NEW YORK (May. 10)
An official of the National Jewish Commission on Law and Public Affairs (COLPA) said today that agency would seek a rehearing by the U.S. Circuit Court of Appeals of its ruling Tuesday that an Orthodox Jew could not wear a skullcap while onduty as a military officer.
Dennis Rapps, executive director of COLPA, which has represented Captain S. Simcha Goldman since the Air Force banned Goldman from wearing a skullcap while on duty in July, 1981, said that if the appeals court refuses a rehearing, COLPA will probably seek a review of the case by the United States Supreme Court.
Goldman serves as a clinical psychologist at the Mental Health Clinic of the Air Force Regional Hospital at March Air Force Base in Riverside, Cal. The 3-0 circuit court ruling reversed a federal district court decision in Washington by Judge Aubrey Robinson who had held in April, 1982 that the Air Force had failed to show why it could not accomodate Capt. Goldman’s request to wear a skullcap and enjoined the Air Force from interfering with that practice.
The appeals court acknowledged that Goldman had made a persuasive showing that he should be permitted to wear a skullcap, as he has throughout his military career. The court added that “the pecular nature of the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.”
“That interest lies in the enforcement of regulations, not for the sake of the regulations themselves, but for the sake of enforcement,” the appeals court said in its ruling. But that court sent the case back to the lower court with instructions that the district court “should determine whether, in light of the difficulty of the issue and the good faith of the parties, equity requires that Goldman’s military record be expunged of any negative materials related to the issues in this case.”
BACKGROUND OF THE CASE
Between September 1, 1977 and May 8, 1981, Goldman wore a skullcap at all times, a practice required by Jewish Law, while on duty as a psychologist. At no time, his COLPA attorneys testified, was he told that wearing a head covering while in uniform was a problem.
On May 8, 1981, Goldman was informed by Col. Joseph Gregory, then the hospital commander at March base, that wearing a skullcap while in uniform violated an Air Force regulation on military uniforms. He was told to stop the practice or face a court martial. Goldman sought legal and religious advice and continued to wear the skullcap. He then received a Letter of Reprimand.
On July 2, Goldman filed suit in federal district court in Washington, challenging the regulation of first amendment grounds. The district court granted temporary restraining order and a preliminary injuction on enforcement of the dress code regulation pending a full hearing.
At that hearing, the Air Force argued that strict observance of its regulations was necessary to preserve morale, lest other officers not excused from observing the admittedly arbitrary rules become resentful.
Judge Robinson discounted those arguments on grounds the Air Force did not present objective studies to verify its contention that exceptions for religious reasons would erode morale and obedience. He issued a permanent injunction barring the Air Force from refusing Goldman permission to continue wearing his skullcap and from punishing him for refusing to stop wearing it. It was that district court decision which the appeals court reversed.
Rapps said that the petition to the appeals court for the rehearing will be filed by Nathan Lewin of Washington, and David Butler, a COLPA attorney, who represented Goldman in earlier phases of the litigation.