Warren E. Burger: Mr. Lewin, I think you may proceed whenever you are ready.
Nathan Lewin: Mr. Chief Justice, and may it please the Court: This case presents a single constitutional question under the First Amendment's Free Exercise Clause. The issue is whether the military services may unconditionally refuse to make any exception or accommodation from their dress codes for enlisted personnel whose religious convictions require them to wear a neat, small, conservative article of clothing that does not interfere with the execution of any military task but that is forbidden by the existing military regulations simply because it is not provided for in the dress code and is different from the uniform. The petitioner is an individual who was raised as an Orthodox Jew and has during his entire adult life followed the religious obligation incumbent on Jewish males of keeping his head covered at all times during waking hours. Although the government in a footnote implies that there is some doubt as to the obligatory nature of this religious duty, it acknowledged in response to our requests for admissions, and I quote, "that it is a well established religious tradition and practice among adherents to Orthodox Judaism that males keep their heads covered at all times. "
Warren E. Burger: Mr. Lewin, you mentioned enlisted personnel. Was the petitioner here an officer, or did he occupy civilian status, or was he--
Nathan Lewin: No, he was an officer. He joined under a program under which he became... he was a psychologist in the Air Force under a program where he was trained and then became a Captain, entered into the Air Force to serve as a psychologist, so he was an officer.
Warren E. Burger: --I thought you said enlisted personnel.
Nathan Lewin: I'm sorry. I meant officers as well as other personnel in the military services.
Sandra Day O'Connor: Mr. Lewin, as long as you are interrupted, may I ask whether it makes any difference in your view if someone enters the service voluntarily, if the person entering the service knows and understands the military is not willing to grant such an exception for dress?
Nathan Lewin: We think it really makes no difference, because we think that the decisions of this Court indicate that... Sherbert and Verner and Thomas and Review Board... that government may not condition benefits, for example, such as unemployment compensation benefits, on an unconstitutional condition such as deprivation of religious rights. The same thing, we submit, holds true if in fact somebody enters knowing that there is such a regulation. Of course, the practical impact, quite frankly, Justice O'Connor, of a decision by this Court saying that the military may apply such a regulation constitutionally would be that it would in the future bar conscientious believers, who would feel that they could not go day to day without covering their heads, from joining the Air Force. We think that's really an additional factor as to why this Court ought not to permit the absolute rule that the military services are arguing for in this case.
William H. Rehnquist: Well, Mr. Lewin, you refer to Sherbert against Verner and Thomas versus the Review Board. But those were cases from civil life. We've never applied that sort of balancing test where the military has been involved, have we?
Nathan Lewin: Yes, Your Honor. That's absolutely true. They were cases from civilian life and the... what makes this case certainly more difficult, and the Solicitor General, I think, concedes in his brief that in civilian life there could probably be no constitutional objection to the wearing of a yarmulke even in courts or other places where one is ordinarily required to dress in a certain way. Military life is different. However, this Court has said time and again that the protections of the Bill of Rights apply in the military, and our view, quite frankly, is that in this case the military has gone far beyond what this Court has even tolerated in those situations where, for example in the parallel area of speech, the Court has upheld military regulations. Just to proceed immediately to that point, Justice Rehnquist, Brown and Glines is a case which the Solicitor General relies on very heavily, but of course Brown and Glines which was, I think, the extreme in terms of speech cases where the Court sustained a system of prior restraint in the area of speech as applied to the military, was a case in which a regulation said that material could be prohibited from a military base if it presented, quote, "a clear danger to the loyalty, discipline or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission. " The opinion, Justice Powell's opinion for a majority of the Court, spoke four times of the standard of, quote, "clear danger". Clear danger, not simply the possibility of some disruption, not the fact that there might be some interference, but a clear danger to factors such as morale and discipline. This case doesn't concern a regulation in which the military services are saying any deviation from the dress code that in the view of a commander presents a clear danger to morale, discipline, may be prohibited. This is a case where the military has simply said, absolutely, unequivocally, we will permit not the slightest departure whether it presents a danger or not, from the dress code.
William H. Rehnquist: But the military has also said... at least there is testimony... that any departure is in itself a defeat of the military objective which is uniformity of dress.
Nathan Lewin: It's true. It is some departure if one assumes that any departure is a clear danger. What we are saying--
William H. Rehnquist: That's what the military is saying, is that the purpose of uniforms is to make everybody look alike. They don't want people to look different, and to detract from that is itself a departure from the military scheme.
Nathan Lewin: --Agreed, Justice Rehnquist. The question is whether a departure in and of itself suffices, or whether the fact that something is a departure suffices to overcome the religious protection that's afforded by the Free Exercise Clause. And, our position is precisely that just as this Court has said, that departures are not enough, merely departures or disruptions are not enough in the area of speech, departures if they don't... are not so extreme as to present that kind of a danger, cannot be sufficient merely because the military says so. Because, if one relies on what the military says, then, we submit, essentially this Court is saying what it has rejected time and again which is that by entering upon military service someone doffs the protection of the First Amendment.
William H. Rehnquist: Where in the military context have we said, as you intimate we have said, that departures are not enough?
Nathan Lewin: Well, I think by the emphasis on clear danger or--
William H. Rehnquist: I think you are just drawing a negative inference from languages, where the holdings would be against you.
Nathan Lewin: --Well, Your Honor, I think the statements that have been made that say that the Constitution does protect individuals in the military service would itself be undermined if in fact the military could simply by saying so and expressing its expert opinion say that variations undermine morale. It would mean that the military... a commander could just as well say prayer is prohibited, private prayer, because that would undermine morale, because people should only obey commanding officers and not pray. It would mean the military--
William H. Rehnquist: It wouldn't mean... the military has never taken that sort of a position.
Nathan Lewin: --We're fortunate that they haven't. I'm quite astounded, Justice Rehnquist, that they have taken the position that such small departures as a yarmulke on the top of one's head or even a kum-kum as cited in the brief that they refer to, the dot that a Hindu might wear, very small departures from the uniform, or for that matter, the appendix to the government's brief. The government has taken various liberties, I must say, with the record in this case and just put before this Court a host of material which they did not see fit at all to subject to cross examination and trial in this case. One of the extraordinary things is a letter that they print as an appendix to the Solicitor General's brief about what they... at that time was 51 members of a Pentecostal church. I'm told now, by speaking to the pastor after I saw a copy of the letter, over 100 members of a Pentecostal church, who were court-martialed or discharged from the Army because they refused to roll up their sleeves, as a matter of piety. Now, it seems to me again, Your Honor, that although it is true, the military can say that every order requires obedience irrespective of what a civilian court may say, or what civilian personnel might say, we submit that that's not what the free exercise clause is about.
Warren E. Burger: Well, Mr. Lewin, you pressed the point several times that the Constitution follows a person into the military, but not just the way it does for all civilians, of course. Lights out at 11:00 o'clock, you can't tell civilians that. Rights of association are quite limited in the military, are they not? Let me ask you another... somewhere I read that there is... someone had tabulated 387 different religious sects extant in the state of California. One of them, according to this comment, forbade the contact of metal on the body. You couldn't have metal buttons or a belt buckle that was made out of metal. It had to be something else. Now, does that religious belief have the same protection that you urge for your client here?
Nathan Lewin: I submit, Mr. Chief Justice, every religious belief would have protection. The question of whether it would present a danger either to morale or to the military mission might be quite different.
Warren E. Burger: You're approaching it from what I see as the other end. Suppose you had a person of that faith, came in and said, no, I can't have brass buttons. I want plastic buttons or buttons made out of natural wood or something, stone. The military must accommodate it?
Nathan Lewin: I think the burden to the military certainly is a very substantial factor, and where the--
Speaker: Well, must they--
Nathan Lewin: --No, I think very possibly in that case the military would not have to accommodate, because it... well, the difference is that where the military is required to create a whole new uniform for somebody--
Speaker: --Just different buttons.
Nathan Lewin: --Or different buttons. If he's able to provide his own buttons, maybe that should be a permissible means. If he's asking the military to provide buttons for him, I think that may cast a burden which a yarmulke does not. One of the things about the religious observance in this case is, it imposes no burden upon anyone. It is a small head covering that someone wears. Judge Starr in dissenting below noted that it is equivalent to prayer. That's really all that it is. It's a constant symbol of devotion that somebody is wearing that imposes no burden on any other person whatever.
William J. Brennan, Jr.: Well, there are other faiths that wear other kinds of headgear, are there not, Mr. Lewin?
Nathan Lewin: Yes, Justice Brennan.
William J. Brennan, Jr.: How about Sikhs?
Nathan Lewin: Yes, Sikhs require the wearing of turbans. And of course, the--
William J. Brennan, Jr.: How many Sikhs are--
Nathan Lewin: --Well, the interesting thing is, and here's where I say the government takes quite a liberty with the record, we went into this at trial. There was a full trial in this case. The Air Force had its experts on the stand. We went into whether there were members of the military service who presented these dress regulations. The witness testified that he had heard of one Sikh in some case that he thought involved the Army. Now, in this Court, suddenly, with representation simply made in the brief, we are told by the Army that there are so and so many, no record, no opportunity to go through individual circumstances, and we submit that in fact--
William J. Brennan, Jr.: --How about Hindus, any record as to that?
Nathan Lewin: --Nothing, again. A chaplain testified, and the problem is of course this country--
William J. Brennan, Jr.: How about Krishnas?
Nathan Lewin: --None that I know of in the Air Force. I think they said there were none.
William J. Brennan, Jr.: Rastafarians?
Nathan Lewin: Again, I think the testimony was, there were none that they knew of in the Air Force. And the point, Your Honor--
William J. Brennan, Jr.: Would you make a distinction between their headgear and--
Nathan Lewin: --Yes, Your Honor. I think distinctions are possible under a standard that says that where there would be a clear danger in terms of morale or discipline, it seems to me it's possible. The Solicitor General keeps talking about how the standard can't be expressed, and yet the Air Force dress code is full, is Just chock full of references to rings or bracelets being neat and conservative, being small; small, plain healing posts with regard to earrings, identification bracelets that are--
William J. Brennan, Jr.: --The dress code does not prohibit military personnel from wearing rings?
Nathan Lewin: --That's right. It does not prohibit wearing not more... there's a maximum number, not more than three rings.
William J. Brennan, Jr.: How about crosses around the neck?
Nathan Lewin: I think if they're obvious, if they're open, very large, then I think it might very well fall into the area of prohibited ornamentation, but bracelets are permitted, identification bracelets if they're neat and conservative. Where such a small and neat--
John Paul Stevens: May I interrupt? What is the difference between a cross around the neck and a yarmulke? Why is one permissible, and the other not?
Nathan Lewin: --Well, I don't know whether... in other words--
John Paul Stevens: Then you suggest there be constitutional difference?
Nathan Lewin: --No, I'm not suggesting that there be a constitutional difference. I'm just saying... I'm saying the Air Force Code now does it. If there were... I think--
John Paul Stevens: Let me ask you this. Could the military constitutionally prohibit a person from wearing a cross that was rather plainly visible around the neck?
Nathan Lewin: --If it's a matter of religious obligation, Your Honor, I think that the military, unless it could find that it in some way interferes with the morale or discipline, could not. A very plain, conservative cross that is religiously required, or an emblem that somebody believes is religiously mandated, at all times, I think that's--
William H. Rehnquist: You mean one that hung down over your uniform?
Nathan Lewin: --Well, the question is what the religion requires, Your Honor. If it requires that it hang down outside, that's one thing. If it simply... if it requires only that it be worn underneath garments, the military can say that anything that you can religiously require, anything that may under your religion be worn under your garments, should be worn under your garments.
William H. Rehnquist: Hasn't the government said here that if the thing isn't visible, if it's a cross that you just wear on your T-shirt and your uniform covers it, then it's okay?
Nathan Lewin: Well, but what that does is, it distinguishes in terms of faiths between those where there may be a requirement that it be worn... that the particular article has to necessarily be seen.
William H. Rehnquist: But that isn't the basis for the government's distinction, as I understand it. The basis is that if it's invisible it doesn't alter your outward dress and that's all the government is concerned with, is your outward dress.
Nathan Lewin: Well, let me say that first of all, until the trial in this case, that wasn't true either. At the trial in this case it developed that there were Mormom undergarments that were being worn in violation then of the regulations. Now they amended the regulations to permit non-visible objects to be worn. At that point, even that was not permitted. But, even that distinction, Your Honor, distinguishes between perfectly conservative, neat looking articles of apparel that may be worn under the garments and those that may be neat, and worn over--
William H. Rehnquist: But that distinction is based on the appearance of uniformity, which may make very rational sense.
Nathan Lewin: --Which is an interest. It's a rational interest, but a rational interest, Justice Rehnquist, is not enough to overcome the First Amendment.
William H. Rehnquist: Well, in the military it may well be. Certainly we've never said no.
Nathan Lewin: Well, I think what this Court has said is that even in the military, that one has to apply the least restrictive alternative. In Brown and Glines the opinion said, "Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial government interest. " So, again one has to look to the least restrictive alternative.
William H. Rehnquist: Well, the Court didn't say the thing would have been invalid if it hadn't followed that.
Nathan Lewin: It's true, but there was all that language that indicated that that was an important element of the Court's result that it reached in Brown and Glines, that it--
William J. Brennan, Jr.: Don't the military chaplains wear religious insignia?
Nathan Lewin: --Military chaplains, yes. Yes, they do.
William J. Brennan, Jr.: An exception or something?
Nathan Lewin: An exception, that's permitted under the regulations.
William J. Brennan, Jr.: Regulations--
Nathan Lewin: Permit that, yes, and they permit the wearing of other religious headgear, yarmulkes, other things, during religious services.
Warren E. Burger: --It's a badge the chaplains' wear... is furnished by the military service, is it not?
Nathan Lewin: It is, and as a matter of fact, one suggestion--
Warren E. Burger: This is to distinguish the chaplain from somebody in the artillery or some other branch, isn't it?
Nathan Lewin: --Yes, and the military services certainly would be free if they said, look, there are persons who want to wear skullcaps, to provide uniform skullcaps for religious reasons. There will be no objection. There is no requirement on the part of Captain Goldman that he wear only his own yarmulke that he has worn at different times, but that he can wear an Army... an Air Force issue yarmulke which is in an Air Force color and melds with the uniform. The point is that the Air Force... and the reason that this case is different, Justice Rehnquist, is that the Air Force and the military are providing no accommodation. It's not as if they are saying, we're providing some recognition of the religious right with regard to dress code, but we will not accept something that goes so far as saffron robes. We heard a lot at the trial about saffron robes.
John Paul Stevens: May I interrupt, because I'm still not quite clear on your answer to one of Justice Brennan's earlier questions. What about different kinds of headgear that are somewhat more obvious? Is it the same constitutional... say, a turban or--
Nathan Lewin: There is a point, Justice Stevens, I think where a headgear or a head covering could become so obtrusive that it interferes.
John Paul Stevens: --Intrusive... no, doesn't have any physical impairment, it's just intrusive in the sense that it's readily noticed that it's different from everyone else. Is that the test?
Nathan Lewin: Well, no. I think that "readily noticed"... obviously a yarmulke is noticed.
Speaker: Right.
Nathan Lewin: So, noticed is not the test. I think the question is--
John Paul Stevens: Well, then I take it, a turban would have the same constitutional protection?
Nathan Lewin: --It would be another case. I think it should.
John Paul Stevens: Why is it another case?
Nathan Lewin: Well, because it is larger. If one talks about--
John Paul Stevens: The only thing that means is, it's more visible?
Nathan Lewin: --Yes.
John Paul Stevens: And I think you are saying visibility doesn't make any difference?
Nathan Lewin: Justice Stevens, to the extent that the military thinks that extraordinary visibility does--
John Paul Stevens: They think the visibility of a yarmulke is enough.
Nathan Lewin: --Well, and what we are saying is that when it is that slight, then it can't really... if there can't be sufficient to overcome the constitutional--
William J. Brennan, Jr.: Well, what if your client wanted to satisfy his religious beliefs in the Air Force by wearing a derby, say, I don't need to wear a yarmulke but a derby?
Nathan Lewin: --I understand.
William J. Brennan, Jr.: I suppose you would say that is protected?
Nathan Lewin: I would say that if there is a solid religious basis for it, I think the military would have to indicate that it does interfere. I think, at the very least, Justice White, I am saying in those circumstances the military has got a burden to say, yes, we think this interferes in such an obvious way with military discipline that it is prohibited. On the other hand, when--
William J. Brennan, Jr.: How could it interfere with the discipline, under your theory, enough--
Nathan Lewin: --Yes.
William J. Brennan, Jr.: --The only interference with discipline is somebody's refusal to live up to the dress code?
Nathan Lewin: No, I think, frankly, Justice White, if an article of clothing is so obvious and so extreme that when one looks at it one sees only it and doesn't see the uniform, I think the military could make a determination, a reasoned determination that that's going beyond what is permissible. That's simply not true of very small items such as a yarmulke. When someone wears a yarmulke, one barely notices it. The truth is, if one looks closely one sees it, but it is not as a derby or a top hat or a saffron robe. It doesn't totally take over.
John Paul Stevens: May I ask, and I don't mean to be facetious, would it satisfy his religious belief to wear a toupee?
Nathan Lewin: Yes.
John Paul Stevens: It would?
Nathan Lewin: It would, and in fact there has been one case where in the interim, at least, while matters are being litigated, that a toupee was worn by an Orthodox Jew in place of a head covering. Yes, it would satisfy it. Now, our... the question of drawing lines between what it neat and what is conservative is a line which the military itself draws. Our point, Justice White, is the military says an identification bracelet that's neat and conservative may be worn. An identification bracelet, presumably that's garish, may not be worn. A head covering--
William J. Brennan, Jr.: Can a Masonic ring be worn?
Nathan Lewin: --I don't know. I don't know. But rings are permitted, but again they must be neat and conservative. Why can't that be applied to headgear?
Byron R. White: Is there any part of this, the desire to indicate what his religious faith is?
Nathan Lewin: I'm sorry, I didn't understand that.
Byron R. White: Well, you wear a yarmulke, anybody who sees that on somebody's head, do they know what religion he is?
Nathan Lewin: Yes, they know what religion he is. A yarmulke is, I think in our common society today, has come to be known as a sign of someone--
Byron R. White: Why wouldn't he just as soon wear a toupee?
Nathan Lewin: --No. They could wear a toupee, but--
Byron R. White: Why wouldn't he just as soon wear a toupee?
Nathan Lewin: --Well, because he's not bald, and I think wearing a toupee would look--
Byron R. White: I know a lot of people who aren't bald and they still wear toupees.
Nathan Lewin: --I understand, but since his religion... and I think, by the way, I think toupees, the regulations permit the wearing of toupees to cover baldness or disfigurement. They don't specifically permit the wearing of toupees simply to keep one's head covered. But that, we submit, is simply a way of avoiding really what is the basic question, which is, should someone be able to wear something that's neat, conservative, not obtrusive, but a minor variation from--
Byron R. White: But it's recognizable as a deviation?
Nathan Lewin: --It's a recognizable deviation.
Byron R. White: And whereas he could wear something that wouldn't be a recognizable deviation?
Nathan Lewin: Well, I submit, Justice White, that on someone who has a full head of hair, wearing a toupee would look somewhat strange.
Warren E. Burger: It doesn't in the courtrooms in London where they are required to wear a wig.
Nathan Lewin: That's true, but I submit that if the military saw someone walking around with a long, white wig, they may not be willing to accept that as part of the dress code.
William J. Brennan, Jr.: Even in the Judge Advocate?
Nathan Lewin: Even in the Judge Advocate. In our view this case really presents, although it seems to be a small constitutional issue, a very fundamental question regarding the quality of the military service. The military forces are the protectors of our liberty. We're proud of them. We want them to be proud of the ideals for which they are expected, if necessary, to lay down their lives. Douglas MacArthur said that men will not fight and die without knowing what they are fighting and dying for, and in this nation they fight and die for freedom of speech and conscience, for tolerance and diversity, for acceptance of all creeds and peaceful ways of life. And the question is whether the message that one carries, that the military carries, is that conformity overcomes even very minor deviations, and we submit that, if I can use a historical parallel, this Court in the early pre-war or World War II periods, I think viewed the error, really, of forcing conformity on individuals in the flag salute cases, where again the need for conformity was viewed as overriding everything else, and even the individual rights of those who would not salute the flag, and that error finally was recognized four years later. And we submit that very similarly, we have here where Chief Justice Stone dissenting in Gebitis noted that in that case, that involved a small minority entertaining in good faith their religious belief, and that small and helpless minority should not have been overridden in the interests of conformity. We submit that with regard to the military needs here, the same is true. The military can carry out its military mission and can carry out all the needs of morale and discipline if they take account of the Free Exercise Clause of the First Amendment.
Lewis F. Powell, Jr.: Mr. Lewin, there seems to be some disagreement in the briefs as to whether the wearing of the yarmulke is required by Jewish law. What is the correct situation?
Nathan Lewin: The government, I think, acknowledged in its Request for Admissions that it was, that it is part of the traditions. It is, I think Jewish scholars recognize in terms of the degrees of requirement, it is not among the Biblical commandments, certainly. However, rabbinic view, the weight of rabbinic view is that it should be worn at all times during waking hours. There's an authority that the government cites in a footnote of someone who says that if his livelihood is dependent on it, one may remove the yarmulke. But, that was not Captain Goldman's view. That was not the view of the rabbis he followed and from whom he requested opinions, and it is not the view that the government acknowledged in the district court. And again, I say if this Court looks at the record in the district court, not at a study that was made subsequently to justify the government's position, the study which is--
Lewis F. Powell, Jr.: In the Solicitor General's brief, footnote 4, I believe, on page 6 states that although the wearing is a revered tradition, it is not required by Jewish law. Do you agree with that?
Nathan Lewin: --No, I don't agree with that. And let me say that... again, I was saying that this joint service study that's quoted by the government repeatedly, we've talked about that in the yellow brief, our reply brief on the cert petition, that was a study that was made when the military had the choice of congressional legislation that would have permitted yarmulkes and then went to the Congress and said, well, we'll study this. It was... Justice Stevens, I think, spoke in an opinion a few terms ago about the dangers of looking to what parties do in the course of litigation when they want to improve their positions in litigation. That's exactly what this joint service study was. It was foreordained because it was done to demonstrate to the Congress that they could not allow departures from uniform in the military.
Warren E. Burger: Ms. Oberly.
Ms. Kathryn A. Oberly: Thank you, Mr. Chief Justice, and may it please the Court: Mr. Lewin only grudgingly acknowledges that this is a military case and not a civilian free exercise case.
Lewis F. Powell, Jr.: May I interrupt you?
Ms. Kathryn A. Oberly: Yes.
Lewis F. Powell, Jr.: Are you still adhering to footnote 4?
Ms. Kathryn A. Oberly: As to whether the yarmulke is required? Yes, it's our position, it was Captain Goldman's testimony at trial also, that although it is a strong, well-established practice and tradition of devout Orthodox Jewish males to wear a yarmulke, it is not a requirement of Jewish law.
Lewis F. Powell, Jr.: Was that the finding of the district court?
Ms. Kathryn A. Oberly: I don't think that they made a finding, but to the extent that he did, he certainly did not say it was a requirement of Jewish law, and there is a definite distinction between Jewish law and--
Lewis F. Powell, Jr.: Well, what... on what premise should we decide this case?
Ms. Kathryn A. Oberly: --I think if you decide it on Captain Goldman's own testimony, which we... at page 6 of our brief where the cite is to page 200 of the joint appendix, petitioner testified that a custom followed by some but not all devout Orthodox Jewish males is the wearing of a yarmulke. At that same place in the transcript he acknowledged that it was not required by Jewish law.
Lewis F. Powell, Jr.: Well, I gather you are saying, if--
Ms. Kathryn A. Oberly: I'm not--
Lewis F. Powell, Jr.: --If we have to proceed on that premise we don't have to reach the constitutional issue?
Ms. Kathryn A. Oberly: --It is clearly that premise, diminishes the level of the significance of the religious practice at issue here, but it is not the government's position that there is no religious issue at all involved, that it has to rise to the level of Jewish law before Captain Goldman can claim it as a sincere religious practice that he personally follows.
Thurgood Marshall: For what other reason does he wear a yarmulke?
Ms. Kathryn A. Oberly: Pardon?
Thurgood Marshall: What other reason does the Captain wear, other than religious?
Ms. Kathryn A. Oberly: His interpretation of what he should do as a devout Orthodox Jew is wear a yarmulke, and we are willing to accept that as a sincere religious belief on his part, just as in the prior case we're willing to accept the sincerity of the religious--
William J. Brennan, Jr.: Which is only to say then, we shall address--
Ms. Kathryn A. Oberly: --Yes, but I think it's not at all irrelevant for the Court to take cognizance of the fact that Captain Goldman himself acknowledges that it's not required by the laws of his religion and the government introduced the authorities cited in the footnote 4 to show that Jewish rabbinical authorities agree with that.
Warren E. Burger: --Yet, it's not just a matter of private choice, it's a private choice of alternatives that includes a long tradition?
Ms. Kathryn A. Oberly: It is, and that's why we are not asking the Court to say this is not a religious practice entitled to consideration.
Byron R. White: It certainly is a firmly held belief of the Captain's?
Ms. Kathryn A. Oberly: That's correct, and as the Court has indicated, in some cases religions of one are sufficient.
John Paul Stevens: Yes, indeed. It seems to me, Ms. Oberly, that the extent that his view is unique, then actually strengthens the government's case. I'm surprised you rely on this, because it makes it less likely there would be large numbers of people who wear this particular headdress.
Ms. Kathryn A. Oberly: As you point out in the last case, Your Honor, religions have a way of gaining sudden popularity and spreading like wildfire, but I'm not suggesting that yarmulkes--
Speaker: This religion has been around quite a while.
Ms. Kathryn A. Oberly: --No, but the incentives to seek exemptions from the uniform... mandatory uniform requirements are quite high. They may approach the incentives to seek exemptions from paying taxes, as the Court considered in the United States versus Lee. It's only human nature to resent being told what to wear, when to wear it, what to eat, when to get up and how to spend your entire day, and if--
William J. Brennan, Jr.: Or that you can wear a bow tie?
Ms. Kathryn A. Oberly: --Right. You are not in proper uniform, Justice Stevens, and it would not... the military has a number of cases, some of them pending in litigation that are cited in my brief, some of them that have not gotten to the level of litigation but have been requests for religious exemptions and that number is constantly growing. And, if this Court were to hold that an exemption for Captain Goldman is constitutionally required, it's only common sense to assume that the number of requests for comparable of exemptions, whether from Orthodox Jews wearing yarmulkes or Sikhs wearing turbans or Rastafarians--
Speaker: Are there many Sikh cases?
Ms. Kathryn A. Oberly: --The Air Force does not have Sikh cases. The Army has a number of Sikh cases. The first one they received, they willingly granted that first Sikh and exemption to wear the... and then Sikhs started coming out of the woodwork, just as you predicted in the last case, and it finally reached a point at which the Army thought they were getting far too many requests for exemptions. They could not accommodate it. They couldn't see where this was leading, except to a problem of unknown dimensions, and they then cut off the practice of accommodation.
Speaker: Is this in a record?
Ms. Kathryn A. Oberly: This is in the joint... this is in a Law Review article cited in our brief and it's also in the joint service study that was prepared for Congress which is a public document prepared after--
William J. Brennan, Jr.: So that Sikhs may no longer wear beards?
Ms. Kathryn A. Oberly: --That's right. That is correct, in any branch of the service, in any military department.
William J. Brennan, Jr.: How about Christians?
Ms. Kathryn A. Oberly: Who wished not to shave their beards? That's not permitted either. The only exception for beards is temporary treatment of a medical condition, ingrown facial hairs, and that lasts about 90 days, but there's no religions exception for beards.
Thurgood Marshall: Why... you can wear a rug but you can't wear--
Ms. Kathryn A. Oberly: Well, I'm sorry, Your Honor, but you can't wear the rug unless it's for prosthetic medical reasons to cover up disfiguration or baldness caused by illness. I'm not sure of the reason for that. It may be as--
Thurgood Marshall: --But you couldn't wear a yarmulke?
Ms. Kathryn A. Oberly: --It may be, as Mr. Lewin suggested, that if you put a toupee on top of a full head of hair it will not look like a uniform. It would detract from the neat, professional image that the military is trying to promote. But in fact, toupees are not a solution to Captain Goldman's problem.
Thurgood Marshall: Well, I've--
Ms. Kathryn A. Oberly: Unless he's bald.
Warren E. Burger: --The military forbids wearing it?
Ms. Kathryn A. Oberly: Except to cover up baldness caused by some sort of illness or disfiguration.
Thurgood Marshall: But of course, all of this argument about appearance in the military doesn't involve this because you don't wear the yarmulke outside? Most of the military work is done outside.
Ms. Kathryn A. Oberly: That's true, although--
Thurgood Marshall: So, it doesn't involve that at all, does it?
Ms. Kathryn A. Oberly: --That's true, but unfortunately it does not and I would assume Mr. Lewin would... I would agree, it doesn't help Captain Goldman because most of his work is done inside.
Thurgood Marshall: Why do you have to have such rigid discipline indoors?
Ms. Kathryn A. Oberly: Pardon?
Thurgood Marshall: Why does--
Ms. Kathryn A. Oberly: Your Honor, the military's position is, it doesn't matter where you are, it doesn't matter whether you are in combat, it doesn't matter whether you are serving in time of peace, it doesn't matter whether you're ashore, it doesn't matter whether you're on training exercises. At every single instant of your military career--
Thurgood Marshall: --We are required to accept that without question?
Ms. Kathryn A. Oberly: --That's right. The only way--
Thurgood Marshall: Well, I'm not.
Ms. Kathryn A. Oberly: --Pardon?
Thurgood Marshall: I'm not.
Ms. Kathryn A. Oberly: No, you're not. But at the time that you may have served in the military, you were. And the military... the judgment of the military professionals to whom we look to, to provide us with answers to these questions, and I am not suggesting that the Court should just abdicate to their judgment, but when their judgment is based on rational factors as we think it is in this case, then it is the civilian court's role to accept that judgment.
Warren E. Burger: Ms. Oberly, I think I missed some of the exchange about beards. Would you repeat that again, what the regulations are about beards?
Ms. Kathryn A. Oberly: Beards are not permitted. Moustaches that do not extend beyond the corners of the mouth are permitted.
Warren E. Burger: What about the Surgeon General of the United States?
Ms. Kathryn A. Oberly: I think he is part of the Department of Health and Human Services.
Warren E. Burger: He's an Admiral. He wears a Navy uniform.
Ms. Kathryn A. Oberly: He's not a military officer.
Thurgood Marshall: Aren't admirals and generals exempt from--
Ms. Kathryn A. Oberly: The Public Health Service, Your Honor, is also a uniformed service but they're not a military department. The Public Health Service is part of the Department of Health and Human Services.
Sandra Day O'Connor: --Ms. Oberly, in the military context of a Free Exercise claim, what is the test that you think our cases indicate should be employed? Is it the language taken from the case that refers to whether there is a clear danger to military effectiveness?
Ms. Kathryn A. Oberly: That's the Brown case. That would be... I find all of the tests somewhat unhelpful, but that would be one test that we would use. Another way of rephrasing the same test would be to say that the government's burden is to show a substantial governmental interest, which is not necessarily the same thing as a compelling governmental interest as used in Thomas, and to show that the means chosen to achieve that substantial governmental interest are reasonably related to--
Sandra Day O'Connor: Well, if the Court were to use the test of whether it's a clear danger to military effectiveness as applied to the wearing of the yarmulke indoors in the manner which Captain Goldman did for four years without objection, what is the danger to military effectiveness in his case?
Ms. Kathryn A. Oberly: --I must say that although the "clear danger" words appear in those opinions, that is not in fact what the Court did. What the Court did was sanction the prior restraint on speech and petitions to Congressmen, saying that a military commander need not await the actual outbreak of disruption and a threat to order, discipline and loyalty among his troops before he can act to avert that disruption. That is inconsistent with saying that he can only act when there's a clear danger. In other words, by authorizing prior restraints on speech or petitions to Congressmen or leafletting, the Court clearly wasn't requiring the actual occurrence of a present danger, of a clear danger.
Sandra Day O'Connor: Well, you haven't answered my question.
Ms. Kathryn A. Oberly: What I'm saying is that I think that our position here is fully consistent with what the Court did in the Greer and Brown cases, by saying that military changes don't have to wait for the actual occurrence of the clear danger, and that here in this case what's analogous to the presumed clear danger in the free speech cases is the military judgment that exceptions to the uniform requirement will undermine the military purposes of training, discipline, morale, esprit de corps, things that the military--
Sandra Day O'Connor: In every instance regardless of the particular duty assignment or location and so forth?
Ms. Kathryn A. Oberly: --Yes, Your Honor. The Court has said in Brown itself, and also more recently in Chappell versus Wallace, that the military does not need to have and in effect can't practically have different rules for combat in peacetime and ashore and on base, the same set of rules, the same criminal justice system, same uniform requirements apply at all stages to every service member. The reason is that the job of the peacetime military, no matter where they're stationed, no matter what their duty assignment is, is to be ready to fight a war, to defend this country should they be called upon to do so, and therefore it's essential that they be equally well trained and indoctrinated from the moment that they join the military as it is--
Sandra Day O'Connor: Well, all right. So, how does the wearing of the yarmulke by Captain Goldman in the hospital affect this?
Ms. Kathryn A. Oberly: --It interferes with... it's military judgment that... let me back up a minute. We are not saying that Captain Goldman alone would necessarily be a threat to the national security if he is allowed to wear his yarmulke. That is not our position. Our position, however, is that deviations as a class from the uniform requirement interfere with the military purposes I've identified, by preventing the assimilation of an incredibly diverse group of civilians who come into the military from widely varying backgrounds, who do not come in with the notion of instinctive obedience to command, who in fact come in with perhaps the opposite notion, and who from the day they arrive need to be trained and inculcated in military life.
Thurgood Marshall: Well, suppose everybody in the military wore a yarmulke. Would that interfere with the efficiency of the army?
Ms. Kathryn A. Oberly: Not at all. However, it might interfere with other persons' religious beliefs. I mean, once it's determined--
Thurgood Marshall: We're talking about efficiency. Now, you said it would interfere with the efficiency.
Ms. Kathryn A. Oberly: --No, because once it's determined to have a uniform requirement--
Thurgood Marshall: You know, I was careful not to ask you if just one man did it, would that... I knew that didn't. If all of them--
Ms. Kathryn A. Oberly: --If all of them did, it would be part of the Air Force uniform.
Thurgood Marshall: --It wouldn't interfere with the efficiency?
Ms. Kathryn A. Oberly: It could interfere with safety, but it would not--
Thurgood Marshall: How could it interfere with safety?
Ms. Kathryn A. Oberly: --Well, there's certain... safety isn't an issue in this case, but there are certain situations where headgear of any sort could interfere with safety, such as a hat flying into a jet engine, and in that case you don't wear headgear.
Thurgood Marshall: I don't think you would go out into combat without a helmet on, and I also assume that the yarmulke would be under the helmet, along with his head.
Ms. Kathryn A. Oberly: Your Honor, the point is that once it's determined that there be a uniform requirement for the military--
Thurgood Marshall: The only thing you have is that the Army said yes, and we have to agree.
Ms. Kathryn A. Oberly: --No, you're not compelled to agree, but you are in our opinion required to have a fairly strong reason for disagreeing because--
Thurgood Marshall: Like the First Amendment?
Ms. Kathryn A. Oberly: --No. The First Amendment clearly--
Thurgood Marshall: Well, it's in the ballpark.
Ms. Kathryn A. Oberly: --The First Amendment clearly gives the Court a proper role in reviewing this. However, the Court said in Parker versus Levy, servicemen don't lose their First Amendment rights but they're applied differently in the military because of the unique nature of military society, and that's all that we are telling the Court in this case.
William J. Brennan, Jr.: Ms. Oberly, may I ask--
Ms. Kathryn A. Oberly: Yes.
William J. Brennan, Jr.: --What about... how do the regulations affect wearing your crosses, Masonic rings, things like that?
Ms. Kathryn A. Oberly: I'll take them separately. Crosses could not be worn if they are worn outside of the uniform and were in any way visible. If you could wear rosary beads or a cross or whatever under your uniform and it wasn't visible, that would not be a uniform violation and it's because no one would notice the visibility.
William J. Brennan, Jr.: In any event, they must be worn so that you can't see them?
Ms. Kathryn A. Oberly: That's correct. As to Masonic rings, the regulations allow the wearing of neat and conservative rings which could or could not have religious significance.
Byron R. White: So, like West Point rings?
Ms. Kathryn A. Oberly: That's correct. It could also be a wedding ring, which might be the reason for allowing rings on more than one hand so you can have your West Point ring on one hand and your wedding ring on the other hand, and the regulations allow the wearing of one inch wide identification bracelets. That's the extent of the, quote, "jewelry exception". No attempt is made in the regulation to tie it in any way, one way or the other, to religion. It's your choice as to what type of jewelry, your Masonic ring or something else, you would choose to exercise within that option. But, it's been determined that that minor exception does not interfere with the military purposes of inculcating standardization that the uniform does.
Byron R. White: What is the... when does the regulation apply?
Ms. Kathryn A. Oberly: At all times on duty, and it also specifies what you may or may not do when you're off duty.
Byron R. White: What about off duty? When you're on the base... say you're attached to a military base and you have a watch to stand for eight hours and then you're off duty for the rest of the day, but you have to... you're still on the base?
Ms. Kathryn A. Oberly: If you're not... there are times when you're authorized to be around the base but not in your uniform and in that case Captain Goldman could wear his yarmulke because it's not inconsistent to wear other articles of clothing. I mean, you choose your own civilian clothes and as long as you're dressed at a time when it's okay to be in civilian clothes, you can choose your civilian clothes including the yarmulke. The problem is that with the uniform, you don't wear headgear indoors and the regulation is not directed against yarmulkes.
Byron R. White: When you're off duty, what if you're off duty and you're in your full uniform?
Ms. Kathryn A. Oberly: Then you cannot wear the yarmulke.
Byron R. White: Any time you're--
Ms. Kathryn A. Oberly: Indoors, you can't wear any headgear indoors with the uniform.
Byron R. White: --No matter whether you're on duty or not?
Ms. Kathryn A. Oberly: That's correct, because the uniform regulation specifies what is the uniform.
Byron R. White: What about off the base? If you're in uniform you don't wear anything inside?
Ms. Kathryn A. Oberly: If you're in uniform you wear only what is... what the regulation which is sort of like a catalogue, it's 190 pages long with pictures that tell you exactly what to wear on every occasion and tells you when you can wear it and what combinations of uniform articles you can wear with other uniform articles and you don't add to or detract from that, but if you're in your civilian clothes that's an entirely different situation. Your uniform, however, whether you're on or off duty, has certain required elements and you can't add to or detract from those elements that are specified in the regulations. I'd like to point out, as Mr. Lewin mentioned at the end, that we, the government discussed in its brief at some length a study that was done by the Defense Department for Congress on the whole subject of whether and to what extent the military services could accommodate religious practices. Mr. Lewin seems to denigrate the study as something that the military offered up instead of more rigorous requirements to be imposed on the military. In fact, the House had passed a bill that would have required as a one-year experiment that yarmulkes or religious headgear be permitted, and the Senate did not pass that bill. Instead, the result in conference committee was the requirement that the Defense Department do this study addressing yarmulkes and all other issues of religious accommodation, and report back to Congress at the end of the study with recommendations as to what accommodations were feasible and what accommodations were not feasible. The study group reported back that they could and would, and they in fact have made accommodations to, in certain instances that are deemed consistent with military necessity, so that taking yarmulkes for example, it is now Defense Department policy to allow the wearing of religious garb, whether it's a yarmulke or something else, in personal living quarters occupied by soldiers but not in offices or in areas where military business is being conducted. , and the study group that did the study for Congress determined that greater accommodation would interfere with the military mission. What's significant about that to us is that it shows the political process and the congressional... or constitutionally committed congressional oversight of the military, working the way it's supposed to. Congress now has the Defense Department's report. Congress knows how the Defense Department has implemented it. If Congress thinks that further accommodation is either required or desirable it can legislate it. If it turns out that Congress makes a mistake and orders the military to make changes in its uniform regulations that do in fact cause disruption, it's quite... it's not easy but it's possible for Congress to correct that mistake. If, on the other hand, this Court constitutionalizes mandatory exceptions to the uniform requirements, it's quite a different matter and far more difficult for what might turn out to be a mistake in judgment about the effect on discipline and morale to be corrected. So, our position is that what's going on here is the political process of civilian... of legislative and executive branch control over the military, working exactly as it's supposed to, and that we would ask the Court to leave the situation where it is and leave it to the branches that are constitutionally in charge of the military rather than to intervene precipitously in an area that this Court has repeatedly recognized, civilian judges simply do not have the expertise to second-guess the military judgments that we're talking about. Unless the Court has further questions, nothing else.
Warren E. Burger: Do you have anything further, Mr. Lewin?
Nathan Lewin: If I might just take a minute, Your Honor, on Ms. Oberly's last point, the fact is, of course, that Congress will be affected by whatever this Court says regarding this case. At the time the study was--
Warren E. Burger: They would be if we decided it on a constitutional ground.
Nathan Lewin: --Yes, and if this Court says there's no constitutional right, at the time this was being discussed in the halls of Congress, military personnel went down to see Senator Hatch and we have reproduced some of that material in that reply brief, the question was, is there a constitutional right. Senator Hatch said, although he supported the study, that he hoped this Court would reverse this case, and that's in the Congressional Record. So that, the Congress is looking... various Congressmen, even if they supported the study, were looking at this Court's action with regard to that. So, simply to say that if this Court affirms what the Court below did, then everything is being put in a neutral position, is totally unrealistic. Congress will take that as an approval of what the military has done, and of its report, even though that report was done precisely in terms... in the context of this piece of litigation. Finally, let me say that obviously the most difficult part of this case is drawing the line, but drawing lines is what this Court has done time and again in various other constitutional areas. It does it in the speech area with regard to clear and present danger. It does it in the speech area and in the press area with regard to obscenity and pornography cases. Difficult lines had to be drawn, but to say that because there's a difficulty of drawing the line, someone who is going to be wearing and is required by a matter of conscientious conviction to be wearing an article of clothing that is neat, that is demonstrated by actual experience, which is Captain Goldman's actual experience over close to four years, and the actual experience of the other doctor who testified in this record, to say that that is something that would interfere with military discipline, we think is just plainly contrary to fact and--
Warren E. Burger: Mr. Lewin, you have suggested that when this Court acts, that we approve... not frequently, but certainly it's not infrequently, that we pass on an Act of Congress, that doesn't mean we approve what they've done. The wisdom of what Congress does is none of our business, and unless a constitutional question arises none of these questions are really relevant. I question that Congress is eagerly waiting to see what we are going to do. Perhaps one or two of them are.
Nathan Lewin: --Well, I'm afraid, from my experience with Congress, they certainly focus very much on what this Court says.
Warren E. Burger: Thank you, counsel. The case is submitted.