The Tenth Charles L. Decker Lecture in Administrative and Civil Law. Civil Liberty and Militam Neeesaity-Same Pre. limmary Thoughts on Goldmon u. Weinberger

• Author: by Mr. Robert M. O'Neil
• Pages: 03

President, University of Virginia

1. INTRODUCTION

On 24 April 1986, Mr. Robert M. O'Neil, the President of the University of Virginia. delivered the Tenth Charles L. Decker Lecture in Ad. ministrative and Civil Law at The Judge Advocate General's School.

Mr. O'Neil received his undergraduate degree m 1956 and his law de. gree in 1962 from Harvard College. He also holds a master's degree in American history from Harvard, where he served as a teaching fellow. Following graduation from law school, he served as a research assistant to Professor Paul Freund for the writing of the official history of the U S Supreme Court. From 1962 to 1963 he served as a law clerk to Justice William J. Brennan, Jr.

Mr. ONeil's teaching career began at the University of California at Berkeley, where he was a member of the law faculty from 1963 to 1972. At Berkeley he chaired the Committee on Academic Freedom of the Aca. demic Senate. From 1970 to 1972, he was the general counsel of the American Aswciation of University Professors.

In 1972, Mr O'NNeil became the Provost of the University of Cmein. nati, and in 1975 he became the chief academic and admimstrative of. ficer of Indiana University's Blwmington Campus. Since entering the field of administration, he has continued teaching courses in canstitu. tional and commercial law.

As President of the University of Wisconsin from 1980 to 1985, Mr. ONeil led a statewide system of 13 universities, 13 twwyear centers. and a comprehensive extension program. He was also a professor of law at the University of Wisconsin at Madison.

Mr. OmNeil serve8 on the boards of the Carnegie Foundation for the Ad. vancement of Teaching, the Council on Post.Seeondary Accreditation, the Johnson Foundation, the Educational Testing Service, and Competitive Wisconsin. He chairs the Financial Resource Development Commit. tee of the Center for Research Libraries and the Legal Affairs Commit- 31

tee of the National Association of State Universities and Land-Grant Colleges, and serves on other bodies such as the American Bar Associa. tmn's Bicentennial Advisory Board.

He has published several books, including Classrooms m the Crossfire, a study of legal and policy aspects of textbaok and curriculum censorship. Also, he mauthored Ciuil Liberties: Cage Studies and the Law with his wife Karen.

Mr. O'Neil became President of the University of Virginia and the George M Kaufman Professor of Law on 1 September 1986. The Judge Advocate General's School was indeed honored to be addressed by such a distinguished teacher and scholar. The text of Mr O'Neil's address fol. lows:

11. THE TENTH DECKER LECTURE

It i8 indeed an honor to be the Decker Lecturer this spring. As I have reflected upon the stature af those who have been your guests in previous years, I am humbled to be in their company. Far a school which emphasizes military law and legal issues, you have surely attracted a distinguished group of civilians as your speakers over the years.

The quest far B suitable topic on such an occasion is never easy. The possibilities seem almost infinite. Qmte recently, however, the Supreme Court's decision in Goldmen v. Weznberger' provided precisely the vehi. cle that I had been seeking. Let me begm by reviewing the facts of the case, and then report as faithfully as I can what the Justices had to say on this subject in late March

Dr S Simcha Goldman LB an Orthodox Jew and an ordained Rabbi. More than ten years ago he entered the Armed Forces Health Professions Scholarship Program and was an inactive reservist m the Air Force while completing his degree in clinical psychology. After receiving his doctorate, Goldman entered active service in the Air Force as a commissioned officer He had served for some years as a climcal psychologist at the mental health clinic st the March Air Force Base in Riverside, Cali. fornia. Until 1981 he avoided any pasable controversy over wearing a yarmulke while in uniform by placing his service cap over the yarmulke when he was out of doors. In the spring of 1981. however, the first conflict aro~e when he appeared as B defense witnem at a courtmartial wearing only the yarmulke without the sewice cap. Trial counsel lodged a complaint with the hospital commander. The complaint cited an Air Force regulation that "[hleadgear will not be worn. . . [wlhile indoors ex- >106S Cr 1310(1888) ofl#,734FZdl6311DC Clr 10841

1986 GOLDMAN V. WEINBERGER

cept by armed security police in the performance of their duties."' Whiie each of the services have detailed dregs and uniform regulations, not all interpret them to forbid yarmulke wearing.' Even the Air Farce had apparentiy taken a more reiaxed view in the past,' but had recently tightened its policies.

The base commander now informed Captain Goldman that he ww in violation of the regulation and ordered him not to wear his yarmulke while on duty outside the hospital Although most of Goldman'8 duty time was at the hospital, he refwed the colonel's request. A formal letter of reprimand followed with B warning that courtmartial could result. A proposed extension of Goidman's term of active service was immediately withdrawn and replaced by B negative recommendation.

Goldman then brought suit against the Secretary of Defense in federal court. claiming that his religious liberty was infringed by the headgear rule. A district judge agreed and enjoined enforcement of the rukb The Secretary promptly appealed. The District of Coiumbia Circuit re-versed-holding that the proper test of B military rule alleged to conflict with individual rights or liberties was whether "legitimate military ends are sought to be achieved" and whether the rule is '"designed to ac commodate the individual right to an appropriate degree."' Under that test, the court concluded that the '"Air Force's interest in uniformity renders the stnct enforcement of its regulation permissible."'

Last spring the Supreme Court agreed to review this navel issue and handed down its judgment a month ago. Predictably, the Justices di. verged in several interesting direetiona. Justice Rehnquist spoke for a majority 1~1 affirming the circut court decision on very similar grounds-that is, by paying substantial deference to the judgment of military necessity even when a regulation to some degree abridged free exercise of re1iglon.l Juatiees Stevens, White, and Powell concurred in the Court's opinion, but Ju~t~ce

Stevens mote a separate concurring opinion for them to further explain the issue. To them, Goldman's

'AFR 35-10, para 1-6hi2Xn (1880)'See. e g , Dep'r of Arm), Reg No. 670.1, Wear and Appearance of Army Dnifarm~ end

Inagna, para 1-7bilXcIi16 Jan 1886) r'leh~lou~skullcape of plan design and standard

calor that do not exceed mx mches n mameter [may be woml vhlie y1 lwhg quarters. y1.

door dning facihtiei. and worihip servmelocations.")

'A specific exception to the general pohe~was m fact grant& to aharher Orthodox Jea- Ish officer stationed elseshere before Captan Goldmais troubles erose See Joint Appendixst 106.118, 126

'Goldman Secretary of Defense. 530 F Supp 12 (0

D C 1881)lGoldmanr SecretaryofDeiense.734FZd1531.1536iDC Ca).irh dmird.738F2d 'Id at 15401106S Cf 1310,1312.1313i1886)

667iDC Cir 1984)

appeal "presents an especially attractive case for an exception from the uniform regulations that are applicable to all other Air Force person. nel."' Yet they declined to create such an exception becauae doing 60 for the Orthodox Jew wearing a relatively inconspicuous yarmulke would require similar treatment for members of other religious faiths whose sectarian headgear could far less readily be accommodated with military needs It was, therefore. a different interest in uniformity-consistent treatment among religious groups-which justified denying to the Orthodox Jew a dispensation which by itself might seem innocuous.''To require an exception in Goldman's case alone would involve disparate treatment of equally devout service personnel." It would also put the Air Force in the business of drawing distinctions among religious faiths on purely practical grounds.h' Thus, if one type of uniformity did not SU6.tain the military policy, another and quite different measure of mi. formitydid so.

There followed three separate dissenting opinions reflecting the vari. ant views of four members of the Court. For Justices Brennan and Marshall...