Court Upholds Military’s Ban on Religious Garb : Refuses to Rule on Use of Public High School Facilities by Student Prayer Groups

The Supreme Court gave the military broad authority Tuesday to prohibit uniformed personnel from wearing religious apparel, upholding Air Force regulations that prevented an Orthodox Jewish officer from wearing a skullcap while on duty.

The justices, in a 5-4 decision, said that the constitutional right to free exercise of religion does not require the armed services to accommodate such practices when they would detract from the uniformity sought by dress regulations.

Subordinating Identities

“The considered professional judgment of the Air Force is that . . . standardized uniforms encourage the subordination of personal preferences and identities in favor of the overall group mission,” Justice William H. Rehnquist wrote for the court. “ . . . Military officials are under no constitutional mandate to abandon their considered professional judgment.”

The decision was a victory for the Reagan Administration, which had argued that, if an exception were made for skullcaps, the Air Force would have to abandon dress regulations or choose among pending requests for religious exemptions for turbans, unshorn hair, beards, ankle-length skirts, dreadlocks and kumkums (red dots worn on the forehead).

In another widely watched religion case, the court, citing a procedural irregularity, refused to decide whether student prayer groups may be allowed to meet in public high schools, as do other extracurricular organizations. Four dissenters--Chief Justice Warren E. Burger and Justices Byron R. White, Lewis F. Powell Jr. and Rehnquist--said that the court should have upheld the right of the prayer groups to meet on campus.

Doubts About 1984 Law

The Administration had urged the court to uphold such practices as a permissible means of government accommodation of religion. A definitive ruling in the case could have resolved constitutional doubts about the 1984 federal Equal Access Act, which prohibits high schools receiving federal aid from denying use of facilities to student groups based on the “religious, political or philosophical” nature of the activities.

But the court majority held Tuesday that a school board member in Williamsport, Pa., who had appealed a federal district court ruling allowing students to conduct prayer meetings lacked legal standing to bring the action. The high court’s decision reinstated the district court ruling but did not set a binding national precedent (Bender vs. Williamsport, 84-773).

In another case, the court eased the way for individuals to bring civil rights suits against municipalities, holding, 6 to 3, that such actions are permissible for even a single improper act by an official, as long as the act reflects governmental policy. Dissenters said that the ruling unfairly increases cities’ risk of liability for isolated acts by their employees (Pembauer vs. Cincinnati, 84-1160).

The skullcap case involved former Air Force Capt. S. Simcha Goldman, a rabbi who served as a clinical psychologist at March Air Force Base in Riverside, Calif. Goldman had frequently worn a skullcap while on duty at a base hospital but was ordered to cease doing so after he wore one while testifying in a court-martial.

Jewelry Permitted

Air Force regulations, like those of other branches, permit certain jewelry and hair styles but generally bar the wearing of headgear indoors and the display of non-military attire when in uniform. Crosses, temple garments or other items are permissible if not outwardly visible. Skullcaps, or yarmulkes, are a form of religious observance common among Orthodox Jews.

When Goldman refused to stop wearing the skullcap on duty, he was reprimanded and threatened with court-martial, and he later left the service. He filed suit and obtained a ruling from a federal district court that the Air Force had violated his rights.

But an appeals panel overturned the decision, and he appealed to the Supreme Court (Goldman vs. Weinberger, 84-1097), contending that the First Amendment required the Air Force to make an exception for religious apparel unless it created a “clear danger” to discipline.

Rehnquist’s majority opinion noted that, historically, the court has been “far more deferential” to the military than civilian society in deciding First Amendment challenges to official authority. “To accomplish its mission, the military must foster instinctive obedience, unity, commitment and esprit de corps,” he observed.

‘Need for Uniformity’

Rehnquist said that the Air Force regulations “reasonably and evenhandedly regulate dress in the interest of the military’s perceived need for uniformity.” And, he said, the regulations’ application to Goldman did not violate the Constitution even though it restricted the exercise of his religious beliefs.

Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and Sandra Day O’Connor dissented.

Brennan, joined by Marshall, issued a dissent saying it “surpasses belief” that military discipline would be subverted by yarmulkes. Before the Air Force may interfere with the free exercise of religion, it should be required to “advance, at the very least, a rational reason for doing so,” he said. Brennan called on Congress to pass legislation to “correct this wrong.”