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BACKGROUND
Kippot
Continued from preceding page
believed that Captain Goldman
should have been granted the
exemption to wear his yar-
mulke. He joined the majority
only out of concern for issues
not before the Court; namely,
what would happen if a Sikh or
Rastafarian also sought similar
exemptions for their religious
practices. It would be unfair to
treat them differently than Or-
thodox Jews, Justice Stevens
claimed, and thus accepted what
he called the "neutral, complete-
ly objective standard — visibili-
ty."
The problems with Stevens'
analysis, however, are threefold.
First, as Justice Brennan
pointed out, "the implication
that a neutral standard that
could result in the disparate
treatment of Orthodox Jews
and, for example, Sikhs is more
troublesome or unfair than the
existing neutral standard that
does result in the different treat-
ment of Christians, on the one
hand, and Orthodox Jews and
Sikhs on the other" is puzzling.
"Both standards are constitu-
tionally suspect," Justice Bren-
nan argued, and "before either
can be sustained, it must be
shown to be a narrowly tailored
means of promoting important
military interests."
Second, it is the duty of a
judge to decide the case
presented to the Court and not
theoretical issues. Turbans,
dreadlocks and saffron robes
were not before the Court; yar-
mulkes were. Perhaps the other
issues would remain theoretical,
a real possibility since .there is
no indication in the record that
any such situations actually ex-
ist. Perhaps the Court, if
presented with such questions,
would find that Sikhs, etc. can-
not be constitutionally barred
from practicing all facets of
their religion while in the arm-
ed services. Perhaps not. But all
of those possibilities, as a juris:
prudential matter, should not
have negatively impacted on
Captain Goldman's rights as
they clearly did • in Justice
Stevens' opinion.
And third, judges constantly
make distinctions and draw
lines; that is one of their most
important functions. Here, by
refusing to make such distinc-
tions, Justice Stevens said, in ef-
fect, that since the right to
religious practice of others
might have to be denied, it
likewise must be denied to
observant Jews. Such reasoning
is fallacious. It would, of course,
be unfair and unconstitutional
to discriminate in treatment be-
tween Jews and Sikhs. It would,
hgwever, neither be unfair nor
unconstitutional to treat their
religious beliefs differently if
"functional utility, health and
safety . considerations" and
other grounds so mandated. It
might be difficult to make those
distinctions, but we expect from
our Supreme Court justices the .
ability and the courage to make
difficult decisions. In this in-
stance, Justice Stevens failed
the test.
One interesting factual aspect
of the case does, however,
become clear in Justice Stevens'
opinion;' namely, that the Air
Force was not acting out of lof-
ty ideals in defending its dress
code. Rather, the treatment of
Captain Goldman clearly had a
"retaliatory motive" in that the
complaining officer was the pro-
secutor in a court martial in
which Captain Goldman
testified for the defense.
Goldman's "extremely high
ratings in his performance
evaluations" were ignored, as
was the prior evaluation, bitter-
ly ironic in hindsight, that
Goldman "maintain(ed) ap-
propriate military dress and
bearing." Spite, and not esprit
de corps, was the critical factor.
Moreover, the new commanding
officer who acted on the com-
plaint also ignored the earlier
approval of Goldman's wearing
his yarmulke given by the
previous commanding officer.
Unfortunately, the issues of
motive, waiver and estoppel
were not presented to the Court
for valid tactical and
philosophical reasons, and thus
could not form the basis of any
decision. Nonetheless, they lend
yet another perspective to the
case, and further undercut the
almost unquestioning difference
given to military decision by
Justice Rehnquist.
And finally, on a political
note, this case affirms yet again
that when specific Jewish issues
are before the Court — such as
accommodation of Sabbath
observance, the building of a
creche on public property, or
preserving the right to wear a
yarmulke in the military — it is
the liberal justices who raise
their voices to protect the rights
of the Jewish community, as
they often do to protect the
rights of other minority groups.
It is a fact we would do well to
remember.
Israelis Are
Confident
Tel Aviv — Despite its prot-
racted conflict with the Arab
world, eix wars and escalating
terrorism, Israelis remain op-
timistic about peace and confi-
dent about the nation's security
situation. They have. enormous
faith in the army, and believe
the country is able to confront
almost any threat — including
an all-out attack by the com-
bined forces of all the Arab
states.
These are some of the general
conclusions of a research project
on "National Security and Pub-
lic Opinion," conducted by Tel
Aviv University's Jaffee Center
for Strategic Studies.
Respondents to the survey felt
that Israel's security situation
,