I touched on this in my last post discussing the opinion striking down Don’t Ask, Don’t Tell (DADT), but one case that is particularly on point is Goldman v. Weinberger. In that case, Goldman, an orthodox Rabbi ran afoul of regulations that would prohibit him from wearing a yarmulke. As you may know, many Jews consider it a command from God to always keep one on, and so he was literally being asked to choose between obeying God or Uncle Sam. We should be loathe as a society to force that kind of choice on anyone, as a matter of policy rather than law. He sued to prevent enforcement of those regulations and took the case all the way to the Supreme Court, where he lost.
I have already highlighted Stevens’ extremely deferential approach, but many on the left are claiming that in fact the judge was deferential in the DADT case as well. Now there is no doubt she said she was, but that assertion does not withstand scrutiny. It was lip service. How do I know this? Because all of the arguments she arrayed against DADT applied equally to the rule in Goldman. Now you can read through it all and hear in excruciating detail how awful she thinks this is as a matter of police, but fortunately starting on page 74 she summarizes her points. So let’s look at each and see how well they apply to Rabbi Goldman’s plight all those years ago. She states that the Petitioners (the Log Cabin Republicans et. al.) have shown the following bulleted points to be true:
- by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness;
- by causing the discharge of otherwise qualified servicemembers with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness;
Applies to both. Check.
- by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness;
- Defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion;
Does that apply to Rabbi Goldman? Well, he went for years wearing his yarmulke without problem. From the Circuit Court opinion:
Between 1970 and 1972 [Goldman] served as a chaplain in the United States Navy, where he wore a yarmulke as a head covering while in uniform without incident. In 1973 he was admitted into the Armed Forces Health Professions Scholarship Program, which provided assistance for graduate study in exchange for a later commitment to serve on active duty in the armed services... After completing a Ph.D. in clinical psychology in 1977 Goldman entered active service as a captain and was assigned to the Mental Health Clinic of the Air Force Regional Hospital at March Air Force Base, in Riverside, California. Between September 1, 1977, and May 8, 1981, he wore a yarmulke at all times while on duty at March.
It was only when he testified in a courtroom in 1981 wearing the yarmulke that anyone took an interest in his headwear and the “shit hit the fan.”
So if lack of enthusiasm in enforcement undermines the government’s interests, then that was the case with both Rabbi Goldman in particular and DADT.
- by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
Again, redundant, but still applicable to both situatins: check.
- the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest.
Well, of course yarmulkes don’t even relate to that concern, so they don’t threaten anyone’s privacy, either. So check, again.
So all of those considerations would have applied equally to Goldman and the Log Cabin Republicans. And yet Goldman lost and the Log Cabin Republicans won. Plainly Judge Phillips was not as deferential as the Supreme Court had been in Goldman.
