed on Dr. Goldman‘s rights. The fact that “the regulations do not permit the wearing of . . . a yarmulke,” does not simply render military life for observant Orthodox Jews “objectionable.” Ibid. It sets up an almost absolute bar to the fulfillment of a religious duty. Dr. Goldman spent most of his time in uniform indoors, where the dress code forbade him even to cover his head with his service cap. Consequently, he was asked to violate the tenets of his faith virtually every minute of every workday.
II
A
Dr. Goldman has asserted a substantial
Our cases have acknowledged that in order to protect our treasured liberties, the military must be able to command service members to sacrifice a great many of the individual freedoms they enjoyed in the civilian community and to endure certain limitations on the freedoms they retain. See, e. g., Brown v. Glines, 444 U. S. 348, 354-357 (1980); Greer v. Spock, 424 U. S. 828, 848 (1976) (POWELL, J., concurring); Parker v. Levy, 417 U. S. 733, 743-744, 751 (1974). Notwithstanding this acknowledgment, we have steadfastly maintained that “‘our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.‘” Chappell v. Wallace, 462 U. S. 296, 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188 (1962)); see also, Glines, supra, at 354. And, while we have hesitated, due to our lack of expertise concerning military affairs and our respect for the delegated authority of a coordinate branch, to strike down restrictions on individual liberties which could reasonably be justified as necessary to the military‘s vital function, see, e. g., Rostker v. Goldberg, 453 U. S. 57, 66-67 (1981) (citing cases), we have never abdicated our obligation of judicial review. See, e. g., id., at 67.
Today the Court eschews its constitutionally mandated role. It adopts for review of military decisions affecting
In the present case, the Air Force asserts that its interests in discipline and uniformity would be undermined by an exception to the dress code permitting observant male Orthodox Jews to wear yarmulkes. The Court simply restates these assertions without offering any explanation how the exception Dr. Goldman requests reasonably could interfere with the Air Force‘s interests. Had the Court given actual consideration to Goldman‘s claim, it would have been compelled to decide in his favor.
B
1
The Government maintains in its brief that discipline is jeopardized whenever exceptions to military regulations are granted. Service personnel must be trained to obey even the most arbitrary command reflexively. Non-Jewish personnel will perceive the wearing of a yarmulke by an Orthodox Jew as an unauthorized departure from the rules and will begin to question the principle of unswerving obedience. Thus shall our fighting forces slip down the treacherous slope
The contention that the discipline of the Armed Forces will be subverted if Orthodox Jews are allowed to wear yarmulkes with their uniforms surpasses belief. It lacks support in the record of this case, and the Air Force offers no basis for it as a general proposition. While the perilous slope permits the services arbitrarily to refuse exceptions requested to satisfy mere personal preferences, before the Air Force may burden free exercise rights it must advance, at the very least, a rational reason for doing so.
Furthermore, the Air Force cannot logically defend the content of its rule by insisting that discipline depends upon absolute adherence to whatever rule is established. If, as General Usher admitted at trial, App. 52, the dress code codified religious exemptions from the “no-headgear-indoors” regulation, then the wearing of a yarmulke would be sanctioned by the code and could not be considered an unauthorized deviation from the rules.
2
The Government also argues that the services have an important interest in uniform dress, because such dress establishes the preeminence of group identity, thus fostering esprit de corps and loyalty to the service that transcends individual bonds. In its brief, the Government characterizes the yarmulke as an assertion of individuality and as a badge of religious and ethnic identity, strongly suggesting that, as such, it could drive a wedge of divisiveness between members of the services.
First, the purported interests of the Air Force in complete uniformity of dress and in elimination of individuality or visible identification with any group other than itself are belied by the service‘s own regulations. The dress code expressly abjures the need for total uniformity:
“(1) The American public and its elected representatives draw certain conclusions on military effectiveness based on what they see; that is, the image the Air Force presents. The image must instill public confidence and leave no doubt that the service member lives by a common standard and responds to military order and discipline.
•
“(2) Appearance in uniform is an important part of this image. . . . Neither the Air Force nor the public expects absolute uniformity of appearance. Each member has the right, within limits, to express individuality through his or her appearance. However, the image of a disciplined service member who can be relied on to do his or her job excludes the extreme, the unusual, and the fad.” AFR 35-10, ¶¶1-12a(1) and (2) (1978).3
It cannot be seriously contended that a serviceman in a yarmulke presents so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed. Under the Air Force‘s own standards, then, Dr. Goldman should have and could have been granted an exception to wear his yarmulke.
The dress code also allows men to wear up to three rings and one identification bracelet of “neat and conservative,” but nonuniform, design. AFR 35-10, ¶1-12b(1)(b) (1978). This jewelry is apparently permitted even if, as is often the case with rings, it associates the wearer with a denominational school or a religious or secular fraternal organization. If these emblems of religious, social, and ethnic identity are not deemed to be unacceptably divisive, the Air Force cannot rationally justify its bar against yarmulkes on that basis.
Moreover, the services allow, and rightly so, other manifestations of religious diversity. It is clear to all service personnel that some members attend Jewish services, some
I find 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. To the contrary, a yarmulke worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States serviceman embraces and unites religious and ethnic pluralism.
Finally, the Air Force argues that while Dr. Goldman describes his yarmulke as an “unobtrusive” addition to his uniform, obtrusiveness is a purely relative, standardless judgment. The Government notes that while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor dreadlocks to a Rastafarian. If the Court were to require the Air Force to permit yarmulkes, the service must also allow all of these other forms of dress and grooming.
The Government dangles before the Court a classic parade of horribles, the specter of a brightly-colored, “rag-tag band of soldiers.” Brief for Respondents 20. Although turbans, saffron robes, and dreadlocks are not before us in this case and must each be evaluated against the reasons a service branch offers for prohibiting personnel from wearing them while in uniform, a reviewing court could legitimately give deference to dress and grooming rules that have a reasoned basis in, for example, functional utility, health and safety considerations, and the goal of a polished, professional appearance.4 AFR 35-10, ¶¶1-12a and 1-12a(1) (1978)
Furthermore, contrary to its intimations, the Air Force has available to it a familiar standard for determining whether a particular style of yarmulke is consistent with a polished, professional military appearance-the “neat and conservative” standard by which the service judges jewelry. AFR 35-10, ¶1-12b(1)(b) (1978). No rational reason exists why yarmulkes cannot be judged by the same criterion. Indeed, at argument Dr. Goldman declared himself willing to wear whatever style and color yarmulke the Air Force believes best comports with its uniform. Tr. 18.
3
Department of Defense Directive 1300.17 (June 18, 1985) grants commanding officers the discretion to permit service personnel to wear religious items and apparel that are not visible with the uniform, such as crosses, temple garments, and scapulars. JUSTICE STEVENS favors this “visibility test” because he believes that it does not involve the Air Force in drawing distinctions among faiths. Ante, at 512-513. He rejects functional utility, health, and safety considerations, and similar grounds as criteria for religious exceptions to the dress code, because he fears that these standards will allow some servicepersons to satisfy their religious dress and grooming obligations, while preventing others from fulfilling theirs. Ibid. But, the visible/not visible standard has that same effect. Furthermore, it restricts the free exercise rights of a larger number of servicepersons. The visibility test permits only individuals whose outer garments and grooming are indistinguishable from those of mainstream Christians to fulfill their religious duties. In my view, the
gled in machinery, and requiring hair to be worn short so that it may not be grabbed in combat and may be kept louse-free in field conditions.
Implicit in JUSTICE STEVENS’ concurrence, and in the Government‘s arguments, is what might be characterized as a fairness concern. It would be unfair to allow Orthodox Jews to wear yarmulkes, while prohibiting members of other minority faiths with visible dress and grooming requirements from wearing their saffron robes, dreadlocks, turbans, and so forth. While I appreciate and share this concern for the feelings and the free exercise rights of members of these other faiths, I am baffled by this formulation of the problem. What puzzles me is the implication that a neutral standard that could result in the disparate treatment of Orthodox Jews and, for example, Sikhs is more troublesome or unfair than the existing neutral standard that does result in the different treatment of Christians, on the one hand, and Orthodox Jews and Sikhs on the other. Both standards are constitutionally suspect; before either can be sustained, it must be shown to be a narrowly tailored means of promoting important military interests.
I am also perplexed by the related notion that for purposes of constitutional analysis religious faiths may be divided into two categories-those with visible dress and grooming requirements and those without. This dual category approach seems to incorporate an assumption that fairness, the
Unless the visible/not visible standard for evaluating requests for religious exceptions to the dress code promotes a significant military interest, it is constitutionally impermissible. JUSTICE STEVENS believes that this standard advances an interest in the “uniform treatment” of all religions. Ante, at 512. As I have shown, that uniformity is illusory, unless uniformity means uniformly accommodating majority religious practices and uniformly rejecting distinctive minority practices. But, more directly, Government agencies are not free to define their own interests in uniform treatment of different faiths. That function has been assigned to the
The Air Force has failed utterly to furnish a credible explanation why an exception to the dress code permitting Orthodox Jews to wear neat and conservative yarmulkes while in uniform is likely to interfere with its interest in discipline and uniformity. We cannot “distort the Constitution to approve all that the military may deem expedient.” Korematsu v. United States, 323 U. S. 214, 244 (1944) (Jackson, J., dissenting). Under any meaningful level of judicial review, Simcha Goldman should prevail.
Through our
Guardianship of this precious liberty is not the exclusive domain of federal courts. It is the responsibility as well of the States and of the other branches of the Federal Government. Our military services have a distinguished record of providing for many of the religious needs of their personnel. But that they have satisfied much of their constitutional obligation does not remove their actions from judicial scrutiny. Our Nation has preserved freedom of religion, not through trusting to the good faith of individual agencies of government alone, but through the constitutionally mandated vigilant oversight and checking authority of the judiciary.
It is not the province of the federal courts to second-guess the professional judgments of the military services, but we are bound by the Constitution to assure ourselves that there exists a rational foundation for assertions of military necessity when they interfere with the free exercise of religion. “The concept of military necessity is seductively broad,” Glines, 444 U.S., at 369 (BRENNAN, J., dissenting), and military decisionmakers themselves are as likely to succumb to its allure as are the courts and the general public. Definitions of necessity are influenced by decisionmakers’ experiences and values. As a consequence, in pluralistic societies such as ours, institutions dominated by a majority are inevitably, if inadvertently, insensitive to the needs and values of minorities when these needs and values differ from those
The Court and the military services1 have presented patriotic Orthodox Jews with a painful dilemma—the choice between fulfilling a religious obligation and serving their country. Should the draft be reinstated, compulsion will replace choice. Although the pain the services inflict on Orthodox Jewish servicemen is clearly the result of insensitivity rather than design, it is unworthy of our military because it is unnecessary. The Court and the military have refused these servicemen their constitutional rights; we must hope that Congress will correct this wrong.
JUSTICE BLACKMUN, dissenting.
I would reverse the judgment of the Court of Appeals, but for reasons somewhat different from those respectively enunciated by JUSTICE BRENNAN and JUSTICE O‘CONNOR. I feel that the Air Force is justified in considering not only the costs of allowing Captain Goldman to cover his head indoors, but also the cumulative costs of accommodating constitutionally indistinguishable requests for religious exemptions. Because, however, the Government has failed to make any
The Government concedes that Goldman wears his yarmulke out of sincere religious conviction. For Goldman, as for many other Jews, “a yarmulke is an expression of respect for God . . . intended to keep the wearer aware of God‘s presence.” App. 156 (petitioner‘s deposition). If the Free Exercise Clause of the
Nor may free exercise rights be compromised simply because the military says they must be. To be sure, application of the
In my view, this case does not require us to determine the extent to which the ordinary test for inroads on religious freedom must be modified in the military context, because the Air Force has failed to produce even a minimally credible explanation for its refusal to allow Goldman to keep his head covered indoors. I agree with the Court that deference is due the considered judgment of military professionals that, as a general matter, standardized dress serves to promote discipline and esprit de corps. But Goldman‘s modest supplement to the Air Force uniform clearly poses by itself no threat to the Nation‘s military readiness. Indeed, the District Court specifically found that Goldman has worn a yarmulke on base for years without any adverse effect on his performance, any disruption of operations at the base, or any complaints from other personnel. Goldman v. Secretary of Defense, 29 EPD ¶32,753, pp. 25,540-25,541 (1982).
The Air Force argues that it has no way of distinguishing fairly between Goldman‘s request for an exemption and the potential requests of others whose religious practices may conflict with the appearance code, perhaps in more conspicuous ways. In theory, this argument makes some sense. Like any rules prescribing a uniform, the Air Force dress code is by nature arbitrary; few of its requirements could be defended on purely functional grounds. Particularly for personnel such as Goldman who serve in noncombat roles, variations from the prescribed attire frequently will interfere with no military goals other than those served by uniformity itself. There thus may be no basis on which to distinguish some variations from others, aside from the degree to which they detract from the overall image of the service, a criterion that raises special constitutional problems when applied to religious practices. To allow noncombat personnel to wear yarmulkes but not turbans or dreadlocks because the latter seem more obtrusive—or, as JUSTICE BRENNAN suggests, less “polished” and “professional,” ante, at 519-520—would be to discriminate in favor of this country‘s more established,
The problem with this argument, it seems to me, is not doctrinal but empirical. The Air Force simply has not shown any reason to fear that a significant number of enlisted personnel and officers would request religious exemptions that could not be denied on neutral grounds such as safety, let alone that granting these requests would noticeably impair the overall image of the service. Cf. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S., at 719; Sherbert v. Verner, 374 U.S., at 407. The Air Force contends that the potential for such disruption was demonstrated at trial through the introduction of an Army publication discussing the beliefs and practices of a variety of religious denominations, some of which have traditions or requirements involving attire. See Department of the Army Pamphlet No. 165-13-1, Religious Requirements and Practices of Certain Selected Groups: A Handbook Supplement for Chaplains (1980). But that publication provides no indication whatsoever as to how many soldiers belong to the denominations it describes, or as to how many are likely to seek religious exemptions from the dress code.
In these circumstances, deference seems unwarranted. Reasoned military judgments, of course, are entitled to respect, but the military has failed to show that this particular judgment with respect to Captain Goldman is a reasoned one. If, in the future, the Air Force is besieged with requests for
JUSTICE O‘CONNOR, with whom JUSTICE MARSHALL joins, dissenting.
The issue posed in this case is whether, consistent with the Free Exercise Clause of the
The Court rejects Captain Goldman‘s claim without even the slightest attempt to weigh his asserted right to the free exercise of his religion against the interest of the Air Force in uniformity of dress within the military hospital. No test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity.
JUSTICE STEVENS acknowledges that “Captain Goldman‘s military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force‘s military mission.” Ante, at 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a governmental regulation based on any “neutral, completely objective standard,” ante, at 513, will survive a free exercise challenge.
In contrast, JUSTICE BRENNAN recognizes that the Court “overlooks the sincere and serious nature of [the] constitutional claim.” Ante, at 514 (dissenting). He properly notes that, even with respect to military rules and regulations, the courts have a duty to weigh sincere
JUSTICE BLACKMUN focuses on the particular ways in which the military may pursue its interest in uniformity, ante, at 526-527 (dissenting), but nonetheless declines “to determine the extent to which the ordinary test for inroads on religious freedom must be modified in the military context,” ante, at 526.
I believe that the Court should attempt to articulate and apply an appropriate standard for a free exercise claim in the military context, and should examine Captain Goldman‘s claim in light of that standard.
Like the Court today in this case involving the military, the Court in the past has had some difficulty, even in the civilian context, in articulating a clear standard for evaluating free exercise claims that result from the application of general state laws burdening religious conduct. In Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981), the Court required the States to demonstrate that their challenged policies were “the least restrictive means of achieving some compelling state interest” in order to deprive claimants of unemployment benefits when the refusal to work was based on sincere religious beliefs. Thomas, supra, at 718. See also Sherbert, supra, at 406-408. In Wisconsin v. Yoder, 406 U.S. 205, 215 (1972), the Court noted that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion” in deciding that the Amish were exempt from a State‘s requirement that children attend school through the age of 16. In United States v. Lee, 455 U.S. 252, 257-258 (1982), the Court stated that “[t]he State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,” and held that the Amish could not exempt themselves from the Social Security system on religious grounds. See also Gillette v. United States, 401 U.S. 437 (1971) (rejecting challenges under the Establishment and Free Exercise Clauses to the
These tests, though similar, are not identical. One can, however, glean at least two consistent themes from this Court‘s precedents. First, when the government attempts to deny a free exercise claim, it must show that an unusually important interest is at stake, whether that interest is denominated “compelling,” “of the highest order,” or “overriding.” Second, the government must show that granting the requested exemption will do substantial harm to that interest, whether by showing that the means adopted is the “least restrictive” or “essential,” or that the interest will not “otherwise be served.” These two requirements are entirely sensible in the context of the assertion of a free exercise claim. First, because the government is attempting to override an interest specifically protected by the
There is no reason why these general principles should not apply in the military, as well as the civilian, context. As this Court has stated unanimously, “our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” Chappell v. Wallace, 462 U.S. 296, 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188 (1962)). Furthermore, the test that one can glean from this Court‘s decisions in the civilian context is sufficiently flexible to take into account the special importance of defending our Nation with-
The first question that the Court should face here, therefore, is whether the interest that the Government asserts against the religiously based claim of the individual is of unusual importance. It is perfectly appropriate at this step of the analysis to take account of the special role of the military. The mission of our Armed Services is to protect our Nation from those who would destroy all our freedoms. I agree that, in order to fulfill that mission, the military is entitled to take some freedoms from its members. As the Court notes, the military “‘must insist upon a respect for duty and a discipline without counterpart in civilian life.‘” Ante, at 507 (quoting Schlesinger v. Councilman, 420 U.S. 738, 757 (1975)). The need for military discipline and esprit de corps is unquestionably an especially important governmental interest.
But the mere presence of such an interest cannot, as the majority implicitly believes, end the analysis of whether a refusal by the Government to honor the free exercise of an individual‘s religion is constitutionally acceptable. A citizen pursuing even the most noble cause must remain within the bounds of the law. So, too, the Government may, even in pursuing its most compelling interests, be subject to specific restraints in doing so. The second question in the analysis of a free exercise claim under this Court‘s precedents must also be reached here: will granting an exemption of the type requested by the individual do substantial harm to the especially important governmental interest?
I have no doubt that there are many instances in which the unique fragility of military discipline and esprit de corps necessitates rigidity by the Government when similar rigidity to preserve an assertedly analogous interest would not pass constitutional muster in the civilian sphere. Compare Greer v. Spock, 424 U.S. 828 (1976), with Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), and West Virginia Board of Education v. Barnette, 319 U.S. 624, 630-634 (1943).
Nonetheless, as JUSTICE BRENNAN persuasively argues, 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. Ante, at 517-520 (dissenting).
First, the Government‘s asserted need for absolute uniformity is contradicted by the Government‘s own exceptions to its rule. As JUSTICE BRENNAN notes, ante, at 518, an Air Force dress code in force at the time of Captain Goldman‘s service states:
“Neither the Air Force nor the public expects absolute uniformity of appearance. Each member has the right, within limits, to express individuality through his or her appearance. However, the image of a disciplined service member who can be relied on to do his or her job excludes the extreme, the unusual, and the fad.” AFR 35-10, ¶1-12.a.(2) (1978).
Furthermore, the Government does not assert, and could not plausibly argue, that petitioner‘s decision to wear his yarmulke while indoors at the hospital presents a threat to health or safety. And finally, the District Court found as fact that in this particular case, far from creating discontent or indiscipline in the hospital where Captain Goldman worked, “[f]rom September 1977 to May 7, 1981, no objection was raised to Goldman‘s wearing of his yarmulke while in uniform.” See Goldman v. Secretary of Defense, 29 EPD ¶32,753, p. 25,539 (1982) (emphasis added).
In the rare instances where the military has not consistently or plausibly justified its asserted need for rigidity of enforcement, and where the individual seeking the exemption establishes that the assertion by the military of a threat to discipline or esprit de corps is in his or her case completely unfounded, I would hold that the Government‘s policy of uniformity must yield to the individual‘s assertion of the right of free exercise of religion. On the facts of this case, therefore,
I respectfully dissent.
*See Letter, Aug. 27, 1808 (“In war, moral considerations account for three-quarters, the balance of actual forces only for the other quarter“), as translated and quoted in J. Cohen & M. Cohen, The Penguin Dictionary of Quotations 268 (1962).