Supreme Court Rules 5-4 That the U.S. Air Force Can Arbitrarily Refuse to Permit an Officer to Wear

The Supreme Court ruled by a 5-4 margin Tuesday that the U.S. Air Force can arbitrarily refuse to permit an officer to wear a yarmulka (skull cap) as a variation of its dress code regardless of indications that this does not interfere with the performance of his military mission.

The ruling, in what has become known as “the yarmulka case, ” climaxes close to five years of litigation by Captain Simcha Goldman, an Orthodox rabbi (but not a chaplain) and his attorneys from the National Commission on Law and Public Affairs (COLPA).

COLPA, in an immediate reaction, expressed disappointment at the ruling and concern about its implications. Dennis Rapps, COLPA’s executive director and general counsel, told the Jewish Telegraphic Agency that he was concerned because the Supreme Court in the past few years has taken an “unfavorable view of the rights of religious minorities.”

The “non-benign” ruling in the yarmulka case, he said, is another example where the Court “without any factual basis, has given its imprimatur to a government agency’s riding roughshod over the rights of religious minorities.”

BACKGROUND OF THE CASE

The case began in April 1981 on the Pease Air Force Base in California, where Goldman had served as a clinical psychologist for three-and-a-half years and had worn his yarmulka without incident. After testifying as a psychologist in favor of a defendant (and against the Air Force) in a military trial, wearing his yarmulka, he was informed by the Base’s commander that he was in violation of the dress code and had to remove the yarmulka or face a court-martial.

Goldman, claiming that the removal of the yarmulka violated his Constitutional right to the free expression of religion, took the case to federal court in the Washington, D.C. district. The court ruled that his wearing of the yarmulka was protected by the Constitution and that the Air Force had not demonstrated any compelling reasons why he should not be allowed to wear it.

The Circuit Court of Appeals, however, reversed this ruling. It stated the Air Force had the discretion to determine whether the variation of the dress code–the yarmulka, in this case–would compromise the military’s ability to perform its mission, and did not need to present evidence to prove its contention.

COLPA took the case to the Supreme Court, where its attorney, Nathan Lewin–who has been involved with it since the outset–presented his arguments. The Supreme Court’s majority opinion, written by Justice William Rehnquist, essentially upheld the Appeals Court ruling in favor of the Air Force.

In a minority dissenting opinion, Justice William Brennan said the narrow vote suggests that Congress should legislate in this area, and that in a pluralistic society, the religious needs of those in service should be generally accommodated.