The Congressional Responae to Goldrnan L. Weinberger

• Author: by First Lieutenant Dwight H. Sullivans
• Pages: 04

I. INTRODUCTION

Justice Douglas once commented that "Army regulation" IS "at war with the principles of the First Amendment."' As a result of the Supreme Court'B Goldman o. Wembergerdecmon.2 that war will now be fought on a new battleground. The Goldman decision IS one of a hne of Supreme Court cases insulating the military from judicial enforcement of servicemembers' constitutional rights.s These cases, however, paint to a complementary congressional responsibility to protect servicemembers' liberty interests. Congress has already confronted the same free exercise of religion question which sparked the Goldman case itself.' Future conflicts over a variety of Bermcemembers' first amendment claims will likely come before Congress as well E After eaammmg the Supreme Court's Goldman decision, this article will analyze subsequent congressional efforts to protect ser-vicemembers' free exercise of religion The article will then consider the constitutionality of the legislation that Congress adapted to grant servicemembers a limited nght to wear vmble religious apparel while in uniform.

11. GOLDMAN U. WEIYBERGER A. THE CASES HISTORY

S.

Simcha Goldman, an Air Force captam who served as a climcal

psychologist, is an Orthodox Jew and an ordained rabbi! During his

'Firat Lieutenant Dwight H Sullivan, UShlCR Currently assigned arTria1 Covniel 3d FSSG.

Okmawa. Japan Completed Naval Justice School Lawyer Course. 1987 iwrtti honors1 B A , summa cum laude. Umverrfy of Maryland. 1982. J D , Uniiersiti of Vlrgmla, 1989. Y A , University of Ilaryland. 1987 Author of A'ouil Scienlrfic ELI hncr'a Admissibilrly nt Caurfa-.Mailiol, The .Army Lawyer. Ocr 1986. ar 24, Legal Restrictions on (ha Righl (0 L'sa Force Agmnst Inlrrnalional Trironsm, 10 ASILS Int' L J 169 ~19861

'Laird V Tafum, 408 U S 1, 28 ,Douglas, J , dmsenfmgr Although Jutire Douglas made this comment during admumon offreespeechrighis, II seeme eguallyapplicable to free exercise riehfs

first four years of active duty with the Air Force, Goldman wore a yarmulke while indoors without incident ' In 1981, however. a Go%-ernment counsel lodged a complaint when Goldman wore a yarmulke while testifying a3 a defense witness at a court.marna1.' The hospital s commanding officer advised Goldman that wearing a yarmulke while in uniform violated Air Force regulations? he ordered Goidman not to wear a yarmulke ~n uniform outside the hospital After re-caving a eamplamt from Goldman's lawyer, the commanding officer extended the order to forbid Goldman from weanng a yarmulke in uniform within the hospital as well. When Goldman refused to obey that order. hia commanding officer issued a formal letter ofrepnmand, withdrew a recommendation that Goldman's act1r.e duty ~ e r v m be

extended, and threatened to court-martial Goidman lo Goldman then sought injunctive relief from the C S District Court for the Dietrier of Columbia, clamlng that application of Air Force regulations to prevent him from wearing a yarmulke in uniform violated his right

The district court granted Goldman a temporary restraining order, and later a preliminary Injunction. prohibiting the 41r Force from enforcing It8 uniform regulations to prevent Goldman from ii'earlng

to free exercme of rehgian

at511 sreiens I ca"iurrlns8 ifate.. 41r Force members 1~111 +ear the Air Force vnlform Khde performmg their mhrar) dunes, except uhen avrhanred to wear c,. vilian clarher on duti "Section 1-6,hm 21 states 'Headgearrill not be nom Iwlhile indoors excepr by armed mvrity perionnel ,n the performance of rhmr dum, 'See Goldrnon 731 F 2d at 1533.34 n 1

*An Force Reg 36-10 i 1-6 h

19881 RELIGIOUS APPAREL

his yarmulke while In uniform Following a trial on the merits, the court held that application of Air Force uniform regulations to prohibit servicemembers from wearing yarmulkes violated the first amendment's free exercise clause: the court enjoined the Air Force from applying its uniform regulations to prohibit the wearing ofyar-mulkes for religious reasons On appeal, a three-judge panel of the US. Court of Appeals for the District of Columbia Circuit reversed, holding that "the peculiar nature of the Air Force's interest in uniformity renders the strict enforcement of its regulation perm~ssible."'~

"Galdman. 630 F Svpp at 16-17,

Judge Robinban used a four-part analysis taevalusfe whether a oreliminary iniunmm should issue Thia annl~bia considered "111

an erphclf paranfee of lndwldval rights" Galdrnon 530 F Supp ~t 15 Iquotmg Roother, 463 US at 701 Citing Thomas Y Revrew Bd of Ind Employment See Dlv 450 US 707 714-19 '19811, Judge Robinmn announced, "There can he no doubt that Plaintiffs ineistence on wearmg P yarmulke 1s motivated by hm religiova convictions, and IS therefme entitled to First Amendment protection'' Galdrnon. 530 F Svpp at

19881 RELIGIOUS APPAREL

Following the full court's refusal to rehear en banc,I4 the Supreme Court granted certiorari.'e

2. THE SUPREME COURT'S DECISION

   I The Mqonty.

   The Goldman case was the first time the Supreme Court considereda servicemember's free exercise claim.'6 In rejecting Goldman's challenge to the uniform regulations, Justice Rehnqumt's marprity opmion relied heavily on the military necessity doctrine." This doctrine, which partially insulates the armed forces from constitutional challenges, rests upon two bases The first basis stems from judicial recognition that the military 18 "by necessity, a specialized society separate from civilian society. . . .Toensure that they always are capable of performing their mission promptly and reliably, the military S~T.vice8 must insist upon a respect for duty and discipline without counterpart in civilian life The Supreme Court has recognized that this need for discipline will sometimes require servicemembers to sacrifice liberties which would be constitutionally protected in civilian soei.

   ety.ls The Court has repeatedly emphasized, however, that service-members do not lose all constitutional protection "aimply because they have doffed them civ~lianclothes "20

   The second basis of the military necessity doctrine 1s judicial def-erence to Congress The Constitution gives Congress the power "To make Rules for the Government and Regulation of the land and navd force^."^' In Rostker u. Goldberg,zz the Superme Court held that be-cause of this constitutional provmon, judicial deference "is at ita apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance 1s challenged

   While the military necessity doctrine has been a recurring theme ~n Supreme Court decisions since 195XZ4 the Court in Goldman "was more deferentml to the military than it ever has been in the past "2E

   Because of the mditary'e need for discipline "in order to prepare for and perform Its wtal role," the Goidman mapity conceded that the Court's ''rev~ewof military regulations challenged on First Amendment grounds IS far more deferential than consritutional review of jimilar laws or regulations designed for civilian mmety ''26 While

   lBParker Y Lei). 417 US 733 751 11974~ Isurfammng court-martial c~n~lelmn ai

   an Arm) offirer x,ho had counseled enlisted roldier; to refuse to obey orders sending.hem m Vietnam ejen though iimilar speech b) ~willan~ravld hare been CODJIIIY-

   .mnally protected

   ''Chappell \ Wallace, 462 US 296, 304 ,1963, lholdingthat servicemembers may not O W superlar officers mer alleged constitutional violafionsl See sensrdlv Bradsky Chaooell ,

   Wallace A Biveni Answer Lo n Polkfieul Queaaon, 35 Saval L Rev 1

   19881 RELIGIOUS APPAREL

   observing that the need for discipline does not "render entirely nugatory in the military context the guarantees of the First Amend. ment," the Goldman majority indicated that ''corns must give great deference to the professional judgment of military authorities cancerning the relative importance of a particular military Culminating this argument for judicial deference, Justice Rehnquist wrote: "Not only are courts ill-equipped to determine the impact upon discipline that any particular intnwion upon military authority might have, . . . but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy."2B Quoting Rostker, Rehnqumt stressed that judicial def-erence "is at its apogee" in case8 dealing with Congress's authority to regulate the military.28

   Deferring to "the appropriate military officials" who decided that the wearing of yarmulkes "would detract from the uniformity sought by the dress regulations," the mqarity concluded

   The Air Force has drawn the line essentially between reli. giaus 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 18 to restrict the wearing of the headgear required by religious beliefs.30

   Justice Stevens authored a concuning opinion which Justices White and Powell joined. Like Justice Rehnqmst, Justice Stevens deferred to the military's judgment Of the regulation's necessity

   l'Id

   "'Id at 507-08 linlernsl quotation marka, cnationi and ellipsi~ omiffedl"*Id at 508 lquoting Raslker, 453 US st 70) One commentator rriting about the circuit court panel'& ~imilar reasonmg objected that because "the regulatm at msue mGaldmanraipramvlgared by the military.andrai not subieetedra a congressma1 determination of constitutionality. ' the iaurt'i ielianee on Rosfkei WBI inappropriate Note. Milila~'8

   Un~iorrn

   prated the inportanchor ihst mtarest

   Id at 612. Judice Stevens contended that "of mll greater ~mpanance' than mhtarq necessity ''1s the interest I" uniform treatment for the member8 of all rehgioui faitha

   ReguiirrnenB, supra nore 13, at 211

   "Galdman. 476 US at 610'lid (Steven3 J...