Question: Goldman v. Weinberger 475 U.S. 503 (1986)

A member of the military, an Orthodox Jew and ordained rabbi, brought suit against the Secretary of Defense claiming that application of Air Force regulation to prevent him from wearing his yarmulke infringed upon his First Amendment freedom to exercise his religious belief. The Supreme Court held that the First Amendment did not prohibit a regulation that prevented the wearing of a yarmulke by a member of the military while on duty and in uniform.

Rehnquist, J.

Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform, notwithstanding an Air Force regulation mandating uniform dress for Air Force personnel. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. The essence of military service "is the subordination of the desires and interests of the individual to the needs of the service." These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. But "within the military community there is simply not the same [individual] autonomy as there is in the larger civilian community." In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. Not only are courts "ill-equipped to determine the impact upon discipline that any particular intrusion 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. "[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."

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." 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." 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. In general, authorized headgear may be worn only out of doors. Indoors, "[h]eadgear [may] not be worn . . . except by armed security police in the performance of their duties."

A narrow exception to this rule exists for headgear worn during indoor religious ceremonies. In addition, military commanders may in their discretion permit visible religious headgear and other such apparel in designated living quarters and nonvisible items generally. Goldman contends that the Free Exercise Clause of the First Amendment requires the Air Force to make an exception to its uniform dress requirements for religious apparel unless the accouterments create a "clear danger" of undermining discipline and esprit de corps. He asserts that in general, visible but "unobtrusive" apparel will not create such a danger and must therefore be accommodated. He argues that the Air Force failed to prove that a specific exception for his practice of wearing an unobtrusive yarmulke would threaten discipline. He contends that the Air Force's assertion to the contrary is mere ipse dixit [a bare assertion], with no support from actual experience or a scientific study in the record, and is contradicted by expert testimony that religious exceptions to the policy are in fact desirable and will increase morale by making the Air Force a more humane place. 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 Goldman as silent devotion akin to prayer, military life may be more objectionable for him and probably others. But 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. The Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly 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 Goldman even though their effect is to restrict the wearing of the headgear required by his religious beliefs. The judgment of the Court of Appeals is AFFIRMED.

1. Do you agree with the Court's decision? Explain.

2. What do you think of Goldman's argument that wearing the yarmulke will help morale? Does that seem a valid argument for permitting the apparel exception?

3. Can you think of other types of clothing that people may want to wear as part of their religious practice that may present the same situation as here? Do you understand why it should not be permitted? Explain