Yarmulke in the Military (Part 2)

As discussed in the previous post, the U.S. Supreme Court held in Goldman v. Weinberger that an Air Force regulation prohibiting personnel from wearing headgear indoors did not violate the First Amendment, even though Jewish men would be barred from wearing their yarmulkes. Even before the Supreme Court’s decision, a number of congressman succeeded in passing a law that required a group formed by the Secretary of Defense “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 § 554(a), 98 Stat. 2492, 2532 (1984)). However, the study group advised against exceptions to uniform standards except for religious apparel worn in individual living spaces or by chaplains when required by their faiths.

Less than two weeks after the Supreme Court decided Goldman in 1986, several congressmen introduced legislation that would allow members of the armed forces to wear certain religious apparel. Both in the Senate and in the House, the proposed legislation allowed religious apparel that was neat, conservative and unobtrusive. The proponents insisted that religious headgear, such as the yarmulke, would not disrupt military effectiveness. Opponents argued that making such an exception would be adverse to military uniformity and morale, it would be difficult to apply, and it would lead to much litigation over the appropriate standards. Although it failed to pass in 1987, the legislation was included as part of the National Defense Authorization Act for Fiscal Years 1988 and 1989.

The current law is codified at 10 U.S.C. § 774. It allows a member of the armed forces to wear an item of religious apparel while in uniform, unless the Secretary concerned determines that it would interfere with the performance of military duties, or that it is not neat and conservative.

For an analysis of the Goldman case and subsequent congressional response, see Dwight H. Sullivan, The Congressional Response to Goldman v. Weinberger, 121 Military L. Rev. 125 (1988), available here. Incidentally, Former Representative Stephen J. Solarz, who was one of the leading advocates of the religious apparel amendment died recently of cancer. For an article summarizing his efforts on this front, click here.

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3 Comments

Filed under American Law, Yarmulke / Head Covering

3 responses to “Yarmulke in the Military (Part 2)

  1. Irving W.

    That’s a very thorough review ot the Goldman case. It will make the outcome of the Stern case quite interesting.

  2. Jacqueline

    The current law seems very vague and subjective. Has there been no clarification of “neat and conservative” or “wearing [something] which is part of the observance of the religious faith”? It seems that beards would still be in question, since some may not consider it neat or a halachic requirement.

    • The vagueness of the current religious apparel law has been the target of criticism. See Michael F. Noone, Jr., Rendering Unto Caesar: Legal Responses to Religious Nonconformity in the Armed Forces, 18 St. Mary’s L.J. 1233, 1262 (noting that the law fails to establish “an objective, easily ascertainable standard for commanding officers to apply”). Congress seems to have intended to give the military some discretion in determining what is appropriate by allowing the secretary of each branch of the armed forces to enact regulations governing religious apparel.

      A good example of this is Army Regulation 670-1, § 1-7(2):
      (2) Soldiers may wear religious headgear while in uniform if the headgear meets the following criteria.
      (a) It must be subdued in color (black, brown, green, dark or navy blue, or a combination of these colors).
      (b) It must be of a style and size that can be completely covered by standard military headgear, and it cannot
      interfere with the proper wear or functioning of protective clothing or equipment.
      (c) The headgear cannot bear any writing, symbols, or pictures.
      (d) Personnel will not wear religious headgear in place of military headgear when military headgear is required
      (outdoors, or indoors when required for duties or ceremonies).

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