S. SIMCHA GOLDMAN, PETITIONER V. CASPAR W. WEINBERGER, SECRETARY OF
DEFENSE, ET AL.

   No. 84-1097

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Respondents

                       PARTIES TO THE PROCEEDING

   In addition to the parties listed in the caption of this case, the
Secretary of the Air Force was named as a defendant in the district
court and is a respondent in this Court.

            TABLE OF CONTENTS
   Question Presented
   Parties to the Proceedings
   Opinions below
   Jurisdiction
   Constitutional provision and regulations involved
   Statement
      A. The Air Force's dress and appearance standards
      B. Petitioner's experience in the military
      C. The decisions below
      D. Post-litigation proceedings
   Summary of argument
   Argument:
      The Free Exercise Clause does not require the
      military to grant religious exemptions to uniform
      dress and appearance requirements
      A. The standard for evaluating Free Exercise
         challenges in the civilian sector has no applicability
         in the military context
      B. Exceptions to military uniform dress and
         appearance standards are "likely to interfere" with
         the maintenance of discipline, morale, and esprit
         de corps
      C. The scope of the Air Force's uniform regulation
         is reasonably necessary to protect the military
         interests at stake
      D. Acceptance of petitioner's argument either would
         spell an end to uniformity or require the military
         to engage in impossible and impermissible line
         drawing
      E. The Air Force regulation at issue withstands
         constitutional scrutiny even under the standard
         of review applicable to Free Exercise claims in
         the civilian sector
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-20a) is reported
at 734 F.2d 1531.  The opinions on denial of rehearing en banc (Pet.
App. 23a-27a) are reported at 739 F.2d 657.  The opinion of the
district court on the merits (Pet. App. 28a-34a) is unreported.  The
opinion of the district court granting petitioner's motion for a
preliminary injunction is reported at 530 F. Supp. 12.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 8, 1984,
and a petition for rehearing was denied on August 10, 1984 (Pet. App.
21a-27a).  On November 1, 1984, the Chief Justice extended the time
for filing a petition for a writ of certiorari to and including
December 10, 1984 (Pet. App. 37a).  On December 3, 1984, the Chief
Justice again extended the time for filing a petition, to and
including January 7, 1985 (Pet. App. 38a), and the petition was filed
on that date.  The petition was granted on June 17, 1985.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

           CONSTITUTIONAL PROVISION AND REGULATIONS INVOLVED

   The First Amendment to the Constitution of the United States
provides in pertinent part:

         Congress shall make no law respecting an establishment of
      religion, or prohibiting the free exercise thereof * * *.

   Air Force Regulation 35-10, Paragraph 1-6, provides:

      Air Force members will wear the Air Force uniform while
      performing their military duties, except when authorized to wear
      civilian clothes on duty.

   Air Force Regulation 35-10, Paragraph 1-6.h(2), provides:

      Headgear will not be worn * * * (w)hile indoors except by armed
      security police in the performance of their duties.

                          QUESTION PRESENTED

   Whether the Free Exercise Clause of the First Amendment requires
the Air Force to create an exception to otherwise applicable uniform
regulations so that an Orthodox Jewish officer may wear a skullcap (or
yarmulke) while on active duty.

                               STATEMENT

   Petitioner S. Simcha Goldman is an Orthodox Jew who voluntarily
joined the United States Air Force as a commissioned officer.  In
keeping with a practice and tradition of his religion, petitioner
wears a head covering, usually a skullcap (or yarmulke), during waking
hours.  During the period at issue in this litigation, petitioner was
on active duty at March Air Force Base in Riverside, California,
serving as a clinical psychologist.  Air Force Regulation (A.F.R.)
35-10 (July 18, 1980), which prescribes the official Air Force
uniform, provides that "Air Force members will wear the Air Force
uniform while performing their military duties" and that, with
exceptions not relevant here, "(h)eadgear will not be worn * * *
(w)hile indoors" (A.F.R. 35-10, Paragraphs 1-6 and 1-6.h(2).

   In May and June of 1981, petitioner was ordered to cease wearing a
yarmulke while in uniform.  Petitioner refused to comply with his
commander's order, and he was reprimanded.  Petitioner then filed this
suit in the United States District Court for the District of Columbia,
challenging the application to him of A.F.R. 35-10 on First Amendment
grounds and seeking damages and injunctive relief.  The district court
held that A.F.R. 35-10 was unconstitutional as applied to petitioner's
desire to wear a yarmulke with the Air Force uniform.  The court of
appeals reversed.

          A. The Air Force's Dress And Appearance Standards.

   "The Air Force is a uniformed service," and "uniform wear greatly
enhances the esprit de corps essential to an effective military
force." A.F.R. 35-10, Paragraph 1-1a.  The Air Force uniform is
mandatory for all personnel on duty:  "Air Force members will wear the
Air Force uniform while performing their military duties, except when
authorized to wear civilian clothes on duty." A.F.R. 35-10, Paragraph
1-6.  The Air Force uniform requirements are set forth in A.F.R.
35-10, a 190-page regulation that describes in minute detail all of
the various items of apparel that constitute the Air Force uniform.
/1/ The regulation specifies and describes every garment that may be
worn as a part of or with the uniform, and it provides mandatory
instructions covering every subject from undergarments to the carrying
of umbrellas.  Air Force personnel may not add to or subtract from the
prescribed uniform.  A.F.R. 35-10, Paragraph 1-6.f.  The only
individualized options authorized by A.F.R. 35-10 relate to certain
items of jewelry and hair styles.  Even with respect to these options,
however, A.F.R. 35-10 specifies certain limitations.  Facial hair, for
example, is limited to mustaches, the corners of which may not extend
beyond the mouth, /2/ while men's jewelry is limited to rings and
"neat and conservative" identification bracelets.  A.F.R. 35-10, Table
1-1, line 16, and Paragraph 1-12.b(1)(b).

   A.F.R. 35-10 is, as in all other respects, extremely detailed on
the subject of headgear.  See, e.g., A.F.R. Table 2-1, lines 12 and
13, Paragraphs 2.5j, 4-3.c, 4-11, 4-13, and 4-14.a.  With limited
exceptions, the regulation directs that authorized headgear shall be
worn only out of doors.  A.F.R. 35-10, Paragraph 1-6.h.  In
particular, the regulation provides that "(h)eadgear will not be worn
* * * (w)hile indoors except by armed security police in the
performance of their duties." A.F.R. 35-10, Paragraph 1-6.h(2)(f).
/3/

   The mission of the Air Force, of course, is to "defend() this
nation against our enemies" by "conducting combat operations" (J.A.
31).  At trial, Air Force witnesses explained why the extraordinarily
detailed regulation of the official uniform worn by its personnel is
deemed essential to the accomplishment of the Air Force's mission.
Fundamental to the development of an effective combat force is a
combination of teamwork, motivation, discipline, esprit de corps, and
image (J.A. 32-33).  To be successful in combat, soldiers must be
trained to subordinate willingly and instinctively their personal
preferences and interests in favor of the overall group mission (J.A.
33, 37).  Major General William R. Usher, the Director of Personnel
Plans at Air Force Headquarters, testified that "one of the most
effective ways" of accomplishing the group mission is "that you put
people in the same uniform;  you standardize;  you require them to be
part of that organization, be part of that team which has been
designed and put together as an effective combat unit" (J.A. 37).
General Usher further explained that the standardized uniform
encourages Air Force personnel to think of themselves in terms of
their military obligations and serves to deemphasize the individual
preferences and beliefs that may have divided soldiers in civilian
life:  "Uniformity of dress, except for distinctions of rank, promotes
the teamwork necessary for effective completion of the mission";
"(d)iscipline of enlisted personnel would be undermined if a departure
(from the uniform regulation) is permitted (for) an officer";  and
"(u)niform standards of dress engender pride and thus further the
mission of the Air Force" (Pet. App. 30a;  see also J.A. 35-39).
Thus, the considered, professional judgment of the Air Force is that
allowing "(d)eparture(s) from the uniformity standards of AFR 35-10 *
* * would adversely affect the promotion of teamwork, counteract pride
and motivation, (and) undermine discipline and morale" (Pet. App.
30a-31a).

   Captain Reeves, an Air Force chaplain assigned to Maxwell Air Force
Base, also testified at trial concerning a study prepared for the Army
that describes, inter alia, the dress and appearance requirements and
customs of a number of religious groups.  For example, Captain Reeves
testified (J.A. 73-74) that male members of the International Society
of Krishna Consciousness are required to wear tufts of hair, called
sikhs, and that they place distinctive clay markings on their face,
including "two parallel white lines that run from the forehead to the
bridge of the nose." Other requirements noted by Captain Reeves were
saffron robes for monks in the Satchidananda Ashram-Integral Yoga
group, an Islamic prohibition against the wearing of clothes by males
that show the imprint of the body and an Islamic requirement that
females show only the face and hands and that portion of the body
below the ankles.  Yet another group requires its adherents to keep
all of their hair, including their beards, and to wear a steel
bracelet and a dagger.  J.A. 74-75.

             B. Petitioner's Experience In The Military.

   Petitioner testified that a custom followed by some, but not all,
devout Orthodox Jewish males is the wearing of a yarmulke (J.A. 200).
/4/ Yarmulkes are skullcaps that vary in size, color, and degree of
ornamentation.  The purposes of wearing a yarmulke, according to
rabbinical authorities relied upon by petitioner, are both religious
and cultural:  "First, (wearing a yarmulke) was the Jewish way of
showing reverence and respect.  Secondly, uncovering the head was the
custom of the Gentiles * * * .  Covering the head thus served as a
means of identification and a barrier against assimiliation" (J.A.
228).

   From 1970 to 1972, petitioner served as a chaplain in the United
States Navy.  During that time, he wore his yarmulke without incident.
 J.A. 156-157.  /5/ In 1972, petitioner decided to study clinical
psychology in graduate school.  He "needed some funding" and therefore
applied for and was accepted into the Armed Forces Health Professions
Scholarship Program.  J.A. 158-159.  Under this program, petitioner
was 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, petitioner received a
monthly stipend and an allowance for tuition, books, and fees.  10
U.S.C. 2120-2127;  A.F.R. 36-17 (Feb. 12, 1973).  Participants in the
program are required to serve a minimum of one year of active duty for
each year of subsidized education.  10 U.S.C. 2123.  Accordingly, in
September 1977, after receiving his Ph.D. in clinical psychology,
petitioner was assigned to active duty at the Mental Health Clinic at
March Air Force Base Regional Hospital, near Riverside, California
(Pet. App. 28a).

   Petitioner continued his practice of wearing a yarmulke after
entering on uniformed active duty with the Air Force.  However,
petitioner kept a "low profile" on the base (J.A. 15).  He rarely left
his duty station in the clinic, did not take his meals in the hospital
cafeteria, and wore his regulation service cap over his yarmulke when
traveling to and from work (ibid).  Nevertheless, petitioner's
superiors did receive occasional complaints about his violation of the
uniform regulation.  In response to the first such complaint, in 1978,
the then-commander of the hospital was advised by the Surgeon General
that the decision whether to take any action was up to the commander.
The commander decided not to confront petitioner over the issue.
Ibid.  When a new commander took charge of the hospital in 1980, he
questioned petitioner's violation of the uniform regulation, but, upon
learning that his predecessor had permitted it, he too decided not to
confront petitioner "at that time." Ibid.

   In April 1981, however, petitioner appeared to testify as a witness
at a formal court-martial wearing a yarmulke with the Air Force
uniform.  The circuit trial counsel registered a complaint about the
incident.  In response, the hospital commander consulted with his wing
commander and others and learned that the wearing of a yarmulke, while
a "highly recommended and encouraged" practice, is not required by
Orthodox Judaism.  J.A. 18.  The hospital commander then called
petitioner to his office and informed him that wearing religious garb
in addition to the uniform was a violation of Air Force regulations.
In an attempt to reach a mutually acceptable accommodation, the
commander told petitioner that he could continue to wear his yarmulke
when he was in the hospital, but that he would have to conform to
uniform requirements in any of the other buildings on the base.  J.A.
167-169.

   Although virtually all of his time on the base was spent in the
hospital (J.A. 205), petitioner rejected the proffered accommodation
and informed his commander that he would continue to wear his yarmulke
as he saw fit (J.A. 169).  Attempts to settle the controversy having
failed, the hospital commander issued a written order on June 23,
1981, in which he directed petitioner to refrain from wearing
religious garb while in uniform.  This order pertained to the entire
base and did not make an exception for hospital duty (J.A. 207).
Petitioner refused to acknowledge receipt of the order and continued
to wear his yarmulke (ibid).  The next day, the hospital commander
issued petitioner a letter of reprimand for misconduct, stating that
Petitioner's actions "represent(ed) a flouting of military authority
and (would) not be tolerated" (J.A. 208).  In addition, the hospital
commander withdrew a previously-issued recommendation that
petitioner's tour of active duty be extended (J.A. 212-213).  /6/ This
litigation followed.

                       C. The Decisions Below.

   Petitioner filed suit in the United States District Court for the
District of Columbia, challenging the application of A.F.R. 35-10 on
First Amendment grounds and seeking damages and injunctive relief.
The district court granted petitioner's motion for a temporary
restraining order and later for a preliminary injunction to prohibit
the Air Force from enforcing A.F.R. 35-10 to prevent him from wearing
his yarmulke while in uniform during the pendency of the litigation.
530 F.Supp. 12 (1981).

   After a trial on the merits, the district court acknowledged that
the Air Force regards the uniform regulation as essential to the
accomplishment of its military mission and that this military judgment
is "based upon the experience of the Air Force in times of peace and
in times of war" (Pet. App. 31a).  Nevertheless, the district court
rejected the professional military judgment of the Air Force on the
ground that it was not "the product of an empirical study,
psychological survey or the like" (id. at 33a).  Without any studies
of its own, the district court further concluded that making religious
exceptions to the uniform regulation would "dissipat(e) hostility" and
render the Air Force a "more humane institution" (id. at 31a).
Accordingly, the district court entered a permanent injunction in
favor of petitioner (id. at 35a).

   The court of appeals reversed (Pet. App. 1a-20a).  The court first
recognized that the Air Force's judgment concerning the importance of
maintaining uniform standards of appearance "was in the area of
military governance, on which (the Air Force's) expertise is high and
on which judicial competence is low" (id. at 16a).  Accordingly, the
court concluded that a high degree of deference was due the Air
Force's judgment (ibid).  On the merits, the court noted that the
particular type of uniform headgear chosen by the Air Force -- for
example, its shape and color -- was necessarily arbitrary, but the
court recognized that "enforcement of rules that certain hats may be
worn only by certain people or at certain times serves the military
purposes of identification and indoctrination into instinctive
obedience" (id. at 19a).  The court therefore refused to require the
Air Force to permit religious exceptions to its uniform regulation out
of deference to the Air Force's judgment that such exceptions would
negate the benefits of strict uniformity and also would incur the
resentment of servicemembers compelled to comply with the regulation
in all respects (id. at 19a-20a).

                   D. Post-Litigation Proceedings.

   On October 19, 1984, after the court of appeals denied petitioner's
request for rehearing, Congress directed the Secretary of Defense to
establish a study group "to examine ways to minimize the potential
conflict between the interests of members of the Armed Forces in
abiding by their religious tenets and the military interest in
maintaining discipline." Department of Defense Authorization Act,
1985, Pub. L. No. 98-525, Section 554(a), 98 Stat. 2532.  The Act
directed the Secretary, within 20 days of receipt of the report, to
issue "appropriate implementing policy" (Section 554(d), 98 Stat.
2532).

   Pursuant to this legislation, the Secretary formed the Joint
Service Study Group and invited comments from the interested public.
49 Fed. Reg. 48596 (1984).  The Study Group was directed to "address
the issues of compliance with and modifications of uniform
regulations, dietary restrictions, sabbath observance, and facial and
body hair length practices," and to "consider the views of a broad
spectrum of religious organizations and specialists outside the
government." Ibid.  The Secretary charged the Study Group, which was
composed of the Chiefs of Chaplains of each of the Military
Departments and a line officer from each service, with the task of
"articulat(ing) an approach to these sensitive issues that will
maximize morale and discipline as well as the opportunity for exercise
of freely held religious beliefs by members of the Armed Forces."
Joint Service Study on Religious Matters, App. B at A4 (Mar. 1985)
(hereinafter cited as Joint Service Study).  /7/

   The Study Group's final report confirmed and expanded upon the
conclusions expressed by the Air Force at trial in this case.  /8/
Based upon its investigation, the Study Group reported that
"(c)ontemporary research in the social and behavioral sciences
supports what military institutions have recognized for centuries:
dress and appearance define who we are and what we are to ourselves
and to others.  Within the military such identification contributes
significantly to building discipline, individual morale, unit
cohesion, and service esprit de corps." Joint Service Study, at III-4.

   Because of the unique character of the military mission, the Study
Group concluded that the uniformed, military services cannot tolerate
the variety of dress and appearance that characterizes civilian
society.  The Study Group reasoned that soldiers must be ready,
without hesitation or discussion, to risk their lives on command.  The
degree of discipline that makes such instinctive obedience possible
must, for the most part, be instilled in civilians who enter upon
military service.  Joint Service Study, at III-6 to III-7, III-9,
III-17.  The Study Group concluded that the military services'
"extreme emphasis on uniformity" is a critical element in effecting
this "rite of passage" from civilian to military society.  Id. at
III-7.  As the Study Group explained (id. at III-4 to III-5 (citations
omitted)):

         Wearing common uniforms induces the wearers to view
      themselves as part of a group larger than themselves.  It is "a
      way of converting individuals and their feelings about
      themselves . . . from individuals into members of a . . .
      group." Uniformity not only directly imposes the discipline of
      the group, but, more subtly, instills the self-discipline
      necessary for the military member to perform effectively. In the
      course of this outward display of group membership, the
      individual servicemember develops a willingness to submit his or
      her individuality to the larger organization and thus thinks and
      acts differently.

         Another purpose of uniform dress and appearance is to
      reinforce the idea that military members are different from
      civilians -- that their role is * * * "qualitatively different"
      from that of their civilian counterparts.  Uniforms remind the
      men and women who wear them that they put aside certain personal
      freedoms when they joined the armed forces and that they have
      assumed special obligations inherent in the military's
      responsibility for the nation's defense. * * *

         At the same time uniforms set military people apart from
      civilians, they act as a cohesive bond within the services by
      instilling a common identity, by providing visual evidence of
      shared experience, and by reinforcing a sense of tradition.
      This group identification plays an essential role in the
      development of unit cohesion and institutional esprit de corps,
      which in turn contribute to military effectiveness.  /9/

   Mindful of its charge, the Study Group nevertheless considered the
possibility of allowing religious exemptions to uniform requirements.
The Study Group considered a range of options, including authorization
for the wearing of so-called "unobtrusive" articles of religious
apparel.  The Study Group's conclusions confirmed the testimony of
military professionals in the district court that such exceptions
would undermine military effectiveness by tending to reinforce the
individual's sense of being separate and distinct from the military
and its purposes.  Joint Service Study, at III-9.  The Study Group
also noted other serious problems with any policy that would permit
the wearing of "unobtrusive" articles of religious apparel (id. at
III-20 to III-21):

         In an effort to accommodate the greatest number of people,
      the Study Group did consider the wear of "unobtrusive" articles
      (such as head coverings) and grooming exceptions (e.g., beards)
      away from hazardous areas.  Such an option raised several
      questions.  The first was how the services might determine what
      constituted "unobtrusive." Given the eclectic composition of the
      American military, what would be unobtrusive to some would be
      glaringly obvious to others.  In addition, any exception to the
      norm would be viewed as precisely that:  an exception by
      individuals who were putting personal considerations before the
      group.  To allow some exceptions and not others would create the
      impression, indeed the reality, of favored treatment for
      selected faith groups.  In addition to the impact of this
      inequity on cohesion and esprit, such an approach would raise
      legal questions as well.

   Despite these problems, the Study Group recognized the
responsibility of the Armed Forces to meet the religious needs of its
members whenever possible.  Accordingly, the Study Group recommended
that servicemembers should be permitted to wear non-visible items of
religious apparel with the prescribed uniform and that visible items
of religious apparel generally should be permitted in the relative
privacy of a soldier's living quarters.  Joint Service Study, at
III-21.

   These recommendations were adopted for all Military Departments in
Department of Defense (DoD) Directive 1300.17 (June 18, 1985).  /10/
The Directive allows commanders, in their discretion, to make limited
exceptions from the uniform regulations for religious reasons.  The
Directive provides in pertinent part as follows:

         1. * * * The Department of Defense places a high value on the
      rights of service members of the Armed Forces to observe the
      tenets of their respective religions.  It is DoD policy that
      requests for accommodation of religious practices should be
      approved by commanders when accommodation will not have an
      adverse impact on military readiness, unit cohesion, standards,
      or discipline.

         2. The following goals are to be used by the Military
      Departments in the development of guidance on the exercise of
      command discretion concerning the accommodation of religious
      practices.  * * *

                      * * * *

         b. The Military Departments should designate living spaces in
      which religious articles may be worn with the uniform when wear
      will not affect adversely unit cohesion;

         c. Chaplains may wear religious accouterments with the
      uniform in the performance of worship and practices distinct to
      their faith group;

         d. Subject to safety and health requirements, any religious
      item not visible or otherwise apparent may be worn with the
      uniform.

                          SUMMARY OF ARGUMENT

   I. A. In support of his argument that the Air Force is required to
grant him an exemption from A.F.R. 35-10, petitioner urges this Court
to apply the "compelling governmental interest" and "least restrictive
alternative" mode of analysis developed for Free Exercise claims in
the civilian sector.  See, e.g., Thomas v. Review Board, 450 U.S. 707
(1981).  But civilian precedents such as Thomas have no applicability
in the military context.  This Court has consistently recognized that
the military is a separate community "without counterpart in civilian
life" (Schlesinger v. Councilman, 420 U.S. 738, 757 (1975)) and that,
when the needs of the military so require, activities that are likely
adversely to affect military interests may be regulated, even though
the same activities, when engaged in by civilians, would be entitled
to constitutional protection.  See, e.g., Brown v. Glines, 444 U.S.
348 (1980);  Parker v. Levy, 417 U.S. 733 (1974).

   The divergence between military and civilian society is at its
sharpest in areas relating to the panoply of First Amendment rights
that guarantee citizens the liberties essential to a self-governing
people.  Unlike civilian society, a "'military organization is not
constructed along democratic lines and military activities cannot be
governed by democratic procedures * * *.'" Greer v. Spock, 424 U.S.
828, 843-844 (1976) (Powell, J., concurring) (quoting T. Emerson, The
System of Freedom of Expression 57 (1970)).  To the contrary, soliders
are expected to obey the directives of their superiors without
question or hesitation, even when those orders may severely compromise
a soldier's personal safety or comfort.  And unswerving obedience to
command arises not from rational discussion or conviction, but from
discipline.  A healthy respect for these unique needs of the military
has led this Court to apply a different standard of review to
constitutional challenges raised by military personnel than is
applicable in the civilian context.

   Although the Court has not attached a label to the standard of
review it employs in military cases, Brown v. Glines, supra, most
clearly exemplifies the prevailing approach.  There, the Court engaged
in no balancing, no weighing of interests, in concluding that
"(s)peech likely to interfere with (the) vital military prerequisites
(of loyalty, morale, and discipline) for military effectiveness * * *
can be excluded from a military base" (444 U.S. at 354 (emphasis
added)).  The only caveat added by the Court was that expression
should be regulated no more than is "reasonably necessary" to protect
the substantial governmental interests at stake (id. at 355).

   B. In addition to the special nature of military society, there is
another factor that must inform the Court's review of petitioner's
claim to a religious exemption from the Air Force's uniform
regulation.  In assessing the need for a particular regulation
promulgated to establish and maintain a disciplined and well-ordered
fighting force, the courts must accord great deference to professional
military judgments.  See, e.g., Chappell v. Wallace, 462 U.S. 296,
300-301 (1983);  Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953).
This deference is rooted partly in the express constitutional
commitment of the governance of the nation's Armed Forces to the
President and Congress and partly in the inability of civilian judges
to determine the impact upon discipline that judicial second-guessing
of command decisions might occasion.  See, e.g., Gilligan v. Morgan,
413 U.S. 1, 10 (1973).

   C. This case involves a determination made by military
professionals concerning the training of military personnel.  It is
the considered judgment of those military professionals that
regulations dictating uniformity of dress will instill the discipline,
morale, and esprit de corps essential to the accomplishment of the
military mission -- to protect the security of this nation.
Consistent with established limits on judicial review of such military
deicisions, this Court's role is, first, to determine whether it is
"likely" that exceptions to the military's uniform requirements will
interfere with the military interests advanced by the Air Force.  If
so, the Court must also determine whether the scope of the uniform
regulation is "reasonably necessary" to achieve those interests.
Brown v. Glines, supra.

   II. A. There can be no serious doubt that uniform dress and
appearance standards serve the military interest of maintaining
discipline, morale, and esprit de corps.  In Kelley v. Johnson, 425
U.S. 238 (1976), the Court rejected a First Amendment challenge to a
police department's dress and appearance code, noting that the
"overwhelming majority" of police departments have uniform
requirements and that such requirements serve the legitimate purpose
of inculcating the esprit de corps deemed necessary for an effective
police force.  If uniformity serves to inculcate discipline, morale,
and esprit de corps in police departments, if follows a fortiori that
uniformity serves the same purposes in the nation's "uniformed
services." This conclusion is supported by virtually all professional
military personnel, by centuries of military experience in this and
other countries, by civilian social scientists, and by common sense.
Indeed, petitioner conceded as much in the court of appeals, and he
has not argued otherwise in this Court.

   This concession is fatal to petitioner's argument that the only
interest of the Air Force in enforcing its uniform regulation is
enforcement itself.  Rather, enforcement is a necessary means to the
undeniably critical end of molding soldiers into an effective fighting
force.  It is thus clear that exceptions to the Air Force's uniform
dress and appearance standards are "likely to interfere" with the
military interest in maintaining discipline, morale, and esprit de
corps.

   B. It is equally clear that the scope of the Air Force's uniform
regulation is reasonably necessary to protect the military interests
at stake.  Petitioner argues that the regulation is overbroad and that
the military interests in discipline and morale could be met even if
he were allowed to deviate from the regulation.  But petitioner's
arguments amount to precisely the sort of second-guessing of
professional military judgments that this Court has refused to
countenance in the past.

   For example, petitioner characterizes the yarmulke as an
"'unobtrusive' * * * benign religious observance" that, in today's
society, is no more than "slightly idiosyncratic apparel" (Br. 9
(citation omitted)).  We agree that, in civilian society, the wearing
of a yarmulke is not generally an occasion for comment.  But in the
military, the smallest departure from the uniform dress code is an
occasion for comment.  It sets the wearer apart from his fellow
soldiers and serves as a public assertion of individuality in a
context in which cohesion and group identity are essential.

   Like the district court, petitioner also challenges the Air Force
regulation because it was not the product of a "scienfitic study" (Br.
25).  The short answer to petitioner's argument is that the military
is not constitutionally required to perform "clinical" or "empirical"
studies before it may enforce a personnel regulation.  The military
itself is a profession, and its institutional judgments, especially
those relating to discipline and morale, have been refined by
centuries of practical experience.  Those judgements possess
independent dignity and are entitled, within their sphere, to more
respect than the speculations of members of other professions
unacquainted with the peculiar constraints of military life.

   Petitioner further argues that granting the exemption he seeks
would have no adverse consequences for military discipline and morale
because, for a period of years, no one objected to his wearing a
yarmulke.  Petitioner's assertion is factually inaccurate.  But more
important, the military need not demonstrate in each individual case
that a departure from uniform standards has caused a breakdown in
discipline and morale before it may enforce its regulations.

   Finally, petitioner's argument, accepted by the district court,
that exceptions to the uniform requirement would make the Air Force a
"less rigid, more humane institution" (Pet. App. 31a) is totally
beside the point.  Moreover, it is difficult to image a judgment more
outside the realm of judicial competence than the degree of "ridigity"
and "humanity" appropriate to a Military Department.

   III. Acceptance of petitioner's argument would create the further
difficulty of forcing the military to choose between virtual
abandonment of its uniform regulations and constitutionally
impermissible line drawing.  Petitioner's case is but one of many in
which members of the Armed Forces have sought a religious exemption
from the uniform requirement in order to wear turbans, unshorn hair,
beards, swords, ankle length skirts, dreadlocks (long, braided hair),
and kum kums (red dots worn on the forehead).  Litigation over such
requests has become increasingly frequent and, if petitioner's claim
were accepted, could only be expected to increase.

   The military would have no principled basis upon which to grant
petitioner's request while denying others.  Granting some religious
exemptions to the uniform requirement but not others would undermine
military morale and, indeed, would raise substantial Establishment
Clause concerns.  On the other hand, if the military were obliged to
grant all exemptions claimed on religious grounds, it takes no great
leap of imagination to picture a rag-tag band of soldiers bearing no
resemblance to a "uniformed service."

                               ARGUMENT

 THE FREE EXERCISE CLAUSE DOES NOT REQUIRE THE MILITARY TO GRANT
RELIGIOUS EXEMPTIONS TO UNIFORM DRESS AND APPEARANCE REQUIREMENTS

 A. The Standard For Evaluating Free Exercise Challenges In The
Civilian Sector Has No Applicability In The Military Context.

   The most striking aspect of petitioner's case in this Court is his
unwillingness to acknowledge that his claim arises in the special
context of a challenge to the military's authority over the conduct of
its members.  /11/ Virtually all of petitioner's arguments are
premised on the contention that the Court should analyze his claim
under the standards enunciated in cases such as Thomas v. Review
Board, 450 U.S. 707 (1981);  Wisconsin v. Yoder, 406 U.S. 205 (1972);
and Sherbert v. Verner, 374 U.S. 398 (1963).  See, e.g., Pet. Br. 12,
16, 20, 24-29.  But these civilian precedents have no applicability in
the military context.  While we do not here contend that petitioner's
challenge to A.F.R. 35-10 is totally unreviewable, /12/ we do submit
that judicial review of constitutional challenges to military
regulations is sui generis.  This Court has consistently recognized
that military interests in discipline and morale are of paramount
national importance and that activities that are likely to have
adverse effects on those interests may be regulated, even though the
same activities, when engaged in by civilians, would be entitled to
constitutional protection.  See, e.g., Brown v. Glines, 444 U.S. 348,
354-357 (1980);  Parker v. Levy, 417 U.S. 733, 758 (1974).

   The reason that military personnel lack the same degree of
constitutional protection afforded to civilians is a direct
consequence of the fundamental distinctions between military and
civilian society.  "While the members of the military are not excluded
from the protection granted by the First Amendment, the different
character of the military community and of the military mission
requires a different application of those protections." Parker v.
Levy, 417 U.S. at 758;  accord Rostker v. Goldberg, 453 U.S. 57, 67
(1981) (Due Process Clause "tests and limitations * * * may differ
because of the military context.");  Hirschhorn, The Separate
Community:  Military Uniqueness and Servicemen's Constitutional
Rights, 62 N.C. L. Rev. 177, 201 (1984) ("(A)s a matter of observation
and history, the armed forces are a distinct subculture in which the
individual is subordinated to the organization in a manner unlike any
other government activity.").

   Moreover, the divergence between military and civilian society is
at its sharpest in areas relating to the panoply of First Amendment
rights that guarantee citizens the liberties essential to a
self-governing people.  Unlike civilian society, a "'military
organization is not constructed along democratic lines and military
activities cannot be governed by democratic procedures * * *.
(M)ilitary decisions cannot be made by vote of the interested
participants.'" Greer v. Spock, 424 U.S. 828, 843-844 (1976) (Powell,
J., concurring) (quoting T. Emerson, The System of Freedom of
Expression 57 (1970)).  To the contrary, soldiers are expected to obey
the directives of their superiors without question or hesitation, even
when those orders may severely compromise a solider's personal safety
or comfort.  As the Court stated in In re Grimley, 137 U.S. 147, 153
(1890):

      An army is not a deliberative body.  * * * Its law is that of
      obedience.  No question can be left open as to the right to
      command in the officer, or the duty of obedience in the solider.

   Unswerving obedience in extreme circumstances arises not from
rational discussion and conviction, but from discipline:  "(The
accomplishment of the military mission implies) the fundamental
necessity for obedience, and the consequent necessity for imposition
of discipline." Parker v. Levy, 417 U.S. at 758.  Without this
discipline and obedience, an effective military organization could not
be maintained, and the existence of other civil liberties, and the
State itself, could be jeopardized.  For these reasons, the Court has
recognized that the full ambit of constitutional protections is not
compatible with the maintenance of a military organization and that
the special requirements of the military "may render permissible
within the military that which would be constitutionally impermissible
outside it." Ibid.  See generally Hirschhorn, supra, 62 N.C.L. Rev. at
177.

   Although the Court has not attached a label to the standard of
review applicable to challenges to military regulations alleged to
infringe fundamental civil rights, /13/ the "rational basis" test most
closely describes the Court's approach in practice.  Cases considered
by the Court in the last decade have included the military's criminal
punishment (three years at hard labor) of an officer's spoken protest
of the Vietnam War on the ground that the speech was "conduct
unbecoming an officer" (Parker v. Levy, supra);  the military's ban of
speakers from military bases because of the political content of their
speech (Greer v. Spock, supra);  and the military's imposition of
prior restraints on petitions to congressmen in the interest of
maintaining order and discipline (Brown v. Glines, supra).  None will
doubt that civilian society may not be so regulated.  Yet in each of
these cases, the military regulations were upheld without any judicial
"balancing of interests" or "strict scrutiny" of the asserted military
interests.

   Brown v. Glines most clearly exhibits the nature of this unique
standard of review.  There, the Air Force regulation at issue forbade
the circulation of petitions by soldiers on a military base without
approval of the base commander, who was authorized to suppress the
distribution of material that he judged would endanger the "'loyalty,
discipline, or morale of members of the Armed Forces" (444 U.S. at 350
(citation omitted)).  The regulation had been enforced against a
soldier who had solicited signatures on petitions to congressmen,
complaining about the Air Force's grooming standards.  The court of
appeals invalidated the regulation on the ground that it was overbroad
and allowed commanders to suppress "'virtually all controversial
written material'" (444 U.S. at 353 (citation omitted)).

   This Court reversed.  Although prior restraints on civilian speech
may be justified only by the most certain evidence of immediate peril
to the nation (see, e.g., New York Times Co. v. United States, 403
U.S. 713 (1971) (per curiam)), the Court in Glines engaged in no
balancing, no weighing of interests.  To the contrary, the Court
recognized that "(l)oyalty, morale, and discipline are essential
attributes of all military service," and held simply that "(s)peech
likely to interfere with these vital prerequisites for military
effectiveness therefore can be excluded from a military base" (444
U.S. at 357 n.14, 354 (emphasis added)).  The only caveat added by the
Court was that the regulation of such expression must "restrict speech
no more than is reasonably necessary to protect the substantial
governmental interest" (id. at 355 (emphasis added)).

   Thus, rights that are fundamental in civilian society and that can
be abridged only in the most compelling situations may be curtailed in
the military if their exercise is "likely to interfere" with the
maintenance of good order or the instilling of discipline in military
personnel.  Petitioner's claim must be evaluated in the light of this
unique standard.  /14/

   2. Yet another factor must inform this Court's review of
petitioner's challenge to the Air Force uniform regulation.  Not only
are the civilian precedents used to evaluate Free Exercise claims
inapplicable because of the special nature of the military, but, in
addition, the Court must afford a significantly heightened degree of
deference to professional military judgments concerning the need for a
particular regulation promulgated to establish and maintain a
disciplined and well-ordered military force.  As the Court recently
noted in Chappell v. Wallace, 462 U.S. 296, 301 (1983), the character
of this deference was "summed up" in Orloff v. Willoughby, 345 U.S.
83, 93-94 (1953):

      "(J)udges are not given the task of running the Army.  * * * The
      military constitutes a specialized community governed by a
      separate discipline from that of the civilian.  Orderly
      government requires that the judiciary be as scrupulous not to
      interfere with legitimate Army matters as the Army must be
      scrupulous not to intervene in judicial matters."

   This extraordinary deference is rooted partly in the express
constitutional commitment of the governance of the nation's Armed
Forces to the President and Congress (U.S. Const., Art. I, Section 8,
and Art. II, Section 2, Cl. 1) /15/ and partly in the inability of
civilian judges to determine the impact upon discipline that judicial
second-guessing of command decisions might occasion.  In Gilligan v.
Morgan, 413 U.S. 1, 10 (1973), the Court observed:

      (I)t is difficult to conceive of an area of governmental
      activity in which the courts have less competence.  The complex,
      subtle, and professional decisions as to the composition,
      training, equipping, and control of a military force are
      essentially professional military judgments * * *.

   Accord Rostker v. Goldberg, 453 U.S. at 64-69.

   Chief Justice Warren has echoed this view, noting that judicial
deference to military judgments in areas affecting discipline has been
the tradition of our country since its founding (Warren, The Bill of
Rights and the Military, 17 N.Y.U. L. Rev. 181, 187 (1962) (emphasis
added)):

      It is now indisputable that the tradition of our country, from
      the time of the Revolution until now, has supported the military
      establishment's broad power to deal with its own personnel.  The
      most obvious reason is that courts are ill equipped to determine
      the impact upon discipline that any particular intrusion upon
      military authority may have.  Many of the problems of the
      military society are, in a sense, alien to the problems with
      which the judiciary is trained to deal.

   See also Brown v. Glines, 444 U.S. at 357 ("Because the right to
command and the duty to obey ordinarily must go unquestioned, this
Court long ago recognized that the military must possess substantial
discretion over its internal discipline.").

   The court has employed the same reasoning in the Feres line of
cases.  See Feres v. United States, 340 U.S. 135 (1950).  Most
recently, in United States v. Shearer, No. 84-194 (June 27, 1985), the
Court refused to permit the mother of a deceased soldier to maintain
an action under the Federal Tort Claims Act alleging negligence on the
part of the military in failing to prevent another soldier's fatal
assault and battery of her son.  Such a suit, the Court stated, "would
involve the judiciary in sensitive military affairs at the expense of
military discipline and effectiveness." Shearer, slip op. 7.  The
Court further explained (id. at 6):

      To permit this type of suit would mean that commanding officers
      would have to stand prepared to convince a civilian court of the
      wisdom of a wide range of military and disciplinary decisions;
      for example, whether to overlook a particular incident or
      episode, whether to discharge a serviceman, and whether and how
      to place restraints on a solider's off-base conduct.

   3. In sum, this case involves judgments made by military
professionals concerning the training of military personnel.  it is
the judgment of those military professionals that regulations
dictating uniformity of dress will instill the discipline, morale, and
esprit de corps essential to the accomplishment of the military
mission.  Consistent with established limits on judicial review of
such military decisions, this Court's role is, first, to determine
whether it is "likely" that exceptions to the military's uniform
requirements will interfere with the military interests advanced by
the Air Force.  Brown v. Glines, 444 U.S. at 354.  If so, the Court
must also determine whether the scope of the uniform regulation is
"reasonably necessary" to achieve those interests.  Id. at 355.  As we
demonstrate below, these two inquiries must, in the circumstances of
this case, be answered in favor of the Air Force.  At that point, the
Court's role is at an end, and petitioner's challenge to the uniform
regulation must be rejected.

 B. Exceptions To Military Uniform Dress And Appearance Standards Are
"Likely To Interfere" With The Maintenance Of Discipline, Morale, And
Esprit De Corps.

   There can be no serious doubt that uniform dress and appearance
standards serve the military interests of maintaining discipline,
morale, and esprit de corps.  In Kelley v. Johnson, 425 U.S. 238
(1976), the Court rejected a policeman's claim that a county dress and
appearance code violated his right of free expression under the First
Amendment and his guarantees of due process and equal protection under
the Fourteenth Amendment.  The Court noted that the "overwhelming
majority" of police departments have uniform requirements,
legitimately directed at promoting "a desire for the esprit de corps
which such similarity (in appearance) is felt to inculcate within the
police force" (425 U.S. at 248).  The Court found this rationale for
the dress code "so clear" that it held that the district court had
correctly dismissed the complaint (425 U.S. at 247-248).  Accord
Marshall v. District of Columbia Government, 559 F.2d 726, 728 (D.C.
Cir. 1977) (upholding police force uniform appearance regulations
against Free Exercise challenge on ground that "requirements are
directly related to discipline, uniformity and to esprit de corps").

   If it is "so clear" that uniformity serves to inculcate discipline,
morale, and esprit de corps in police departments, it follows a
fortiori that uniformity serves the same purposes in the nation's
"uniformed services." /16/ This conclusion is supported by virtually
all professional military personnel (see Joint Service Study, at
III-13, App. E, at A35-A39), by centuries of military experience in
this and other countries, /17/ by social scientists, /18/ and by
common sense.  Indeed, in the court of appeals, petitioner conceded
that "the wearing of a uniform is essential to the maintenance of
military discipline and esprit de corps" (Br. for Appellee 21
(emphasis added)), and he does not maintain otherwise in this Court.
/19/

   This concession is fatal to petitioner's argument (Br. 17, 18) that
the only interest of the Air Force in enforcing A.F.R. 35-10 is
enforcement itself.  On the contrary, the authorities we have cited
clearly demonstrate that enforcement is important not merely for its
own sake, but as a means to the undeniably critical end of molding
soldiers into an effective fighting force.  This Court recognized the
same point in Brown v. Glines, 444 U.S. at 354 (quoting Schlesinger v.
Councilman, 420 U.S. 738, 757 (1975) (emphasis added)):

      Military personnel must be ready to perform their duty whenever
      the occasion arises.  * * * To ensure that they always are
      capable of performing their mission promptly and reliably, the
      military services "must insist upon a respect for duty and
      discipline without counterpart in civilian life."

   Because enforcement of a uniform requirement is directly related to
the maintenance of discipline, morale, and esprit de corps, it follows
that recognizing any exceptions to the uniform dress and appearance
standards prescribed by A.F.R. 35-10 is "likely to interfere" with
accomplishment of the military mission.  By definition, a uniform
requirement cannot coexist with exceptions to it.

 C. The Scope Of The Air Force's Uniform Regulation Is Reasonably
Necessary To Protect The Military Interests At Stake.

   Having conceded that uniforms are essential to the maintenance of
military discipline and esprit de corps, petitioner is forced to argue
that the scope of the Air Force's uniform regulation is unreasonably
broad and that the Air Force could allow yarmulkes to be worn without
adverse consequences to the military interest in discipline and
morale.  Virtually all of petitioner's arguments represent precisely
the sort of second-guessing of professional military judgments that
this Court has refused to countenance in the past.

   1. The chief premise of petitioner's overbreadth argument is his
characterization of the yarmulke as an "'unobtrusive' * * * benign
religious observance" that, in today's society, is no more than
"slightly idiosyncratic apparel" (Br. 9 (citation omitted)).
Petitioner supports his characterization of yarmulkes as "unobtrusive"
by stating that they are "commonly seen and accepted" on university
campuses, city streets, and other public places (Br. 11).

   The government has no quarrel with the proposition that, in
civilian society, the wearing of a yarmulke is not an occasion for
comment or is, at most, "slightly idiosyncratic" behavior.  But
petitioner asks this Court to take this unremarkable observation well
beyond the context of civilian society.  Petitioner's argument depends
on the proposition that practices considered "unobtrusive" in civilian
society -- where individuality in dress is the rule rather than the
exception -- are equally "unobtrusive" in a military setting.  The
analogy will not work, for in the military there are no clothing
options.  Detailed regulations specify which garments may be worn and
further specify how and when they must be worn.  The smallest
departure from these strict specifications is an occasion for comment.
 It is common knowledge, for example, that a soldier's failure to
button a button on his tunic can result in a stern rebuke from his
superior.  Cf. H. Semmes, Portrait of Patton 7-8 (1955).  In other
words, a "slightly idiosyncratic" unbuttoned tunic is obtrusive in the
highly regulated military community.

   Furthermore, the entire premise of petitioner's argument is subject
to serious question.  Petitioner takes as a given the
"unobtrusiveness" of a yarmulke, and he assumes that it is "generally
understood to be a form of religious observance" (Br. 11).  But the
testimony in this very case demonstrates that not everyone is familiar
with yarmulkes, because petitioner's co-workers and patients
occasionally asked him what he was wearing (J.A. 166-167).  Although
petitioner's answers may have satisfied those who inquired, others --
particularly petitioner's military subordinates who might not think it
appropriate to question their superior's dress -- could easily assume
that petitioner was deviating from the prescribed uniform regulations
purely for reasons of personal preference having nothing to do with
his religious beliefs.  Thus, it cannot be assumed that other soldiers
with whom petitioner comes in contact would appreciate that he is
engaging in an "'unobstrusive' * * * benign religious observance"
(Pet. Br. 9 (citation omitted)).  See pages 42-43 & noted 25, infra.

   From the military perspective, therefore, it requires no great
effort to imagine the conspicuousness of a piece of unconventional
headgear.  The wearing of a yarmulke is a visible and significant
departure from prescribed standards.  As previously explained, it is
the judgment of military professionals that such departures tend to
make the wearer special and distinctive, setting him apart from other
soldiers whose absolute conformity with the uniform regulations serves
to confirm their military commitment.  The wearing of a yarmulke is a
public assertion of individuality in a context in which professional
military officers have come to the studied judgment that uniformity is
the best and perhaps the only way of instilling the discipline and
esprit de corps essential to the fulfillment of the military mission.
In a word, professional military officers have concluded that the
wearing of yarmulkes and similar departures from the prescribed
uniform are "obtrusive," because they are in conflict with military
goals and purposes.  See, e.g., J.A. 58-59, 61 (testimony of General
Usher).

   Thus, petitioner's characterization of yarmulkes as "unobtrusive"
is, in effect, merely a restatement of his disagreement with the
judgment of military officers on the importance of strict and
punctilious adherence to uniformity.  That is, petitioner's assertion
that yarmulkes are "unobtrusive" ultimately reduces to his contention
that the judgment of military officers on the importance of adherence
to uniformity is unreasonable.  Unfortunately for petitioner, that is
not his determination to make.

   2. The district court conceded that the Air Force's judgment was
"based upon the experience of the Air Force in times of peace and in
times of war" (Pet. App. 31a).  But the district court was unwilling
to rely on the Air Force's experience, stating that conclusions "based
* * * on the personal beliefs and assumptions of Air Force officials"
-- even those with "expertise" in the area -- "are inadequate to
withstand constitutional scrutiny" (id. at 33a).  /20/ Petitioner,
contending that the Air Force's judgment was not based on a
"scientific study" (Br. 12), resurrects this unprecedented analysis.

   Even if it were possible to validate the Air Force's judgment by
psychological or sociological tests and studies (but see note 8,
supra), the short answer to petitioner's argument is that it is
neither constitutionally required nor appropriate to insist that the
military perform clinical or empirical studies before it may enforce a
regulation such as A.F.R. 35-10.  The military is itself a profession,
and its institutional judgments, especially those relating to
discipline and morale, have been refined by centuries of practical
experience.  Those judgments possess independent dignity and are
entitled, within their sphere, to more respect than the speculations
of members of other professions unacquainted with the peculiar
constraints of military life.  This Court therefore should reject
petitioner's request for judicial second-guessing of a decision of an
admittedly military character merely because it lacks a "scientific"
-- i.e., nonmilitary -- basis.  See Chappell v. Wallace, 462 U.S. at
302 (quoting Gilligan v. Morgan, 413 U.S. at 10);  cf. Parker v. Levy,
417 U.S. at 763 (Blackmun, J., concurring) ("The subtle airs that
govern the command relationship are not always capable of
specification.").  As the court of appeals observed, "the Air Force's
judgment on this issue is entitled to deference because it is within
its expertise and outside ours" (Pet. App. 19a-20a).

   Moreover, the Air Force has persuasively explained why the
particular military judgment at issue here is reasonably necessary to
maintain discipline and morale.  For example, the Air Force is plainly
correct in concluding that the wearing of yarmulkes (or any religious
garb not authorized by regulation) would set the wearers apart from
military personnel who do not engage in such practices.  It would make
them a distinct class, the nature of which would not be based upon
military distinctions, such as rank.  /21/ Petitioner loses sight of
the fact that separateness generated by individual preferences --
whether religious or otherwise -- is precisely what the military seeks
to deemphasize through its uniform regulations.  Military entities are
intended to function as units, and unit cohesion is possible only when
the individuals habitually and willingly subordinate their personal
tastes and interests to the purpose of the combat group.  In sum,
"idiosyncratic" practices that emphasize individuality are
"functional(ly) and symbolic(ally) incompatib(le) with the
'specialized (military) society separate from civilian society.'"
Greer v. Spock, 424 U.S. at 844 (Powell, J., concurring) (quoting
Parker v. Levy, 417 U.S. at 743).

   3. Petitioner also argues (Br. 13-15) that wearing a yarmulke has
no adverse consequences for military discipline or morale, because "no
one objected to his wearing a yarmulke and, other than a few inquiries
by interested co-workers or patients, it caused little comment."
Petitioner's contention is both inaccurate and irrelevant.  First, it
was exactly the fact of complaints from other military personnel that
led to the order requiring petitioner to conform to the uniform
regulation.  In the highly formal atmosphere of a military
courtmartial, petitioner's unconventional headgear led to a complaint
by an officer of the court.  J.A. 15.  Moreover, the Air Force
disclosed to petitioner that, in 1978, the hospital commander received
a complaint from a noncommissioned officer, who stated that "several
of the younger Air Force members were upset that they were required to
live up to standards of dress and (g)rooming while Capt. Goldman was
not." J.A. 22.

   More important, the military is not required to demonstrate in each
individual case that a departure from uniform standards has caused a
breakdown in discipline or morale before it may enforce its
regulations.  See Cornelius v. NAACP Legal Defense & Educational Fund,
Inc., No. 84-312 (July 2, 1985), slip op. 20-21;  Perry Education
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 52 n.12 (1983)
(citing Greer v. Spock, supra).  /22/ Significantly, Congress has
taken note of the serious consequences that may flow from a federal
relaxation of uniform dress and appearance standards.  In its
investigation of the causes of serious riots that took place aboard
two aircraft carriers during the Vietnam War (the U.S.S. Constellation
and the U.S.S. Kitty Hawk), a special subcommittee of the House Armed
Services Committee concluded that the Navy's authorization of
individual variations in uniform dress had been a contributing factor
in the breakdown of discipline on the carriers (House Comm. on Armed
Services, Report by the Special Subcomm. on Disciplinary Problems in
the U.S. Navy, H.A.S.C. 92-81, 92d Cong., 2d Sess. 17682 (1973)):

         The current relaxation of the standards of appearance for
      Navy men has caused a lessening in the pride that some sailors
      take in their appearance and, thus, in their service.

         Admittedly, Z-57 and subsequent clarifying messages
      concerning the standards of appearance, were not designed to
      permit Navy personnel to become sloppy and slovenly in their
      appearance and grooming. Nonetheless, such as been the effect.

         (T)he subcommittee received clear and irrefutable evidence
      that men of the naval service do not present the smart
      appearance that once was their unique trademark.

         While this has undoubtedly been as a result of individual
      abuse of relaxed regulations, it has, in fact, caused a
      service-wide problem for all Navy personnel.  Until such time as
      there is insistence on clear-cut standards for a smart
      appearance while in the uniform of the United States Navy, the
      general morale and discipline will be adversely affected.

   These legislative findings are entitled to great weight (see
Rostker v. Goldberg, 453 U.S. at 72), and they negate petitioner's
claim that the Air Force must demonstrate an actual breakdown in
discipline attributable to him before it may require his compliance
with the uniform regulation.

   4. Although petitioner does not stress the argument, it bears
noting that the military interests at stake are no less weighty simply
because petitioner was serving in a noncombat position at a hospital.
The Court recognized this point in Brown v. Glines, 444 U.S. at
356-357 n.14 (citations omitted):

      (T)hose restrictions necessary for the inculcation and
      maintenance of basic discipline and preparedness are as
      justified on a regular base in the United States, as on a
      training base, or a combat-ready installation in the Pacific.
      Loyalty, morale, and discipline are essential attributes of all
      military service.  Combat service obviously requires them.  And
      members of the Armed Services, wherever they are assigned, may
      be transferred to combat duty or called to deal with civil
      disorder or natural disaster.

   As the Joint Service Study recognized, the alternatives to such
flexibility in assignments are unacceptable (id. at III-16 to III-17):

      The services could assign individuals granted (dress and
      appearance) exceptions only to duties and locations where
      military requirements would never impinge upon their religious
      tenets.  Alternatively, the services could agree to assign such
      an individual only to duties for which his exception would not,
      under normal circumstances, create a safety hazard or impinge
      upon his ability to accomplish the mission * * *.

         To adopt either of these approaches would complicate further
      the assignment processes of all the services by limiting the
      career fields into which people could be placed and by reducing
      flexibility within the personnel system.

         In a more general sense, adoption of assignment restrictions
      of this type would, in essence, create two classes within the
      military:  the majority, subject to all the demands the military
      makes on its members (including worldwide assignment and the
      possibility of serving in a combat environment), and a visible
      minority, exempt from certain of the more onerous demands of the
      institution but eligible for all of its benefits.  The impact of
      such an arrangement on the attitude of both groups can only be
      speculated, but it seems likely that the overall effect would
      harm military esprit de corps.

   Furthermore, even if noncombat servicemembers were never
transferred to combat positions, military history teaches that the
need to instill instinctive obedience to command remains the same
(Hirschhorn, supra, 62 N.C. L. Rev. at 226 (footnotes omitted;
emphasis added)):

      The purpose of noncombat personnel is to provide reliable
      support services to combat units.  * * * If the support
      components of an army are not as subject to the commander's will
      as are the combat components, they may withdraw whenever they
      find their situation to be too far from home, too dangerous, or
      not remunerative enough.  * * * The commander whose supporting
      personnel were under military obligations of obedience and
      attendance had an advantage over an opponent with only an army
      of combat troops.  * * * Regardless of the particular duties he
      performs, the noncombat serviceman is a means to the same end as
      the combatant.  He may not face as much danger, but the armed
      forces have the same reason to induce him to comply willingly
      with the requirements of his job.

   Thus, the subordination of the individual essential to the military
mission can be attained only if it is a constant throughout the
servicemember's career;  inculcation of the discipline necessary to
fight a war cannot await the outbreak of hostilities.  In the military
setting, it is simply unrealistic and antithetical to the goals of the
mission to allow "minor" deviations from absolute requirements,
regardless of the function a particular servicemember performs.
Congress itself recognized this fact in its investigation of the
incidents aboard the U.S.S. Constellation and the U.S.S. Kitty Hawk
(H.A.S.C. 92-81, supra, at 17683):

      Military discipline demands nothing less than immediate response
      to orders.  The need for this immediacy is obvious in situations
      where lives are at stake.  To demand a similar response during
      routine operational (or) "minor matters is essential to proper
      training for emergency situations and appropriate responsiveness
      to commands which may be given in wartime.

   5. Petitioner makes much (Br. 21-22) of the district court's
finding that the allowance of religious exceptions to the uniform
standards might "enhance the effectiveness of the Air Force" by making
it appear to be a "less rigid, more humane institution" (Pet. App.
31a).  It is difficult to imagine a judgment more outside the realm of
judicial competence than the degree of "rigidity" and "humanity"
deemed necessary by a Military Department.  Petitioner's contention
(Br. 21) that religious exemptions would be "desirable" is thus
totally irrelevant to the issue in this case.

   In any event, the evidence upon which petitioner relies, even if it
were remotely relevant to this Court's consideration of the question
presented, does not support petitioner's argument.  Dr. Samuel
Levinson, a retired Army psychologist, did testify that, in his
personal opinion, religious exemptions from the uniform requirements
would be "beneficial" to the Air Force (J.A. 134).  But the basis for
his opinion serves only to confirm the Air Force's judgment that
deviations from the prescribed uniform would emphasize the
individuality of servicemembers, even though it is the Air Force's
considered judgment that, in the military setting, individuality must
be subordinated to the group mission.  Dr. Levinson testified that
dress and appearance exceptions "would reflect the acceptance of
pluralism, of flexibility, of (humaneness) in the system, of
recognizing that there are reasonable differences * * * and it is okay
to be somewhat different" (J.A. 136 (emphasis added)).  Dr. Levinson's
testimony therefore supports the Air Force's central premise, which is
that the wearing of yarmulkes and other religious garb is by no means
"unobtrusive," but would instead draw attention to "certain
differences" (J.A. 134) among military personnel.

   Dr. Levinson, of course, disagreed with the Air Force personnel
experts who testified at trial and who participated in the Joint
Service Study.  /23/ Dr. Levinson believed that an Air Force organized
along different lines -- one that did not stress uniformity and that
was not concerned with whether military personnel "buttoned three
buttons or four or wore some little bit here or there on the uniform
as part of some identification, some identity issue" -- would be more
effective.  J.A. 141.  /24/ Whatever the merit of Dr. Levinson's
position, it unquestionably involves fundamental and far-reaching
policy choices of extraordinary importance to the structure of the
military.  This Court, however, has never taken it upon itself to
determine, as petitioner urges, whether a more "flexible, pluralistic,
and humane" Air Force could better accomplish that service's unique
task.  Cf. Kelley v. Johnson, 425 U.S. at 248 ("Neither this Court,
nor the Court of Appeals, nor the District Court is in a position to
weigh the policy arguments in favor of and against a rule regulating
hairstyles as a part of regulations governing a uniformed civilian
(police) service.").  In sum, petitioner's contention that the Air
Force itself would benefit from accommodating his religious request
simply has no bearing on the proper resolution of this case.

   6. Petitioner also objects (Br. 39-40) to the Air Force's concern
that soldiers who are required to conform absolutely to the service's
dress and appearance regulation are likely to resent what they may
perceive as unequal and favored treatment for those in petitioner's
position.  Indeed, petitioner goes so far as to suggest (Br. 8;  see
also id. at 39-40) that for the Air Force to take such potential
resentment into account is tantamount to "the now discredited World
War II justification for racial segregation in the military" -- that
is, that a bigoted person's resentment of a black soldier's race is
not a permissible basis upon which to deny the black soldier his
rights.

   The weakness of petitioner's position is demonstrated by his resort
to this strained analogy.  The Air Force is not here arguing that
Orthodox Jews -- or members of any other religion -- should be treated
differently because of their religion.  Rather, the Air Force seeks
only to treat Orthodox Jews exactly as it treats all other soldiers.
It is petitioner who seeks favored status by asking to be relieved of
one of the burdens of military service -- strict adherence to uniform
requirements -- in order to satisfy a personal, nonmilitary (albeit
religious) preference.  Compare United States v. Lee, 455 U.S. 252,
264 n.3 (1982) (Stevens, J., concurring) (Thomas and Sherbert may be
viewed "as a protection against unequal treatment * * * for the
members of the religious sect"), with Braunfeld v. Brown, 366 U.S.
599, 608-609 (1961) (exemption for Jewish merchants from
Sunday-closing law might provide them with a competitive advantage
over merchants unable to claim a similar exemption).  In these
circumstances, it was not at all unreasonable for the Air Force to
consider, among numerous other factors, the resentment of soldiers who
would not themselves be entitled to any exemptions from the burdens of
military service.  See J.A. 41-42;  see also Joint Service Study, at
III-12.  /25/

 D. Acceptance Of Petitioner's Argument Either Would Spell An End To
Uniformity Or Require The Military To Engage In Impossible And
Impermissible Line Drawing.

   1. In addition to his emphasis on the "unobtrusiveness" of
yarmulkes, petitioner stresses that "(t)here is nothing intrinsically
desirable about wearing a skullcap or any other religiously mandated
apparel" (Br. 17).  Hence, petitioner argues that "there is no reason
to presume" that religious exemptions from the uniform requirement
"would be invoked by many servicemen" (ibid).  Contrary to
petitioner's argument, however, his is not an isolated case.  Indeed,
this case is but one of several recent or pending cases in which
persons have argued that the military must grant exemptions from
uniform requirements in order to accommodate a variety of ritual,
religious practices.  /26/ In addition, many requests for exemptions
from the uniform requirements have been denied without litigation.  We
are advised by the Army that it has received and denied requests for
religious exemptions to its uniform requirements that would permit the
wearing of turbans, unshorn hair, beards, swords, ankle length skirts,
dreadlocks (long, braided hair worn by Rastafarians), and kum kums
(red dots worn on the forehead by Hindus).  Exemptions have been
requested from members of the Christian, Jewish, Muslim, Sikh, Hindu,
Rastafarian, and Native American faith groups.  See Joint Service
Study, at I-14, I-36 n.19.  Nor have requests for exemptions been
limited to isolated, individual cases.  For example, subsequent to the
court of appeals' decision in this case, 51 members of a Pentecostal
church in Junction City, Kansas, all of whom had been involuntarily
separated from the Army because of their religious practices
concerning apparel, requested that those practices be accommodated.
Among other things, they asked that men be permitted to keep their
shirtsleeves buttoned to the wrist at all times, not be required to go
bare-chested, and not be required to wear shorts in the presence of
females.  The females in the group requested permission to be excused
from wearing fatigue trousers or other types of men's clothing.  See
App., infra, 1a-3a.  It is clear, therefore, that petitioner's case is
not unique.

   Despite these example of the extent of the problem confronting the
Armed Forces, petitioner contends that the Air Force "did not show * *
* that if a religious exemption were available it would be claimed by
enough servicemen to have any impact on the military" (Br. 7).
Petitioner's assertion is incorrect.  The Air Force introduced at
trial U.S. Dep't of the Army Pamphlet No. 165-13-1, Religious
Requirements and Practices of Certain Selected Groups:  A Handbook
Supplement for Chaplains (1980) (hereinafter cited as Chaplains'
Handbook).  /27/ This handbook, prepared "in order to provide
information useful for Chaplains on the beliefs and practices of
certain religious groups" (id. at i), discusses seven groups of
religions, with 47 subgroups, many of which have traditions or
requirements involving ceremonial religious garb.  The 47 subgroups
were selected for inclusion in the handbook out of the more than 1,200
religious denominations in the United States on the basis of the
likelihood that military chaplains would encounter members of the
selected groups in the performance of their duties (id. at ii).

   Thus, the varieties of religious dress about which the Air Force
testified in the district court (see pages 5-6, supra) are not limited
to obscure sects, of academic interest only.  Rather, the empirical
premises of the Chaplains' Handbook establish that, in all
probability, Armed Forces Chaplains will have dealings with military
personnel whose religious practices include wearing one's hair drawn
to a tuft (a "sikh");  shaving the head;  not shaving any body hair;
marking the face with white clay lines or red dots;  wearing various
forms of headgear, including turbans and skullcaps;  wearing robes of
various colors and shapes;  wearing jodhpurs;  refusing to wear
form-fitting clothing;  refusing to wear clothes that do not cover the
face;  and a myriad of other variations.  /28/

   2. It should be obvious that the number and variety of potential
exemptions, if granted, would spell an end to uniformity -- the raison
d'etre of the regulation at issue.  No speculation is required to
conclude that members of the various religious sects identified in the
Chaplains' Handbook would indeed regard a uniform exception as
"desirable" (Pet. Br. 17) and seek to exercise it -- especially when
many of the religious practices identified in the Chaplains' Handbook
are regarded by their adherents as mandatory.  As the Court noted in
Heffron v. International Society for Krishna Consciousness, 452 U.S.
640, 653 (1981), those entitled to engage in a particular practice
will "'in all probability'" do so if prohibitions against it are
lifted.

   It is also worth noting that the Chaplains' Handbook studied only
the apparel requirements mandated by centrally-organized religions.
Not surprisingly, however, idiosyncratic beliefs of particular
churches or individuals within churches likewise have led to
religiously-motivated requests for exemptions from the uniform
requirements.  See Taylor v. Alexander, No. C-1-80-417 (S.D. Ohio
filed Aug. 22, 1980) (personal belief that New Testament requires
unshorn hair);  cf. Thomas v. Review Board, 450 U.S. at 715-716
("(T)he guarantee of free exercise is not limited to beliefs which are
shared by all of the members of a religious sect.").  And the
possibility that individuals would seek to indulge or create such
idiosyncratic beliefs is even more likely in the military than in
civilian life, because of the natural inclination many servicemembers
might feel to seek out ways in which to resist the uniformity and
regimentation imposed by authority.  See note 17, supra.  /29/

   3. At the same time, it is equally obvious that any attempt by the
military to follow the suggestion of the district court (Pet. App.
33a) to allow religious exemptions only for members of religions who
wish to wear skullcaps, or petitioner's apparent suggestion (Br. 35)
to allow religious exemptions only for the apparel worn by members of
established, conventional religions, /30/ while denying exemptions to
members of other religious groups, would raise substantial questions
under the Establishment Clause.  "The clearest command of the
Establishment Clause is that one religious denomination cannot be
officially preferred over another." Larson v. Valente 456 U.S. 228,
244 (1982);  see also Cruz v. Beto, 405 U.S. 319 322 (1972) (per
curiam) (prison officials may not limit chapel privileges to the
members of "conventional" denominations).  It may fairly be assumed
that the Krishna monk's saffron robes are as important to him as is
the yarmulke or an unshorn beard to an Orthodox Jew.  Thus, there is
no constitutional room to grant petitioner's request while denying
others.

 E. The Air Force Regulation At Issue Withstands Constitutional
Scrutiny Even Under The Standard Of Review Applicable To Free Exercise
Claims In The Civilian Sector.

   Petitioner devotes a substantial portion of his brief (23-36) to an
attack on the allegedly "pernicious" argument advanced by the
government in Heckler v. Roy, cert. granted, No. 84-780 (June 17,
1985).  We shall be filing a reply brief in Roy, and we will serve a
copy of that brief on petitioner's counsel.  In the meantime, we
reiterate, as we explained at the outset (see pages 20-24, supra),
that the "compelling governmental interest" and "least restrictive
means" inquiries that petitioner urges upon the Court have no
applicability in this military case.  In these circumstances, it makes
no difference whether those inquiries are approached from an
individual or a programmatic standpoint, and the legal analysis
applicable to Roy need not be considered here.

   For the sake of completeness, however, it should be made clear that
the insistence of the Air Force on petitioner's compliance with A.F.R.
35-10 is constitutionally valid even under the mode of analysis he
urges.  First, it is scarcely open to debate that the military's
interest in maintaining discipline, morale, esprit de corps, image,
and teamwork, all for the purpose of ensuring that the nation is
protected by a fighting force capable of achieving its military
mission, is a governmental interest of the highest order.  See
Bitterman v. Sec'y of Defense, 553 F.Supp. 719, 724 (D.D.C. 1982),
appeal pending, No. 83-1177 (D.C. Cir.).  Second, it is obvious that
no less restrictive alternative is available to accomplish that
interest.  Whether the government's interest is viewed
programmatically or whether instead one analyzes the impact of
granting an exemption to a particular individual, the result in this
case is the same.  Viewed from an individual perspective, even a
single exemption would subject the government to the risk that a
servicemember would not, without hesitation or question, be willing to
follow his commander's orders in other circumstances.  Adherence to
orders, and hence discipline, is possible only when commanders are
able to insist upon it, and expect that it will be followed, in all
aspects of military life.  When the national security is at stake, it
is asking too much to assume that military personnel, in their
discretion, will correctly decide what orders are essential to the
security of the country and what orders are not.  Even for one
individual, therefore, an exemption from absolute norms is an
unacceptably high price for the government to pay.

   When viewed programmatically, it is equally obvious that the entire
purpose of uniform standards would be defeated if individuals were
allowed exemptions.  To disregard the government's programmatic
interests in this case in favor of exceptions made on a case-by-case
basis would make a mockery of the military's compelling interest in
uniformity.  This point is addressed most directly in United States v.
Lee, 455 U.S. 252, 259-260 (1982).  There, a member of a small
religious group -- the Old Order Amish -- sought an exemption from the
social security tax on employers on free exercise grounds.  This Court
recognized that such a claim could not be analyzed on the basis of the
particular claimant, or his religious group, alone.  Rather, the
question was whether the government's interest could be upheld in the
face of "myriad exceptions flowing from a wide variety of religious
beliefs" (id. at 260).  Similarly, the feasibility of an exemption
from military dress and grooming requirements must be judged in light
of the "myriad exceptions" to those requirements that would be sought.
 The district court made no attempt to show how its yarmulke exception
would fit into the overall scheme of military dress and grooming.
Clearly, it would not, and thus the government's programmatic interest
in uniformity cannot be satisfied by any less restrictive means.  See
Bitterman, 553 F.Supp. at 726.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

      Attorney

   DECEMBER 1986

   /1/ We have lodged a copy of A.F.R. 35-10 with the Clerk of the
Court.

   /2/ Beards are permitted only when authorized by a commander on the
advice of a medical officer.  A.F.R. 35-10, Table 1-1, line 1.  This
exception recognizes that not shaving is the accepted medical
treatment for Pseudofolliculitis Barbae (ingrown facial hairs).
Exemptions granted for the treatment of this condition are temporary
(generally not in excess of 90 days) and, as such, do not constitute
authorization for a permanent change in appearance standards.  J.A.
24.

   /3/ An exception to this requirement may be authorized during
military religious ceremonies;  in such instances, the chaplain
conducting the military religious ceremony is to provide guidance
concerning the wearing of headgear.  A.F.R. 35-10, Paragraph
1-6.h(2)(d).  No other deviations from the prescribed uniform are
authorized for Air Force personnel whose religious practices include
the wearing of special apparel.

   However, Department of Defense Directive 1300.17 (June 18, 1985)
authorizes commanders, in their discretion, (1) to designate living
quarters in which religious articles may be worn with the uniform when
such wear will not adversely affect unit cohesion, (2) to permit
chaplains to wear the religious accoutrements of their faith in the
performance of worship, and (3) to allow servicemembers to wear
religious items that are not visible or otherwise apparent when worn
with the uniform.  See pages 14-15, infra.

   /4/ Although petitioner's brief (at 5) suggests that the wearing of
a yarmulke is required by Jewish law, he did not so testify at trial,
and authorities introduced in the district court clearly demonstrate
otherwise.  See 1 G. Appel, The Concise Code of Jewish Law 34 n.3
(1977) (J.A. 261):

      Wearing a head covering as a sign of humbleness and reverence
      before God is a revered tradition in Judaism and a token of
      Jewish identity.  One is nevertheless permitted, especially
      where one's livelihood is involved, to accept employment in a
      position where he will be required to go bareheaded, inasmuch as
      covering the head is prescribed by custom but is not demanded by
      law.

   /5/ With the possible exception of time spent actually conducting
religious services, petitioner's conduct was in violation of Navy
regulations, which have always been comparable to the Air Force
regulation at issue in this case.  We note, however, that petitioner's
tour of duty with the Navy roughly coincided with the tenure of
Admiral Elmo Zumwalt as Chief of Naval Operations.  Admiral Zumwalt
sent a number of messages, commonly referred to as "Z-grams," to all
Navy personnel;  one such message (Z-57 (Nov. 1970)), while not
dealing specifically with religious apparel, was widely interpreted by
Navy personnel as authorizing a general relaxation of dress and
appearance standards (see pages 37-38, infra).  Because Z-57 was
merely a "message" from the CNO, rather than a regulation, it was
never formally rescinded, but, to the extent that it may have been
misinterpreted as sanctioning petitioner's deviation from Navy
regulations, it did not then, and does not now, represent Navy policy.

   /6/ Petitioner himself no longer wishes to extend his tour of
active duty (J.A. 182).  He is currently on inactive reserve status.
In a separate lawsuit that has been stayed pending the outcome of this
case, petitioner is challenging the denial of his application for
active reserve status.  Goldman v. Sec'y of Defense, No. 81-3197
(D.D.C. filed Dec. 31, 1981).

   /7/ We have lodged a copy of the Joint Service Study with the Clerk
of the Court.

   /8/ Although the Study Group conducted extensive research, its
final report recognized what the district court refused to acknowledge
-- that no "empirical study, psychological survey or the like" (Pet.
App. 33a) can determine conclusively the potential impact on the
military of exceptions to the uniform regulations.  Instead, the
"consensus among professional social scientists was that, in
determining whether to recommend exceptions to dress and appearance,
the Group must rely on 'institutional wisdom' evolved over years of
military experience combined, where possible, with such guidance as
the social sciences might suggest." Joint Service Study, at III-8 to
III-9.

   /9/ The Study Group's conclusions were bolstered by the results of
polls conducted among more than 2,700 resident Professional Military
Education students, including commissioned and non-commissioned
officers.  Of those surveyed, 88.5% thought that allowing exemptions
for visible religious apparel would cause a very negative or negative
impact on military effectiveness.  Only 3.6% thought the impact would
be positive or very positive.  Joint Service Study, App. E, at A36.

   /10/ We have lodged a copy of this Directive with the Clerk of the
Court.

   /11/ Petitioner's brief is also noteworthy for its singular focus
on the Air Force.  While that is of course the particular Military
Department out of which this case arises, all of the uniformed
services have dress and appearance regulations comparable to A.F.R.
35-10.  See A.R. 670-1 (Army);  NAVPERS 15665C (Navy);  MCOP-1020-34C
(Marine Corps);  and CG-471 (Coast Guard).  The Court's decision in
this case will apply to the regulations of all of the uniformed
services.  Moreover, all of the Military Departments are now subject
to DoD Directive 1300.17 (see pages 14-15 supra), and that Directive
does not provide for the type of accommodation that petitioner seeks.

   /12/ But see, e.g., Khalsa v. Weinberger, 759 F.2d 1411 (9th Cir.
1985), pet. for reh'g pending (dismissing as unreviewable the Army's
refusal to permit a Sikh to enlist because he would be unable to
comply with the Army's uniform regulations and noting that seven other
circuits have adopted the test for nonreviewability of certain
military decisions first articulated in Mindes v. Seaman, 453 F.2d 197
(5th Cir. 1971);  see also Folk, Military Appearance Requirements and
Free Exercise of Religion, 98 Mil. L. Rev. 53, 75-76 & nn. 142-147
(1982) (discussing nonreviewability of certain military decisions).

   /13/ Indeed, it bears noting that the Court has expressly disavowed
the utility of employing labels for the standards it applies in cases
of this sort.  Rostker v. Goldberg, 453 U.S. at 69-70.  We use the
"rational basis" label not out of any conviction that a name is
required, but only to make clear that petitioner's reliance (Br.
24-29) on concepts such as "strict scrutiny" and "compelling
governmental interest" has no bearing in the military context.

   /14/ Until the instant case, the only circumstances in which the
Court has been called upon to consider the application of the Free
Exercise Clause to members of the Armed Forces have been the
conscientious objector cases.  In those cases, the Court has
unequivocally held that conscientious objector status is a matter of
legislative grace, and not a constitutional right.  See, e.g., United
States v. MacIntosh, 283 U.S. 605, 623-624 (1931), overruled on other
grounds, Girouard v. United States, 328 U.S. 61 (1946);  In re
Summers, 325 U.S. 561, 572 (1945);  Gillette v. United States, 401
U.S. 437, 461-462 (1971);  Johnson v. Robison, 415 U.S. 361, 383-386
(1974).  For purposes of the instant case, the most significant fact
about the conscientious objector cases is that, as one commentator has
noted, "(t)he Supreme Court's approach in Gillette and Robison clearly
indicates that Sherbert's strict scrutiny analysis for free exercise
claims does not apply to activities arising from Congress's power to
raise and support armies." Folk, Military Appearance Requirements and
Free Exercise of Religion, 98 Mil. L. Rev. 53, 68 (1982).  As we shall
demonstrate in the following sections of this brief, if religious
scruples against the waging of war are insufficient to overcome the
"Government's interest in procuring manpower necessary for military
purposes" (Gillette, 401 U.S. at 462), they are surely insufficient to
justify disobedience to the disciplinary requirements so essential to
accomplishment of the military mission.

   /15/ Judicial deference to military judgments seems particularly
appropriate in light of the Framers' deliberate consideration of where
best to repose civilian authority over the military.  See, e.g., The
Federalist No. 26, at 168 (A. Hamilton) (H. Syrett & J. Cooke ed.
1962):

         The idea of restraining the legislative authority, in the
      means of providing for the national defense, is one of those
      refinements, which owe their origin to a zeal for liberty more
      ardent than enlightened * * *.  (C)onfidence must be placed
      somewhere * * * (and) it is better to hazard the abuse of that
      confidence, than to embarrass the government and endanger the
      public safety, by impolitic restrictions on the Legislative
      authority.

   See also Rostker v. Goldberg, 453 U.S. at 70-71 (citations omitted)
("'(I)t is the primary business of armies and navies to fight or be
ready to fight wars should the occasion arise.' The responsibility for
determining how best our Armed Forces shall attend to that business
rests with Congress * * * and with the President.").

   /16/ Indeed, the court of appeals in Kelley, which had overturned
the police dress code, did so based upon its view that "the 'unique
judicial deference' accorded by the judiciary to regulation of members
of the military" was not applicable to a county's regulation of its
police force.  Kelley, 425 U.S. at 246 (citation omitted).

   /17/ See, e.g., H. Semmes, Portrait of Patton 8 (1955) (emphasis
added)):

         Patton was a great stickler for discipline in uniform and in
      saluting because he knew that in these small things he would
      develop a hold on the men and officers working under him * * *
      He often said, "If you can't get them to salute when they should
      salute, and wear the clothes you tell them to wear, how are you
      going to get them to die for their country?  Often you will
      order them to carry out a dangerous task that may mean their
      lives.  Be sure you have your hand on them in all things and
      they will be dependable when the heat is on."

                      * * * *

         It is human to resent being told what to wear and how to wear
      it.  Insistence on strict compliance with uniform regulations
      breaks down the barrier of resentment to discipline, possibly
      more than anything else.  If men strictly obey the regulations
      about wearing the uniform, they can be held truly disciplined
      men.  Discipline is the background of all military operations.

   See also G. Patton, Jr., War As I Knew It 336, 362, 403-404 (1975).
 The same theme was sounded in W. Slim, Defeat Into Victory 542-543
(1956):

      At some stage in all wars armies have let their discipline sag,
      but they have never won victory until they made it taut again;
      nor will they.  We found it a great mistake to belittle the
      importance of smartness in turn-out, alertness of carriage,
      cleanliness of person, saluting, or precision of movement, and
      to dismiss them as naive, unintelligent parade-ground stuff.  I
      do not believe that troops can have unshakable battle discipline
      without showing those outward and formal signs, which mark the
      pride men take in themselves and their units and the mutual
      confidence and respect that exists between them and their
      officers.

   The Joint Service Study Group also considered military practices in
foreign countries.  If concluded that successful military forces that
have not insisted upon uniformity of appearance are aberrations and
that such organizations "represent special cases where a particular
overriding factor (usually an immediate external threat) welded
cohesion and esprit." Joint Service Study, at III-19.

   /18/ See, e.g., Dress, Adornment, and the Social Order 127 (M.
Roach & J. Eicher ed. 1965) (emphasis in original):

      Basically, the uniform was invented as a means to indicate the
      relationship of an individual to a group * * *.  So many are the
      uses of uniforms today that we tend to forget the origin of the
      word (uni-form:  one form, all alike).  By wearing the uniform
      of a particular group, a man shows by his clothing that he has
      given up his right to act freely as an individual but must act
      in accordance with and under the limitations of the rules of his
      group.

   /19/ Petitioner also did "not challenge the discretion of the Air
Force to choose the method it believes will best ensure the discipline
and esprit de corps that it rightfully deems essential to the
maintenance of an effective military force" (Br. for Appellee 8
(emphasis added).

   /20/ The district court would have found the Air Force's judgment
"supportable" if it had "been the product of an empirical study,
psychological survey or the like" (Pet. App. 33a).  We note that such
a study has now been performed.  See pages 10-15, supra.  At the same
time, however, it is important to stress that studies and surveys are
not constitutionally required before the Military Departments may
enforce regulations of the sort at issue in this case.  Thus, the
Joint Service Study is significant not because it fills a void found
by the district court, but because it reaffirms the constitutional
commitment to Congress of the power to "make Rules for the Government
and Regulation of the land and naval Forces." U.S. Const. Art. I,
Section 8.  In the exercise of that power, Congress may, of course,
direct the military to study a particular issue.  If it so chooses,
Congress may go further, directing the military to take whatever
action it deems appropriate in light of the study.  It is quite a
different matter, however, for the judiciary to refuse to accord
deference to professional military judgments because a court thinks
that a study would be desirable.

   /21/ This conclusion is shared by petitioner's authorities, who,
discussing the historial roots of the tradition of wearing yarmulkes,
observed that "uncovering the head was the custom of the Gentiles * *
*.  Covering the head thus served as a means of identification and a
barrier against assimilation." J.A. 228 (emphasis added).

   /22/ Accordingly, petitioner's alternative contention (Br. 12) that
the Air Force's judgment must be supported by "actual experience"
before it can provide a basis for the regulation is totally
unsupported by precedent.  Apparently, petitioner would require the
military to permit a practice and allow it to continue until it
actually caused a degeneration of discipline and morale.  The Court
has never imposed such a requirement on the Armed Forces.  For
example, "(s)peech likely to interfere with (morale and discipline) *
* * can be excluded from a military base." Brown v. Gline, 444 U.S. at
354 (emphasis added).  See also Greer v. Spock, 424 U.S. at 840
("(N)othing in the Constitution * * * disables a military commander
from acting to avert what he perceives to be a clear danger to the
loyalty, discipline, or morale of troops * * * under his command.").
In truth, petitioner's "actual experience" requirement would be
totally unworkable, because it would be virtually impossible for the
military to show a clear cause-and-effect relationship between
relaxation of its uniformity standards and a breakdown in discipline
and morale (see note 8 supra).  Furthermore, the showing that
petitioner would require could only be made after the military -- and
hence the nation -- would have suffered irreparable harm.

   /23/ Dr. Levinson was not himself a personnel expert, nor had he
ever had any command experience.  J.A. 137-139.

   /24/ For example, Dr. Levinson described Admiral Elmo Zumwalt's
relaxation of Navy regulations so as to permit beards as a "brilliant
psychological move" (J.A. 128).  When confronted with the fact that
the Navy has since repudiated that policy, Dr. Levinson stated only
that he viewed the change as "a function of the conservative wave that
has come along with the conservative politics of the Reagan
administration" (J.A. 137);  he had no "empirical" or "clinical"
studies of his own to support his views on the desirability of the
initial Navy experiment (ibid).  Similarly, Dr. Levinson dismissed as
unproven congressional findings that lax enforcement of uniform
regulations had led to disruptions aboard the U.S.S. Kitty Hawk (see
pages 37-38 supra).  J.A. 141-142.

   In any event, Dr. Levinson's views on military accommodation have
in fact been tested.  The Army, on an experimental basis, permitted
members of the Sikh religion -- a sect with a strong military
tradition and, in this country, relatively few members -- to wear
mandated items of religious apparel (turbans, unshorn hair, beads, and
religious bracelets).  The Army was forced to terminate this exception
when "it became (apparent) that it might have to grant significant
numbers of additional exceptions that would cause a detrimental impact
on the Army's ability to perform its mission." Folk, Military
Appearance Requirements and Free Exercise of Religion, 98 Mil. L. Rev.
53, 62 (1982).

   /25/ As General Usher pointed out, the problem of resentment is
particularly acute because of petitioner's status as an officer.
"(I)fyou allow this kind of a deviation on the part of an individual,
particularly by an individual who is an officer and who is meant to be
the epitome of a standard, the example, then it is very difficult then
to enforce other kinds of standards or the dress standard itself on
other people that are members of the Air Force by supervisors and
commanders." J.A. 42.

   /26/ See, e.g., Khalsa v. Weinberger, 759 F.2d 1411 (9th Cir.
1985), pet. for reh'g pending (turban, unshorn hair, and beard, Sikh);
 Sherwood v. Brown, 619 F.2d 47 (9th Cir.), cert. denied, 449 U.S. 919
(1980) (turban, Sikh);  M. Bitterman v. Sec'y of Defense, 553 F.Supp.
719 (D.D.C. 1982), appeal pending, No. 83-1177 (D.C. Cir.) (yarmulke,
Orthodox Judaism);  B. Bitterman v. Weinberger, dismissed, No. 83-3288
(D.D.C. Feb. 3, 1983) (unshaven beard and yarmulke, Orthodox Judaism);
 Kirschenbaum v. Sec'y of Defense, dismissed, No. 84-1302 (D.D.C. Apr.
24, 1984) (yarmulke, Orthodox Judaism);  Taylor v. Alexander, No.
C-1-80-417 (S.D. Ohio filed Aug. 22, 1980) (unshorn hair, Christian).
See also United States v. Haywood, 19 M.J. 675 (A.F.C.M.R. 1984)
(refusal to wear tight-fitting clothing, Muslim);  Shy v. Alexander,
dismissed, No. CV-LV-84-141-RDF (D. Nev. May 31, 1984) (refusal to
salute flag or female officers, Shiloh-Christian).

   /27/ We have lodged a copy of the Chaplains' Handbook with the
Clerk of the Court.

   /28/ The findings of the Chaplains' Handbook were reiterated in the
Joint Service Study, App. C, at A6 to A25.

   /29/ In a similar vein, Congress recognized the potential
difficulty of "how to distinguish between practices that stem from
genuine faith and practices that could be used simply as a challenge
to military discipline or as an excuse for failure to comply with
legitimate orders." H.R. Rep. 98-1080, 98th Cong., 2d Sess. 294
(1984).  Congress directed the Joint Service Study Group to answer
this question.  The Study Group, based upon the military's
"(e)xperience with conscientious objector claims since development of
the present constitutional standard of what is religious," concluded
that it would be virtually impossible to distinguish sincere from
insincere claims.  Joint Service Study, at I-27 to I-28.

   /30/ Although the facts of this case concern only yarmulkes,
petitioner argues for a decision that would require the military to
grant exceptions for all "small, religiously mandated deviations from
the standard military uniform" (Br. 35).  "Small" deviations are, of
course, only "small" in the eyes of the beholder.  Moreover, even
assuming the possibility of objective agreement on what constitutes a
"small" deviation, size alone does not ensure that the exemption would
have no disruptive impacts.  Although the yarmulke itself is regarded
by the Air Force as a disruptive deviation, one can imagine much
"smaller" religiously-mandated deviations -- for example, kum-kums
(red dots worn on the forehead by Hindus) or the dreadlocks worn by
Rastafarians (see page 44, supra).

   If, by "small," petitioner is merely recasting his claim for a
standard of "unobtrusiveness," his argument stands on no better
footing.  Any attempt to distinguish articles of religious dress on
the basis of their degree of "obtrusiveness" would inevitably and
improperly favor established religions whose dress conventions are
"commonly seen and accepted in today's (civilian) society" (Pet. Br.
11).  If a yarmulke or a clerical collar is less "obtrusive" than a
turban, it is not for any reason intrinsic to the apparel, but rather
because the conventions of certain religions are simply better
established in American society.  In any event, as we have already
demonstrated (see pages 31-33, supra), a yarmulke is itself
"obtrusive" in the context of military society.

                               APPENDIX