concurring in part, dissenting in part.
I agree with the majority’s holding that the district court erred in dismissing the case for lack of subject matter jurisdiction. Rather than ruling on the issue of justicia-bility, however, I would remand so that the district court can consider the case under the standard enunciated by the majority opinion. Initially the trial court should weigh the factors described in Mindes in order to determine whether the claim is reviewable. The Mindes appellate court did not attempt to determine the issue of justiciability. After setting forth the criteria to be used in making such a decision it stated: “We do not intimate how these factors should be balanced in the case sub judice. That is the trial court’s function.” 453 F.2d at 202.
Moreover, I believe that in exercising that discretion a challenge involving core religious beliefs must be considered as involving a strong claim. The majority, in applying the first Mindes factor — the nature and strength of plaintiff’s claims— seems to belittle the seriousness of plaintiff’s claims that the Army’s appearance regulations interfere with basic principles of the Sikh religion. The majority considers plaintiff’s claims as “not strong,” indeed, as being “on the least significant end of the constitutional scale.” That language trivializes a basic tenent of the Sikh religion and places that tenent on the same level as a concern for personal appearance. The majority’s quote from the Mindes case, 453 F.2d at 201, is out of context. Its *1402reference to a haircut regulation obviously was not applicable to sincere religious beliefs, but to mere personal appearance preferences, which were contrasted with loss of freedom arising from “court martial situations.” I have little doubt that the Mindes court would have considered strongly held religious beliefs as among the weightier constitutional claims to be valued.
The majority’s treatment of the second Mindes factor — the potential injury to Khalsa if review is refused — is also misdirected. The majority’s cursory conclusion that Khalsa has no right to enlist harkens back to the discredited “right-privilege dichotomy.” 1 See Van Alstyne, “The Demise of the Right-Privilege distinction in Constitutional Law,” 81 Harv.L.Rev. 1439 (1968). As the Supreme Court stated in Thomas v. Review Board, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981):
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.
The potential injury to Khalsa and to the other Sikhs may be significant, especially in view of what appears to be a tradition among Sikhs of service in the armed forces. See New York Times, May 26, 1985, Part 1, at 9, col. 1 (noting the long and honorable tradition of service by Sikhs in India).
In addition, the decision as to what facts should be accepted as unreviewable military judgments should first be made by the trial court under the appropriate non-jurisdictional standard. For example, whether beards are incompatible with proper use of a gas mask is a type of decision that a trial court may well consider to be subject to proof upon a suitable challenge, particularly since the Army appeared to have found no problems in this regard during the many years Sikhs were exempted from the regulation in question. Similarly, the trial court may require a hearing on the question of whether the army is being inundated with requests for similar exemptions from other religious groups.
I am also concerned that the majority goes too far in granting latitude to military decisionmaking. Cf. Goldman v. Secretary of Defense, 739 F.2d 657, 658 (D.C.Cir.) (Starr, J., dissenting from denial of suggestion to hear case en banc) (“For notwithstanding the broad latitude rightly vested in those charged with defending the Nation’s security, I am unable to agree that the needs of the military warrant vitiating the very liberties which the armed services have valiantly defended in the two centuries of the Nation’s history.”), cert. granted, — U.S. -, 105 S.Ct. 3475, 87 L.Ed.2d 612 (1985). Nevertheless, I feel that we are bound by the authorities cited in the opinion in our review of military decisions. If we were not, I would be inclined to apply the same standard used by the Supreme Court to review congressional decisionmaking about the military, and determine whether the military, in exercising its discretion, properly examined alternatives to the regulations at issue in an effort to minimize the burden on the free exercise of religious beliefs. See Rostker v. Goldberg, 453 U.S. 57, 70-74, 101 S.Ct. 2646, 2654-56, 69 L.Ed.2d 478 (1981) (deferring to Congress’ “studied choice” not to draft women); Schlesinger v. Ballard, 419 U.S. 498, 508-10, 95 S.Ct. 572, 577-78, 42 L.Ed.2d 610 (1975) (discussing legislative history as showing Congress’ rational basis for establishing different promotion requirements for men and women in the Navy).
. That distinction was expressed best by Justice Holmes in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 518 (1892):
“The petitioner may have a constitutional right to talk politics but he has no constitutional right to be a policeman.”