First Case of Its Kind for the Supreme Court: Hearing to Begin in December on the Refusal of the Air

Attorneys for Rabbi Simcha Goldman reported today that they filed a brief with the U.S. Supreme Court challenging the refusal of the Air Force to allow Goldman, as an Air Force chaplain, to wear a skullcap while on duty.

Allen Rothenberg, president of the National Jewish Commission on Law and Public Affairs (COLPA), said the case will represent the first time that the Supreme Court will be hearing a case involving a religious practice in the military establishment. The brief was filed September 3 in response to acceptance of the case by the Supreme Court last June, he said.

Dennis Rapps, COLPA executive director, said that hearings on the appeal are scheduled to begin before the Supreme Court on December 10. The Supreme Court notified the defense attorneys last June 17 that it would hear the case.

CASE IS STILL VALID

Although Goldman has resigned from the Air Force and is now a psychologist with a Chabad House in Los Angeles, the case is still valid because of damages Goldman allegedly suffered in lost promotions and pay increases he would have received if he had obeyed the no-yarmulke order.

Rapps said Goldman remained in the Air Force Reserves. Rapps also pointed out that, in addition to the damages issue, COLPA undertook to represent Goldman because of the religious rights issue of the case.

Rothenberg said Nathan Lewin, COLPA vice president, is representing Goldman in the Supreme Court action. A number of secular Jewish organizations, including the American Jewish Committee, American Jewish Congress and the Anti-Defamation League of B’nai B’rith, filed friend-of-the-court briefs in support of Goldman. Rothenberg said that with Lewin on the brief were David Butler, COLPA secretary, and Rapps.

ARGUMENTS IN THE BRIEF

Lewin argued in the brief that wearing a yarmulke is a religious observance that interferes with no one and imposes no burden on the military.

The brief also argued that the record in the case, which includes a description of Goldman’s approximately four years of wearing a yarmulke while in uniform, showed that banning a yarmulke is not necessary for military discipline or morale as claimed by the Air Force.

The brief argued, in addition, that the military services do not have carte blanche in dealing with the constitutional liberties of military personnel and that, given the circumstances of the lack of adverse impact the yarmulke would occasion, Goldman had a constitutional right to wear the yarmulke on duty.

Goldman is an Orthodox Jew who was ordained as a rabbi in 1970. After serving for two years as a Navy chaplain, he enrolled in the Armed Forces Health Professions Scholarship program, taking courses in psychology at Loyola University. In September, 1977, after earning a doctorate in psychology, he entered on active duty in the Air Force, as a clinical psychologist, at March Air Force Base in California.

From the time he entered Air Force service until early 1981, Goldman kept his head covered, as he had always done. This included hours when he was on duty at the Air Force hospital.

Rothenberg said that during his entire three-and-one-half years in the Air Force, Goldman received consistently outstanding performance ratings. No complaints about his yarmulke were received, nor were there any other indications that his variance from Air Force dress restrictions had any harmful effect on his handling of his duties or on anyone else’s military performance.

In April, 1981, Goldman testified as a defense witness in a court-martial wearing his yarmulke. The opposing counsel then made a complaint against him to the hospital commandant. On May 8, 1981, he was told by the commandant that by wearing a yarmulke on duty, he violated the Air Force Dress Code. He was given a formal letter of reprimand and threatened with additional sanctions, including a court-martial, if he did not stop wearing his yarmulke on duty.

Goldman promptly started a court action for injunctive relief and damages. A federal district court in Washington, D.C. entered a temporary restraining order and, after a hearing, issued on April 26, 1982, an injunction upholding Goldman’s constitutional right to wear a yarmulke on duty. Goldman was awarded damages for pay lost as a result of the ban-yarmulke order.

The District of Columbia Court of Appeals reversed the district court ruling on May 8, 1984. After a COLPA petition to the appeals court was rejected, COLPA then filed an appeal from the appeals court ruling with the Supreme Court.