U.S. Supreme Court Goldman v. Weinberger, 475
U.S. 503 (1986) Goldman v. Weinberger No. 84-1097 Argued January 14,
1986 Decided March 25,
1986 475
U.S. 503 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus Petitioner, an Orthodox Jew and ordained rabbi, was ordered not
to wear a yarmulke while on duty and in uniform as a commissioned
officer in the Air Force at March Air Force Base, pursuant to an
Air Force regulation that provides that authorized headgear may be
worn out of doors but that indoors "[h]eadgear [may] not be worn .
. . except by armed security police in the performance of their
duties." Petitioner then brought an action in Federal District
Court, claiming that the application of the regulation to prevent
him from wearing his yarmulke infringed upon his First Amendment
freedom to exercise his religious beliefs. The District Court
permanently enjoined the Air Force from enforcing the regulation
against petitioner. The Court of Appeals reversed. Held: The First Amendment does not prohibit the
challenged regulation from being applied to petitioner, even though
its effect is to restrict the wearing of the headgear required by
his religious beliefs. That Amendment does not require the military
to accommodate such practices as wearing a yarmulke in the face of
its view that they would detract from the uniformity sought by
dress regulations. Here, the Air Force has drawn the line
essentially between religious apparel that is visible and that
which is not, and the challenged regulation reasonably and
evenhandedly regulates dress in the interest of the military's
perceived need for uniformity. Pp. 475 U. S.
506 -510.

															236 U.S.App.D.C. 248, 734 F.2d 1531, affirmed.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ joined. STEVENS, J
filed a concurring opinion, in which WHITE and POWELL, JJ., joined, post, p. 475 U. S. 510 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 475 U. S. 513 .
BLACKMUN, J., filed a dissenting opinion, post, p. 475 U. S. 524 .
O'CONNOR, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 475 U. S.
528 . Page 475 U. S. 504 JUSTICE REHNQUIST delivered the opinion of the Court.

															Petitioner S. Simcha Goldman contends that the Free Exercise
Clause of the First Amendment to the United States Constitution
permits him to wear a yarmulke while in uniform, notwithstanding an
Air Force regulation mandating uniform dress for Air Force
personnel. The District Court for the District of Columbia
permanently enjoined the Air Force from enforcing its regulation
against petitioner and from penalizing him for wearing his
yarmulke. The Court of Appeals for the District of Columbia Circuit
reversed on the ground that the Air Force's strong interest in
discipline justified the strict enforcement of its uniform dress
requirements. We granted certiorari because of the importance of
the question, 472 U.S. 1016 (1985), and now affirm.

															Petitioner Goldman is an Orthodox Jew and ordained rabbi. In
1973, he was accepted into the Armed Forces Health Professions
Scholarship Program and placed on inactive reserve status in the
Air Force while he studied clinical psychology at Loyola University
of Chicago. During his three years in the scholarship program, he
received a monthly stipend and an allowance for tuition, books, and
fees. After completing his Ph.D. in psychology, petitioner Page 475 U. S. 505 entered active service in the United States Air Force as a
commissioned officer, in accordance with a requirement that
participants in the scholarship program serve one year of active
duty for each year of subsidized education. Petitioner was
stationed at March Air Force Base in Riverside, California, and
served as a clinical psychologist at the mental health clinic on
the base.

															Until 1981, petitioner was not prevented from wearing his
yarmulke on the base. He avoided controversy by remaining close to
his duty station in the health clinic and by wearing his service
cap over the yarmulke when out of doors. But in April, 1981, after
he testified as a defense witness at a court-martial wearing his
yarmulke but not his service cap, opposing counsel lodged a
complaint with Colonel Joseph Gregory, the Hospital Commander,
arguing that petitioner's practice of wearing his yarmulke was a
violation of Air Force Regulation (AFR) 35-10. This regulation
states in pertinent part that "[h]eadgear will not be worn . . .
[w]hile indoors except by armed security police in the performance
of their duties." AFR 35-10, � 1-6.h(2)(f) (1980).

															Colonel Gregory informed petitioner that wearing a yarmulke
while on duty does indeed violate AFR 35-10, and ordered him not to
violate this regulation outside the hospital. Although virtually
all of petitioner's time on the base was spent in the hospital, he
refused. Later, after petitioner's attorney protested to the Air
Force General Counsel, Colonel Gregory revised his order to
prohibit petitioner from wearing the yarmulke even in the hospital.
Petitioner's request to report for duty in civilian clothing
pending legal resolution of the issue was denied. The next day, he
received a formal letter of reprimand, and was warned that failure
to obey AFR 35-10 could subject him to a court-martial. Colonel
Gregory also withdrew a recommendation that petitioner's
application to extend the term of his active service be approved,
and substituted a negative recommendation. Page 475 U. S. 506 Petitioner then sued respondent Secretary of Defense and others,
claiming that the application of AFR 35-10 to prevent him from
wearing his yarmulke infringed upon his First Amendment freedom to
exercise his religious beliefs. The United States District Court
for the District of Columbia preliminarily enjoined the enforcement
of the regulation, Goldman v. Secretary of
Defense, 530 F. Supp.
12 (1981), and then, after a full hearing, permanently enjoined
the Air Force from prohibiting petitioner from wearing a yarmulke
while in uniform. Goldman v. Secretary of Defense, 29 EPD
� 32,753 (1982). Respondents appealed to the Court of Appeals for
the District of Columbia Circuit, which reversed. Goldman v.
Secretary of Defense, 236 U.S.App.D.C. 248, 734 F.2d 1531
(1984). As an initial matter, the Court of Appeals determined that
the appropriate level of scrutiny of a military regulation that
clashes with a constitutional right is neither strict scrutiny nor
rational basis. Id. at 252, 734 F.2d at 1535-1536.
Instead, it held that a military regulation must be examined to
determine whether "legitimate military ends are sought to be
achieved," id. at 253, 734 F.2d at 1536, and whether it is
"designed to accommodate the individual right to an appropriate
degree." Ibid. Applying this test, the court concluded
that "the Air Force's interest in uniformity renders the strict
enforcement of its regulation permissible." Id. at 257,
734 F.2d at 1540. The full Court of Appeals denied a petition for
rehearing en banc, with three judges dissenting. 238 U.S.App.D.C.
267, 739 F.2d 657 (1984).

															Petitioner argues that AFR 35-10, as applied to him, prohibits
religiously motivated conduct, and should therefore be analyzed
under the standard enunciated in Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 406 (1963). See also Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U.
S. 205 (1972). But we have repeatedly held that "the
military is, by necessity, a specialized society separate from
civilian society." Page 475 U. S. 507 Parker v. Levy, 417 U. S. 733 , 417 U. S. 743 (1974). See also Chappell v. Wallace, 462 U.
S. 296 , 462 U. S. 300 (1983); Schlesinger v. Councilman, 420 U.
S. 738 , 420 U. S. 757 (1975); Orloff v. Willoughby, 345 U. S.
83 , 345 U. S. 94 (1953). "[T]he military must insist upon a respect for duty and a
discipline without counterpart in civilian life," Schlesinger
v. Councilman, supra, at 420 U. S. 757 ,
in order to prepare for and perform its vital role. See also
Brown v. Glines, 444 U. S. 348 , 354
(1980).

															Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of
similar laws or regulations designed for civilian society. The
military need not encourage debate or tolerate protest to the
extent that such tolerance is required of the civilian state by the
First Amendment; to accomplish its mission, the military must
foster instinctive obedience, unity, commitment, and esprit de
corps. See, e.g., Chappell v. Wallace, supra, at 462 U. S. 300 ; Greer v. Spock, 424 U. S. 828 , 424 U. S.
843 -844 (1976) (POWELL, J., concurring); Parker v.
Levy, supra, at 417 U. S. 744 .
The essence of military service "is the subordination of the
desires and interests of the individual to the needs of the
service." Orloff v. Willoughby, supra, at 345 U. S.
92 .

															These aspects of military life do not, of course, render
entirely nugatory in the military context the guarantees of the
First Amendment. See, e.g., Chappell v. Wallace, supra, at 462 U. S. 304 .
But "within the military community, there is simply not the same
[individual] autonomy as there is in the larger civilian
community." Parker v. Levy, supra, at 417 U. S. 751 .
In the context of the present case, when evaluating whether
military needs justify a particular restriction on religiously
motivated conduct, courts must give great deference to the
professional judgment of military authorities concerning the
relative importance of a particular military interest. See
Chappell v. Wallace, supra, at 462 U. S. 305 ; Orloff v. Willoughby, supra, 345 U. S. 93 -94.
Not only are courts " ill-equipped to determine the impact upon
discipline that any particular intrusion upon military authority
might have,'" Chappell v. Wallace, Page 475 U. S.
508 supra, at 462 U. S. 305 ,
quoting Warren, The Bill of Rights and the Military, 37
N.Y.U.L.Rev. 181, 187 (1962), but the military authorities have
been charged by the Executive and Legislative Branches with
carrying out our Nation's military policy.

															"[J]udicial deference . . . is at its apogee when legislative
action under the congressional authority to raise and support
armies and make rules and regulations for their governance is
challenged." Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 70 (1981).

															The considered professional judgment of the Air Force is that
the traditional outfitting of personnel in standardized uniforms
encourages the subordination of personal preferences and identities
in favor of the overall group mission. Uniforms encourage a sense
of hierarchical unity by tending to eliminate outward individual
distinctions except for those of rank. The Air Force considers them
as vital during peacetime as during war, because its personnel must
be ready to provide an effective defense on a moment's notice; the
necessary habits of discipline and unity must be developed in
advance of trouble. We have acknowledged that

															"[t]he inescapable demands of military discipline and obedience
to orders cannot be taught on battlefields; the habit of immediate
compliance with military procedures and orders must be virtually
reflex, with no time for debate or reflection." Chappell v. Wallace, supra, at 462 U. S.
300 .

															To this end, the Air Force promulgated AFR 35-10, a 190-page
document, which states that "Air Force members will wear the Air
Force uniform while performing their military duties, except when
authorized to wear civilian clothes on duty." AFR 35-10, � 1-6
(1980). The rest of the document describes in minute detail all of
the various items of apparel that must be worn as part of the Air
Force uniform. It authorizes a few individualized options with
respect to certain pieces of jewelry and hairstyle, but even these
are subject to severe limitations. See AFR 35-10, Table
1-1, and � 1-12.b(1)(b) (1980). In general, authorized headgear
may Page 475 U. S. 509 be worn only out of doors. See AFR 35-10, � 1-6.h
(1980). Indoors, "[h]eadgear [may] not be worn . . . except by
armed security police in the performance of their duties." AFR
35-10, � 1-6.h(2)(f) (1980). A narrow exception to this rule exists
for headgear worn during indoor religious ceremonies. See AFR 35-10, � 1-6.h(2)(d) (1980). In addition, military commanders
may in their discretion permit visible religious headgear and other
such apparel in designated living quarters and nonvisible items
generally. See Department of Defense Directive 1300.17
(June 18, 1985).

															Petitioner Goldman contends that the Free Exercise Clause of the
First Amendment requires the Air Force to make an exception to its
uniform dress requirements for religious apparel unless the
accouterments create a "clear danger" of undermining discipline and esprit de corps. He asserts that, in general, visible but
"unobtrusive" apparel will not create such a danger, and must
therefore be accommodated. He argues that the Air Force failed to
prove that a specific exception for his practice of wearing an
unobtrusive yarmulke would threaten discipline. He contends that
the Air Force's assertion to the contrary is mere ipse
dixit, with no support from actual experience or a scientific
study in the record, and is contradicted by expert testimony that
religious exceptions to AFR 35-10 are in fact desirable, and will
increase morale by making the Air Force a more humane place.

															But whether or not expert witnesses may feel that religious
exceptions to AFR 35-10 are desirable is quite beside the point.
The desirability of dress regulations in the military is decided by
the appropriate military officials, and they are under no
constitutional mandate to abandon their considered professional
judgment. Quite obviously, to the extent the regulations do not
permit the wearing of religious apparel such as a yarmulke, a
practice described by petitioner as silent devotion akin to prayer,
military life may be more objectionable for petitioner and probably
others. But the First Amendment does not require the military to
accommodate Page 475 U. S. 510 such practices in the face of its view that they would detract
from the uniformity sought by the dress regulations. The Air Force
has drawn the line essentially between religious apparel that is
visible and that which is not, and we hold that those portions of
the regulations challenged here reasonably and evenhandedly
regulate dress in the interest of the military's perceived need for
uniformity. The First Amendment therefore does not prohibit them
from being applied to petitioner, even though their effect is to
restrict the wearing of the headgear required by his religious
beliefs.

															The judgment of the Court of Appeals is Affirmed. JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE POWELL
join, concurring.

															Captain Goldman presents an especially attractive case for an
exception from the uniform regulations that are applicable to all
other Air Force personnel. His devotion to his faith is readily
apparent. The yarmulke is a familiar and accepted sight. [ Footnote 1 ] In addition to its
religious significance for the wearer, the yarmulke may evoke the
deepest respect and admiration -- the symbol of a distinguished
tradition [ Footnote 2 ] and
an Page 475 U. S. 511 eloquent rebuke to the ugliness of anti-Semitism. [ Footnote 3 ] Captain Goldman's military duties
are performed in a setting in which a modest departure from the
uniform regulation creates almost no danger of impairment of the
Air Force's military mission. Moreover, on the record before us,
there is reason to believe that the policy of strict enforcement
against Captain Goldman had a retaliatory motive -- he had worn his
yarmulke while testifying on behalf of a defendant in a
court-martial proceeding. [ Footnote
4 ] Nevertheless, as the case has been argued, [ Footnote 5 ] Page 475 U. S. 512 I believe we must test the validity of the Air Force's rule not
merely as it applies to Captain Goldman, but also as it applies to
all service personnel who have sincere religious beliefs that may
conflict with one or more military commands.

															JUSTICE BRENNAN is unmoved by the Government's concern that,

															"while a yarmulke might not seem obtrusive to a Jew, neither
does a turban to a Sikh, a saffron robe to a Satchidananda
Ashram-Integral Yogi, nor do dreadlocks to a Rastafarian." Post at 475 U. S. 519 .
He correctly points out that "turbans, saffron robes, and
dreadlocks are not before us in this case," and then suggests that
other cases may be fairly decided by reference to a reasonable
standard based on "functional utility, health and safety
considerations, and the goal of a polished, professional
appearance." Ibid. As the Court has explained, this
approach attaches no weight to the separate interest in uniformity
itself. Because professionals in the military service attach great
importance to that plausible interest, it is one that we must
recognize as legitimate and rational even though personal
experience or admiration for the performance of the "rag-tag band
of soldiers" that won us our freedom in the Revolutionary War might
persuade us that the Government has exaggerated the importance of
that interest.

															The interest in uniformity, however, has a dimension that is of
still greater importance for me. It is the interest in uniform
treatment for the members of all religious faiths. The very
strength of Captain Goldman's claim creates the danger that a
similar claim on behalf of a Sikh or a Rastafarian might readily be
dismissed as "so extreme, so unusual, or so faddish an image that
public confidence in his ability to perform his duties will be
destroyed." Post at 475 U. S. 518 .
If exceptions from dress code regulations are to be granted on the
basis of a multifactored test such as that proposed by JUSTICE
BRENNAN, inevitably the decisionmaker's evaluation of the
character Page 475 U. S. 513 and the sincerity of the requester's faith -- as well as the
probable reaction of the majority to the favored treatment of a
member of that faith -- will play a critical part in the decision.
For the difference between a turban or a dreadlock on the one hand,
and a yarmulke on the other, is not merely a difference in
"appearance" -- it is also the difference between a Sikh or a
Rastafarian, on the one hand, and an Orthodox Jew on the other. The
Air Force has no business drawing distinctions between such persons
when it is enforcing commands of universal application. [ Footnote 6 ]

															As the Court demonstrates, the rule that is challenged in this
case is based on a neutral, completely objective standard --
visibility. It was not motivated by hostility against, or any
special respect for, any religious faith. An exception for
yarmulkes would represent a fundamental departure from the true
principle of uniformity that supports that rule. For that reason, I
join the Court's opinion and its judgment.

															[ Footnote 1 ]

															Captain Goldman states in his brief

															"Yarmulkes are generally understood to be a form of religious
observance. They are commonly seen and accepted in today's society
wherever Orthodox Jews are found. University Campuses --
particularly on the East Coast -- have substantial numbers of young
men who wear yarmulkes. On the streets of New York City, Los
Angeles, Chicago, or Miami, yarmulkes are commonplace. They are
increasingly visible in centers of commerce, including retail
businesses, brokerage houses, and stock exchanges. Attorneys
wearing yarmulkes can be found in the state and federal courthouses
of New York, and attorneys wearing yarmulkes have been permitted to
sit in the Bar Section of this Court and attend oral
arguments."

															Brief for Petitioner 11.

															[ Footnote 2 ]

															In dissenting from the Court of Appeals' denial of rehearing en
banc, Judge Starr was moved to describe the yarmulke as the "symbol
of [a] faith whose roots are as deep and venerable as Western
civilization itself " and the "symbol of a great faith from which
Western morality and the Judaeo-Christian tradition have arisen."
238 U.S.App.D.C. 267, 268, 739 F.2d 657, 658 (1984).

															[ Footnote 3 ] Cf. N. Belth, A Promise to Keep (1979) (recounting
history of anti-Semitism in the United States). The history of
intolerance in our own country can be glimpsed by reviewing Justice
Story's observation that the purpose of the First Amendment was

															"not to countenance, much less to advance Mahometanism, or
Judaism, or infidelity, by prostrating Christianity, but to exclude
all rivalry among Christian sects,"

															2 J. Story, Commentaries on the Constitution of the United
States § 1877, p. 594 (1851) -- a view that the Court has, of
course, explicitly rejected. See Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 52 -55
(1985).

															[ Footnote 4 ]

															Before the testimony at the court-martial that provoked this
confrontation, Captain Goldman had received extremely high ratings
in his performance evaluations. App. 214-225. Indeed, one of the
evaluators noted: "He maintains appropriate military dress and
bearing." Id. at 217. Although the Air Force stated that
an officer had received one or two complaints about Captain
Goldman's wearing of the yarmulke, id. at 15, 22, no
complaint was acted upon until the court-martial incident. See
Goldman v. Secretary of Defense, 29 EPD � 32,753, p. 25,539
(1982) (District Court finding that, until the court-martial, "no
objection was raised to Goldman's wearing his yarmulke while in
uniform").

															[ Footnote 5 ]

															Captain Goldman has mounted a broad challenge to the prohibition
on visible religious wear as it applies to yarmulkes. He has not
argued the far narrower ground that, even if the general
prohibition is valid, its application in his case was retaliatory
and impermissible. See, e.g., Brief for Petitioner i
(stating the Question Presented as "Whether the Air Force may
constitutionally prohibit an Orthodox Jewish psychologist from
wearing a yarmulke' -- an unobtrusive skullcap which is part of
his religious observance -- while he is in uniform on duty at a
military hospital"); id. at 8 ("The Air Force's asserted
grounds for barring yarmulkes are patently unsound. . . . Indeed,
the symbolic significance of our Nation's military services and the
educational role of the military in teaching the young defenders of
our country the principles of liberty require acceptance of
petitioner's religious observance"). [ Footnote 6 ] See United States v. Lee, 455 U.
S. 252 , 455 U. S. 263 ,
n. 2 (1982) (STEVENS, J., concurring in judgment) ("In my opinion,
the principal reason for adopting a strong presumption against such
claims is not a matter of administrative convenience. It is the
overriding interest in keeping the government -- whether it be the
legislature or the courts -- out of the business of evaluating the
relative merits of differing religious claims"). Cf. Wallace v.
Jaffree, 472 U.S. at 472 U. S. 60 (referring to "the established principle that the government must
pursue a course of complete neutrality toward religion"); Committee for Public Education & Religious Liberty v.
Nyquist, 413 U. S. 756 , 413 U. S.
792 -793 (1973) ("A proper respect for both the Free
Exercise and the Establishment Clauses compels the State to pursue
a course of neutrality' toward religion"); Abington School
District v. Schempp, 374 U. S. 203 , 374 U. S. 226 (1963) ("In the relationship between man and religion, the State is
firmly committed to a position of neutrality"). JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															Simcha Goldman invokes this Court's protection of his First
Amendment right to fulfill one of the traditional religious
obligations of a male Orthodox Jew -- to cover his head before an
onmipresent God. The Court's response to Goldman's Page 475 U. S. 514 request is to abdicate its role as principal expositor of the
Constitution and protector of individual liberties in favor of
credulous deference to unsupported assertions of military
necessity. I dissent. I In ruling that the paramount interests of the Air Force override
Dr. Goldman's free exercise claim, the Court overlooks the sincere
and serious nature of his constitutional claim. It suggests that
the desirability of certain dress regulations, rather than a First
Amendment right, is at issue. The Court declares that, in selecting
dress regulations, "military officials . . . are under no
constitutional mandate to abandon their considered professional
judgment." Ante at 475 U. S. 509 .
If Dr. Goldman wanted to wear a hat to keep his head warm or to
cover a bald spot, I would join the majority. Mere personal
preferences in dress are not constitutionally protected. The First
Amendment, however, restrains the Government's ability to prevent
an Orthodox Jewish serviceman from, or punish him for, wearing a
yarmulke. [ Footnote 2/1 ]

															The Court also attempts, unsuccessfully, to minimize the burden
that was placed on Dr. Goldman's rights. The fact that "the
regulations do not permit the wearing of . . . a yarmulke," does
not simply render military life for observant Orthodox Jews
"objectionable." Ibid. It sets up an almost absolute bar
to the fulfillment of a religious duty. Dr. Goldman spent most of
his time in uniform indoors, where the dress code forbade him even
to cover his head with his service cap. Consequently, he was asked
to violate the tenets of his faith virtually every minute of every
workday. II A Dr. Goldman has asserted a substantial First Amendment claim,
which is entitled to meaningful review by this Court. Page 475 U. S. 515 The Court, however, evades its responsibility by eliminating, in
all but name only, judicial review of military regulations that
interfere with the fundamental constitutional rights of service
personnel.

															Our cases have acknowledged that, in order to protect our
treasured liberties, the military must be able to command service
members to sacrifice a great many of the individual freedoms they
enjoyed in the civilian community, and to endure certain
limitations on the freedoms they retain. See, e.g., Brown v.
Glines, 444 U. S. 348 , 444 U. S.
354 -357 (1980); Greer v. Spock, 424 U.
S. 828 , 424 U. S. 848 (1976) (POWELL, J., concurring); Parker v. Levy, 417 U. S. 733 , 417 U. S.
743 -744, 417 U. S. 751 (1974). Notwithstanding this acknowledgment, we have steadfastly
maintained that " our citizens in uniform may not be stripped of
basic rights simply because they have doffed their civilian
clothes.'" Chappell v. Wallace, 462 U.
S. 296 , 462 U. S. 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37
N.Y.U.L.Rev. 181, 188 (1962)); see also Glines, supra, at 444 U. S. 354 .
And, while we have hesitated, due to our lack of expertise
concerning military affairs and our respect for the delegated
authority of a coordinate branch, to strike down restrictions on
individual liberties which could reasonably be justified as
necessary to the military's vital function, see, e.g., Rostker
v. Goldberg, 453 U. S. 57 , 453 U. S. 66 -67
(1981) (citing cases), we have never abdicated our obligation of
judicial review. See, e.g., id. at 453 U. S.
67 . Today the Court eschews its constitutionally mandated role. It
adopts for review of military decisions affecting First Amendment
rights a subrational basis standard -- absolute, uncritical
"deference to the professional judgment of military authorities." Ante at 475 U. S. 507 .
If a branch of the military declares one of its rules sufficiently
important to outweigh a service person's constitutional rights, it
seems that the Court will accept that conclusion, no matter how
absurd or unsupported it may be. Page 475 U. S. 516 A deferential standard of review, however, need not, and should
not, mean that the Court must credit arguments that defy common
sense. When a military service burdens the free exercise rights of
its members in the name of necessity, it must provide, as an
initial matter and at a minimum, a credible explanation of how the
contested practice is likely to interfere with the proffered
military interest. [ Footnote 2/2 ]
Unabashed ipse dixit cannot outweigh a constitutional
right.

															In the present case, the Air Force asserts that its interests in
discipline and uniformity would be undermined by an exception to
the dress code permitting observant male Orthodox Jews to wear
yarmulkes. The Court simply restates these assertions without
offering any explanation how the exception Dr. Goldman requests
reasonably could interfere with the Air Force's interests. Had the
Court given actual consideration to Goldman's claim, it would have
been compelled to decide in his favor. B 1 The Government maintains in its brief that discipline is
jeopardized whenever exceptions to military regulations are
granted. Service personnel must be trained to obey even the most
arbitrary command reflexively. Non-Jewish personnel will perceive
the wearing of a yarmulke by an Orthodox Jew as an unauthorized
departure from the rules, and will begin to question the principle
of unswerving obedience. Thus shall our fighting forces slip down
the treacherous slope Page 475 U. S. 517 toward unkempt appearance, anarchy, and, ultimately, defeat at
the hands of our enemies.

															The contention that the discipline of the Armed Forces will be
subverted if Orthodox Jews are allowed to wear yarmulkes with their
uniforms surpasses belief. It lacks support in the record of this
case, and the Air Force offers no basis for it as a general
proposition. While the perilous slope permits the services
arbitrarily to refuse exceptions requested to satisfy mere personal
preferences, before the Air Force may burden free exercise rights,
it must advance, at the very least, a rational reason for
doing so.

															Furthermore, the Air Force cannot logically defend the content
of its rule by insisting that discipline depends upon absolute
adherence to whatever rule is established. If, as General Usher
admitted at trial, App. 52, the dress code codified religious
exemptions from the "no-headgear-indoors" regulation, then the
wearing of a yarmulke would be sanctioned by the code, and could
not be considered an unauthorized deviation from the rules. 2 The Government also argues that the services have an important
interest in uniform dress, because such dress establishes the
preeminence of group identity, thus fostering esprit de
corps and loyalty to the service that transcends individual
bonds. In its brief, the Government characterizes the yarmulke as
an assertion of individuality and as a badge of religious and
ethnic identity, strongly suggesting that, as such, it could drive
a wedge of divisiveness between members of the services.

															First, the purported interests of the Air Force in complete
uniformity of dress and in elimination of individuality or visible
identification with any group other than itself are belied by the
service's own regulations. The dress code expressly abjures the
need for total uniformity: Page 475 U. S. 518 "(1) The American public and its elected representatives draw
certain conclusions on military effectiveness based on what they
see; that is, the image the Air Force presents. The image must
instill public confidence and leave no doubt that the service
member lives by a common standard and responds to military order
and discipline."

															"(2) Appearance in uniform is an important part of this image. .
. . Neither the Air Force nor the public expects absolute
uniformity of appearance. Each member has the right, within limits,
to express individuality through his or her appearance. However,
the image of a disciplined service member who can be relied on to
do his or her job excludes the extreme, the unusual, and the
fad."

															AFR 35-10, �� 1-12a(1) and (2) (1978). [ Footnote 2/3 ] It cannot be seriously contended that a
serviceman in a yarmulke presents so extreme, so unusual, or so
faddish an image that public confidence in his ability to perform
his duties will be destroyed. Under the Air Force's own standards,
then, Dr. Goldman should have and could have been granted an
exception to wear his yarmulke.

															The dress code also allows men to wear up to three rings and one
identification bracelet of "neat and conservative," but nonuniform,
design. AFR 35-10, � 1-12b(1)(b) (1978). This jewelry is apparently
permitted even if, as is often the case with rings, it associates
the wearer with a denominational school or a religious or secular
fraternal organization. If these emblems of religious, social, and
ethnic identity are not deemed to be unacceptably divisive, the Air
Force cannot rationally justify its bar against yarmulkes on that
basis.

															Moreover, the services allow, and rightly so, other
manifestations of religious diversity. It is clear to all service
personnel that some members attend Jewish services, some Page 475 U. S. 519 Christian, some Islamic, and some yet other religious services.
Barracks mates see Mormons wearing temple garments, Orthodox Jews
wearing tzitzit, and Catholics wearing crosses and scapulars. That
they come from different faiths and ethnic backgrounds is not a
secret that can or should be kept from them.

															I find totally implausible the suggestion that the overarching
group identity of the Air Force would be threatened if Orthodox
Jews were allowed to wear yarmulkes with their uniforms. To the
contrary, a yarmulke worn with a United States military uniform is
an eloquent reminder that the shared and proud identity of United
States serviceman embraces and unites religious and ethnic
pluralism.

															Finally, the Air Force argues that, while Dr. Goldman describes
his yarmulke as an "unobtrusive" addition to his uniform,
obtrusiveness is a purely relative, standardless judgment. The
Government notes that, while a yarmulke might not seem obtrusive to
a Jew, neither does a turban to a Sikh, a saffron robe to a
Satchidananda Ashram-Integral Yogi, nor dreadlocks to a
Rastafarian. If the Court were to require the Air Force to permit
yarmulkes, the service must also allow all of these other forms of
dress and grooming.

															The Government dangles before the Court a classic parade of
horribles, the specter of a brightly-colored, "rag-tag band of
soldiers." Brief for Respondents 20. Although turbans, saffron
robes, and dreadlocks are not before us in this case, and must each
be evaluated against the reasons a service branch offers for
prohibiting personnel from wearing them while in uniform, a
reviewing court could legitimately give deference to dress and
grooming rules that have a reasoned basis in, for example,
functional utility, health and safety considerations, and the goal
of a polished, professional appearance. [ Footnote 2/4 ] AFR 35-10, �� 1-12a and 1-12a(1)
(1978) Page 475 U. S. 520 (identifying neatness, cleanliness, safety, and military image
as the four elements of the dress code's "high standard of dress
and personal appearance"). It is the lack of any reasoned basis for
prohibiting yarmulkes that is so striking here.

															Furthermore, contrary to its intimations, the Air Force has
available to it a familiar standard for determining whether a
particular style of yarmulke is consistent with a polished,
professional military appearance -- the "neat and conservative"
standard by which the service judges jewelry. AFR 35-10, �
1-12b(1)(b) (1978). No rational reason exists why yarmulkes cannot
be judged by the same criterion. Indeed, at argument, Dr. Goldman
declared himself willing to wear whatever style and color yarmulke
the Air Force believes best comports with its uniform. Tr. 18. 3 Department of Defense Directive 1300.17 (June 18, 1985) grants
commanding officers the discretion to permit service personnel to
wear religious items and apparel that are not visible with the
uniform, such as crosses, temple garments, and scapulars. JUSTICE
STEVENS favors this "visibility test," because he believes that it
does not involve the Air Force in drawing distinctions among
faiths. Ante at 475 U. S.
512 -513. He rejects functional utility, health, and
safety considerations, and similar grounds as criteria for
religious exceptions to the dress code, because he fears that these
standards will allow some servicepersons to satisfy their religious
dress and grooming obligations, while preventing others from
fulfilling theirs. Ibid. But the visible/not visible
standard has that same effect. Furthermore, it restricts the free
exercise rights of a larger number of servicepersons. The
visibility test permits only individuals whose outer garments and
grooming are indistinguishable from those of mainstream Christians
to fulfill their religious duties. In my view, the Page 475 U. S. 521 Constitution requires the Selection of criteria that permit the
greatest possible number of persons to practice their faiths
freely.

															Implicit in JUSTICE STEVENS' concurrence, and in the
Government's arguments, is what might be characterized as a
fairness concern. It would be unfair to allow Orthodox Jews to wear
yarmulkes while prohibiting members of other minority faiths with
visible dress and grooming requirements from wearing their saffron
robes, dreadlocks, turbans, and so forth. While I appreciate and
share this concern for the feelings and the free exercise rights of
members of these other faiths, I am baffled by this formulation of
the problem. What puzzles me is the implication that a neutral
standard that could result in the disparate treatment of Orthodox
Jews and, for example, Sikhs is more troublesome or unfair
than the existing neutral standard that does result in the
different treatment of Christians, on the one hand, and Orthodox
Jews and Sikhs on the other. Both standards are
constitutionally suspect; before either can be sustained, it must
be shown to be a narrowly tailored means of promoting important
military interests.

															I am also perplexed by the related notion that, for purposes of
constitutional analysis, religious faiths may be divided into two
categories -- those with visible dress and grooming requirements
and those without. This dual category approach seems to incorporate
an assumption that fairness, the First Amendment, and, perhaps,
equal protection, require all faiths belonging to the same category
to be treated alike, but permit a faith in one category to be
treated differently from a faith belonging to the other category.
The practical effect of this categorization is that, under the
guise of neutrality and evenhandedness, majority religions are
favored over distinctive minority faiths. This dual category
analysis is fundamentally flawed, and leads to a result that the
First Amendment was intended to prevent. Under the Constitution,
there is only one relevant category -- all faiths. Burdens Page 475 U. S. 522 placed on the free exercise rights of members of one faith must
be justified independently of burdens placed on the rights of
members of another religion. It is not enough to say that Jews
cannot wear yarmulkes simply because Rastafarians might not be able
to wear dreadlocks.

															Unless the visible/not visible standard for evaluating requests
for religious exceptions to the dress code promotes a significant
military interest, it is constitutionally impermissible. JUSTICE
STEVENS believes that this standard advances an interest in the
"uniform treatment" of all religions. Ante at 475 U. S. 512 .
As I have shown, that uniformity is illusory, unless uniformity
means uniformly accommodating majority religious practices and
uniformly rejecting distinctive minority practices. But, more
directly, Government agencies are not free to define their own
interests in uniform treatment of different faiths. That function
has been assigned to the First Amendment. The First Amendment
requires that burdens on free exercise rights be justified by
independent and important interests that promote the function of
the agency. See, e.g., United States v. Lee, 455 U.
S. 252 , 455 U. S.
257 -258 (1982); Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U.
S. 205 (1972); Sherbert v. Verner, 374 U.
S. 398 (1963). The only independent military interest
furthered by the visibility standard is uniformity of dress. And
that interest, as I demonstrated in 475 U. S. supra, does not support a prohibition against
yarmulkes.

															The Air Force has failed utterly to furnish a credible
explanation why an exception to the dress code permitting Orthodox
Jews to wear neat and conservative yarmulkes while in uniform is
likely to interfere with its interest in discipline and uniformity.
We cannot "distort the Constitution to approve all that the
military may deem expedient." Korematsu v. United States, 323 U. S. 214 , 323 U. S. 244 (1944) (Jackson, J., dissenting). Under any meaningful level of
judicial review, Simcha Goldman should prevail. Page 475 U. S. 523 III Through our Bill of Rights, we pledged ourselves to attain a
level of human freedom and dignity that had no parallel in history.
Our constitutional commitment to religious freedom and to
acceptance of religious pluralism is one of our greatest
achievements in that noble endeavor. Almost 200 years after the
First Amendment was drafted, tolerance and respect for all
religions still set us apart from most other countries and draws to
our shores refugees from religious persecution from around the
world.

															Guardianship of this precious liberty is not the exclusive
domain of federal courts. It is the responsibility as well of the
States and of the other branches of the Federal Government. Our
military services have a distinguished record of providing for many
of the religious needs of their personnel. But that they have
satisfied much of their constitutional obligation does not remove
their actions from judicial scrutiny. Our Nation has preserved
freedom of religion, not through trusting to the good faith of
individual agencies of government alone, but through the
constitutionally mandated vigilant oversight and checking authority
of the judiciary.

															It is not the province of the federal courts to second-guess the
professional judgments of the military services, but we are bound
by the Constitution to assure ourselves that there exists a
rational foundation for assertions of military necessity when they
interfere with the free exercise of religion. "The concept of
military necessity is seductively broad," Glines, 444 U.S.
at 444 U. S. 369 (BRENNAN, J., dissenting), and military decisionmakers themselves
are as likely to succumb to its allure as are the courts and the
general public. Definitions of necessity are influenced by
decisionmakers' experiences and values. As a consequence, in
pluralistic societies such as ours, institutions dominated by a
majority are inevitably, if inadvertently, insensitive to the needs
and values of minorities when these needs and values differ from
those Page 475 U. S. 524 of the majority. The military, with its strong ethic of
conformity and unquestioning obedience, may be particularly
impervious to minority needs and values. A critical function of the
Religion Clauses of the First Amendment is to protect the rights of
members of minority religions against quiet erosion by majoritarian
social institutions that dismiss minority beliefs and practices as
unimportant, because unfamiliar. It is the constitutional role of
this Court to ensure that this purpose of the First Amendment be
realized.

															The Court and the military services [ Footnote 2/5 ] have presented patriotic 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. Although the pain the
services inflict on Orthodox Jewish servicemen is clearly the
result of insensitivity, rather than design, it is unworthy of our
military, because it is unnecessary. The Court and the military
have refused these servicemen their constitutional rights; we must
hope that Congress will correct this wrong.

															[ Footnote 2/1 ]

															The yarmulke worn by Dr. Goldman was a dark-colored skullcap
measuring approximately 5 1/2 inches in diameter. Brief for
Petitioner 3.

															[ Footnote 2/2 ]

															I continue to believe that Government restraints on First
Amendment rights, including limitations placed on military
personnel, may be justified only upon showing a compelling state
interest which is precisely furthered by a narrowly tailored
regulation. See, e.g., Brown v. Glines, 444 U.
S. 348 , 444 U. S. 367 (1980) (BRENNAN, J., dissenting). I think that any special needs of
the military can be accommodated in the compelling-interest prong
of the test. My point here is simply that, even under a more
deferential test, Dr. Goldman should prevail.

															[ Footnote 2/3 ]

															The 1978 and 1980 editions of AFR 35-10 governed, sequentially,
the Air Force dress code during Dr. Goldman's period of service.
The two editions are substantially identical in all respects
relevant to this case.

															[ Footnote 2/4 ]

															For example, the Air Force could no doubt justify regulations
ordering troops to wear uniforms, prohibiting garments that could
become entangled in machinery, and requiring hair to be worn short
so that it may not be grabbed in combat and may be kept louse-free
in field conditions.

															[ Footnote 2/5 ]

															I refer to all of the military services, rather than just to the
Air Force, because, as the Government emphasizes in its brief,
Brief for Respondents 20, n. 11, all of the uniformed services have
dress and appearance regulations comparable to AFR 36-10, and the
Court's decision in this case will apply to all the services.
Furthermore, all Military Departments are subject to the recent
Department of Defense Directive 1300.17 (June 18, 1985), which
deals with the accommodation of religious practices. This Directive
does not provide for the type of exception sought by Dr.
Goldman.

															JUSTICE BLACKMUN, dissenting.

															I would reverse the judgment of the Court of Appeals, but for
reasons somewhat different from those respectively enunciated by
JUSTICE BRENNAN and JUSTICE O'CONNOR. I feel that the Air Force is
justified in considering not only the costs of allowing Captain
Goldman to cover his head indoors, but also the cumulative costs of
accommodating constitutionally indistinguishable requests for
religious exemptions. Because, however, the Government has failed
to make any Page 475 U. S. 525 meaningful showing that either set of costs is significant, I
dissent from the Court's rejection of Goldman's claim.

															The Government concedes that Goldman wears his yarmulke out of
sincere religious conviction. For Goldman, as for many other Jews,
"a yarmulke is an expression of respect for God . . . intended to
keep the wearer aware of God's presence." App. 156 (petitioner's
deposition). If the Free Exercise Clause of the First Amendment
means anything, it must mean that an individual's desire to follow
his or her faith is not simply another personal preference, to be
accommodated by government when convenience allows. Indeed, this
Court has read the Clause, I believe correctly, to require that

															"only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free
exercise of religion." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972). In general, government

															"may justify an inroad on religious liberty [only] by showing
that it is the least restrictive means of achieving some compelling
state interest." Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U. S. 707 , 450 U. S. 718 (1981); see also Sherbert v. Verner, 374 U.
S. 398 (1963). The clear import of Sherbert,
Yoder, and Thomas is that this showing must be made
even when the inroad results from the "evenhanded" application of a
facially neutral requirement. "Rules are rules" is not by itself a
sufficient justification for infringing religious liberty.

															Nor may free exercise rights be compromised simply because the
military says they must be. To be sure, application of the First
Amendment to members of the Armed Services must take into account
"the different character of the military community and of the
military mission." Parker v. Levy, 417 U.
S. 733 , 417 U. S. 758 (1974). As JUSTICE BRENNAN and JUSTICE O'CONNOR point out, however,
military personnel do not forfeit their constitutional rights as a
price of enlistment. Except as otherwise required by "interests of
the highest order," soldiers as well as civilians are entitled to
follow the dictates of their faiths. Page 475 U. S. 526 In my view, this case does not require us to determine the
extent to which the ordinary test for inroads on religious freedom
must be modified in the military context, because the Air Force has
failed to produce even a minimally credible explanation for its
refusal to allow Goldman to keep his head covered indoors. I agree
with the Court that deference is due the considered judgment of
military professionals that, as a general matter, standardized
dress serves to promote discipline and esprit de corps. But Goldman's modest supplement to the Air Force uniform clearly
poses, by itself, no threat to the Nation's military readiness.
Indeed, the District Court specifically found that Goldman has worn
a yarmulke on base for years without any adverse effect on his
performance, any disruption of operations at the base, or any
complaints from other personnel. Goldman v. Secretary of
Defense, 29 EPD � 32,753, pp. 25,540-25,541 (1982).

															The Air Force argues that it has no way of distinguishing fairly
between Goldman's request for an exemption and the potential
requests of others whose religious practices may conflict with the
appearance code, perhaps in more conspicuous ways. In theory, this
argument makes some sense. Like any rules prescribing a uniform,
the Air Force dress code is, by nature, arbitrary; few of its
requirements could be defended on purely functional grounds.
Particularly for personnel such as Goldman who serve in noncombat
roles, variations from the prescribed attire frequently will
interfere with no military goals other than those served by
uniformity itself. There thus may be no basis on which to
distinguish some variations from others, aside from the degree to
which they detract from the overall image of the service, a
criterion that raises special constitutional problems when applied
to religious practices. To allow noncombat personnel to wear
yarmulkes, but not turbans or dreadlocks, because the latter seem
more obtrusive -- or, as JUSTICE BRENNAN suggests, less "polished"
and "professional," ante at 475 U. S.
519 -520 -- would be to discriminate in favor of this
country's more established, Page 475 U. S. 527 mainstream religions, the practices of which are more familiar
to the average observer. Not only would conventional faiths receive
special treatment under such an approach; they would receive
special treatment precisely because they are conventional. In
general, I see no constitutional difficulty in distinguishing
between religious practices based on how difficult it would be to
accommodate them, but favoritism based on how unobtrusive a
practice appears to the majority could create serious problems of
equal protection and religious establishment, problems the Air
Force clearly has a strong interest in avoiding by drawing an
objective line at visibility.

															The problem with this argument, it seems to me, is not
doctrinal, but empirical. The Air Force simply has not shown any
reason to fear that a significant number of enlisted personnel and
officers would request religious exemptions that could not be
denied on neutral grounds such as safety, let alone that granting
these requests would noticeably impair the overall image of the
service. Cf. Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. at 450 U. S. 719 ; Sherbert v. Verner, 374 U.S. at 374 U. S. 407 .
The Air Force contends that the potential for such disruption was
demonstrated at trial through the introduction of an Army
publication discussing the beliefs and practices of a variety of
religious denominations, some of which have traditions or
requirements involving attire. See Department of the Army
Pamphlet No. 165-13-1, Religious Requirements and Practices of
Certain Selected Groups: A Handbook Supplement for Chaplains
(1980). But that publication provides no indication whatsoever as
to how many soldiers belong to the denominations it describes, or
as to how many are likely to seek religious exemptions from the
dress code.

															In these circumstances, deference seems unwarranted. Reasoned
military judgments, of course, are entitled to respect, but the
military has failed to show that this particular judgment with
respect to Captain Goldman is a reasoned one. If, in the future,
the Air Force is besieged with requests for Page 475 U. S. 528 religious exemptions from the dress code, and those requests
cannot be distinguished on functional grounds from Goldman's, the
service may be able to argue credibly that circumstances warrant a
flat rule against any visible religious apparel. That, however,
would be a case different from the one at hand.

															JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins,
dissenting.

															The issue posed in this case is whether, consistent with the
Free Exercise Clause of the First Amendment, the Air Force may
prohibit Captain Goldman, an Orthodox Jewish psychologist, from
wearing a yarmulke while he is in uniform on duty inside a military
hospital.

															The Court rejects Captain Goldman's claim without even the
slightest attempt to weigh his asserted right to the free exercise
of his religion against the interest of the Air Force in uniformity
of dress within the military hospital. No test for free exercise
claims in the military context is even articulated, much less
applied. It is entirely sufficient for the Court if the military
perceives a need for uniformity.

															JUSTICE STEVENS acknowledges that

															"Captain Goldman's military duties are performed in a setting in
which a modest departure from the uniform regulation creates almost
no danger of impairment of the Air Force's military mission." Ante at 475 U. S. 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a
governmental regulation based on any "neutral, completely
objective standard," ante at 475 U. S. 513 ,
will survive a free exercise challenge.

															In contrast, JUSTICE BRENNAN recognizes that the Court
"overlooks the sincere and serious nature of [the] constitutional
claim." Ante at 475 U. S. 514 (dissenting). He properly notes that, even with respect to military
rules and regulations, the courts have a duty to weigh sincere
First Amendment claims of its members against the necessity of the
particular application of the rule. But JUSTICE BRENNAN applies no
particular test or standard to determine such claims. Page 475 U. S. 529 JUSTICE BLACKMUN focuses on the particular ways in which the
military may pursue its interest in uniformity, ante at 475 U. S.
526 -527 (dissenting), but nonetheless declines "to
determine the extent to which the ordinary test for inroads on
religious freedom must be modified in the military context," ante at 475 U. S.
526 .

															I believe that the Court should attempt to articulate and apply
an appropriate standard for a free exercise claim in the military
context, and should examine Captain Goldman's claim in light of
that standard.

															Like the Court today in this case involving the military, the
Court in the past has had some difficulty, even in the civilian
context, in articulating a clear standard for evaluating free
exercise claims that result from the application of general state
laws burdening religious conduct. In Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U. S. 707 (1981), the Court required the States to demonstrate that their
challenged policies were "the least restrictive means of achieving
some compelling state interest" in order to deprive claimants of
unemployment benefits when the refusal to work was based on sincere
religious beliefs. Thomas, supra, at 450 U. S. 718 . See also Sherbert, supra, at 374 U. S.
406 -408. In Wisconsin v. Yoder, 406 U.
S. 205 , 406 U. S. 215 (1972), the Court noted that "only those interests of the highest
order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion" in deciding that the Amish
were exempt from a State's requirement that children attend school
through the age of 16. In United States v. Lee, 455 U. S. 252 , 455 U. S.
257 -258 (1982), the Court stated that

															"[t]he State may justify a limitation on religious liberty by
showing that it is essential to accomplish an overriding
governmental interest,"

															and held that the Amish could not exempt themselves from the
Social Security system on religious grounds. See also Gillette
v. United States, 401 U. S. 437 (1971) (rejecting challenges under the Establishment and Free
Exercise Clauses to the Page 475 U. S. 530 Federal Government's refusal to give conscientious objector
status to those objecting on religious grounds only to a particular
war, rather than to all wars).

															These tests, though similar, are not identical. One can,
however, glean at least two consistent themes from this Court's
precedents. First, when the government attempts to deny a free
exercise claim, it must show that an unusually important interest
is at stake, whether that interest is denominated "compelling," "of
the highest order," or "overriding." Second, the government must
show that granting the requested exemption will do substantial harm
to that interest, whether by showing that the means adopted is the
"least restrictive" or "essential," or that the interest will not
"otherwise be served." These two requirements are entirely sensible
in the context of the assertion of a free exercise claim. First,
because the government is attempting to override an interest
specifically protected by the Bill of Rights, the government must
show that the opposing interest it asserts is of especial
importance before there is any chance that its claim can prevail.
Second, since the Bill of Rights is expressly designed to protect
the individual against the aggregated and sometimes intolerant
powers of the state, the government must show that the interest
asserted will, in fact, be substantially harmed by granting the
type of exemption requested by the individual.

															There is no reason why these general principles should not apply
in the military, as well as the civilian, context. As this Court
has stated unanimously, " our citizens in uniform may not be
stripped of basic rights simply because they have doffed their
civilian clothes.'" Chappell v. Wallace, 462 U.
S. 296 , 462 U. S. 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37
N.Y.U.L.Rev. 181, 188 (1962)). Furthermore, the test that one can
glean from this Court's decisions in the civilian context is
sufficiently flexible to take into account the special importance
of defending our Nation without Page 475 U. S. 531 abandoning completely the freedoms that make it worth
defending.

															The first question that the Court should face here, therefore,
is whether the interest that the Government asserts against the
religiously based claim of the individual is of unusual importance.
It is perfectly appropriate at this step of the analysis to take
account of the special role of the military. The mission of our
Armed Services is to protect our Nation from those who would
destroy all our freedoms. I agree that, in order to fulfill that
mission, the military is entitled to take some freedoms from its
members. As the Court notes, the military " must insist upon a
respect for duty and a discipline without counterpart in civilian
life.'" Ante at 475 U. S. 507 (quoting Schlesinger v. Councilman, 420 U.
S. 738 , 420 U. S. 757 (1975)). The need for military discipline and esprit de
corps is unquestionably an especially important governmental
interest. But the mere presence of such an interest cannot, as the
majority implicitly believes, end the analysis of whether a refusal
by the Government to honor the free exercise of an individual's
religion is constitutionally acceptable. A citizen pursuing even
the most noble cause must remain within the bounds of the law. So,
too, the Government may, even in pursuing its most compelling
interests, be subject to specific restraints in doing so. The
second question in the analysis of a free exercise claim under this
Court's precedents must also be reached here: will granting an
exemption of the type requested by the individual do substantial
harm to the especially important governmental interest?

															I have no doubt that there are many instances in which the
unique fragility of military discipline and esprit de
corps necessitates rigidity by the Government when similar
rigidity to preserve an assertedly analogous interest would not
pass constitutional muster in the civilian sphere. Compare
Greer v. Spock, 424 U. S. 828 (1976), with Metromedia, Inc. v. San Diego, 453 U.
S. 490 (1981), and West Virginia Board of Education
v. Barnette, 319 U. S. 624 , 319 U. S.
630 -634 (1943). Page 475 U. S. 532 Nonetheless, as JUSTICE BRENNAN persuasively argues, the
Government can present no sufficiently convincing proof in this
case to support an assertion that granting an exemption of the type
requested here would do substantial harm to military discipline and esprit de corps. Ante at 475 U. S.
517 -620 (dissenting).

															First, the Government's asserted need for absolute uniformity is
contradicted by the Government's own exceptions to its rule. As
JUSTICE BRENNAN notes, ante at 475 U. S. 518 ,
an Air Force dress code in force at the time of Captain Goldman's
service states:

															"Neither the Air Force nor the public expects absolute
uniformity of appearance. Each member has the right, within limits,
to express individuality through his or her appearance. However,
the image of a disciplined service member who can be relied on to
do his or her. job excludes the extreme, the unusual, and the
fad."

															AFR 35-10, � 1-12.a.(2) (1978). Furthermore, the Government does
not assert, and could not plausibly argue, that petitioner's
decision to wear his yarmulke while indoors at the hospital
presents a threat to health or safety. And finally, the District
Court found as fact that, in this particular case, far from
creating discontent or indiscipline in the hospital where Captain
Goldman worked, "[f]rom September, 1977, to May 7, 1981, no
objection was raised to Goldman's wearing of his yarmulke
while in uniform." See Goldman v. Secretary of Defense, 29 EPD � 32,753,
p. 25,539 (1982) (emphasis added).

															In the rare instances where the military has not consistently or
plausibly justified its asserted need for rigidity of enforcement,
and where the individual seeking the exemption establishes that the
assertion by the military of a threat to discipline or esprit
de corps is in his or her case completely unfounded, I would
hold that the Government's policy of uniformity must yield to the
individual's assertion of the right of free exercise of religion.
On the facts of this case, therefore, Page 475 U. S. 533 I would require the Government to accommodate the sincere
religious belief of Captain Goldman. Napoleon may have been correct
to assert that, in the military sphere, morale is to all other
factors as three is to one, * but contradicted
assertions of necessity by the military do not on the scales of
justice bear a similarly disproportionate weight to sincere
religious beliefs of the individual.

															I respectfully dissent.

															* See Letter, Aug. 27, 1808 ("In war, moral
considerations account for three-quarters, the balance of actual
forces only for the other quarter"), as translated and quoted in J.
Cohen & M. Cohen, The Penguin Dictionary of Quotations 268
(1962).

Summary:
The case of Goldman v. Weinberger (1986) concerned an Orthodox Jewish rabbi and Air Force officer who was ordered not to wear a yarmulke while on duty and in uniform, due to an Air Force regulation prohibiting indoor headgear except for armed security personnel. The rabbi sued, arguing that this regulation infringed on his First Amendment right to religious freedom.

The Supreme Court, however, ruled in favor of the Air Force, stating that the First Amendment does not prohibit the regulation from being applied to the rabbi. The Court acknowledged the military's interest in uniformity and found that the Air Force's regulation reasonably and evenhandedly regulated dress to achieve that goal. The Court drew a line between visible and invisible religious apparel, and in this case, the yarmulke was visible.

Some dissenting opinions argued that the military's need for absolute uniformity was contradicted by its own exceptions and that the rabbi's yarmulke did not pose a threat to health or safety. They suggested that in cases where the military's justification for strict enforcement is contradicted or unfounded, the individual's right to religious freedom should prevail.