Goldman v. Secretary of Defense, 82-1723

• Decision Date: 10 August 1984
• Docket Number: No. 82-1723,82-1723
• Parties: 36 Fair Empl.Prac.Cas. 1573, 238 U.S.App.D.C. 267 S. Simcha GOLDMAN v. SECRETARY OF DEFENSE, et al., Appellants. . On Appellee's Suggestion for Rehearing En Banc
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 657

739 F.2d 657

36 Fair Empl.Prac.Cas. 1573, 238 U.S.App.D.C. 267

S. Simcha GOLDMAN v. SECRETARY OF DEFENSE, et al., Appellants.

No. 82-1723.

United States Court of Appeals, District of Columbia Circuit.

On Appellee's Suggestion for Rehearing

En Banc.

Aug. 10, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01522).

Nathan Lewin and David J. Butler, Washington, D.C., were on the suggestion for rehearing en banc filed by appellee.

Before ROBINSON, Chief Judge; WRIGHT, TAMM, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges.

ORDER

PER CURIAM.

Appellee's suggestion for rehearing en banc has been transmitted to the full court and a majority of the judges in regular active service have not voted in favor of such rehearing. Accordingly, it is

ORDERED, by the Court, en banc, that appellee's suggestion for rehearing en banc is denied.

Statement dissenting from denial of suggestion to hear case en banc filed by Circuit Judge STARR.

Statement dissenting from denial of suggestion to hear case en banc filed by Circuit Judge GINSBURG, in which Circuit Judge SCALIA concurs.

STARR, Circuit Judge, dissenting from denial of suggestion to hear case en banc.

I respectfully dissent from the court's declination to hear this case en banc.

The tension between individual liberty guaranteed by the Bill of Rights and the demands of our armed services in carrying out their vital mission is an area fraught with extreme difficulty. But with respect I am constrained to conclude that, notwithstanding the sensitivity of the setting, the panel decision in this case, 734 F.2d 1531, does considerable violence to the bulwark of freedom guaranteed by the Free Exercise Clause.

It cannot be gainsaid that the judiciary is singularly ill-equipped to sit in judgment on military personnel regulations. In matters touching upon the exigencies of military affairs, the courts have wisely exercised the restraint and caution that befits the unelected branch of government. The wisdom of Justice Jackson in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), articulated in the shadow of the Korean Conflict, bears repeating today:

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 [military] matters as the [military] must be scrupulous not to intervene in judicial matters.

Id. at 94, 73 S.Ct. at 540. And this court has rightly been quick to decline invitations to engage in "judicial oversight of military policy decisions...." Blevins v. Orr, 721 F.2d 1419, 1423 (D.C.Cir.1983).

It is thus with circumspection that I have come to the view that the panel decision abdicates the judiciary's limited but important function in the extraordinarily delicate environment of military personnel. For notwithstanding the broad latitude rightly vested in those charged with defending the Nation's security, I am unable to agree that the needs of the military warrant vitiating the very liberties which the armed services have valiantly defended in the two centuries of the Nation's history.

To briefly review the facts giving rise to this case, it is undisputed that Dr. Goldman has served his country with distinction for fourteen years. It is also undisputed that during this period of exemplary service, Dr. Goldman followed uneventfully the dictates of his conscience by wearing the traditional yarmulke, a symbol of his faith whose roots are as deep and venerable as Western civilization itself. It is further undisputed that Dr. Goldman's wearing of the yarmulke resulted in no displacement of the military uniform in any manner whatever. Dr. Goldman never objected to wearing the entire military uniform as prescribed in the regulations. He simply chose, by reason of conscience, to wear in addition this symbol of a great faith from which Western morality and the Judaeo-Christian tradition have arisen. This is the offense for which Dr. Goldman has been threatened with court-martial.

The military itself, at least until today, has assiduously and quite properly defended the right of the Nation's military personnel to engage in worship and other religious observances while on active duty and while on military bases. The military thus stands before the court with a long and admirable tradition of providing, at taxpayers' expense, chaplaincies and places of worship on military bases around the world. In the context of this tradition, it would be unthinkable for the military to promulgate a rule that forbade audible prayer while a serviceman is on active duty. Yet the military seeks to forbid an act that partakes of the religious significance of prayer and is equally unobtrusive. And, critically, the applicable military regulations permit the wearing of other unobtrusive religious regalia, such as undergarments or rings and bracelets bearing religious significance. Dr. Goldman's only "error" is that he wears a yarmulke.

The treatment of Dr. Goldman seems to me patently...