Goldman v. Weinberger

RESPONDENT: Weinberger
LOCATION: March Air Force Base

DOCKET NO.: 84-1097
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 475 US 503 (1986)
ARGUED: Jan 14, 1986
DECIDED: Mar 25, 1986

Ms. Kathryn A. Oberly - Argued the cause for the respondents
Nathan Lewin - Argued the cause for the petitioner

Facts of the case

Goldman was a commissioned officer in the United States Air Force, an Orthodox Jew, and an ordained rabbi. He was not allowed to wear his yarmulke while on duty and in Air Force uniform. An Air Force regulation mandated that indoors, headgear could not be worn "except by armed security police in the performance of their duties."


Did the Air Force Regulation violate the Free Exercise Clause of the First Amendment?

Media for Goldman v. Weinberger

Audio Transcription for Oral Argument - January 14, 1986 in Goldman v. Weinberger

Warren E. Burger:

Mr. Lewin, I think you may proceed whenever you are ready.

Nathan Lewin:

Mr. Chief Justice, and may it please the Court:

This case presents a single constitutional question under the First Amendment's Free Exercise Clause.

The issue is whether the military services may unconditionally refuse to make any exception or accommodation from their dress codes for enlisted personnel whose religious convictions require them to wear a neat, small, conservative article of clothing that does not interfere with the execution of any military task but that is forbidden by the existing military regulations simply because it is not provided for in the dress code and is different from the uniform.

The petitioner is an individual who was raised as an Orthodox Jew and has during his entire adult life followed the religious obligation incumbent on Jewish males of keeping his head covered at all times during waking hours.

Although the government in a footnote implies that there is some doubt as to the obligatory nature of this religious duty, it acknowledged in response to our requests for admissions, and I quote,

"that it is a well established religious tradition and practice among adherents to Orthodox Judaism that males keep their heads covered at all times. "

Warren E. Burger:

Mr. Lewin, you mentioned enlisted personnel.

Was the petitioner here an officer, or did he occupy civilian status, or was he--

Nathan Lewin:

No, he was an officer.

He joined under a program under which he became... he was a psychologist in the Air Force under a program where he was trained and then became a Captain, entered into the Air Force to serve as a psychologist, so he was an officer.

Warren E. Burger:

--I thought you said enlisted personnel.

Nathan Lewin:

I'm sorry.

I meant officers as well as other personnel in the military services.

Sandra Day O'Connor:

Mr. Lewin, as long as you are interrupted, may I ask whether it makes any difference in your view if someone enters the service voluntarily, if the person entering the service knows and understands the military is not willing to grant such an exception for dress?

Nathan Lewin:

We think it really makes no difference, because we think that the decisions of this Court indicate that... Sherbert and Verner and Thomas and Review Board... that government may not condition benefits, for example, such as unemployment compensation benefits, on an unconstitutional condition such as deprivation of religious rights.

The same thing, we submit, holds true if in fact somebody enters knowing that there is such a regulation.

Of course, the practical impact, quite frankly, Justice O'Connor, of a decision by this Court saying that the military may apply such a regulation constitutionally would be that it would in the future bar conscientious believers, who would feel that they could not go day to day without covering their heads, from joining the Air Force.

We think that's really an additional factor as to why this Court ought not to permit the absolute rule that the military services are arguing for in this case.

William H. Rehnquist:

Well, Mr. Lewin, you refer to Sherbert against Verner and Thomas versus the Review Board.

But those were cases from civil life.

We've never applied that sort of balancing test where the military has been involved, have we?

Nathan Lewin:

Yes, Your Honor.

That's absolutely true.

They were cases from civilian life and the... what makes this case certainly more difficult, and the Solicitor General, I think, concedes in his brief that in civilian life there could probably be no constitutional objection to the wearing of a yarmulke even in courts or other places where one is ordinarily required to dress in a certain way.

Military life is different.

However, this Court has said time and again that the protections of the Bill of Rights apply in the military, and our view, quite frankly, is that in this case the military has gone far beyond what this Court has even tolerated in those situations where, for example in the parallel area of speech, the Court has upheld military regulations.

Just to proceed immediately to that point, Justice Rehnquist, Brown and Glines is a case which the Solicitor General relies on very heavily, but of course Brown and Glines which was, I think, the extreme in terms of speech cases where the Court sustained a system of prior restraint in the area of speech as applied to the military, was a case in which a regulation said that material could be prohibited from a military base if it presented, quote,

"a clear danger to the loyalty, discipline or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission. "

The opinion, Justice Powell's opinion for a majority of the Court, spoke four times of the standard of, quote, "clear danger".