To what degree are religious rites constitutional rights?

By

SIMCHA Goldman and Little Bird of the Snow would seem to have few things in common. Rabbi Goldman is an Orthodox Jew and a former captain in the United States Air Force who lives in California. He is now on inactive reserve. Little Bird is just four years old and a native American descended from the Abenaki tribe. She lives with her parents in Pennsylvania.

What links the two is a pair of First Amendment cases -- ostensibly not intertwined -- that will be heard later this term by the United States Supreme Court. Both speak to a constitutional provision that forbids Congress from making laws prohibiting the ``free exercise'' of religion.

Specifically, Simcha Goldman is challenging a military dress code that forbids the wearing of religious apparel, such as a skullcap (yarmulke), while on duty. And Little Bird's parents wish her to be free of a social security number without being denied government benefits. They say their religion teaches that numbers and computers used to identify people are part of a ``great evil.''

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In recent years, the high court has grappled more with religious ``establishment'' issues than with ``free exercise'' questions. For instance, last spring it narrowly voted down the legality of setting aside classroom time for prayer-related meditation and also gave a thumbs down on public aid to parochial institutions.

But now it will be addressing some less-publicized -- but, in some ways, equally important -- cases that could chart a significant new legal course for church and state separation for decades to come.

The following questions are paramount: Is the right to practice one's religion in a particular way an absolute right -- guaranteed by the Constitution? Or are there times when mores based on religious convictions must yield to broader public concerns, such as government efficiency or even the military's need for conformity?

The Goldman case involves the right of the military to ban the wearing of the yarmulke by on-duty personnel.

Rabbi Goldman served for several years as a Navy chaplain and later as a clinical psychologist in an Air Force military hospital, all the while donning his Orthodox skullcap without incident.

In 1981, however, while testifying as a defense wit-ness in a court martial, the prosecutor complained about his headgear. And the rabbi was thereafter ordered not to wear his yarmulke while on duty. When he disobeyed that order, he was reprimanded and a recommendation by the hospital commandant to extend his active service was withdrawn.

The Orthodox Jew went to court, complaining he was being deprived of a basic right -- one that was not previously brought into question as affecting his performance. Rabbi Goldman won an initial legal round when a federal judge ruled that the Air Force had violated his religious rights and ordered his superiors to stop enforcing the dress code against him.

A higher court saw it differently. ``The peculiar nature of the Air Force's interest in uniformity renders the strict enforcement of its regulation permissible,'' wrote the US Circuit Court of Appeals last May. The government lawyers said that, although they were sympathetic to Rabbi Goldman's plea, the military should not be forced to grant religious exemptions from dress restrictions on a case-by-case basis.

Interestingly, as Supreme Court jurists prepare to grapple with the issue of religious rights vs. the need for conformity, the Pentagon is independently reexamining its dress-code policies with a view to allowing some exceptions.

Meanwhile, Little Bird of the Snow is also entangled in a web of governmental regulations that, in essence, dictate: no social security number, no welfare benefits. Federal law requires that families receiving food stamps and other public assistance supply such identification.

Little Bird's father, Stephen J. Roy, his wife, and his elder daughter all have social security cards. But they got them before they embraced a religious philosophy that rejects the use of such artifacts.

When benefits stopped for Little Bird, Mr. Roy sued, challenging the requirement on behalf of the child. A US district judge upheld his argument and ordered state welfare officials to reinstate the full amount due the family. Pennsylvania lawyers, joined by federal officials, then sought Supreme Court review.

The Roys will argue before the justices that the use of a social security card would impede Little Bird's spiritual progress. On the other hand, the state will insist that the individual right to religious liberty should yield in this case to the broader government interest in the efficient and effective administration of its welfare programs.

The outcome of both of these cases is difficult to predict. Through the years, the Supreme Court has been extremely protective of individuals' religious rights. But it has also been sympathetic to the need for government regulations designed for the good of the many.

Last term, the court deadlocked 4 to 4 (Justice Lewis Powell did not take part in arguments, because of ill health) in the case of a Nebraska woman who had refused to be photographed for a driver's license. As a result, she had been denied the license. The woman, Frances Quaring, believes that personal pictures of any kind violate the Second Commandment's proscription against ``graven images.''

Nebraska officials argued that auto-related photographs are vital for identification and safety purposes.

In light of the high-court tie, however, an Eighth US Circuit Court of Appeals ruling still stands. The appellate court allowed that Mrs. Quaring's beliefs may be ``unusual'' in modern times. But it stressed that, since they were based on religion, the state had to have compelling reasons to override them. In this case, the court decided there were no such reasons. And Frances Quaring -- her religious convictions intact -- once more sits behind the wheel.

A Thursday column

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