Geller v. Secretary of Defense

• Decision Date: 13 July 1976
• Docket Number: Civ. A. No. 74-1843.
• Citation: 423 F. Supp. 16
• Parties: Michell D. GELLER, Plaintiff, v. SECRETARY OF DEFENSE et al., Defendants.
• Court: U.S. District Court — District of Columbia

423 F. Supp. 16

Michell D. GELLER, Plaintiff, v. SECRETARY OF DEFENSE et al., Defendants.

Civ. A. No. 74-1843.

United States District Court, District of Columbia.

July 13, 1976.

Nathan Lewin, Washington, D.C., for plaintiff.

Roger C. Spaeder, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., District Judge.

This case presents the question of whether the Air Force can constitutionally enforce a regulation prohibiting the wearing of facial hair by its military personnel against an individual who was employed by the Air Force to serve in a religious capacity as a Jewish Chaplain. Rabbi Geller served in the Air Force on both active duty and reserve status between the years 1950 to 1974. Although plaintiff began wearing a beard in 1966, the Air Force did not inform him that he must remove his beard because it was in violation of Air Force Regulation (AFR) 35-10, Chapter 1-12-b(3) until 1973. Because plaintiff refused to remove his beard he was subsequently reassigned to inactive reserve status. He brings this action asking the Court to declare that the Air Force regulation prohibiting facial hair is unconstitutional as applied in his case on the grounds that it violates his First Amendment right to free exercise of his religion. In addition, plaintiff asks for injunctive relief and reinstatement to the position of Active Air Force Reserve Chaplain with accompanying promotions, points, salary and other emoluments to which he would have been entitled had he been permitted to continue in his position as chaplain. The case is currently before the Court on cross motions for summary judgment. For reasons set forth below, the Court is persuaded that there are no material facts in dispute and plaintiff is entitled to judgment as a matter of law.

In its motion for summary judgment the defendants argue that this case does not present a first amendment claim because plaintiff's answers to interrogatories conclusively demonstrate that his wearing of a beard is motivated by personal and not religious reasons. The defendants stress the uncontroverted fact that wearing a beard is not required by plaintiff's religion. And even assuming arguendo that the case does present a question of constitutional significance, defendant continues, the facial hair regulation does not inhibit plaintiff's freedom of religion in a constitutionally impermissible way, relying upon Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (decided April 5, 1976) and Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970). The defendants emphasize that the employer-employee relationship between the parties is an important distinction to be noted in this case and cite Dawson v. Mizell, 325 F.Supp. 511 (E.D.Va.1971) to support their position that the challenged regulation does not create an impermissible infringement of religious freedom because it arises and has been applied in the context of federal employment.

Plaintiff vigorously disputes defendants' reading of the answers to interrogatories and has urged the Court to read these answers in their entirety and with recognition of plaintiff's chosen profession. This, plaintiff asserts, demonstrates that plaintiff's decision to wear a beard is religiously motivated. The Court has read the relevant interrogatories and is persuaded that plaintiff's interpretation is the correct one. There is no requirement that the religious practice be absolutely mandated in order to elevate plaintiff's claim to a level of constitutional significance. It is not the province of the Courts to dictate which practices are or are not required in a particular religion. See, Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (decided June 21, 1976); Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). The Court is persuaded by the record as presently constituted that the wearing of beards, although not required, is a well established religious tradition among members of the Jewish faith and that plaintiff wore his beard in furtherance of that religious practice. This being the case, a question of constitutional significance has been raised, See Burgin v. Henderson, 536 F.2d 501 (2nd Cir. 1976), and the only remaining issue for resolution is whether there is sufficient justification for this infringement of Rabbi Geller's right to free exercise of his religion which has occurred by the application of the regulation to him.

There is some dispute regarding the appropriate standard to be applied in a case in which a freedom of religion claim is raised in the context of military employment. The defendants argue that the Court should apply the standard recently set forth in Kelley, supra, a case in which a police officer challenged a hair length regulation on grounds that it...