Goldman v. Weinberger

Justice Stevens,

with whom Justice White and Justice Powell join, concurring.

Captain Goldman presents an especially attractive case for an exception from the uniform regulations that are applicable to all other Air Force personnel. His devotion to his faith is readily apparent. The yarmulke is a familiar and accepted sight.1 In addition to its religious significance for the wearer, the yarmulke may evoke the deepest respect and admiration — the symbol of a distinguished tradition2 and an *511eloquent rebuke to the ugliness of anti-Semitism.3 Captain Goldman’s military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force’s military mission. Moreover, on the record before us, there is reason to believe that the policy of strict enforcement against Captain Goldman had a retaliatory motive — he had worn his yarmulke while testifying on behalf of a defendant in a court-martial proceeding.4 Nevertheless, as the case has been argued,5 *512I believe we must test the validity of the Air Force’s rule not merely as it applies to Captain Goldman but also as it applies to all service personnel who have sincere religious beliefs that may conflict with one or more military commands.

Justice Brennan is unmoved by the Government’s concern that “while a yarmulke might not seem obtrusive to a Jew, neither does a turban to a Sikh, a saffron robe to a Satchidananda Ashram-Integral Yogi, nor do dreadlocks to a Rastafarian.” Post, at 519. He correctly points out that “turbans, saffron robes, and dreadlocks are not before us in this case,” and then suggests that other cases may be fairly decided by reference to a reasonable standard based on “functional utility, health and safety considerations, and the goal of a polished, professional appearance.” Ibid. As the Court has explained, this approach attaches no weight to the separate interest in uniformity itself. Because professionals in the military service attach great importance to that plausible interest, it is one that we must recognize as legitimate and rational even though personal experience or admiration for the performance of the “rag-tag band of soldiers” that won us our freedom in the Revolutionary War might persuade us that the Government has exaggerated the importance of that interest.

The interest in uniformity, however, has a dimension that is of still greater importance for me. It is the interest in uniform treatment for the members of all religious faiths. The very strength of Captain Goldman’s claim creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed as “so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed.” Post, at 518. If exceptions from dress code regulations are to be granted on the basis of a multifactored test such as that proposed by. Justice Brennan, inevitably the decisionmaker’s evaluation of the charac*513ter and the sincerity of the requester’s faith — as well as the probable reaction of the majority to the favored treatment of a member of that faith — will play a critical part in the decision. For the difference between a turban or a dreadlock on the one hand, and a yarmulke on the other, is not merely a difference in “appearance” — it is also the difference between a Sikh or a Rastafarian, on the one hand, and an Orthodox Jew on the other. The Air Force has no business drawing distinctions between such persons when it is enforcing commands of universal application.6

As the Court demonstrates, the rule that is challenged in this case is based on a neutral, completely objective standard-visibility. It was not motivated by hostility against, or any special respect for, any religious faith. An exception for yarmulkes would represent a fundamental departure from the true principle of uniformity that supports that rule. For that reason, I join the Court’s opinion and its judgment.

Captain Goldman states in his brief:

“Yarmulkes are generally understood to be a form of religious observance. They are commonly seen and accepted in today’s society wherever Orthodox Jews are found. University campuses — particularly on the East Coast — have substantial numbers of young men who wear yarmulkes. On the streets of New York City, Los Angeles, Chicago, or Miami, yarmulkes are commonplace. They are increasingly visible in centers of commerce, including retail businesses, brokerage houses, and stock exchanges. Attorneys wearing yarmulkes can be found in the state and federal courthouses of New York, and attorneys wearing yarmulkes have been permitted to sit in the Bar Section of this Court and attend oral arguments.” Brief for Petitioner 11.

In dissenting from the Court of Appeals’ denial of rehearing en banc, Judge Starr was moved to describe the yarmulke as the “symbol of [a] faith whose roots are as deep and venerable as Western civilization itself” and the “symbol of a great faith from which Western morality and the Judaeo-*511Christian tradition have arisen.” 238 U. S. App. D. C. 267, 268, 739 F. 2d 657, 658 (1984).

Cf. N. Belth, A Promise to Keep (1979) (recounting history of antiSemitism in the United States). The history of intolerance in our own country can be glimpsed by reviewing Justice Story’s observation that the purpose of the First Amendment was “not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects,” 2 J. Story, Commentaries on the Constitution of the United States § 1877, p. 594 (1851)—a view that the Court has, of course, explicitly rejected. See Wallace v. Jaffree, 472 U. S. 38, 52-55 (1985).

Before the testimony at the court-martial that provoked this confrontation, Captain Goldman had received extremely high ratings in his performance evaluations. App. 214-225. Indeed, one of the evaluators noted: “He maintains appropriate military dress and bearing.” Id., at 217. Although the Air Force stated that an officer had received one or two complaints about Captain Goldman’s wearing of the yarmulke, id., at 15, 22, no complaint was acted upon until the court-martial incident. See Goldman v. Secretary of Defense, 29 EPD ¶ 32,753, p. 25,539 (1982) (District Court finding that, until the court-martial, “no objection was raised to Goldman’s wearing his yarmulke while in uniform”).

Captain Goldman has mounted a broad challenge to the prohibition on visible religious wear as it applies to yarmulkes. He has not argued the far narrower ground that, even if the general prohibition is valid, its application in his case was retaliatory and impermissible. See, e. g., Brief for Petitioner i (stating the Question Presented as “Whether the Air Force may constitutionally prohibit an Orthodox Jewish psychologist from wearing a ‘yarmulke’ — an unobtrusive skullcap which is part of his religious observance — while he is in uniform on duty at a military hospital”); id., at 8 (“The Air Force’s asserted grounds for barring yarmulkes are patently unsound. . . . Indeed the symbolic significance of our Nation’s military *512serviees and the educational role of the military in teaching the young defenders of our country the principles of liberty require acceptance of petitioner’s religious observance”).

See United States v. Lee, 455 U. S. 252, 263, n. 2 (1982) (Stevens, J., concurring in judgment) (“In my opinion, the principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government— whether it be the legislature or the courts — out of the business of evaluating the relative merits of differing religious claims”). Cf. Wallace v. Jaffree, 472 U. S., at 60 (referring to “the established principle that the government must pursue a course of complete neutrality toward religion”); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 792-793 (1973) (“A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion”); Abington School District v. Schempp, 374 U. S. 203, 226 (1963) (“In the relationship between man and religion, the State is firmly committed to a position of neutrality”).