FREEDOM of speech and of the press, guaranteed by the First Amendment, is today regarded as our most preferred freedom. Justice Benjamin Cardozo once said that this is the matrix, the indispensable condition, of nearly every other freedom. But the Founding Fathers regarded freedom of religion as preeminent among fundamental rights. And for good reasons. The immediate forebears of the framers of the Constitution immigrated mainly because they were denied the right freely to exercise their religious beliefs.
In his epitaph, which he wrote, Thomas Jefferson identified his three greatest achievements as being the author of the American Declaration of Independence and the statute of Virginia for religious freedom, and being the father of the University of Virginia.
The statute for religious freedom was enacted in 1786, preceding the ratification of the Constitution and the Bill of Rights. This statute declared, in effect -- as does the First Amendment -- that no law may be passed prohibiting the free exercise of religion. Thus by language and historical intent, the First Amendment mandates that government must keep its hands off religion, religious groups, and their practices.
Matthew, Chapter 22, Verse 21, says it well: ``Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's.''
The Constitution and the Bible are at one on this transcendent matter. But the US Supreme Court, in its March decision on the so-called yarmulke case, departed from Constitution and Bible. THE facts of this case are undisputed.
S. Simcha Goldman, a non-practicing rabbi but devout Orthodox Jew, is a commissioned officer in the United States Air Force and a clinical psychologist. In accordance with the precepts of his faith, he wore a yarmulke indoors while on duty four years at a military clinic. In compliance with military regulations, while outside he wore a regulation service cap, which also conformed to the Orthodox Jewish requirement that his head be covered.
It was not until he testified on behalf of a defendant in a court-martial that a formal complaint was lodged against him by a disgruntled military prosecutor, charging that the wearing of the yarmulke violated an Air Force regulation. It states: ``headgear will not be worn . . . while indoors except by armed security police in the performance of their duties.''
Before this complaint Captain Goldman had received extremely high ratings in his performance evaluations. Indeed, one of his evaluators noted: ``He maintains appropriate military dress and bearing.''
After the complaint, Goldman received a letter of reprimand and was warned that failure to obey the regulation would subject him to a court-martial.
Goldman then sued to enjoin the regulation.
The Supreme Court of the United States, in a divided opinion (5-4), affirmed the regulation.
To paraphrase Justice Holmes, bad cases, like great cases, make bad law. The yarmulke case makes bad law.
First and foremost, it undermines our constitutional commitment to religious freedom and acceptance of religious pluralism, on the alleged ground of military necessity, unsupported by credible evidence or explanation.
Further, it constitutes a judicial erosion of the free-exercise clause of the Constitution. It is reminiscent of a prior Supreme Court decision sustaining the constitutionality of the Sunday closing laws. These laws compel Orthodox Jews, Seventh-day Adventists, and Muslims to choose between their religious faith and economic survival, since they also must, in deference to their religious obligations, close their businesses on their sabbaths. This is not only a cruel choice but a gross violation of their constitutional rights to the free exercise of religion.
The yarmulke case is different: It involves the military. The Supreme Court has held that, by its very nature, the military must be able to command service personnel to sacrifice a great many of the individual freedoms civilians enjoy, and to endure certain limitations on the freedoms they retain. But not all! The Supreme Court has also decided that ``. . . our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.''
All justices of the court, in majority or dissent, acknowledged that for Orthodox Jews the wearing of a yarmulke is a traditional religious obligation. It is a matter of faith -- an expression of respect for God, intended to keep the wearer aware of God's presence.
The basic justification offered by the military in support of this regulation is that military discipline and morale depend upon the esprit de corps of the armed services, and that it is the professional judgment of the military that outfitting personnel in standardized uniforms encourages habits of discipline and unity. The military, however, offered no outside expert evidence that the unobtrusive wearing of a yarmulke by a clinical psychologist in a military mental health clinic promotes disunity and lack of discipline in the armed forces.
Further, the evidence is to the contrary. Goldman wore his yarmulke for years at the clinic without any formal complaint deemed serious enough to act upon.
The court, in this case, had to strike a pragmatic balance between the constitutional mandate of free exercise of religion and military requirements. The court, however, struck the balance in the wrong way and with a surprising lack of sensitivity for the multiplicity of religious beliefs of our citizens, civilian and military.
The essential question in the yarmulke case is this: Was there an overriding military necessity justifying the abridgment of a fundamental right specifically protected by the First Amendment? Customarily, a yarmulke is an unobtrusive 5 inches in diameter. Since it is pinned on the back of an observant Jew's head, it is barely noticeable. Those who do notice the yarmulke, gentiles and Jews alike, by and large accept it as symbolic that we have a pluralistic society. ULTIMATELY the argument of the military services, accepted by the court majority, reduces itself to this: The military depends upon uniformity in dress, even of an unobtrusive character, to maintain morale and discipline. But no expert evidence, except in-house, was proffered by the Air Force in support of this thesis.
The historical and contemporary evidence is to the contrary. Many high-ranking generals of the Indian Army are Sikhs who wear turbans and beards, according to the precepts of their faith. And, despite the troubles at Amritsar, Sikhs in the Indian Army are recognized to be highly disciplined and to have high morale.
To this day there are turbaned and bearded Sikhs in the Bristish Army. There are also Gurkha, who wear their native clothing. Gurkha are perhaps the most feared, by adversaries, because of their courage and exemplary discipline.
We have progressed from the ``ragtag band of soldiers'' who won the Revolutionary War of Independence. Today, of course, uniforms are prescribed for the US armed services. But minor variations in uniforms -- in deference to the free-exercise clause -- worn inside military hospitals, clinics, headquarters, or the like -- are de minimus exceptions to uniform requirements.
Absent any nonmilitary expert evidence, the contention of the military that uniform headgear regulations must be observed indoors to maintain discipline seems to reflect a ``spit and polish'' attitude of military brass, without foundation in reality or evidence. THE contention of the majority of the Supreme Court that we must, in effect, defer to the expertise of the armed forces about the military necessity of uniforms without any variation, however trivial, is entirely without foundation. The Supreme Court, of course, should give due deference to their views, but the Constitution governs, not the dictates of our armed forces.
With all respect, I regard the Supreme Court decision in this case as having caused an unnecessary and serious constitutional confrontation. The court might well have said that, since Captain Goldman wore his yarmulke without formal charges for 48 months, the complaint should have been dismissed by the colonel in charge, in the exercise of sound discretion and simple common sense. Commanding officers, virtually every day, overlook minor transgressions of military regulations.
In the alternative, the court might well have said that military regulations that allow a commander to permit wearing of unobtrusive religious jewelry (crosses, Stars of David, and the like) also encompass the indoor wearing of an unobtrusive yarmulke. Further, the commanding officer had the authority to permit Goldman to wear civilian clothes, which he requested. This too would have avoided a constitutional test, since, in wearing his skullcap, he would not have been out of uniform.
At first blush the yarmulke case, in itself, does not seem important. But it is extremely so. The Supreme Court in this case seems to be insensitive to the breach of the free-exercise clause of the First Amendment.
Fidelity to the free-exercise clause requires that the Supreme Court keep its hands off religion, its institutions and practices. Absent proof of military necessity, this constitutional principle applies to the nation's armed forces. As Justice Sandra Day O'Connor said in dissent, ``. . . the government's policy of uniformity must yield to the individual's assertions of free exercise of religion,'' unless the government presents clear and convincing proof that granting an exemption would do substantial harm to military discipline and esprit de corps. No such proof was offered by the government in the yarmulke case.
A military chaplain in World War II is reputed to have said: ``There are no atheists in the foxholes.''
The Supreme Court, in the yarmulke case, seems to have added: ``And no place for patriotic Orthodox Jews.'' Of course, their religious obligations would be satisfied by covering their heads with helmets, but if denied the right to wear yarmulkes while indoors on duty, they would never reach foxholes.
In the US volunteer armed services, Orthodox Jews can elect not to join. But if conscription becomes necessary the problem is compounded.
As Justice William Brennan, dissenting, aptly observed: ``The Court and the military services have presented Orthodox Jews with a painful dilemma -- the choice between fulfilling a religious obligation and serving their country. Should the draft be reinstated, compulsion will replace choice.''
In two world wars our recruiting slogan was: For God and Country. No longer. Minority believers who must cover their heads while in military service, both indoors and outdoors, now must choose between God or country, under penalty of court-martial.
Arthur J. Goldberg is a former associate justice of the Supreme Court of the United States and a retired Air Force Reserve colonel.