Category Archives: Yarmulke / Head Covering

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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Yarmulke in the Military (Part 1)

Perhaps the most notable American court decision involving the yarmulke is Goldman v. Weinberger, 475 U.S. 503 (1986). In Goldman, the U.S. Supreme Court was faced with the question of whether an Air Force policy prohibiting personnel from wearing headgear indoors violated the Free Exercise Clause of the First Amendment to the U.S. Constitution, because it prohibited the wearing of a yarmulke. This post will summarize the Goldman decision, and a future post will discuss the legislative response and current law.

Facts: Simcha Goldman entered the Air Force as a commissioned officer and served as a clinical psychologist. For several years he wore a yarmulke without any incident. However, after testifying at a court martial wearing his yarmulke, one of the attorneys complained about Goldman’s violation of an Air Force regulation that prohibited personnel from wearing headgear indoors. After refusing to comply with the regulation, Goldman was reprimanded and subsequently brought suit in U.S. District Court, arguing that the regulation violated his constitutional right to exercise his religious beliefs.

Analysis: The Court started by stating that in First Amendment cases involving the military, it “must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” This is so, because in order “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.” The Air Force had determined that uniformity in dress promotes discipline and unity. The Court noted that the line drawn between visible religious apparel (which the Air Force prohibited) and apparel that was not visible (which it allowed) was reasonable and evenhanded.

Holding: The Air Force regulation prohibiting the wearing of headgear indoors does not violate the First Amendment.

It is interesting to observe that the opposing interests involved here are in fact rooted in common notions. The Supreme Court in Goldman noted that “[t]he essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.'” The idea that uniform requirements promote the subordination of personal desires and interests is one of the concepts underlying the practice of Jewish men covering their heads. As discussed in an earlier post, the goal of the yarmulke is to humble man before God and discourage him from sinning. Thus, although conflicting on the surface, the military’s interest in requiring standardized dress and the halachic requirement of covering one’s head have a similar premise.

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Yarmulkes, Beards & Tichels in American Law

Some of the comments on the post “Yarmulke in American Law – Introduction” noted that there are other aspects of customary Jewish dress that might be treated the same as the yarmulke in American law. For instance, due to the prohibition against men shaving their faces with a razor, many Jewish men grow their beards. Some keep them trim, while others grow them long. (I hope to dedicate a future post to a discussion of beards in halacha.) Not surprisingly, this religious practice does not sit well with numerous employers, not to mention the United States Armed Forces. As noted in the forementioned comments, a NY rabbi, applying to be a chaplain in the U.S. Army, recently sued the Army for not allowing him to keep his full beard. (Click here for the story.) This is nothing new. A few years ago, in a similar situation, a rabbi was granted an exemption to the no-beard policy. (Click here for that story.)

Similarly, Halacha requires that married Jewish women cover their hair. Besides for wigs (known as a “sheitel” in Jewish circles), many women cover their hair with a tichel, a type of headscarf. While many employers likely do not mind–or even notice–a woman wearing a wig, a tichel is hard to miss, and might conflict with the employers policy governing employee appearance.

I will try to address these other aspects of traditional Jewish attire in my discussion of the yarmulke in American law. If you have any more issues that you would like me to discuss, please let me know!

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Yarmulke in American Law – Introduction

The practice of Jewish men covering their heads has been mentioned and considered in a number of cases in American courts. Some of the more common cases in which the wearing of religious headgear is at issue involve employment discrimination and incarcerated individuals. Rules governing military and athletic dress have also conflicted with the practice of wearing a yarmulke.

As we will see, the law applied in each situation depends on the nature of the case. Some examples of laws that are relevant to the wearing of religious headgear are: the First Amendment of the U.S. Constitution, Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination on the basis of religion and other characteristics), and the Religious Land Use and Institutionalized Persons Act.

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Yarmulke & Employment

The yarmulke designates its wearer as an observant Jew. Although American society has become increasingly open to the wearing of religious garments and symbols in the workplace, there have been (and probably still are) numerous employers who are uncomfortable with their employees wearing yarmulkes. This post will address the question of whether one may remove his yarmulke for an interview or during the hours of his employment, if he would otherwise not be able to get a job.

Rabbi Moshe Feinstein (Igros Moshe, Orach Chaim, vol. 4, § 2) discusses this issue in a letter (dated 1974) responding to the following question: A man is in need of employment in a place where it is hard to find an employer who does not mind if he wears a yarmulke. An acquaintance arranges an interview for him at an office, but tells the prospective employee that he must not where a yarmulke to the interview. If he does, not only will he probably not get the job, but the acquaintance might suffer as well. If he is offered employment, he will be allowed to wear his yarmulke while he works in the office. Can he go bareheaded to the interview?

Rabbi Feinstein ruled that the prospective employee was allowed to remove his yarmulke for the interview. Most halachic authorities maintain that there is no inherent obligation for a Jewish man to cover his head. Furthermore, having one’s head uncovered is not prohibited as a chok ha’akum. To cover one’s head is only a middas chassidus (pious practice) and a universally accepted custom. Thus, it can be no more stringent than a mitzvas asei (a Torah-based, affirmative obligation), for which one need not incur a loss greater than one-fifth of his wealth (see Shulchan Aruch, Orach Chaim § 656). Since the inability to attain employment is tantamount to such a loss (if not greater), the prospective employee is excused from the custom for the interview.

Nevertheless, there are two important things to note. First, as Rabbi Feinstein points out in another letter, this leniency is very limited. Such an employee is only excused from wearing a yarmulke in the location where his employer requires him to work without one. However, when he goes to another room, and certainly when he goes out in the street, he must cover his head, even if he will be mocked for doing so. Second, Rabbi Feinstein’s ruling was issued over 35 years ago; it is not clear how this ruling would apply today. Consequently, one who wishes to know whether such a ruling applies to himself should ask a competent Orthodox rabbi, after informing him of all of the circumstances.

This post leads very nicely into a discussion of American law concerning the wearing of religious garments–such as the yarmulke–in the workplace and in other contexts, which will be addressed in upcoming posts.

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Yarmulke – Obligation or Pious Practice? (Part 2)

As summarized in the last post on this topic, the primary halachic authorities maintain that there is no actual obligation for a Jewish man to cover his head. Nevertheless, it is a middas chassidus (pious practice) and a universally accepted custom. In this post we will discuss whether or not there is another reason to prohibit Jewish men from having their heads uncovered: the prohibition of following in the chukos ha’akum (the ways of non-Jewish religions; see Vayikra [Leviticus] 18:3)

The Taz (Orach Chaim § 8(3)) states that although there is no inherent obligation for a Jewish man to cover his head, it is forbidden for one to leave his head uncovered. The reason for this is because, at that time (in mid-17th century Poland), the prevalent custom of religious non-Jews was to uncover their heads to show reverence to their deity. According to the Taz, this is sufficient to qualify the uncovering of one’s head as a chok ha’akum. Consequently, Jewish men must not have their heads uncovered, especially since the practice of covering one’s head is to instill humility and fear of God in one’s heart. (See also Chasam Sofer, Nedarim 30b, making the same assertion.) This would apply even if one is sitting or standing in one place, unless it is clear that one’s head is uncovered for a specific reason (e.g. cooling off or getting a haircut).

Nevertheless, in modern times, a number of prominent halachic authorities have said that the Taz’s reasoning no longer applies. For example, Rabbi Moshe Feinstein (Igros Moshe, Yoreh Dei’ah, vol. 4, § 11(3)) states that the prohibition of chukos ha’akum does not apply to a course of action that all people follow, even the irreligious. Thus, hypothetically, if a religious group of non-Jews would eat a certain type of food as a religious practice, Jews would not be prohibited from eating that food, since even irreligious people eat such food. The same reasoning applies to uncovering one’s head. In current day America and Europe, all men walk around with their heads uncovered (even irreligious ones) because it is more comfortable for them. Thus, the uncovering of one’s head is not prohibited as a chok ha’akum.

Despite the fact that there is no inherent obligation for a Jewish man to cover his head, it is still a universal custom amongst Torah-observant Jews (which itself makes the practice almost mandatory). Additionally, a Jewish man should cover his head in order to distinguish himself as Torah-observant, and to avoid being suspected by fellow Jews as lax in his religious observance. (See Rabbi Ovadia Yosef, Yabia Omer, vol. 9, § 1) Finally, as will be discussed in a future post, there are some circumstances when covering one’s head is absolutely required, such as during prayer (see Shulchan Aruch, Orach Chaim § 91(3)).

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Yarmulke – Obligation or Pious Practice? (Part 1)

There is no question that the practice of Jewish men covering their head is universal among Torah-observant Jews. However, many of the Talmudic sources discussing the issue imply that it is not necessarily an obligation, but a “middas chassidus,” an admirable custom of the pious. For example, the fact that R’ Huna the son of R’ Yehoshua was singled out as being careful not to walk four amos (cubits) with his head uncovered seems to indicate that most others did not do so. Here is what the poskim have to say on the matter:

The Tur (Orach Chaim § 2) lists the covering of one’s head among the morning routine, refering to R’ Huna’s statement that he would not walk four amos without a head covering. Also, when discussing the laws of tzitzis (id. § 8), the Tur states that when one wears a tallis, he should cover his head.

Puzzled by the Tur’s comment in hilchos tzitzis, the Beis Yosef (id.) wonders why it was necessary for the Tur to repeat that one must cover his head. Because of the Tur’s first statement in § 2, the Beis Yosef takes for granted that one must already have his head covered by the time he is ready to wear a tallis. Consequently, the Beis Yosef reasons, the Tur must be referring to an extra head covering worn by those who are married. Thus, the Tur means that one should cover his head with the tallis, either because it as an extra sign of fear of God or because it is the ideal way to fulfill the mitzvah of tzitzis.

The Darchei Moshe (Orach Chaim § 8) takes issue with the Beis Yosef’s explanation of the Tur and his assumption that it is an actual prohibition to walk without a head covering. In Darchei Moshe’s view, the Talmudic sources clearly indicate that covering one’s head is no more than an admirable practice, and this is the meaning of the Tur’s statement in § 2. When the Tur again says that one must cover his head with the tallis, it is because until then it is not an obligation.

Although in the Beis Yosef R’ Yosef Karo seems to manitain that it is an actually prohibition to go with an uncovered head, his wording in Shulchan Aruch (Orach Chaim § 2(6)) indicates otherwise. His words there are: “It is prohibited to walk with an upright (haughty) posture, and one should not walk four amos with an uncovered head . . . .” The fact that the Shulchan Aruch distinguishes between walking upright (which is “prohibited”) and walking without a head covering (which one “should not do”), implies that the latter is not an actual prohibition, but a preferred course of action (see Yad Efraim, ad loc.). Also, the Magen Avraham (Orach Chaim § 91(3)) states that the Shulchan Aruch’s opinion is that covering one’s head is only a pious practice.

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