Joint Appendix — Goldman v. Weinberger

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In The OSEPH F. SPANIOL, JR

Supreme Court of the United States"

October Term, 1985 '

No. 84-1097

————— —— -f) --—

S. SIMCHA GOLDMAN,

Petitioner,

CASPER W. WEINBERGER,

Secretary of Detense, et al.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

)

JOINT APPENDIX

ty)

NATHAN LEWIN CHARLES FRIED

2555 M Street, N.W. Acting Solicitor General

Suite °°

Washine:on, D. C. 20037 iene

(202) 293-6400

Counsel of Record

for Petitioner

OF COUNSEL:

DAVID J. BUTLER

Brownstein Zeidman

& Schomer

1467 New York Ave., N.W.

Suite 900

Washington, D. C. 20005

(202) 879-5700

DENNIS RAPPS

National Jewish Commission

on Law and Public Affairs

450 Seventh Avenue

New York, N. Y. 10001

(212) 563-0100

PETITION FOR CERTIORARI FILED JANUARY 7, 1985

CERTIORARI GRANTED JUNE 17, 1985

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

’ REST AVAILABLE COPY

TABLE OF PARTS OF THE RECORD

CONTAINED IN THE JOINT APPENDIX*

Relevant Docket Entries in the Courts Below 1

Complaint of S. Simcha Goldman filed in United

States District Court for the District of Columbia

i i, 8 | aaa tian haa

Answer of Secretary of Defense et al. to Plaintiff’s

Complaint (United States District Court for the

District of Columbia) (September 9, 1981) —.. 10

Photographs of the Plaintiff —— sauna

Exhibit A) - ER ‘ Simin (Oe

Defendants’ Rist to Plaintiff's calc

(United States District Court for the District of

Columbia) (August 17, 1981) - inet idien, ie

Transcript of Trial Before the United States District

Court for the District of Columbia sussnsenadle 10,

1981) EA Sle A hall 29

Defendants’ Responses to Plaintiff's ie for Ad-

missions (United States District Court for the Dis-

OR NG A

*The Findings of Fact and Conclusions of Law of the United

States District Court for the District of Columbia (April 26,

1982) appear in the Appendix to the Petition for a Writ of Cer-

tiorari at 28a-34a. The Order of the United States District Court

for the District of Columbia (April 26, 1982) appears in the

gee to the Petition for a Writ of Certiorari at 35a-36a.

Decision of the United States Court of Appeals for the

District of Columbia Circuit (May 8, 1984) appears in the Ap-

pendix to the Petition for a Writ of Certiorari at 1a-20a. The

Order of the United States Court of Appeals for the District of

Columbia Circuit denying the . 7" for rehearing en banc

and the dissenting statements filed by Circuit Judge Starr and

Circuit Judge Ginsburg appear in the Appendix to the Petition

for a Writ of Certiorari at 21a-27a.

TABLE OF PARTS OF THE RECORD

CONTAINED IN THE JOINT APPENDIX—Continued

Page

Deposition of S. Simcha Goldman (United States Dis-

trict Court for the District of Columbia) (August 6,

1981) 151

Order from Col. Joseph E. Gregory to Capt. S. Sim-

cha Goldman (June 23, 1981) (Plaintiff’s Deposi-

tion Exhibit 1) 207

Letter of Reprimand from Col. Seite E. Gregory to

Capt. S. Simcha Goldman (June 24, 1981) (Plain-

tiff’s Deposition Exhibit 2) 0. ‘. _. 208

Reply to Letter of Reprimand by Capt. S. Simcha

Goldman (June 24, 1981) (Plaintiff's Deposition

Exhibit 3) - 209

Application of Capt. S. Simcha Goldman for Exten-

sion of Date of Separation from the Air Force

(May 11, 1981) (Plaintiff’s Depositien Exhibit 4) —. 210

Performance Rating of Capt. S. Simcha Goldman

(January 19, 1979) weeps Deposition Ex-

ee 214

Performance Rating of Capt. S. Simcha Goldman (Oc-

tober 20, 1980) (Plaintiff’s Deposition Exhibit 9)... 220

Excerpt from I. Klein, A Guide to Jewish i ae

Practice (1979) (Plaintiff’s Trial Exhibit 6) —..... 226

Request by Capt. Howard Rosman for Waiver from

Air Force Regulation 35-10 (July 8, 1974) (Plain-

tiff’s Trial Exhibit 7) . 229

Letter from Col. Frank E. Edmunds, Jr. Recommend-

ing Approval of Capt. Rosman’s Request (July 9,

1974) (Plaintiff’s Trial Exhibit 8) 229

Letter from Col. Richard A. Burpee Denying Capt.

Rosman’s Request (July 22, 1974) (Plaintiff’s Trial

Exhibit 9) . 230

ill

TABLE OF PARTS OF THE RECORD

CONTAINED IN THE JOINT APPENDIX—Continued

Page

Letter from Nathan Lewin to David R. Johnson,

Office of the General Counsel, United States Air

Force (July 25, 1974) (Plaintiff’s Trial Exhibit

NEE EEE Ee 231

Affidavit of Capt. Donald Dale Reeves (August 31,

1981) (United States District Court for the District

EE EE LET 237

Research Data on Religious Requirements and Prac-

tices, With Attached Excerpt from G. Appel, The

Concise Code of Jewish Law (Vol. 1) ( nti wad

fendant’s Trial Exhibit 1) 0000 240

RELEVANT DOCKET ENTRIES

IN THE COURTS BELOW

I. United States District Court for the District of

Columbia

July 2, 1981

July 10, 1981

July 13, 1981

July 21, 1981

August 6, 1981

Complaint of S. Simcha Goldman

Application by Plaintiff for Tempo-

rary Restraining Order

Temporary Restraining Order

Motion for Temporary Restraining

Order Argued and Granted

Motion for Preliminary Injunction

Argued and Granted

Memorandum Opinion of the United

States District Court

Order of the United States District

Court Granting Motion for Prelimin-

ary Injunction

Motion by Plaintiff to Use Plaintiff’s

Deposition Testimony at Trial

Order Granting Plaintiff’s Motion to

Use Plaintiff’s Deposition Testimony

at Trial

September 9, 1981 Answer by Secretary of Defense et

al. to Plaintiff’s Complaint

September 10, 1981 Trial by United States District Court

April 29, 1982

Findings of Fact and Conclusions of

Law of United States District Court

April 29, 1982

June 25, 1982

August 2, 1982

Order of United States District Court

filed April 26, 1982

Notice of Appeal by Defendants from

Order of United States District Court

filed April 26, 1982

Record on Appeal Delivered to United

States Court of Appeals

II. United States Court of Appeals for the District of

Columbia Circuit

August 3, 1982

March 22, 1983

May 8, 1984

June 22, 1984

August 10, 1984

Certified Original Record

Argued Before Circuit Judge Mikva,

Circuit Judge Edwards, and Senior

Circuit Judge Swygert (United States

Court of Appeals for the Seventh Cir-

cuit)

Opinion for the United States Court

of Appeals filed by Senior Circuit

Judge Swygert

Judgment by the United States Court

of Appeals that the Judgment of the

United States District Court Ap-

pealed from is Vacated and the Case

is Remanded

Appellee’s Petition for Rehearing

and Suggestion for Rehearing En

Bane

Per Curiam Order Denying Appellee’s

Petition for Rehearing

Per Curiam Order En Bane Denying

Appellee’s Suggestion for Rehearing

En Bane

August 10, 1984

August 27, 1984

January 14, 1985

June 18, 1985

Statement Dissenting from Denial of

Suggestion to Hear Case En Bane

filed by Circuit Judge Starr

Statement Dissenting from Denial of

Suggestion to Hear Case En Bane

filed by Cireuit Judge Ginsburg, in

which Cireuit Judge Scalia Concurs

Mandate Issued

Notice from Clerk, United States Su-

preme Court that Petition for Writ

of Certiorari was filed January 7,

1985

Certified Copy of Order from Clerk,

United States Supreme Court Grant-

ing Petition for Writ of Certiorari on

June 17, 1985

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No, 81-1522

S. SIMCHA GOLDMAN,

449 North Laurel Avenue

Los Angeles, California 90048

(213) 655-9410

Plaintiff,

SECRETARY OF DEFENSE,

The Pentagon

Washington, D.C. 20301

and

SECRETARY OF THE AIR FORUVE,

The Pentagon

Washington, D.C. 20301

Defendants.

COMPLAINT FOR DAMAGES AND DECLARATORY

AND INJUNCTIVE RELIEF

(Filed July 2, 1981)

1, This action arises under the Free Exercise Clause

of the First Amendment to the United States Constitution.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1361.

2. Plaintiff is a member of the Orthodox Jewish

faith, and is an ordained rabbi. Defendants are officials

of the United States of America and this action is brought

against them in their official capacities.

3. Plaintiff is a Captain in the United States Air

Force on active duty, and has been stationed at March Air

Force Base (‘‘March Af'B’’), Riverside, California, since

September 1977. Plaintiff is currently assigned to the

Mental Health Clinic of the Air Force Regional Hospital

at March AFB, where he serves as a clinical psychologist.

4. Orthodox Jewish religious practice requires a Jew-

ish male to keep his head covered at ali times. In observ-

ance of that religious requirement, plaintiff wears a skull

cap (‘‘yarmulke”) at all times.

5. Plaintiff has continuously worn a yarmulke since

prior to his assignment to March AFB. Since his assign-

ment to Mareh AFB in September 1977, plaintiff has con-

tinuously worn a yarmulke, including while he is in uni-

form, as required by his religion.

6. For the three and one-half year period from Sep-

tember 1977, to May 1981, plaintiff’s superior officers at

March AFB raised no objection to his wearing a yarmulke

while in uniform.

7. On May 8, 1981, Colonel Joseph Gregory, the Hos-

pital Commander at March AFB, informed plaintiff that

wearing a yarmulke violated the Air Force’s Dress Code

Regulation (AFR) 35-10. Colonel Gregory ordered plain-

tiff to cease wearing a yarmulke indoors while in uniform

at all places on base, except that plaintiff was specifically

permitted to continue wearing his yarmulke while working

and in uniform at the Regional Hospital located on the

base.

8. Upon receiving the May 8, 1981, order, plaintiff

informed Colonel Gregory that the wearing of a yarmulke

was required by his Orthodox Jewish religion and was a

protected religious observance pursuant to the First

Amendment. Plaintiff requested permission to continue

his previously unchallenged practice of wearing a yar-

mulke at all times and in all places while in uniform at

March AFB. Plaintiff’s request was denied.

9. On May 19, 1981, in an effort to avoid litigation,

plaintiff’s counsel contacted the Office of the Air Force

Assistant General Counsel for Manpower and Personnel

Affairs, explained plaintiff’s situation, and requested that

the Air Force continue to permit plaintiff to wear his

yarmulke at all times as he had for the past three and one-

half years. Counsel’s efforts to resolve this matter

through negotiations extended over a period of several

weeks, but were not successful.

10. On June 23, 1981, plaintiff was ordered by Col-

onel Gregory to cease wearing his yarmulke anywhere

while in uniform at March AFB, including the Regional

Hospital. Plaintiff was again informed that wearing a

yarmulke violated AFR 35-10.

11. Plaintiff explained once again the nature of his

religious observance and his desire to continue wearing his

yarmulke at all times, as required by his religion. Plain-

tiff requested permission from Colonel Gregory to appear

for duty in civilian clothes, pursuant to an express exemp-

tion contained in AFR 35-10, so that his wearing of a yar-

mulke would not violate defendants’ interpretation of the

regulation. Plaintiff’s request was denied.

12. On June 24, 1981, plaintiff received a letter of

reprimand from Colonel Gregory for continuing to wear

his yarmulke while in uniform in violation of the June 23

order, and in violation of defendants’ interpretation of

AFR 35-10. Plaintiff has been threatened with additional

sanctions, including a court-martial, for violation of the

June 23 order and for violation of defendants’ interpreta-

tion of AF'R 35-10.

13. Following receipt of the letter of reprimand,

plaintiff submitted a written request to Colonel Gregory

that formal processing of the letter of reprimand be de-

layed until June 29, 1981, the date upon which plaintiff’s

military area defense counsel was scheduled to return to

March AFB. Plaintiff’s request was granted.

14. On June 25, 1981, plaintiff was summoned to Col-

onel Gregory’s office and was informed by Colonel Greg-

ory that, in light of plaintiff’s current problems with the

Air Force, resulting from plaintiff’s insistence upon wear-

ing his yarmulke despite the provisions of AFR 35-10,

Colonel Gregory had decided to withdraw a previously posi-

tive recommendation he had submitted in favor of plain-

tiff’s application for a one year extension of his service

in the Air Force, and had, that day, submitted a negative

recommendation on that application.

15. The orders issued to plaintiff prohibiting him

from wearing a yarmulke while in uniform at March AFB

violate the First Amendment of the United States Consti-

tution.

16. Plaintiff has exhausted all meaningful available

channels to postpone enforcement of the June 23 order, or

to have the order withdrawn. There is no further appeal

within the Air Force from the punitive actions taken

against plaintiff and threatened to be taken against plain-

tiff, as specified in paragraphs 7 through 14 of this Com-

plaint.

17. The actions already taken against plaintiff and

the threat of additional sanctions against plaintiff, includ-

ing criminal prosecution, if he does not cease wearing a

yarmmike while in uniform, jeopardize plaintiff’s ability to

observe deeply held religious beliefs, violate the First

Amendment to the United States Constitution, and jeop-

ardize plaintiff’s ability to continue serving in and to be

employed gainfully by the Air Force.

18. Any effort by defendants or anyone acting under

their supervision or control to enforce or apply AFR 35-10

against plaintiff or any enlisted man who wears a yar-

mulke for religious reasons, is an unconstitutional denial

of rights guaranteed by the First Amendment to the United

States Constitution.

WHEREFORE, plaintiff prays that this Court enter

an Order:

1. Declaring that the conduct described in para-

graphs 7 through 14 of this Complaint violates the First

‘Amendment to the Constitution of the United States;

2. Declaring Air Force Dress Code Regulation

(AFR) 35-10 invalid and unlawful as applied to any per-

son who wears a yarmulke for religious reasons;

3. Enjoining the defendants, their agents, subordi-

nates, or anyone acting in concert with them from applying

or enforcing AFR 35-10 against plaintiff or any person

who wears a yarmulke for religious reasons;

4. Directing defendants, their agents, subordinates or

anyone acting in concert with them, to expunge from plain-

tiff’s military records all references to disciplinary action,

sanctions or penalties (including Colonel Gregory’s nega-

tive recommendation concerning plaintiff’s continued mili-

tary service) resulting directly or indirectly from plain-

tiff’s insistence upon wearing a yarmulke, despite the

provisions of AFR 35-10;

5. Awarding plaintiff damages, attorneys’ fees and

costs of this action; and

6. Granting such other and further relief as this

Court deems just and proper.

/s/ Nathan Lewin/DJB

Dated: 7/2/81

/8/

MILLER, CASSIDY, LARROCA &

LEWIN

Suite 500

2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

David J. Butler

Robert A. Smith

BROWNSTEIN ZEIDMAN AND

SCHOMER

Suite 900

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 457-6500

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-1522

S. SIMCHA GOLDMAN,

Plaintiff,

SECRETARY OF DEFENSE, et ai.,

Defendants.

ANSWER

First Defense

The complaint fails to state a claim upon which relief

can be granted.

Second Defense

Plaintiff has failed to exhaust his administrative rem-

edies.

Third Defense

The defendants answer the numbered paragraphs of

the complaint as follows:

1. This paragraph contains plaintiff’s characteriza-

tion of his action, jurisdiction allegations, and conclusions

of law, to which no answer is required, but insofar as an

answer may be deemed to be required, defendants deny.

2. Admit.

3. Defendants admit this paragraph accurately de-

scribes plaintiff’s status in the Air Force on the date the

complaint was filed. Defendants aver that as of Septem-

ber 1, 1981, plaintiff is no longer on active duty in the Air

Force, no longer is assigned to the Air Force Regional

Hospital at March Air Force Base. Defendants further

aver that plaintiff still holds a Reserve commission in the

United States Air Force.

4. Deny first sentence. Deny second sentence, except

admit that plaintiff wears a skull cap (‘‘yarmulke’’) at

all times.

5. Admit first sentence. Admit second sentence, ex-

cept deny that wear of the yarmulke is required by plain-

tiff’s religion.

6. Admit.

7. Admit.

8. Admit.

9. Admit.

10. Admit.

11. Admit first sentence, except deny that the wear

of a yarmulke is required by plaintiff’s religion. Admit

second and third sentences.

12. Admit.

13. Admit.

14. Admit.

15. This paragraph contains conclusions of law and

not allegations of fact to which an answer may be deemed

required, but insofar as an answer may be deemed re-

quired, defendants deny. >

16. Admit first sentence. Admit seconc sentence,

except deny there is no further appeal within the Air

Force concerning the letter of reprimand plaintiff has re-

ceived. Defendants aver that the Air Foree Board for

Correction of Military Records offers plaintiff a forum

for exhaustion of administrative remedies under 10 U.S.C.

§ 1552 (See 32 C.F.R. § 865.1 et. seq.).

17. This paragraph contains plaintiff’s characteriza-

tion of his action and conclusions of law, to which no an-

swer is required, but insofar as an answer may be deemed

to be required, defendants deny.

18. This paragraph contains plaintiff’s conclusions

of law to which no answer is required, but insofar as an

answer may be deemed to be required, defendants deny.

Defendants are not required to answer plaintiff’s

Prayer of Relief. Answering further, any and all allega-

tions of the Complaint not hereinbefore specifically an-

swered are denied.

Respectfully submitted,

/s/ Charles F. C. Ruff

United States Attorney

/s/ Royee C. Lamberth

Assistant United States Attorney

/s/ R. Craig Lawrence

Assistant United States Attorney

OF COUNSEL:

FRANCIS S. MORAN, JR.

Major, USAF

General Litigation Division

Office of the Judge Advocate Genera]

Washington, D. C. 20330

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PLAINTIFF’S DEPOSITION EXHIBIT “A”

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-1522

S. SIMCHA GOLDMAN,

Plaintiff,

SECRETARY OF DEFENSE, et. al.,

Defendants.

DEFENDANTS’ RESPONSES TO

PLAINTIFF’S INTERROGATORIES

The following responses by defendants to plaintiff’s

interrogatories are served upon plaintiff pursuant to Rule

33, Fed. R. Civ. P.:

2. With respect to plaintiff’s service in the Air Force

from September 1977 through May 7, 1981:

(a) State in detail and with specificity why plaintiff

was permitted to wear his yarmulke while in uni-

form at March Air Force Base during the entire

period;

(b) Describe in detail with specificity, including the

date(s) of and all persons involved in, each and

every adverse comment, reaction or criticism re-

ceived by defendants or any of their agents or

subordinates regarding plaintiff’s wearing of his

yarmulke while in uniform during the entire

period; and

directly or indirectly to your answers to this in-

terrogatory.

Response to 2.

(a)

(b)

When Captain Goldman came to March AFB in

1977 he kept a low profile in and about the hos-

pital. He did not take his meals in the cafeteria

and did not often leave his duty station at the

mental health clinic. To and from work he wore

his service cap over the yarmulke. In 1978 Col.

Smith, the hospital commander, received a com-

plaint about wearing the yarmulke at the hospital.

He contacted the Surgeon General at HQ SAC

and was advised that it was his decision as com-

mander whether or not to allow it. Col. Smith

decided not to confront Capt. Goldman over the

issue. In August of 1980 Col. Smith was replaced

by Col. Gregory. Col. Gregory questioned wheth-

er or not Capt. Goldman should be allowed to

wear the yarmulke while in uniform. He was

advised by Col. Robert Young, then hospital ad-

ministrator, now a member of HQ SAC/SG staff,

that the previous hospital commander had allowed

it. Because of this Col. Gregory decided not to

confront Capt. Goldman at that time.

In 1978 the hospital commander, Col. Smith, re-

ceived a complaint from CMS. George Johnson,

the NCOIC of nursing services, about Capt. Gold-

man wearing a yarmulke on duty at the hospital.

In April 1981, Maj. Rakowsky received a com-

plaint from Capt. Daniel F. Bouchard, circuit trial

counsel, that Capt. Goldman had appeared to testi-

fy in a court-martial wearing a skull cap. This

complaint was relayed to the hospital commander,

Col. Gregory.

81. Affidavit of Capt. Daniel F. Bouchard dated

16 July 81.

3. With respect to Colonel Gregory’s order issued to

plaintiff on or about May 8, 1981, directing plaintiff to

stop wearing his yarmulke while in uniform at all places

at March Air Force Base other than the Regional Hos-

pital:

(a) Explain in detail and with specificity the basis

for Colonel Gregory’s order;

(b) State whether you maintain that plaintiff’s

wearing of his yarmulke while in uniform at the

Regional Hospital violates the provisions of AFR

35-10;

onel Gregory consulted in connection with his de-

cision to issue the May 8, 1981 order to plaintiff;

and

(d) Identify each and every document which relates

directly or indirectly to your answers to this inter-

rogatory.

Response to 3.

(a) Prior to April of 1981 Col. Gregory had been ad-

vised and believed that Capt. Goldman had per-

mission to wear the yarmulke at the hospital. In

April 1981 he was advised that Capt. Goldman

had appeared to testify in a court-martial wear-

ing the yarmulke in violation of AFR 35-10.

Based upon this information and Col. Gregory’s

understanding that Col. Smith had allowed Capt.

Goldman to wear the yarmulke at the hospital,

Col. Gregory ordered Capt. Goldman to wear the

yarmulke only at the hospital.

(b) Yes.

Maj. Ronald J. Rakowsky

Lt. Col. Ledro Justice

Col. James R. Plummer

Col. Julius Archie

(d) Memo dated 8 May 1981.

* . *

5. With respect to Colonel Gregory’s June 23, 1981 order

to plaintiff directing that he remove his yarmulke at all

times and at all places while in uniform:

(a) Explain in detail and with specificity why Col-

onel Gregory changed his order from that initial-

ly issued on May 8, 1981;

(b) Identify each and every individual with whom

Colonel Gregory consulted with respect to the is-

suance of his June 23, 1981 order; and

directly or indirectly to your answers to this in-

terrogatory.

Response to 5.

(a) From the period of May 8, 1981 to June 23, 1981,

the parties in this dispute were attempting to

reach an acceptable compromise. Col. Plummer,

the installation Chaplain contacted Chaplain

Madden at HQ SAC/HC in order to ascertain

whether or not the wearing of a yarmulke was a

requirement of the Jewish Orthodox religion.

Chaplain Madden did not know so Col. Plummer

contacted Rabbi Selwyn G. Geller at HQ ATC/

HC. Rabbi Geller advised Col. Plummer to con-

tact the Jewish Welfare Board (JWB), Col.

Plummer was advised by both Dr. Coram and

Rabbi Messing at the JWB the wearing of a yar-

mulke was highly recommended and encouraged

but as not required. A Rabbi Kobrinetz, USAF

Reserve colonel, was sent to March AFB to speak

with base command personnel and Capt. Goldman

in an attempt to resolve the matter. On June 15,

1981, while Rabbi Kobrinetz was at March AFB,

Col. Gregory was contacted by Brig. Gen. Green-

dyke, HQ SAC/SG, who advised Col. Gregory to

order Goldman not to wear the yarmulke at any-

time while in uniform. Col. Gregory spoke with

Col. McDonald and was advised to take no action

until Rabbi Kobrinetz had had an opportunity to

speak with Captain Goldman. After all attempts

to resolve the matter failed, on June 23, 1981, Col.

Gregory ordered Capt. Goldman not to wear the

yarmulke while in uniform.

(b) Col. Plummer, Maj. Rakowsky, Col. McDonald,

Brig. Gen. Greendyke, Col. (Rabbi) Kobrinetz.

for record dated 22 June 1981; three memos for

record dated 23 June 1981; order dated 23 June

1981.

6. With respect to Colonel Gregory’s issuance of a letter

of reprimand to plaintiff on June 24, 1981:

(a)

(b)

(c)

(d)

State in detail and with specificity why Colonel

Gregory felt it necessary and appropriate to is-

sue a letter of reprimand or to pursue any sanc-

tions against plaintiff for his failure to remove

his yarmulke while in uniform;

Identify each and every individual with whom

Colonel Gregory consulted with respect to the

issuance of a letter of reprimand te plaintiff on

June 24, 1981;

State the substance of each and every discussion

between or among Colonel Gregory and any in-

dividual identified in response to subparagraph

(b) above; and

Identify each and every document which relates

directly or indirectly to your answers to this in-

terrogatory.

Response to 6.

(a)

(b)

On June 23, 1981 Capt. Goldman was given a

direct and lawful order by his commander, Col.

Gregory, not to wear his yarmulke while in uni-

form. On June 24, 1981 Capt. Goldman appeared

in uniform, wearing the yarmulke, in violation of

Col. Gregory’s order and in violation of AFR

35-10. For this reason he received a letter of rep-

rimand for violation of AFR 35-10.

Col. MeDonald, Col. Blaisdale, Col. Plummer, Lt.

Col. Hayslett, Major Rakowsky.

active participation and advice of Major Ronald

J. Rakowsky in his capacity as legal advisor. The

(d)

substance of any discussion is therefore privi-

leged. In one discussion subsequent to the June

24, 1981 letter of reprimand and prior to Capt.

Goldman’s response Col. Gregory spoke with

Col. McDonald and was advised that any action

taken should be commensurate with the offense

and that if Capt. Goldman continued to violate

Col. Gregory’s order and AFR 35-10 future prog-

ressive levels of discipline should be taken.

Two memos for record dated 15 June 1981; memo

for record dated 22 June 1981; three memos for

record dated 23 June 1981; order dated 23 June

1981; two memos for record dated 24 June 1981.

7. With respect to Colonel Gregory’s decision to with-

draw his previously positive recommendation on plain-

tiff’s application for an extension of service in the Air

Force and to substitute, in its stead, a negative recommen-

dation ou that application:

(a)

(b)

State in detail and with specificity why Colonel

Gregory felt it necessary and appropriate to

withdraw his previously positive recommenda-

tion and substitute a negative recommendation

against plaintiff for his failure to remove his yar-

mulke while in uniform;

Identify each and every individual with whom

Colonel Gregory consulted with respect to his

withdrawal of his previously positive recommen-

dation and substitution of a negative recommenda-

tion against pleintiff on June 24, 1981;

(c)

State the substance of each and every discussion

between or among Colonel Gregory and any indi-

vidual identified in response to subparagraph (b)

above; and

(d) Identify each and every document which relates

directly or indirectly to your answers to this in-

terrogatory.

Response to 7.

(a) In early May 1981 the Air Force Office of Special

(b)

Investigation (AFOSI) completed an investiga-

tion of Capt. Goldman concerning allegations that

he had received monetary compensation for work

performed off-base during normal duty hours. At

this same time Capt. Goldman went to Col. Greg-

ory with a request to extend his service in order

to apply for indefinite reserve status. Because of

the unfavorable information contained in the

AFOSI report Col. Gregory gave Capt. Goldman

a tentative positive recommendation. When Capt.

Goldman’s subsequent behavior showed a disre-

gard for Air Force regulations and command

authority Col. Gregory decided to withdraw the

tentative recommendation and replace it with a

negative recommendation.

Col. McDonald, Col. Blaisdell, Col. Plummer, Lt.

Col. Hayslett, Major Rakowsky.

of Major Ronald J. Rakowsky in his capacity as

legal advisor and the substance of said discus-

sions is privileged.

(d) AFOSI investigation No. 8118D95-18; letter of

reprimand; request to establish active digest file

with attachments.

____8. Identify each and every person, civilian or military,

who has complained to defendants or any of their agents

concerning plaintiff’s wearing of a yarmulke while in uni-

form at March Air Force Base, and with respect to each

person identified, state the substance of their objections,

the date on which each such objection was made, and to

whom each such objection was made, and identify each and

every document which relates directly or indirectly to your

response to this interrogatory.

Response to 8.

CMS George Johnson, NCOIC of Nursing Services,

complained to Col Lawrence Smith, the hospital com-

mander, in 1978. He related that several of the

younger Air Force members were upset that they

were required to live up to standards of dress and

Grooming while Capt. Goldman was not. In April of

1981 Capt. Daniel F. Bouchard, Cireuit Trial Counsel,

complained to Major Ronald J. Rakowsky, the Staff

Judge Advocate, that Capt. Goldman had appeared

to testify in a court-martial wearing a skull cap in vio-

lation of AFR 35-10. CMS. Johnson has executed an

affidavit dated 23 July 81 and Capt. Bouchard has

executed an affidavit dated 17 July 81. Charles

Thompson (MSgt, retired) sent a letter to Maj. Gen.

Emmanuel, Assistant Deputy Chief of Staff for Man-

power and Personnel, a copy of which is delivered

herewith to plaintiff. H. Katz sent a postcard to Judge

Robinson, ¢/o March Air Force Base, a copy of which

is delivered herewith to plaintiff. Ted Barbee sent

a letter to the Secretary of Defense, a copy of which

is delivered herewith to plaintiff.

9. With respect to Air Force Regulation 35-10:

(a)

(b)

(c)

(d)

(e)

State all exemptions which have been permitted

by the Air Force to the express requirements of

AFR 35-10, and identify all individuals who have

requested such exemptions and all documents

which relate directly or indirectly to requests for

such exemptions;

State whether the Air Force allows mini:ters or

other religious functionaries to wear clothing

other than that specified in AFR 35-10, and if so,

describe in detail and with specificity each varia-

tion permitted ;

State whether there are other individuals in the

Air Force whom the Air Force allows to wear a

yarmulke despite the provisions of AFR 35-10,

and, if so, identify each and every such individual ;

State whether the Air Force allows for any relig-

ious observances which violate the express provi-

sions of AFR 35-10 and, if applicable, state in de-

tail and with specificity each and every such re-

ligious observance which the Air Force allows, and

identify each and every person in the Air Force

for whom such variations are granted;

Identify each and every document which relates

directly or indirectly to your answers to this in-

terrogatory.

Response to 9.

(a) No exemptions to AFR 35-10 requirements have

been granted to members as a result of their in-

dividual request. While provisions for exemption

exist in the regulation they apply to certain cate-

gories or groups of persons based on medical rea-

sons or operational necessity. Currently, unit

commanders are authorized to exempt individual

members from shaving as part of the medical

treatment for Pseudofolliculitis Barbae (ingrown

hairs). Exemptions are granted based on medi-

cal recommendation and not individual request

and normally do not exceed 90 days. As such, they

are temporary in nature and do not constitute

a permanent change to appearance standards.

Exemption authority for beards is contained in

AFR 35-10, Table 1-1, Line 1.

Additionally, the Commander, Office of Spe-

cial Investigations, has been delegated authority

to exempt dress and grooming requirements for

selected members engaged in investigative and

counterintelligence situations where strict adher-

ence to the standards could compromise the opera-

tions. Waiver requests and approval, dated 29

September 1974, 4 November 1974 and 5 May 1978.

Authority for exemptions in both of the above

cases is delegated to field commanders for use on

an as required basis. Names of members granted

the waivers are not readily available as we have

established no requirement for units to report the

desired data.

(b)

(c)

(d)

Chaplains and chapel management personnel wear

vestments, appropriate civilian attire, or the pre-

scribed Air Force uniform when they conduct or

assist with worship services, liturgies and cere-

monies. (para 11, AFR 265-1) These are nor-

mally scheduled occasions, such as Sunday/Sab-

bath services and scheduled services on holy days

established in the liturgical calendar of the re-

ligious group to which the celebrant belongs.

Vestments, or portions thereof, might also be

worn by a chaplain in performance of emergency

rites, such as baptisms, confessions, or last rites

for the dying, which by nature are not scheduled

events. In such cases, wearing of non-uniform

items would be only during the actual perform-

ance of the rite. Vestments of civilian attire worn

for scheduled observances, or portions of such

vestments worn for emergency ministries, are

limited to those prescribed by the religious group

to which the celebrant belongs.

Exemption authority for AFM 35-10 standards of

dress and grooming rests with the Air Force Man-

power and Personnel Center, Randolph Air Force

Base, Texas. No exemption has been granted to

wear a yarmulke. Defendants have recently dis-

covered an individual on active duty, Chaplain

(Rabbi) Fred Lewin, who is known to wear a

yarmulke in uniform. To our knowledge, he has

not applied for nor been granted, an exemption

to do so.

Dress provisions described in paragraph (b)

above although not specifically addressed in AFR

35-10 are permitted during scheduled religious ob-

(e)

servances or emergency ministries for the dura-

tion of services only. In addition, chaplains con-

ducting military religious ceremonies give guid-

ance for wear of military headgear. Otherwise,

headgear will not be worn during religious serv-

ices not associated with a military ceremony

(AFR 35-10, paragraph 1-6h (2) (d)). Notwith-

standing this restriction and the prohibition on

wear of non-uniform items with the uniform, wear

of the yarmulke while in uniform is allowed while

attending Sabbath or holy day services. In these

eases, the yarmulke is worn only within the con-

fines of the facility in which the service is held,

and only for the duration of the service.

All documents are referenced in response 9. (a)-

(d), above.

10. State whether the Air Force has made inquiry con-

cerning,

commissioned a study of, or otherwise sought to

determine whether the wearing of yarmulke by an airman

interferes with the Air Force’s performance of its military

mission, and if so, identify each such inquiry, and identify

each and every document which relates directly or indirect-

ly to your answer to this interrogatory.

Response to 10. No

11. Identify all studies made by the Air Force or relied

upon by the Air Force concerning:

(a)

Psychological attitudes which contribute to mili-

tary effectiveness; and

(b) Development and maintenance of intrinsic moti-

vation in the military setting; and

a dress code and discipline, morale, esprit de

corps and mission effectiveness; and

(d) The formation of policies regarding uniformity

of dress by Air Force personnel, including any

harm to the Air Force’s military mission caused

by lack of uniformity.

Response to 11.

It is impossible to determine specifie studies or the

confluence of empirical data upon which defendants can

reasonably state decisions have been based concerning the

four subparagraphs of question 11. However, in an at-

tempt to provide plaintiff with an available source of em-

pirical knowledge in these areas, defendants have attached

hereto listings of studies in each of the four areas, not

necessarily limited to those made by the Air Force. Such

studies are available for production at the Defense Tech-

nical Information Center, Cameron Station, Virginia, and

may be inspected there.

13. State in detail and with specificity the basis upon

which defendants contest the validity and/or authenticity

of plaintiff’s religious belief and practice of wearing a

yarmulke at all times; identify all persons with whom de-

fendants or their agents have consulted with respect to the

validity of plaintiff’s observances and practices; and iden-

tify each and every document which relates directly or in-

directly to your answers to this interrogatory.

Response to 13.

Col. James R. Plummer, the base Chaplain, contacted

Chaplain Madden (HQ SAC/HC), Rabbi Geller (HQ

ATC/HC), Dr. Coram (Jewish Welfare Board). He was

advised by Dr. Coram and Rabbi Messing that the wearing

of a yarmulke is a time honored tradition of the Jewish

culture. They further advised that although it is encour-

aged it is not required. Defendant has also been advised

by Rabbi Kobrinetz, a USAF Reserve colonel, that the

wearing of a yarmulke is not required.

The foregoing responses are based upon information fur-

nished by the appropriate staff agencies. I declare under

the penalty of perjury under the laws of the United States

of America that the foregoing is true and correct. Exe-

cuted on August 17 1981.

/s/ Francis S. Moran, Jz. Mason, USAF

General Litigation Division

Office of The Judge

Advocate General

United States Air Force

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action

No. 81-1522

S. SIMCHA GOLDMAN,

Plaintiff,

CASPAR W. WEINBERGER,

Secretary of Defense,

Et Al.,

Defendants,

Washington, D. C.

Thursday, September 10, 1981

The above-entitled cause came on for trial before The

Honorable Aubrey E. Robinson, Jr., United States District

Judge, commencing at 9:42 A.M.

Appearances:

On behalf of the Plaintiff:

David J. Butler, Esq.

Nathan Lewin, Esq.

Robert Smith, Esq.

On behalf of the Defandants:

R. Craig Lawrence, Esq.

Assistant United States Attorney

Maj. Frank Moran, U. S. Air Force

Air Force Litigation Division

(p. 10) MR. LAWRENCE: May it please the court:

Iam Craig Lawrence, Assistant United States Attorney. I

represent the defendants in this action.

With me at counsel’s table is Major Frank Moran of

the Air Force Litigation Division. He will assist in the

presentation of the defense.

Your Honor needs very little further introduction into

the case currently before you. The critical question re-

maining for Your Honor’s determination is whether the

Air Force is able to justify the basis for the regulation

and its requirement that uniform dress and appearance

standards are necessary to prepare the Air Force to per.

form its mission.

Your Honor, we will call three witnesses. Those wit-

nesses will reflect in two parts.

General Usher will testify briefly with regard to

mission impact and the necessity for the regulation.

(p. 11) Chief Master Sergeant Matthews will tes-

tify as to, in particular, reactions to the determinations

which have been made as a result of the awareness of

Captain Goldman’s wearing of the yarmulke.

And, finally, Chaplain Reeves will testify briefly

about religious practices and traditional dresswear of

other religions.

Your Honor, on that basis, the defendants would call

their first witness, Major General Usher, to the stand.

The Court. Very well.

(p. 12) Direct Examination

BY MR. LAWRENCE:

Q. General Usher, would you please state your full

name for the record.

A. Iam Major General William R. Usher.

Q. General Usher, how long have you been in the Air

Force approximately?

A. I have been in the Air Force about 26 years.

Q. General Usher, would you please briefly describe

your educational background.

A. Iam a graduate of Yale University with a degree

in Economies, and I have a master’s degree from Harvard

University Graduate School of Business Administration.

And I am also a graduate of the Armed Forces Staff

College.

Q. General Usher, if you would, please, for the court

briefly describe what the mission of the Air Force is

today.

A. The United States Air Force, of course, is an in-

strument of national security of our nation and is respon-

sible for, in concert with the other military services, de-

fending this nation against our enemies.

In short, that means conducting combat operations

against an enemy.

Q. What goes into the makeup of a fighting force

or a (p. 13) combat ready fighting force, in particular, the

_Air Force?

A. I think the essence of a successful combat force,

of course, involves equipment sufficient to carry into bat-

tle to the enemy, weapons which are effective; but, most

important, it involves people who are highly trained,

motivated, disciplined, and molded into a fighting unit.

Q. General Usher, what part does teamwork play

in the makeup of a combat ready fighting force?

A. Teamwork is certainly extremely important, in-

deed, in many respects, it is the cutting edge.

If I can use, for example, in Air Force combat opera-

tions, for instance, we are very much involved in maxi-

mizing the number of sorties that we get out of aircraft.

What we want to be able to do is to carry that fight

to the enemy as much as we possibly can.

What we are much engaged in then is putting together

a sort of a well-oiled machine of people, a team, if you

will, when an aircraft lands from a mission, to immediate-

ly refuel it and so forth, rearm it, and get it on its way

again.

That requires a very high degree of teamwork that

has to be practiced a great deal in peacetime to meet needs

in wartime.

Q. General Usher, what part does motivation play

in the makeup of an effective combat ready fighting force?

A. Well, again, it is part of that cutting edge.

(p. 14) We are a volunteer force, and that is initial

element, if you will, of motivation; and the people come

into the air force voluntarily. And, of course, when they

do so, they do agree to adhere to certain standards.

But to the point of motivation per se, we know that

in combat operations that willingness to give the extra

effort, the willingness to do that which is above and be-

yond, more often than not results in success in combat.

Q. General Usher, where does discipline come into

play in the makeup of an effective fighting force?

A. Well, of course, combat inevitably involves

people’s lives; and both for commanders and subordinates,

discipline is just absolutely essential because you are ask-

ing people to do things that may result in them being in-

jured, them being wounded, and them losing their lives.

And you have to be sure again that this teamwork

approach works, that it does not break down, that every-

body knows their task, they carry it out in a truly obedient

way, and according to the way they have been taught.

You must be able to rely on them. Otherwise, if you

cannot, the combat effectiveness of the unit will break

down and you are thereby endangering a lot more lives.

Q. General Usher, where does esprit de corps fit into

the makeup of an effective combat ready fighting force?

A. Well, we know from experience that people who

are (p. 15) proud of their organization, who are not only

caused to subordinate their personal interests to the pur-

poses and mission of the organization, but do so willingly

and do so as a voluntary matter that they want to serve the

purposes of the mission and are proud to do that, then

we know we have a more effective fighting unit.

Q. General Usher, what part does image play in the

preparation and readiness of a combat ready fighting

force?

A. Well, of course, we are a public institution; and

all of our members, because we are a uniformed service

and people anywhere they go—around here or anyplace—

we represent the United States Air Force.

And we represent the United States Government, its

officers and men of a uniformed service.

Now, we are in the business, of course, of recruiting

people from the American public. We are in the process of

gaining public support for the kinds of things that we do

in peacetime and then in wartime. And we are in the

business of trying to retain those people in our military

service after we have invested great amounts of money in

training them and so forth.

So when people look at us, they think, ‘‘well, there is

an example of who is in the Air Force or the Army or the

Navy and what have you.”

And so our public image is very important to sustain-

ing the United States Air Force as a force, as attracting

good (p. 16) people, retaining good people, and thereby

having top quality people who are proud of their organiza-

tion and so forth that they will be a more effective fighting

force than if we were less than that.

Q. General Usher, are you familiar, in general, with

the requirements of Air Force Regulation 35-10?

A. Yes, I am.

Q. Would you briefly describe what the regulation

requires.

A. The regulation is many pages long. It sets up in

quite extensive detail what the requirements are for the

wearer of the uniform, men and women in the active and

reserve forces of the United States Air Force.

And it states as its purpose that, of course, we are a

uniformed force; anc ., I have just outlined, that pride

and esprit and discipline and that sort of thing is impor-

tant, and it is manifested in the wearer of the uniform.

Again, it portrays the subordination of personal in-

terests to the purpose of the organization, which is essen-

tial for an effective military force.

Q. General Usher, are there exceptions to the re-

quirements, dress and appearance requirements, of AFR

35-10?

A. Yes, there are a few.

First of all, for instance, if an individual were to be

injured or wounded in combat or something like that,

(p. 17) of course, a person would Necessarily, because they

did not have an alternative, would have to depart from a

strict reading of Air Force Regulation 35-10 with respect

to the wearer of the uniform.

Q. Could you give an example, General Usher?

A. Well, let us say that somebody was wounded in

his arm or something like that, and it required him to wear

a sling, Air Force Regulation 35-10,<n general, does not

call for exceptions. The general rule is that you will ad-

here to the regulation, for instance, that only authorized

combinations are allowed to be worn.

You will not wear items that are not called for in the

regulations; and that people, while they are on duty, in

fact, will adhere to the stipulations that are in the regu-

lations.

On the other hand, if you had somebody who was

wounded in the arm and he had to wear a sling, obviously,

that sling is not part of the uniform; it is not technically

allowed in 35-10; but on the other hand, really, the indi-

vidual would have no choice.

And, furthermore, we would want him to do that be-

cause we would like to get—let us say, it is his left arm and

he is right-handed, and he might be able to do some limited

amount of work by writing and so forth, even though he

would be restricted perhaps in some other activities.

(p. 18) In other words, we could get some useful serv-

ice out of him, which would be important particularly in a

wartime situation, whereas he is not strictly following

35-10.

Q. That is a general exception that you just dis-

cussed that would apply also in peacetime, would it not?

A. It would.

Q. General Usher, are there any religious excep-

tions to the requirements of 35-101

A. There is one exception in 35-10. This is as it is

stated: It says when somebody is participating in a re-

ligious service, that the chaplain in charge of that service

may specify the headgear to be worn by individuals while

they are participating in that religious service. But it is

limited to that.

Q. Are there other religious exceptions, General

Usher?

A. No, sir, there are not.

Q. General Usher, what part do the dress and ap-

pearance standards of the regulation play in the disci-

pline of a combat ready fighting force?

A. Well, again, I would like to go back to what I

said earlier.

When people come into the Air Force, they do so vol-

untarily. The military is different from the rest of so-

ciety. We do, when we come in voluntarily, agree to take

on certain obligations and we agree to give up certain

rights with respect to complete freedom of speech and so

forth.

(p. 19) And we do this because, again, we know that

to be successful in combat—that is their only real purpose

for being in existence—it is necessary to subordinate the

personal tastes and interests to the purpose of the organi-

zation.

And while one of the most effective ways we have

found throughout history and it has been confirmed

in combat is that you put people in the same uniform; you

standardize; you require them to be part of that organiza-

tion, be part of that team which has been designed and put

together as an effective combat unit.

Q. What happens to discipline when you depart from

those uniform standards?

A. Well, when you depart from that, - start an

erosion process.

For instance, if we have in a particular case—here, we

have an officer who is not following the regulation; and

we have some evidence to indicate that NCO’s on the same

base felt that that or believed that that eroded their author-

ity to enforce other regulations upon their subordinates

and so forth.

Now, it sets a bad example. It is a departure from

the standards and norms that are expected.

Now, from a subordinate’s standpoint, what you typi-

cally hear—in cases that I have been familiar with over

my career—is to say, “why are you giving me an Article 15

because I was 15 minutes late to work when so-and-so, you

know, is not (p. 20) even wearing the uniform properly?”

or ‘‘he is not doing that.”

You have to have consistency and fairness in order to

insure discipline across the board. If you do not have that,

discipline begins to break down.

And as I pointed out earlier, discipline is just abso-

lutely essential to success in combat. You cannot have

people deciding whether they want to carry out an order

under fire or not; otherwise, you would place great num-

bers of people and their lives in jeopardy.

Q. General Usher, what part do the standards of

AFR 35-10 play in the motivation of an effective combat

ready fighting force?

A. I think primarily the medium of pride. And we

have, I think, an attractive and distinctive uniform. We

have tried to keep it plain and simple and so forth over

the years.

I think it is recognized by the public and by people

of other countries because of humanitarian missions and

things that we carry out as a symbol of what is good and

just and so forth in the United States.

And we try to pass that tradition, that feeling, on to

the individual.

And, therefore, you cannot have somebody deciding

that he wants to wear the uniform or parts of it this way

or add this to it or take that away from it. You need that

(p. 21) standardization in order to engender that pride;

and that pride, in turn, engenders motivation.

Q. General Usher, what part do the standards of

AFR 35-10, being the uniform dress and appearance stan-

dards, play in your teamwork in the makeup of a combat

ready righting force?

A. Well, if I can again use the example of the re-

turning airplane. One of the key elemerts of that is the

weapons-loading crew, for instance; and we are talking

about fatigues or field uniform.

But they all know that they are part of that team, and

they all have the same uniform distinguished by rank, and

they know who is in charge; they know who is subordinate.

They know their relationship; they know what they

have to do.

They are trained together, and that uniform just helps

with that standardization and it helps build that unit’s

prestige.

Q. In that regard, your flight line, I guess, that you

are talking about—is there a safety aspect involved?

A. There is very definitely; and, in fact, that is cover-

ed in Air Force Regulation 35-10.

Again, the necessity for standardization comes in here.

If an individual is wearing extraneous things of one kind

or another, there is both a safety consideration and there is

a monetary consideration.

(p. 22) For instance, let us say we will not let people

wear caps of any kind on a flight line or anywhere near a

jet engine.

Q. Why is that?

A. Well, for instance, if it were injected into the

engine, a couple of things could happen: First of all, an

F-15 AF engine costs well over a zillion dollars a copy

and it could absolutely destroy an engine. That is the

first thing.

The second thing is there is the possibility the engine

might blow up and cause injury or death to other people

associated with it, maintaining or flying the aircraft.

So we have to be very, very careful that people adhere

to our standards there from a safety standpoint.

Q. General Usher, what part do the standards of

AFR 35-10 play in maintaining the Esprit De Corps in a

combat ready fighting force?

A. Well, again, the tradition of the uniform is a

long one with the Air Force. Since we have been in exist-

ence, we have had very, very minor alterations to the ap-

pearance of the uniform ever since we became an accepted

service in 1947.

Of course, rank is very important to the hierarchial

nature of a military force. Ribbons and combat decora-

tions that our people wear are representative of their ex-

perience, their valor, their courage in battle, and so forth.

And all of these things are the marks of achievement

in a military organization.

(p. 23) And another thing that is not a part of that,

tends to depart from that, to divert from that. And it is

recognized by an individual’s peers, subordinates, super-

iors, by the public, by foreigners as being the epitome of

people in the United States Air Force.

While that builds amongst members of the Air Force,

as I say, pride, esprit, they recognize them as they are

part of an organization which is well respected throughout

this land and others. And they then take pride, and they

want to be high performers, if you will, in that organiza-

tion.

Q. General Usher, how does one person’s departure

from Uniform Dress and Appearance Standards, as man-

dated by Air Force Regulation 35-10, affect the ability of

the Air Force to perform its mission?

A. I think—in the final analysis, I think it is a mat-

ter of where you draw the line.

We have set standards as the regulation itself points

out. We have; we have set standards because everybody

has personal standards and tastes and what have you, but

being a public institution, we have to set those standards

for all who are members.

So if one person departs from that, you are setting

in motion a process where, if they are not broughi back

to that standard, you are then saying that you accept that.

And then others will come to you and say, “well, look,

(p. 24) I have got a particular thing that I would like to

do and why cannot I do that?”

So it begins to unravel; in other words, you cannot

draw a line. You have to begin to accept other deviations,

if you will, from the established standard. And I do not

know where it would end.

As I pointed out earlier, the other consideration is

that, again, it influences discipline. Because then, if you

allow this kind of a deviation on the part of an individual,

particularly by an individual who is an officer and who is

meant to be the epitome of a standard, the example, then

it is very difficult then to enforce other kinds of standards

or the dress standard itself on other people that are mem-

bers of the Air Force by supervisors and commanders.

Q. Thank you, General Usher.

MR. LAWRENCE: I have no further questions at

this time, Your Honor.

Cross-Examination

BY MR. LEWIN:

Q. General Usher, what is your specific position

right now?

A. I am the Director of Personnel Plans at Head-

quarters, United States Air Force, in Washington, D. C.

Q. So you are located here at the Pentagon in Wash-

ington?

A. That is right.

(p. 25) Q. And have you been at any time in charge

of March Air Force Base?

A. No, I have not.

Q. Have you been involved svecifically with any

decisions that the Air Force made concerning the case of

Captain Goldman?

A. In the sense of being aware of the kind of the

case and being aware of the contents and so forth.

As far as deciding if you are leading to whether we

should settle the case out of court or in court, no, that was

not my decision.

Q. In terms of command decisions, the whole question

of how one deals with Captain Goldman’s situation, was

not, in fact, under your supervision in any way, was it?

A. No, not under my supervision and—no, it is not.

Q. And do you have any personal knowledge of the

consequences of Captain Goldman’s having worn his yar-

mulke while he was at March Air Force Base—personal

knowledge?

A. Just from what I have read from the statements

that have been brought before in court.

Q. So you are essentially testifying here regarding

general desirability of Air Force regulations. Is that cor-

rect?

A. I am testifying here to what our regulations are

and why they are the way they are, what the standards

are.

Q. But with regard to this particular case, you (p. 26)

understand, General Usher, do you not, that it involves the

question of whether a particular member of the Orthodox

Jewish faith in March Air Force Base should be permitted

to wear a skulleap which he wears for religious reasons?

Do you understand that that is the issue in this particular

case?

THE COURT: Well, it may be.

But the reason we are having a trial, as I indicated

to you at the outset of this litigation, is that without bring-

ing this into a class action status, what goes for Goldman

is going to go for all the other Orthodox Jews in the Air

Force...

MR. LEWIN: Yes, Your Honor.

THE COURT: .. .For all practical purposes. There

is a legal proposition.

Otherwise, we go on endlessly as the Goldmans in the

Air Force, the Navy, and the Army choose to litigate this

on an individual basis.

It was the Court’s opinion that they should not have

that burden, nor should the Department of Defense

or any of the services have to bear that burden end-

lessly, especially in view of the fact that we are now

going into draft registration where more and more people

ultimately will be affected.

And I think it is the kind of situation that dissolves

a finite resolution with all of the services, all of the pros-

pective members of the Air Force, to know exactly where

they stand vis-a-vis their alleged Constitutional rights.

(p.27) MR.LEWIN: Yes, Your Honor.

THE COURT: To me, that is an orderly way to re-

solve the issue.

So that, in a sense, we are concerned about Captain

Goldman because it is his case that allows us to address

this in an orderly fashion.

This is why there is no particular dispute as to what

happened to him. That is why the government’s admis-

sions, the Secretary of Defense’s admissions, are as candid

and as clear as they should be.

MR. LEWIN: Yes, Your Honor.

BY MR. LEWIN:

Q. Your testimony, General Usher, is directed, as my

notes indicate, to various particular justifications for an

Air Force dress code in general. Is that right?

A. That is correct.

Q. Now, are these specific items that you listed, which

I think come down to discipline, teamwork, motivation,

esprit de corps, and image—are they based on any specific

study that the Air Force has made in this case?

A. Not to my knowledge.

And I would not think that a study would be required;

I would think that experience in several wars would be ade-

quate.

Q. And your conclusions in that regard, that you

have testified to, are they based on any particular back-

ground in (p. 28) psychology, say?

THE COURT: ‘Well, let me interject.

As I understood General Usher, these are not his

personal conclusions. These are the conclusions of the

United States Air Force, who General Usher represents.

So this does not get into situations of what General

Usher’s views are.

THE COURT: You are now speaking for the United

States Air Force?

THE WITNESS: That is correct.

THE COURT: All right.

BY MR. LEWIN:

Q. In answer to His Honor’s question, you said you

are speaking for the Air Force. Are these particular items

that you enumerated enumerated in some Air Force study

based on, say, an expert evaluation of any kind of psycholo-

gists or any thing of that kind?

A. Not to my specific knowledge, although they may

be.

I am sure the characteristics that I talked about are

alluded to in probably numerous Air Force publications,

you know, associated with an effective combat force.

Q. I understand.

But is it fair to say that the Air Force has not done any

psychological study of the effects of any individuals’ de-

parture from the dress code?

(p. 29) A. Not to my knowledge.

Again, I think our experience has put us in good stead

here so that we understand...

Q. All right.

You say “Not to your knowledge.” You are the direc-

tor of personnel vlans. Is that right?

A. That is correct.

Q. So, essentially, it would be your function to be

looking into questions—planning regarding personnel,

manpower?

A. By all means.

Of course, we have limited resources: and there are

certain things that you know that go on.

And, as I say, on the basis of experience—and I am

not sure whether an empirical study would necessarily add

to this question.

Q. Well,...

A. We know through the medium, for instance, if I

can give you an example, through the medium of periodic

operational readiness inspections in peacetime as well as

actual combat experience, I think which many of us have

including myself, I think we know beyond doubt what it

takes to make an effective combat force.

Another thing comes to mind—and I do not know if it

hits the point you are trying to make—but you may recall

back in the early seventies where there were difficulties

on (p. 30) board a couple of Navy ships.

A subsequent congressional investigation for one

thing pointed out that discipline had lapsed below accept-

able standards; and part of it was a general slovenliness

and departures from Navy uniform regulations that they

thought contributed to that.

So i think there is ample evidence to support my as-

sertions with respect to the purpose of the service.

Q. But would you agree with me, General Usher, that

with regard to the question of whether an exception to

dress code requirements would affect military discipline,

if that exception were based on religious needs, that

there is realiy—there are really three separate questions:

one is whether a dress code is required and is useful—

that is the first question, and that was the main question

you were addressing your attention to. Is that correct?

A. That is correct.

Q. The second question would be whether an excep-

tion for a religiously-required form of dress would injure

or harm discipline in any way.

That is a second separate question, is it not, rather,

distinguished from the first?

A. Well, we do not—we are not attempting through

our regulation or anything to abridge anybody’s religious

freedom.

Q. All right.

(p. 31) A. And we are not—we do not distinguish, in

other words, between somebody who would do this for re-

ligious purposes or who would do it for any other purpose.

We are saying that, you know, that we have to set

standards for various reasons that I have mentioned.

Q. All right.

A. And those standards are there, and we expect

everybody who voluntarily—and everybody who is in the

Air Force is there as a volunteer and always has been, by

the way—that they will accept those standards.

Q. All right.

But you will agree with me, though, that it is possible

to consider a subsidiary question of whether a religious

exemption would interfere with military discipline? That

that could be considered as a separate question—would

you agree with that?

A. Again, I will not agree with the question as

stated because I say that our position is that we do not

make any exception on religious grounds. Of course, we do

not distinguish between religious and other grounds.

Q. You do not distinguish between religious and non-

religious grounds?

A. That is correct.

Q. All right.

And in that regard, in terms of your own func-

tion (p. 22) or any functions that you work on within the

Air Force, have you considered the impact of the First

Amendment to the United States Constitution in any way,

the provision which requires that the United States guar-

antee the free exercise of religion?

A. Here, of course, we do not believe that our uni-

formed standards, in fact, abridge those rights in any way.

People are still free to practice their religion as they

see fit. And I think, in fact, to get ahead of your point, I

think there is a considerable expert opinion that says that,

in fact, it is not necessary to wear the yarmulke to prac-

tice Orthodox Judaism during the time of employment.

Q. But you will agree that you are not an expert on

that?

A. Iam not an expert, but I have, in fact, read what

others have said. And we have got a lot of Orthodox Jews

in the Air Force who do not see any necessity of wearing

the yarmulke while they are being employed by the Air

Force.

Q. General Usher, with regard to the first question,

the general need for the dress code, you say that experi-

ee eT

ence in fighting wars has demonstrated that it is neces-

sary to have adress code. Is that correct?

A. Both in wartime primarily, as I mentioned, but

also in peacetime as well.

Q. You are familiar with the fact that there have

been very successful battles or wars fought by, indeed,

United States troops or American troops when there was

really no effective (p. 33) dress code?

A. That is correct. But I think also warfare has

changed since then, too.

Q. But there was substantial...

A. Sure.

Q. ... if one thinks specifically of the revolutionary

forces, for example?

A. That is right.

Q. Would you agree with me that they had substan-

tial esprit de corps?

A. I would.

Q. Would you agree with me that they had substan-

tial motivation?

A. Most of the time.

Q. Would you agree with me that in terms of their

image, so far as the Colonists were concerned, that their

image was good?

A. In some respects, but let us deal with that for a

moment.

Q. Fine.

A. In some respects, they did not have an alternative.

There was not any money to buy uniforms or anything like

that. We did not have a real independent United States

of America.

We did not have worldwide responsibilities. We were

not looked upon by people from other countries as a fight-

ing (p. 34) foree; we were looked upon as a revolutionary

force, not defenders of freedom around the world.

I think the context is entirely different...

Q. Because we did not...

A. ...from the present day.

Q. Because we did not have the funds to purchase

uniforms?

A. That is one of the reasons, but I think the con-

text is entirely different. I do not think your comparison

is all that apropos.

Q. Well, in modern times, do you know of military

forces which are effective even when they permit religious

adherents to wear yarmulkes, for example?

A. Iam sure there may well be.

Q. Like the Israeli Air Force. Do you know about

the Israeli Air Force...

A. Well, the Israeli Air Force, that may well be;

and perhaps you may find that there are other cases.

But we are dealing with an American fighting force,

which I think—the Israeli Air Force, for example, is a

unique and peculiar situation where you have basically a

religious state. We do not have that here.

We have people from all religious beliefs, walks of

life, and some with no religious beliefs that are members

of our armed forces. I think we have to take that into ac-

count.

(p. 35) Again, we have to deal with that public image,

the American public expectations of their fighting forces,

which is essentially different.

Q. I understood you to testify, General Usher, that

the key reason why an exception or a departure from

AFR 35-10 would affect the Air Force, is that other people

would view it as a violation of military discipline and it

would be impossible to draw the line. Is that correct?

A. That is correct essentially.

Q. In fact, if there were an exception for religious-

belief-motivated departures from Air Force code, Air

Force dress code, then such departures would be authorized

by the regulations, would they not?

A. Presumably.

Q. And, consequently, people who would wear cloth-

ing such as a yarmulke, which is a departure from the Air

Foree code pursuant to that exception, would not be vio-

lating the Air Force regulation. Is that right?

A. If specifically authorized, yes, sir.

Q. So in those circumstances, it would be clear to

other personnel that those departures are not violations

of discipline but are, in fact, permitted by the Air Force?

A. But it might be very difficult to explain that to

people who hold different beliefs?

They might feel that, in fact, we were making an (p.

36) unique exception.

What would you say to somebody who said, “look, I

have a religious belief where I have to wear a saffron

‘“‘robe”? Would you go along with that?

Q. Have you, General Usher, in your—how many

years?—is it 27 years in the Air Force?—encountered any

Air Force enlisted man or commissioned officer who wishes

to wear a saffron robe for religious reasons?

A. No, I have not, but I have heard of instances

where people wanted to do other things with respect to

what they could wear with their uniform.

Q. For religious reasons?

A. In some cases some of them espoused religious

beliefs, you know, like wearing combs and things like that,

saying that that is part of their religious belief.

I have not personally been involved in a case, but I

have heard about an inference.

Q. All right.

Is there any other case that you know that you have

been personally involved that has involved a request to

wear a different article of clothing for religious reasons?

A. Not personally involved, no.

Q. And you say you have heard of other cases. What

is the most extreme case you have heard of ?

A. I think probably the most extreme case that I am

(p. 37) aware of is the request by practicing members of

the Sikh religion, for instance, to wear a beard, to wear

a turban and so forth.

Q. Sikh? That is S-I-K-H?

A. That is correct.

Q. Are there any members of the Sikh religion, to

your knowledge, in the Air Force?

A. Not to my knowledge.

Q. Have you ever heard of any members of the Sikh

religion, to your knowledge, in the Air Force?

A. Not to my knowledge.

Q. Have you ever heard of any members of the Sikh

religion being in the Air Force?

A. I have not learned it for a fact. It has been told

to me that they are, but I do not know for a fact that they

are.

Q. Are you familiar with the fact that the United

States Army did for a substantial period of time permit

members of the Sikh religion...

A. Iam.

Q. ...to wear a beard?

A. And also...

Q. And that the Air Force—or that the Army has

recently repealed that exemption?

A. That is correct.

(p. 38) They rethought that proposition.

Q. I see.

A. ‘And they decided to return to the standard es-

sentially the same as our own.

as)

Q. Do you know of any particular incidents in the

Army’s experience that has shown that applying that

exemption has caused specific breaches of discipline or

has undermined esprit de corps in any way?

A. I think you would have to talk to somebody from

the Army. I am not familiar with that. I cannot speak

for the Army in that regard.

Q. Well, you would agree, would you not, that per-

sonal tastes not based on religion can be distinguished

from religious obligations or religious compulsions of some

kind that someone feels?

A. No, Ido not.

Q. You do not believe so?

A. No.

Q. You do not believe they can be distinguished?

A. Because you will find and I think you will prob-

ably hear of it later this morning about a survey that we

did, that our chaplains did.

And in that, at least—I know I was surprised at all

of the sects and denominations and so forth, the number—

and some of them, I guess, to some people might be almost

personal (p. 39) taste.

But I think human nature, being what it is, some peo-

ple would be prone te say, “Well, this is really a matter

of personal taste. I have my own personal religion. And

I believe in it very strongly. And, therefore, my personal

religion requires that I wear or do something that would

be a departure from the uniform standards.”

And I think we have to be able to deal with such a

situation like that.

Let us say we do not make any exceptions under the

regulations for—even though Orthodox Judaism is well

recognized around the world, but there are sects that are

much smaller and can even get down to one person.

Q. The Air Force does provide religious services,

religious advisors for its personnel?

A. It does.

Q. And in that regard, it has chaplains?

A. It does.

Q. And provides religious services?

A. It does.

Q. At Air Force bases?

A. That is correct.

Q. Would you agree with me that that is a recogni-

tion of the fact that religion is distinguishable from just

simply matters of personal taste?

(p. 40) A. No, again, I would not because, again,

you know, we are constrained as to the number of re-

sources that we have. I am sure that there are some sects

or denominations that are, in fact, not represented in the

United States Air Force Chaplains’ Corps because there

probably would not be enough individuals in the total Air

Force to merit having chaplains in that denomination.

But I do not—so I do not agree with you that that

necessarily is a conclusive criterion for deciding what is,

you know, a religious belief and what is not—what is a

legitimate religious belief and what is not. 24

Q. Well, I am not asking you the difference between

a legitimate religious belief and a non-legitimate religious

belief.

I am asking you whether you would agree with me that

the Air Fores, indeed the United States, does recognize

that religion or religious obligations are different simply

for matters such as personal taste.

Indeed, it may be required to do so by the United

States Constitution, but that is a matter for His Honor.

But I am asking you whether it is not a fact that the

Air Force by providing religious services and religious

chaplains recognizes that religion is a different status or

different category from simply matters of personal

taste.

A. Yes, I think under the way you put it there, I

think, (p. 41) yes, we recognize that religion is something

more than a matter of personal taste.

The point I am trying to make is that, in fact, trying

to distinguish between personal taste and what I might

consider personal taste; and to the individual that I am

talking to, it might be a deeply-held religious belief; and

we would be at an impasse, I guess, in deciding who was

right.

So, hence, our regulation is formulated on the basis

that we do not make exceptions for any belief.

Q. Do you think that it is important for the Air

Force to teach its personnel as well respect for American

traditions, such as freedom of religion?

A. Certainly.

Q. And if, in fact—and you would agree with me that

the providing of the religious services educates Air Force

personnel on the fact that there are within this country

different religious faiths and people who are adherents

to different religious beliefs?

A. Well, it does by example.

Well, of course, any individual’s participation in any

of the religious services is totally voluntary.

Q. I understand that.

A. That is not a requirement.

Q. But it is a part of Air Force tradition to demon-

strate to its personnel that diversity of religious beliefs is

(p. 42) tolerated?

A. By all means.

In our social assets dedication program, we point

that out. We do the same thing for various ethnic groups

and so forth.

Q. And, nonetheless, it is your testimony that if Air

Force personnel were told that an individual wears a smal]

skulleap because he is a member of the Orthodox Jewish

faith, that would undermine discipline rather than foster

respect for diversity of religious belief?

A. Yes, I believe it would run the risk of undermin-

ing discipline. It is not generally associated with Orthodox

Judaism.

It is the fact that we are making an exception for one

religion or for one, you know, it could be for one organiza-

tion and it may not be a religious organization.

But if you make those kinds of exceptions, then you

begin to erode the standards which you have accepted.

Because then other religious sects would be able to

come to us and say, “how about us?”

And we would have to say, I would think, out of fair-

ness, if we believed that your premise is a deeply-held

belief and so forth, that I think we would have to accom-

modate that.

Q. Andisthat...

A. And I feel that if you go on, pretty soon we do

not (p. 43) have a uniform service. We have people that

are wearing all different kinds of things.

And I think then the purpose that we serve by being

a uniform service with missions and goals and so forth

are no longer served to the degree that they could other-

wise be.

Q. As the Air Force’s Director of Personne! Plan-

ning, could you tell us, General Usher, what the maximum

number of people in the Air Force in your estimation are

today who have some religious belief that would affect

the clothing that they wear in violation of Air Force dress

code?

A. No, Ido not.

Q. Do you have any idea?

A. No, I do not because, you know, you are asking

me an unknown unknown.

I think until some of those pecple came forward—I

think we have done a survey as to what the various re-

ligious sects practiced in the country and so forth ask their

members to do with regard to dress.

Now, which of those might choose to come forward,

which would choose not—I just do not know. I mean you

are asking me to speculate about something I have no way

of giving you any useful answer.

Q. The numbers could be counted on the fingers of

one hand? You do not know?

A. No, I doubt that it could be limited to that.

(p. 44) Q. On what basis? On what basis do you

doubt that?

A. Well, just because the survey showed we are talk-

ing about 60 to 100 or so sects; we are talking about, oh,

perhaps—I am not sure I can recall the figures accurately ;

but there are a dozen or so specific dress requirements.

And I would expect some percentage of those to come for-

ward, and I would expect that some percentage—they rep-

resent some percentage of the Air Force who are adherents

to that sect.

Q. So your conclusions in that regard are based on

that survey that Chaplain Reeves, is it, will testify about?

A. That is right.

That is one of the inputs that has todo...

Q. Are there any other bases for that conclusion that

there will be other people who will come forward in sub-

stantial numbers and...

A. Well, as I understand it from the Army, in the

ease of the Sikhs, there were at least, I think, 12 or 15,

perhaps a little more than the fingers of one hand. That

is correct.

Q. That there were 12 or 15 at one time?

A. That is correct, that is what I understand.

Q. And where did you get that information?

A. I just got that information from—some informa-

tion that was passed to me by a member of my staff. That

is all.

Q. And is it your testimony that granting exemp-

tions, whether they be for a skulleap or a beard for re-

ligious reasons, (». 45) would prevent the Air Force from

defending the nation against its enemies.

A. I am not saying that it prevents the Air Force

from defending the nation against its enemies.

What I am saying is that. . .

Q. Ido not think you have to repeat your testimony.

I am just asking you in terms of the conclusion.

A. My conclusion is that you do not do as effective

job at it...

Q. Isee.

A. ... By allowing an erosion of the standards that

you set.

Q. Itis somewhat less effective?

A. That is correct.

Q. But just to go back just to one point, you have

agreed, I think, that there have been instances in our past

where American fighting forces did very well even with

totally diverse uniforms without even limited to religious

exemption ?

A. But in a situation that is not very relevant to

fighting warfare in the modern context.

Q. Well, would it surprise you to learn that George

Washington himself agreed that it would be an effective

fighting force simply to wear Indian outfits?

A. That would not surprise me.

Q. It would not surprise you.

(p.46) Soitis...

A. Again, I say the context is considerably different

than in a modern-day situation where we have a peacetime

armed forces in the United States of over 2.2 million,

which is, of course, as I think if my memory serves me

correctly, more than the entire population of the United

States at that time.

Q. How many people are there in the Air Force?

What is the total number?

A. Approximately 560,000 people.

Q. There have been personnel in the Air Force who

have worn a yarmulke. Is that right? Captain Goldman

and I think someone else is mentioned in your answers to

interrogatories.

A. There may be others, yes.

Q. Do you know of any incident where that in some

way led to a breakdown of morale or discipline?

A. Idonot think that is the point I am making.

The point that I am making is that if you allow this

example to stand up, you then begin to have to allow other

examples.

Or, you get into the situation where people point out

to you, ‘There is somebody violating the regulation. Why

do I have to adhere to that regulation or to another regu-

lation?’’

Q. It is undisputed, and the government has con-

ceded, that for three and a half years Captain Goldman

wore his (p. 47) yarmulke at March Air Force Base.

And I ask you, General Usher, whether during that three

and a half year period were you here at the Pentagon?

A. Iwas here part of the time.

Q. Were you in your present position?

A. Part of the time, yes.

Q. Would you, in that position—did you, in that

position, at any time hear of a single individual who had

requested, based on Captain Goldman’s wearing his yar-

mulke, permission to wear some religiously-motivated

garb?

A. No, I did not have an occasion before me during

that period of time.

Q. And, to your knowledge, did any case come before

anyone else in the Pentagon based on his wearing his yar-

mulke for three and half years?

A. I cannot speak for the chaplains. They may have,

but not to my particular knowledge.

Again, my point is that we have people who do not

follow our regulations. That does not legitimatize what

they do just simply because they did not adhere to the

regulation for a period of time.

I think that we feel as soon as we discover a situation,

we need to correct it. And I think that is what I hope and

that is what was attempted to be done here.

Q. But you were not consulted before Captain Gold-

man (p. 48) was told to remove the yarmulke?

A. No, I was not consulted. I became aware, I think,

of the case in the May time period or so and knew that he

had been directed to do it. But I did not get involved in

that decision at all.

Q. And did you know that prior to that time, he had

been permitted to wear his yarmulke? Were you con-

sulted in that regard?

A. No, I was not.

[Messrs. Lewin and Butler confer. ]

BY MR. LEWIN:

Q. You are familiar, General Usher, are you not,

with the related issue as to whether the wearing of the

beard is a violation of the Air Force dress code?

A. Iam.

Q. And were you familiar with the litigation which

took place in this court with regard to two chaplains who

litigated, Jewish chaplains who litigated the question of

whether they would be permitted to wear a beard?

A. Iam familiar with it in the general sense of the

word, yes.

Q. Were you familiar with it at the time of the liti-

gation?

A. In part, yes. Again, in a personal way, no.

@. At those times as well, the very same kinds of

(p. 49) predictions that you are making now were made

with regard to the wearing of the beard, were they not, by

the Air Force?

A. I think they were. I read some of the affidavits

that were referenced, and there were similar arguments

made, yes.

Q. That there would be no way to draw the line?

A. Yes.

Q. And that there would be other people that would

wear other religiously-motivated garments?

A. Uh-huh.

Q. In fact, the two chaplains, Rabbi Geller and Rabbi

Kalinsky, were ultimately permitted after litigation to

wear their beards. Is that correct?

A. That was part of the consequence of litigation.

Q. Have you heard either personally or second-hand

of any deleterious consequences to the Air Force as a re-

sult of those chaplains wearing beards?

A. No, I have not.

THE COURT: Of course, the Air Force has a ready

answer when somebody asks why. They put the blame or

the responsibility on the court because that is where the

Air Force has left it. Is not that your position?

THE WITNESS: That is correct.

THE COURT: “If the court says so, we cannot do

anything about it. Our position has not changed.”’

(p. 50) THE WITNESS: Our position has not

changed and will not change.

BY MR. LEWIN:

Q. Well, of course, in the second case, General Usher,

if you are familiar with it, the Kalinsky case, there was

not a court order, was there?

A. I just—I really do not recall at this point in

time.

Q. Well, if I can just refresh...

THE COURT: Has that case been terminated, coun-

sel?

MR. LEWIN: That case was terminated by the Air

Force agreeing that it would permit Rabbi Kalinsky to

wear his beard prior to any court determination; so the

case is mooted out.

THE WITNESS: That is correct. I recall that.

BY MR. LEWIN:

Q. You recall that.

So it was not really under court order that the Air

Force...

A. No, it was based on the precedent that had been

established in the Geller case in order that we could sus-

tain our position in the Kalinsky case, if I recall cor-

rectly.

And, therefore, I think the judge is correct in this

case that we have not changed our position as to the de-

sirability of that; and, furthermore, of course, as you

know, these two are in the reserve forces. They are not

like this current case in that they...

(p.51) Q. Pardon? I am sorry. I did not hear that.

A. I say these people went on to an inactive reserve

status, as I recall, the Kalinsky and Geller situations.

Again, my recollection of the details is somewhat hazy.

THE COURT: Well, as a policy matter, you decided

to lose the battle and win the war.

THE WITNESS: I think that is fair.

THE COURT: Yes.

BY MR. LEWIN:

Q. But with regard to the consequences, though, you

would agree with me that there were no harmful conse-

quences to the Air Force that grew out of the fact that

Rabbi Geller and Rabbi Kalinsky wore their beards?

A. That is not to my knowledge.

Q. That is not to your knowledge.

A. I cannot comment on what the morale and disci-

pline of the units with which they were associated is today.

I have not asked them; and, indeed, nobody has re-

ported to me.

Q. Nobody has initiated any report to you to com-

plain about the morale...

A. No, they have not.

Q. ...or discipline of that unit?

A. No, but again I think the point holds that there is

(p. 52) that ready explanation that we ended up in court

on their matters.

MR. LEWIN: One moment, Your Honor?

THE COURT: Surely.

{Messrs. Lewin and Butler confer. ]

MR. LEWIN: That is all, Your Honor.

THE COURT: Do you have any redirect, Mr. Law-

rence?

MR. LAWRENCE: We have no redirect, Your

Honor.

May General Usher be excused?

THE COURT: You certainly may be excused, Gen-

eral. You may step down and be excused.

[The witness leaves the stand. ]

THE COURT: I think it might be appropriate for us

to take a short recess at this point. We will resume at

11:00 o’clock.

[Thereupon, the court recessed at 10:50 A.M.]

[Following the mid-morning recess, the court recon-

vened at 11:06 A.M.]

MR. LAWRENCE: The defendants call Chaplain

Reeves to the stand.

Thereupon,

Capt. Donald L. Reeves, Chaplain, USAF, called as a

witness by the defendants, after first being duly sworn,

was examined and testified as follows

Direct Examination

BY MR. LAWRENCE:

(p. 53) Q. Chaplain Reeves, would you please state

your full name for the record.

A. Donald L. Reeves.

Q. What is your current grade?

A. Grade is 03—Captain.

Q. Would you please briefly describe your education-

al background, Captain Reeves.

A. Okay.

I have a B.A. in English, double major, English and

Bible, from Bethel College in Tennessee; a Master of Di-

vinity Degree from Vanderbilt Divinity School with grad-

uate work in Management, Vanderbilt Graduate School of

Management.

Q. What are your postgraduate degrees?

A. Just the Master’s of Divinity Degree.

Q. What is your professional background, Chaplain

Reeves?

A. I have been a pastor, teacher, and a writer.

Q. Would you give us briefly what period of time

you were a teacher.

A. I was a teacher for two years, one year 1963—’62

to 63 — I taught senior English at Mount Juliet High

School out of Nashville, Tennessee.

And in ’67-’68, I taught senior English at Sparta

High County High School in Tennessee.

Q. And?

A. I taught two summers at Peabody College. Admin-

istration (p. 54) High School.

Q. What did you teach at Peabody High School?

A. I taught senior English.

Q. And after you completed that aspect of your

professional career, what came next?

A. Well, I am a pastor or was a pastor. I was on

the staff as an associate pastor of the First Presbyterian

Church in Nashville, Tennessee.

And I moved from there to senior pastor of a church

in Jackson, Tennessee.

I was a psychiatric chaplain for the Tennessee De-

partment of Mental Health for two years and then was a

presbyterial executive for the presbytery of Murfreesboro,

Cumberland Presbyterian Church.

Q. You indicated, I believe, that you considered

yourself a writer. Have you had any publications?

A. Yes.

Q. Could you describe some of your publications

for us.

A. I have had a feature article for the Nashville

Tennessean; I have written curriculum material for

adults, teenagers, and children for United Methodist Pub-

lishing House; and I currently have a column in my de-

nominational magazine and have written articles for them

down through the years.

Q. Going back to your articles briefly, what was your

article in the Nashville Tennessean?

(p. 55) <A. It was on the intimidating atmosphere

of the average courtroom.

THE COURT: Do you want to revise it now that

you know...

THE WITNESS: No, not yet.

And the discouraging effect that has on the average

citizen trying to exercise his legal rights.

BY MR. LAWRENCE:

Q. What was the nature of your publications for the

United Methodist Publishing House?

A. Adult curriculum materials on the use of silence

in The Adult Leader, which is for teachers and adults;

and then full spectrum of material for children and some

summer programs for working with youth.

Q. What is your feature column that you write?

A. It is entitled “Letter to the Lord.” It is often a

very satirical column in which the kind of human aspects

of life is lifted up in a satirical way as a letter to God.

Q. Where are you currently assigned, Chaplain

Reeves?

A. Maxwell Air Force Base, and I am with the

Chaplain’s Resource Board, which works for the Chief of

Chaplains.

Q. What are your responsibilities in your current

position?

A. lam a resource person in the area of pastoral

care and also in the area of theology for ministry.

(p. 56) And I also am one of the chief writers for

the board and researcher for the board. I edit the month-

ly newsletter for the chief of chaplains, which is his offi-

cial publication.

Q. In your current position, have you undertaken

any research on the dress and appearance requirements of

various religions or sects?

A. Yes, essentially the research that was done the

98th and 29th of August relative to the code of dress and

uniform requirements.

Q. What form did the result of that research take?

A. It took the form of an outline that outlines the

dress and uniform requirements for quite a diversity of

groups, denominations, in the religious structure of the

U.S.

MR. LAWRENCE: Would the clerk please mark this

as defendants’ exhibit 1 for identification.

MR. LAWRENCE: Let the record reflect I am pro-

viding a copy to plaintiff’s counsel.

THE DEPUTY CLERK: Defendants’ exhibit number

1 marked for identification.

[A document referred to was marked for identifica-

tion as defendants’ exhibit No. 1.]

MR. LAWRENCE: I have a separate copy for the

court, for the convenience of the court.

[A copy of the exhibit is also handed to the court. ]

(p. 57) MR. LAWRENCE: Your Honor, may I ap-

proach the witness?

THE COURT: Surely.

[Mr. Lawrence approaches the witness. ]

BY MR. LAWRENCE:

Q. Chaplain Reeves, I show you what has been mark-

ed as Defendants’ Exhibit 1 for identification and ask if

you recognize that document.

{The exhibit is handed to the witness, who looks at it.]

THE WITNESS: Yes, sir.

BY MR. LAWRENCE:

Q. What is that document?

A. That is the compilation of the research that I did

relative to the dress and uniform requirements.

Q. Chaplain Reeves, I would ask you to turn in de-

fendants’ exhibit 1 to the heading of ‘Indian Heritage

Groups.”

A. (Complying) Okay.

@. What are the dress or appearance requirements

for the International Society for Krishna Consciousness?

A. They are one of the groups that has the require-

ment of the maintaining of hair as it. They require a tuft

mene aaa sma mai 4

of hair, which is called a ‘‘Sikh,” which is worn by the

males.

They have clay markings which are distinctive, the

most distinctive of which are two parallel white lines that

run from the forehead down to the bridge of the nose.

(p. 58) Q. Further in that same category, “Indian

Heritage Groups,” what would be the dress or appearance

requirement for the Satchidananda Ashram-Integral Yoga

group?

A. The monks in that particular group of the “In-

dian Heritage” section would have to wear the saffron

robe; other members simply wear white clothing.

I noted in research that I did that as to whether or

not these are optional for military service, it is not listed.

However, military service is allowed by the denomina-

tional standards.

Q. If you would turn in Defendants’ Exhibit 1 to

the “Islamic Groups,” what would be the special dress re-

quirements of the World Community of Islam?

A. (Complying) The males are not allowed to wear

clothes that show the imprint of the body at all; the fe-

males show only the face, the hands, or below the ankles.

Q. Would the adherents of that religion be permitted

to wear the current Air Force uniform?

A. I would presume not.

Q. If you would turn to the category of “Sikh” on

Defendants’ Exhibit 1, what are the dress and appearance

requirements of the groups ‘‘ Healthy, Happy, Holy” and

‘‘Sikh Dharma”?

A. (Complying) Okay.

Those are the same. Those who are practicing mem-

bers of those groups must keep their hair, all of their hair,

(p. 59) including their beards.

The hair is turban-tied on top of their heads. They

have a very unusual requirement in that besides the special

underclothing they wear, they also have a steel bracelet

and a dagger.

The official clergy of that particular group wears

jodhpur-like pants.

MR. LAWRENCE: Your Honor, I have nothing

further of this witness.

I move the admission of Defendants’ Exhibit 1 for

identification into evidence.

MR. LEWIN: Your Honor, this is not an objection.

Obviously, this is not a jury trial, and I would like

to cross-examine the witness on that document.

THE COURT: I will reserve ruling until you com-

plete your cross-examination.

MR. LAWRENCE: Certainly.

MR. LEWIN: Thank you, Your Honor.

Cross-Examination

BY MR. LEWIN:

Q. Chaplain Reeves, in your education, did you take

any courses in comparative religion?

A. Yes, sir.

Q. How extensive was thai?

A. If I remember correctly, I had about nine semes-

ter (p. 60) hours, perhaps twelve; and I just frankly

cannot remember the exact number. It has been a long

time ago.

Q. Did those—did the subject matter in those courses

cover any of the groups that are listed here under “Sikh

Groups,” for example, that you testified about?

A. (No response)

Q. Specifically, the “Healthy, Happy, Holy” organi-

zation?

A. Ido not remember that it did, no.

Q. ‘The International Society for Krishna Conscious-

ness?

A. Lremember some study of that. I could not tell

you a detail.

Q. In your experience subsequent to your education,

were you personally involved in any way in comparative

religion study of any kind?

A. No, sir.

Q. You were essentially a pastor for the Presbyterian

Church during that period of time that you were in the

clergy following. . .

A. Yes, and the Psychiatric Hospital Chaplaincy.

Q. All right.

And this particular study, which is Defendants’ Ex-

hibit Number 1, you say was done August 28th and 29th

of this year?

A. Yes, sir, that is a Friday and Saturday a couple

of weeks ago.

Q. And that was done for purposes of this case. Is

that (p. 61) right?

A. Yes, sir.

Q. And I notice on the front page of that, it says,

“Contractor for this research was Kirschner Associates,

Inc.”

Who was Kirschner Associates, Inc.?

A. I have no idea.

They were listed as the contractor by the Army in

the paraphlet, which was the basic guide that we used.

Q. I see.

So that is the contract before that, that pamphlet,

No. 165-13?

A. That is my presumption.

The Army decided to do the study. As I understand

the process, they contracted out certain portions of the

study. Kirschner Associates had the sub-contract—or

rather had the contract; and then even themselves sub-

contracted some work out.

Q. But the particular information that appears on

the succeeding pages was all information that you person-

ally accumulated?

A. The particular information was within the posed

pamphlet of the Army, with footnotes accordingly.

And I took that pamphlet as well as looking at the bib-

liography and put it in outline form, particularly related

to dress and uniform codes.

(p. 62) Q. What made you select particular de-

nominations or groups for that study?

A. They are the ones that are covered in the pamph-

let.

Q. Inotice the study begins with “Christian Heritage

Groups.”

A. Right.

Q. What are the heritage groups?

A. Evidently, the original contractor, when they did

the study and perhaps in accordance with the Army’s re-

quest—I am not sure about that—but, at least, the con-

tractor and those who sub-contracted for the sake of order,

divided their material of their concern into these groups.

They called them ‘‘Christian Heritage Groups”; and

they would be, for instance, those groups that had in their

heritage particular relationship with the Christian faith.

Q. Well, I notice that the study excludes, for ex-

ample, your own, the Presbyterian Church.

A. That is right.

Q. And you have got no listing anyplace in these

pages for the Presbyterians.

A. That is true. That is true.

Q. The study excludes the Roman Catholic Church,

does it not?

\ , Pe Te TE

A. That is true.

Q. It excludes all Baptist groups, does it not?

(p.63) <A. That is true.

Q. So, essentially, what you were doing in this study

is simply taking a whole group of very small minority

sects. Is that right?

A. I am not sure.

The Army are the ones who set up that, and we simply

followed their lead. I am not sure what their purpose was

for excluding the major mainline groups.

Q. But you would agree with me that the major

mainline groups are excluded?

A. Yes, they are not—I do not think the intent was

to even study them.

Q. And those major mainline groups are the major

groups that are represented in the Air Force. Is that not

right? .

A. I would presume that. I do not have statistics to

back that.

Q. Well, the work you do now is sort of with the Cen-

tral Office of Chaplains for the Air Force?

A. That is right.

Q. And is it fair to say, then, that as, for example,

the World Almanac indicates, that the largest churches

in the United States are the Roman Catholic Church, the

Baptist Church, the Lutheran Church, various Methodist

Churches, Presbyterian Churches, the Episcopal Church—

those churches are not in the study?

(p.64) A. That is true.

And there are some minority churches that are not,

too. Your Orthodox, your barest breakdowns—we have—

in fact, I am a member of a very small Presbyterian body

within the Presbyterian group.

So I would say that it was not an exclusion made sim-

ply on the basis of major or minor necessarily.

Q. I see.

But the major churches I have listed have no clothing

requirement, nothing that would affect their dress or uni-

form in any way?

A. That is true.

Q. And would you say—do you have any idea, just

in terms of approximation, as to the percentage of Air

Force personnel that belong to the major churches that

have no religious. . .

A. No, sir, I do not. I do not have any statistical

idea.

Q. Would you agree with me that that is in excess of

90 percent?

A. I just have no idea.

Q. Well, would you have any reason for believing

that it is any different in its general proportions than the

population at large than those that belong to the popula-

tion. ..

A. No, I could not. I would have no reason to.

Q. Now, with regard to the items that are on the

chart, (p. 65) did you say you made inquiries yourself?

]

A. In terms of looking at printed material?

Q. Printed material.

A. I looked at all of the materials that are in the

bibliography, which were listed in the bibliography of the

Army pamphlet, in addition to a couple of resources that

were not in it, which are on your bibliography.

On the bibliography that you have, there are two

books I have not seen—one entitled Dread, by Joseph Ow-

ens, the other, The Rastafarians—simply because those

were printing material that the original contract group

utilized in getting their information about the Rastafarian

group. And I was unable to find that.

The others I looked at.

Q. The...

A. Iam sorry. There is one other one.

Q. Yes.

A. Okay.

I have not specifically looked at The Jewish Cata-

logue.

Q. You did not see The Jewish Catalogue?

A. That is right. ,

Q. Did you see the other book?

A. We Jews, yes.

Q. And could you describe that book?

(p. 66) THE REPORTER: What was that?

THE WITNESS: We Jews, by Efraim Rosenzweig.

THE WITNESS: This is a book that is a summary

by a Rabbi, if I recollect, of the Jewish faith and has been,

in fact—I think all of our Chaplains have this book. It has

been utilized as a book of familiarization for the Chaplain

force with the Jewish faith.

BY MR. LEWIN:

Q. I notice that book is not listed under either Con-

servative Judaism or Reform Jews in your other printed

information.

A. That is true.

That book was not utilized by the study.

Q. Now, there is another column headed ‘‘Original

Source of Information.”

A. Yes, Sir.

Q. Did you talk to people. Is that what that is?

A. No, this, “The Original Source of Information”

column, is a listing of the original sources for the contract

group.

They themselves got their information on not simply

the dress and uniform requirements, but total descriptions

of these groups from individuals’ agencies.

And they listed those within the Army study. There

is an Appendix that has them listed. It even has names

and addresses.

Q. And as I understand it, the study of religious

(p. 67) requirements and practices is not limited to the

dress or uniform.

A. Oh, no, not at all.

Q. Well, just directing your attention to the page

which contains the Jewish groups, ...

A. All right.

Q. ... Did you, in regard to studying the Jewish

groups, seek in any way to find authority beyond The

Jewish Catalogue or the book by Rabbi Rosenzweig that

you list there?

A. Or the pamphlet itself?

Q. Or the pamphlet itself?

A. No, sir, no.

Q. And on what basis did you determine that the

materials that you relied on were really the authoritative

sources for the information that you were including in

your study?

A. The extensiveness of the Army study itself and

what I feel to be the trustworthiness of that implies its

correctness.

And then the other books were the ones most avail-

able to us at the moment.

Q. You say you have not seen The Jewish Catalogue?

A. Ihave seen it, but I have not looked at it.

Q. You have seen it?

A. Yes, sir.

Q. It is really sort of a pamphlet, is it not? It is

(p. 68) a soft cover, kind of a large popular book?

A. Uh-huh.

Q. It is not—would you call it an authoritative de-

scription of the religious practices?

A. Iam not sure. I do not know what the purpose

of it is.

Q. Did you study Judaism at all in comparative re-

ligion courses that you took, or are you familiar with Jew-

ish practices?

A. Yes, to some degree, but I think simply in the

way that you study all other religions that you study when

you are in a seminar program.

Q. But are you...

A. Iam not extremely—I would not consider myself

an expert on the Jewish faith at all.

Q. You know, though, that there are authoritative

codes of Jewish law?

A. Yes, sir.

Q. And you did not look at those?

A. I have seen the Jewish—let us see—The Concise

Code Of Jewish Law, I believe, by Appel. I have seen

that and looked at that.

Q. That is not part of the study?

A. No,no, sir. I did not see that until after the study

was over.

[ Messrs. Lewin and Butler confer. ]

(p. 69) BY MR. LEWIN:

Q. You said the study was based, you indicated in

part, on The Jewish Catalogue.

(The book is shown to the witness.]

BY MR. LEWIN:

Q. Do you recognize that, The Jewish Catalogue?

MR. LEWIN: Let me mark it for identification.

{The book referred to was marked for

identification as Plaintiff’s Exhibit

No. 3.]

THE WITNESS: I am sorry.

Let me make sure that I understand you. I did not

use the Catalogue in the study.

BY MR. LEWIN:

Q. But you did see the Catalogue?

A. I have seen the Catalogue, yes. I saw it after the

study was completed.

Q. Well, just showing you Plaintiff’s Exhibit Num-

ber 3 for identification, .. .

{The exhibit is shown to the witness, who looks at it.]

BY MR. LEWIN:

Q. ... Would you agree with me that that is sort of

a popular summary of various kinds of Jewish practices,

customs?

A. I would presume it to be so, looking at the pub-

lisher (p. 70) and the table of contents.

Q. Would you consider that an appropriate basis

for a scholarly conclusion to be drawn regarding Jewish

requirements of the Jewish faith?

A. I am not sure how to answer that. I would have

to look at it, I think, in detail to make a deci ion on that.

Q. Let me show you what I would mark as Plaintiff’s

Exhibit 4 for identification.

[Another book referred to was marked

for identification as Plaintiff’s Exhibit

No. 4.]

BY MR. LEWIN:

Q. This is a volume called Code Of Jewish Law, in

English.

[The exhibit is handed to the witness, who looks at it.]

BY MR. LEWIN:

Q. Have you ever seen that?

A. Yes, sir, I—now, I presume that this is the one

that I have seen.

Q. I do not believe it is.

A. It is not?

Q. No.

A. This is not The Concise Code by Appel. Okay.

No, I have not seen this.

(p. 71) Q. Just from looking at it, does that appear

to be a more detailed scholarly ...

A. Certainly.

Q. ... Exposition of Jewish law than what appears

in Plaintiff’s Exhibit 3 for identification?

A. Yes, I would presume that from taking a cursory

look.

Ra ieeenenenanimaniil

Q. Now, in studying Conservative Judaism, which is

listed on that same page, did you have recourse to any

scholarly works on Conservative Judaism?

A. No, sir, utilized the pamphlet on that.

Q. Well, let me show you what I will mark as Plain-

tiff’s Exhibit 5 for identification.

[Another book referred to was marked

for identification as Plaintiff’s Exhibit

No. 5.]

BY MR. LEWIN:

Q. This is a guide to what is called Jewish life?

[The exhibit is handed to the witness, who looks

at it.]

BY MR. LEWIN:

Q. It is Jewish Religious Practice—A Guide To

Jewish Religious Practice, by Rabbi Isaac Klein. Have

you ever seen that document before?

A. No, sir.

Q. Just from the inside flyleaf, can you tell whether

(p. 72) itis a survey of couservative Jewish practice?

A. I would presume that it is.

Q. And if I told you that in that Plaintiff’s Exhibit 5

there is reference to practices of conservative Jews to wear

a head covering at certain times when praying or when

performing a ritual or when eating—specifically, I direct

your attention to Pages 51 and 52 of that volume, bottom

of 51 and top of 52.

A. (Looking for reference in book) All right.

Q. Is that right?

A. I’m sorry.

Repeat the question.

Q. Is there indication there or statement there by

Rabbi Isaac Klein of the Jewish Theological Seminary

that, in fact, Conservative Judaism does expect its ad-

herents to cover their heads in for enumerated instances,

including when performing a ritual or when eating?

A. Right.

MR. LEWIN: I would like to offer those pages of

that volume in evidence, Your Honor.

We can mark that as Plaintiff’s Exhibit 6 and offer

that in evidence.

[Pages of Plaintiff's Exhibit No. 5 for

identification were marked for identifi-

cation as (p.73) Plaintiff’s Exhibit No.

6.]

THE COURT: Any objection, Mr. Lawrence?

MR. LAWRENCE: One brief moment, Your Honor?

THE COURT: Surely.

{Mr. Lawrence looks over the exhibit. ]

MR. LAWRENCE: We have no objection.

THE COURT: All right.

It will be received.

[Plaintiff’s Exhibit No. 6 for identifica-

tion was received in evidence. }

BY MR. LEWIN:

Q. Would you agree with me, Chaplain Reeves, that

this study is really a very—how shall I put it?—cursory

kind of review of very selected religious denominations?

A. This study that the Army pamphlet did?

Q. Yes.

A. I cannot dispute that since I do not know the or-

iginal process they went through.

Q. With regard to Conservative Judaism, it appears

to be erroneous, does it not, when it says that there is no

special dress uniform required?

A. Okay.

It is not in agreement with the statement that you

have here. However, I am not sure whether—would you

like for (p. 74) me to tell you where—how the Army

pamphlet asked that question and how that came about?

Q. All right.

Please do.

A. In the Army pamphlet, each of the denomination-

al groups was asked a series of specific questions, and

there were proposed answers to that.

One of the questions was: ‘‘Are there specific re-

quirements”—I am not quoting directing—but, ‘‘are there

specific dress uniform requirements?”

The answer from the research they did, which was

in this case, the original source being a member of the

Rabbinical Assembly, was ‘‘none.”

‘

And I do not have any explanation of that, other than

that is the—and that also, the ‘‘A” behind it, means that

that is the final form of—that statement was approved

hy that member of the Rabbinical Assembly.

Q. So there was one person who was asked who was

a member of the Rabbinical Assembly?

A. It listed that person. I am not sure whether there

were others or not.

Q. Under Orthodox Judaism, your report says, ‘‘in-

complete information.”

A. That is right.

Q. Now, it says that ‘‘group worship is required.”

(p. 75) Is that a special dress or uniform requirement?

A. You mean is special dress or uniform require-

ment made at worship?

Q. No, no.

I am asking you, as I understand your study was, to

find out whether there was special dress or uniform re-

quirements for each of the various faiths.

A. Right.

Q. You have a recitation under Orthodox Judaism,

which continues for about twenty lines, ...

A. Right.

Q. ... Saying that group worship is ‘‘required.”

“There are ‘fixed times’ for public worship, three

times daily: Morning, afternoon, and evening.”

A. Right.

Q. That is not a special dress or uniform require-

ment?

A. Right.

Simply when there was no information from Orthodox

Judaism, I simply tried to point out what requirements

there were relative to worship itself and the equipment

necessary for it and the apparel for it.

Q. 0 that entire paragraph all deals with worship

and not with any special dress or uniform requirements?

A. Simply, as I understand it, as it relates to wor-

ship, right.

(p. 76) Q. Indeed, on its face, that section with re-

gard to Orthodox Judaism states that there is no require-

ment other than during worship that males wear—keep

their heads covered.

A. Orthodox Judaism, the statement on Orthodox

Judaism, did not answer the question in the Army Pam-

phlet regarding Dress and Uniform Codes one way or the

other.

So it is just simply absent.

Q. You simply had no information?

A. Ihad no information about that.

Q. You had no information about that?

A. Right.

And this was gleaned from discussion of worship.

Q. With regard to these other groups, Chaplain

Reeves, do you or does the underlying report have any in-

formation about whether there is any member whatever

of any of the other groups in the Air Force?

A. I’msorry. I do not understand your question.

Q. The other groups that are in your report, is there

any information in the underlying Air Force Report as to

whether there is any member of any of the other groups,

apart from the Jewish group in the Air Force, in the mili-

tary services?

A. Yes.

Q. First in the Air Force and then in the military.

Well, let us just go over it: The ‘International

Christian Ministries,” which is the first under “Christian

(p. 77) Heritage Groups”: They have no special dress

requirements.

Do you know whether there are any...

A. I do not know. And that evidently is not the in-

tent of the study, to determine who was or who was not.

Q. All right.

In fact, on the front page, the indication that you got

is that there is none of those, even of those small groups,

had any special dress or uniform requirement?

A. (No response)

Q. Is that right?

A. I do not understand your question.

Q. In fact, you found from your study, such as it was,

that none of the...

A. Oh, you are talking about of the Berkeley Chris-

tian Coalition? :

Q. Well, just down that entire first page.

A. (No response)

Q. None of them had any special dress requirements;

so if they were in the Air Force, there would be no...

A. They would...

Q. ... Requirements?

A. Except for the Holy Order of Mans. I would pre-

sume from the little information that was on them, there

could be conflict there. But I do not know enough details.

It is on the first page.

(p. 78) The others, no.

Q. And on the second page, there’s none?

A. Right.

Q. And on the third page, the first one that you found

is the |} +shna group, the

A. Yes.

Q. . . . Hare Krishna group?

A. That’s true.

Q. And do you have knowledge of any member of the

Fare Krishna group who is in the Air Force? Is there

any Hare Krishna member in the Air Force?

A. Ihave no knowledge of that one way or the other.

Q. You are working at the Central Office for Air

Force Chaplains? Is that what that is?

A. Well, I work at the Resource Board at Maxwell.

Q. Resource Board?

A. Right.

Q. And what is the Resource Board exactly?

A. It is a—it is simply what is says. It is a group

of Chaplains who are resource people for the Chief of

Chaplains in various areas, and we also do writing and

research, not only relative to our areas, but to any other

request.

Q. When you say “resource people,” if there is a

difficult problem of some kind, they would be likely to call

upon you?

A. Yes, sir.

(p 79) Q. And would you consider it likely that if

there were a Hare Krishna member someplace who made

some religious request, that that would therefore come to

your attention in the ordinary course?

A. It could and it could not.

We have not had that happen, and I really cannot an-

swer from experience on that; and I have only been on

the board since February, so I am not sure what the his-

tory is on that.

Q. Well, what has been—during your experience

there, what has been the most unusual group that you have

encountered in your experience?

A. You are talking about in my experience other

than doing the research itself?

Q. Yes.

A. The only reference of a group that I have simply

had mentioned is the Sikh group, who recently, I heard,

asked for permission to pass out materials at a base event

of some kind. But that is the only group that I have had

any...

Q. It asked for permission to hand out materials?

Now, this is a Sikh group of Air Force personnel, people

who are in the Air Force?

A. The understanding that I had was it was an Air

Force officer, in fact, who had asked...

Q. He was a member of the Sikh group and he had

asked (p. 80) to hand out this material?

A. Or who asked for permission to use a—or to have

a booth at some kind of event.

Q. Have you had any dress exception request from

that member of the Sikh group?

A. No.

Q. Do youknow of any...

A. Not that I know of, and I am not sure I would

Q. Do you know his name?

A. No, Ido not. I don’t have any idea.

Q. Where would that request have gone?

A. If it was a local request, it would have gone to

the Base Commander.

Q. Do you know of any member of the Sannyas

Order, S-A-N-N-Y-A-S, who is in the Air Force?

No, sir.

Or any member of the Sri Chinmoy Centre?

aan

No, sir.

Q. In fact, going through the rest of your study,

leaving out for the time being the Jewish groups and the

one member of the Sikhs whom you have described, do you

know of anyone in the Air Force who is a member of any

or adherent to any religious faith that requires some ex-

ception or variation from the Air Force dress code, ac-

cording to your statement?

A. Not that I can think of, no, sir.

(p.81) Q. Uh...

A. Let me say with the exception of the fact that

we do have quite a few Mormons in what they are al-

lowed to wear; but it is not an exception to the rule since

they are undergarments.

Q. Well, now, what is the—what is the rule with re-

gard to Mormons are permitted to wear?

A. The covenanted member of the Mormon faith

has certain undergarments they can wear or, that is, gar-

ments that are worn under the uniform. They are allowed

to do that. They are “temple garments,” as they are

called.

We have got quite a few Mormons, and I would just

simply presume that they do wear theirs.

Q. Is that provided in AFR 35-10?

A. Not that I know of.

Q. So how has that exception been implemented?

A. I would presume that it is implemented by them

in that it is not visible.

Q. AFR 35-10—are you familiar with AFR 35-10?

A. Generally, yes, sir.

Q. It is a fact, is it not, that AFR 35-10 also speci-

fies undergarments as well as clothing that is worn out-

side?

A. Not that Iam aware of.

Q. Well, let me show you paragraph 2-9 of AFR 35-

10 and specifically sub-paragraph (F).

(p. 82) [The reference is shown to the witness to

view. ]

THE WITNESS: Yes, that speaks to the visibility.

BY MR. LEWIN:

Q. And it does specify that undergarments are to be

a T-shirt...

A. ...And undershorts.

Q. Now, you say Mormons are permitted to wear

religious undergarments. And have you heard complaints

from any enlisted personnel about the Mormons’ wearing

undergarments?

A. No, sir, and I do not know for a fact that any

have. That is a presumption on my part.

Q. Do you think, Captain Reeves, that it is desir-

able that the Air Force promote recognition of diversity

of religious faiths among its personnel?

A. (No response)

Q. In other words, that Air Force personnel know

that we live in a country where there are various religious

faiths?

A. I think we have accomplished that, yes, sir.

Q. Do you think that is a desirable objective in terms

of what the Air Force should achieve with its personnel,

should it not?

A. I am not sure—Excuse me—I think it is an as-

sumed thing; and I am not sure that I think it would—I

am not sure how to answer that really. I do not know that

that is their major concern or should be their major desire.

(p. 83) But I would think it is very good that they

allow pluralism.

Q. And do you think that pluralism is fostered by a

recognition that other people have got religious observ-

ances and beliefs...

A. Yes, sure.

Q. ... That the individual may not have;...

A. Yes.

Q. ... That other people have got different religious

observances and symbols?

A. Yes.

Q. And, specifically, do you think it is fostered by

a recognition that other people may, for example, in the

exercise of their religious belief wear some particular

garment? They may wear a hat.

A. I would presume that that is one way of recog-

nizing it.

Q. Do you think that interferes with military disci-

pline if people respect that?

A. I do not have information to answer that on hon-

estly. | am not sure.

I have not—I have not run into an occasion personally

where there was an interference of any kind.

Q. Would you agree, Captain Reeves, that religious

obligations or duties should be granted somewhat prefer-

ential (p. 84) treatment to simply personal—matters of

personal taste?

MR. LAWRENCE: Your Honor, we have been pa-

tient.

I am going to object. This is significantly beyond the

scope of the direct examination here.

MR. LEWIN: I am not going to go on with this at

length, Your Honor, it just has to do with the testimony

that was gotten from the first witness, and I am just...

THE COURT: Well, I do not think that Captain

Reeves has been offered as any expert, and his personal

opinion is not at all persuasive on this subject matter.

MR. LEWIN: I think he has. I think he has been

offered as an expert because he made up a chart of the dif-

ferent religious faiths; and, certainly, in our view, ...

THE COURT: Making up a chart does not make one

an expert. He has testified within his experiezce. He has

told us exactly what he did and where he got the informa-

tion from.

100

They asked him to compile something that would make

some sense out of a rather obtuse, abstruse area that they

have had no major focus on. And the best he could do in

the time that they gave him was to get that information

and go through it and present it to us in outline form.

I would assume the defense would want to make the

whole study available, the whole transcript.

MR. LAWRENCE: That is correct.

THE COURT: That is one of the things that was to

(p. 85) be ascertained and what the Army had in mind

when they commissioned it. They spent money on it; they

had a contract.

They needed the contract to determine what it was the

contractor said he was going to do for the Army. And it

might give some indication as to what they expect to get

out of it.

I am going to sustain the objection. I think you are

too far afield.

BY MR. LEWIN:

Q. Chaplain Reeves, to your knowledge, has any mili-

tary service done any study of the effects of permitting

religious exemptions to dress codes on military discipline?

MR. LAWRENCE: Objection, Your Honor.

The same objection—it goes beyond the scope of di-

rect examination.

MR.LEWIN: This might...

THE COURT: I am going to sustain it.

I have had it from the top man, and he does not know

of any.

101

MR. LEWIN: Pardon?

THE COURT: He does not know of any.

MR. LEWIN: All right.

I just wanted to confirm that with this gentleman, who

did go to the available resources.

THE COURT: No, I do not want to pull rank on the

(p. 86) Captain; but when the General says there has not

been any, that is enough.

(Messrs. Lewin and Butler Confer.)

MR. LEWIN: That is all.

MR. LAWRENCE: Your Honor, I have no further

questions.

I would move the admission of Defendants’ Exhibit

Number 1 into evidence.

THE COURT: You may step down, Captain Reeves,

and be excused, if you like.

THE WITNESS: Thank you, sir.

[The witness leaves the stand. ]

THE COURT: What is your objection?

MR. LEWIN: Your Honor, I think I just simply

raise the objections, and I guess they go to the weight of

the report more than to its admissibility.

And, obviously, we think it is an inadequately-done

job, but we cannot object to its being admitted.

THE COURT: Well, I am going to receive it over

your objection.

102

[Defendants’ Exhibit No. 1 for identifi-

cation was received in evidence. |]

MR. LAWRENCE: Your Honor, one final matter.

The Air Force regulation at issue here is already a part

of the (p. 87) record, and I have not offered it for that

reason.

I have additional copies if they would be of any help.

THE COURT: I think it unnecessary to have addi-

tional copies. We have the record copy which is marked

as your exhibit.

MR. LAWRENCE: Exhibit A, I believe, to the op-

position to preliminary injunction.

THE COURT: It should be re-marked.

Why do not we have it re-marked for the purposes of

this trial.

You can put an additional marker on it, I guess, which

would be the easiest way to do it.

MR. LAWRENCE: That would be Defendants’ Ex-

hibit Number 2.

[The AFR referred to was re-marked for

identification as Defendants’ Exhibit No.

2 and received in evidence. |]

MR. LAWRENCE: Your Honor, we have no fur

ther witnesses at this time, and the defense rests.

MR. BUTLER: Your Honor, maybe this might be

an appropriate time to break for lunch. We have rebuttal

witnesses that we would like to call.

103

We have been informed by the defendants that they

will be...

(p. 88) THE COURT: I do not think that will be

any problem.

Can we resume—what time have you told the witness

you would be ready for him? Is 1:45 the time you...

MR. BUTLER: We can resume by 1:15 or 1:30,

Your Honor.

THE COURT: Would you like to resume at 1:30

then?

MR. BUTLER: Yes, Your Honor.

MR.LAWRENCE: That is fine with us.

THE COURT: All right.

Let us resume at 1 :30 then.

(Thereupon, the court recessed for lunch at 11:55

A.M.]

AFTERNOON SESSION

[1:47 P.M.]

MR. BUTLER: Good afternoon, Your Honor.

THE COURT: I apologize for keeping you waiting.

I was delayed. I usually try not to waste busy lawyers’

time.

You can proceed now.

MR. BUTLER: The plaintiff wishes to call as its

first rebuttal witness Dr. Howard Rosman.

THE COURT: Very well.

104

Thereupon, Howard J. Rosman, M.D., called as a wit-

ness by the plaintiff, after first being duly sworn, was

examined and testified as follows:

(p. 89) Direct Examination

BY MR. BUTLER:

Q. Dr. Rosman, would you please state your full

name for the record.

A. Howard Joseph Rosman.

Q. Where do you live, Dr. Rosman?

A. 166S17 Seventy-Third Avenue, Flushing, New

Q. What is the nature of your current employment?

A. lama pediatrician.

Q. How long have you been a pediatrician? How

long have you specialized in that area of medicine?

A. Since 1971.

Q. Where did you attend medical school, Dr. Ros-

man?

A. New York University.

Q. And where did you perform your internship and

your residency?

A. At Bellevue Hospital and NYU Medical Center.

Q. Both in New York?

A. Yes, they are adjoining.

Q. What was your next position after your resi-

dency?

105

A. I was on extended active duty in the Air Force.

Q. When did you begin your extended active duty

with the Air Force?

A. July 1, 1974.

Q. Where were you assigned?

(p. 90) A. Pease Air Force Base, Portsmouth, New

Hampshire.

Q. How long did you serve in the Air Force?

A. Two years.

Q. Did you serve in the Air Force as a doctor?

A. As a pediatrician, yes.

Q. Inotice you are wearing a yarmulke, Dr. Rosman.

Are you an Orthodox Jew?

A. I am.

Q. Have you always worn a yarmulke?

A. I have.

Q. Did you wear a yarmulke while you were attend-

ing medical school ?

A. I did.

Q. Did you wear a yarmulke while you were in your

internship and residency?

A. Yes.

Q. Did you wear a yarmulke when you reported for

duty at Pease Air Force Base?

A. I did.

106

Q. When you first reported for duty at Pease Air

Force Base wearing your yarmulke, did you receive any

reaction or any comment from any of your superior of-

ficers?

A. The hospital administrator told me that I would

not be permitted to wear the yarmulke while I was on ac-

tive duty while in uniform.

(p. 91) Q. Who was the hospital administrator if

you can remember?

A. Major Jonas.

THE REPORTER: Major who?

THE WITNESS: Jonas, J-O-N-A-S.

BY MR. BUTLER:

Q. What did you do when Major Jonas told you that

you could not wear a yarmulke in uniform?

A. I told him then that it would go against my re-

ligious beliefs, and I would really like to work it out so that

I would be able to wear the yarmulke while I was at the

hospital on duty while in uniform.

Q. What did he say to you at that time?

MR. LAWRENCE: Objection, Your Honor.

We are getting into an awful lot of hearsay; and my

objection is on the basis of hearsay.

THE COURT: I think I have to sustain it.

BY MR. BUTLER:

Q. What did you do after Major Jonas told you you

could not wear your yarmulke while in uniform?

™

107

A. At that point in time, I requested—I formally re-

quested to have a waiver of the regulation stating that I

should not wear a yarmulke.

[Mr. Butler shows a document to Mr. Lawrence. ]

BY MR. BUTLER:

(p. 92) Q. Dr. Rosman, I place before you what has

been marked for identification as Plaintiff’s Exhibit Num-

ber 7 and ask if you can identify that document.

(The Exhibit is handed to the witness, who looks

at it.]

THE WITNESS: This is the waiver request that I

sent in to my commanding officer.

(Mr. Butler shows another document to Mr. Law-

rence. |

BY MR. BUTLER:

Q. In connection with your request for a waiver, did

you consult with any other personnel at the Air Force

Base?

A. I spoke with the Hospital Commander, Colonel

Edmonds, and also with a Colonel Matthews, who was the

Methodist Chaplain on base.

Q. Dr. Rosman, I place before you what has been

marked for identification as Plaintiff’s Exhibit 8 and ask

if you can identify that document.

(The exhibit is handed to the witness, who looks

at it.]

THE WITNESS: This is the letter that Colonel Ed-

monds wrote to the base commander recommending ap-

108

proval of my request for a waiver of the regulation pro-

hibiting wearing the yarmulke.

BY MR. BUTLER:

Q. What was Colonel Edmonds’ position at that time?

A. He was the Hospital Commander.

(p. 93) (Mr. Butler shows another document to Mr.

Lawrence. ]

BY MR. BUTLER:

Q. Did you receive any information or orders from

your commander thereafter, after your request for an ex-

emption and Colonel Edmonds’...

A. Ispoke...

Q. ...Endorsement of that request?

A. Ispoke with Colonel Burpee on July 16th.

Colonel Burpee was the Base Commander.

And on, I think, July 22nd, I received a direct order

from Colonel Burpee not to wear my yarmulke while per-

forming my duties while in uniform.

Q. I place before you what has been marked for iden-

tification as Plaintiff’s Exhibit Number 9 and ask if you

can identify that.

[The exhibit is handed to the witness, who looks at it.]

THE WITNESS: This is the order that I received

from Colonel Burpee.

BY MR. BUTLER:

Q. After you received...

iia

109

MR. BUTLER: Excuse me.

May I move the admission of Plaintiff’s Exhibits

Numbers 7, 8, and 9?

MR. LAWRENCE: Your Honor, I would object

again on (p. 94) the basis of hearsay.

Although those documents have been identified, they

are still hearsay.

MR. BUTLER: With respect to Exhibit Number 7,

Your Honor, it is a letter request and identified by the

witness, submitted by the witness to the Air Force with

his own signature on it.

These documents—perhaps I can ask the witness more

questions as to whether he has...

BY MR. BUTLER:

Q. With respect to Plaintiff’s Exhibit Number 8, Dr.

Rosman, the letter of endorsement from Colonel Edmonds,

were you given a copy of that document by Colonel Ed-

monds?

A. Yes, I was.

Q. Did you discuss that with Colonel Edmonds?

A. I did discuss it with Colonel Edmonds before he

sent it to the Commander, Colonel Burpee.

Q. And with respect to Plaintiff’s Exhibit Number 9,

is that your signature on the bottom of the document?

A. Yes, it is.

Q. Were you asked to sign that document when you

received it?

110

A. I was told I had to sign that document on the day

that I received it.

MR. BUTLER: Your Honor, I submit that these

are not (p. 95) hearsay; they are admissible; and I move

for their admission.

THE COURT: I will reserve on 8 and 9. Number 7

will be received.

[Plaintiff’s Exhibit No. 7 for identifi-

cation was received in evidence. ]

BY MR. BUTLER:

Q. Dr. Rosman, after you received the letter of de-

nial, the notice of denial from Colonel Burpee, what did

you do?

A. Major Jonas at that point in time introduced me

to the Area Defense Counsel, who explained to me what

would happen if I would not obey the order.

Part of what he told me was that I would be court-

martialed and if found guilty,...

MR. LAWRENCE: Objection, Your Honor.

The objection again is to hearsay.

THE COURT: Your objection is overruled.

THE WITNESS: If I would be found guilty, digeould

lose my medical license.

BY MR. BUTLER:

Q. So what did you do after you received that infor-

mation?

A. I spoke with my counsel at that time.

111

Q. Did you continue wearing your yarmulke?

A. Immediately, the day after I received the order, I

(p. 96) did not wear the yarmulke.

Q. Just so we can put this in some kind of time frame,

do you recall what day of the week it was that you re-

ceived that information from the Area Defense Counsel

and decided to take your yarmulke off?

THE COURT: One moment.

What is your proffer of this witness?

MR. BUTLER: Your Honor, defendants have sought

to establish that the wearing of a yarmulke while in uni-

form would somehow interrupt or interfere with discipline,

uniformity, esprit de corps in job performance generally.

I intend to establish through this witness that after

this story would progress, after a period of time, he was

permitted to wear his yarmulke again.

He did wear it for a period of two years in the Air

Force at a hospital, a regional hospital at Pease Air Force

Base.

He did so without any adverse effect, no consequences,

criticism, questions being raised about it, or any other

adverse effect.

MR. LAWRENCE: Your Honor, that testimony is

essentially irrelevant here on the basis of a single incident.

We had testimony which came out previously which

deals with the rules of general application, and the basis

for our case was made on the basis of a rule for general

application (p. 97) and its enforcement.

112

Perhaps single incidents of non-enforcement or dif-

ferent enforcement of the rules would be irrelevant to the

presentation here. We object.

MR. BUTLER: Your Honor, I submit that the in-

formation is both—the evidence would be both probative

and relevant.

The testimony that has taken place before the court

deals with, I admit, the general policy.

Dr. Rosman is one example.

We will be presenting other evidence of other ex-

amples and evidences of people who continued to wear

yarmulkes on their Air Force bases without any prob-

lems.

THE COURT: Well, I will receive the testimony, but

I doubt that it can be relevant to what I have viewed to be

the crucial issue.

But I will receive the testimony.

MR. BUTLER: Very well, Your Honor.

BY MR. BUTLER:

Q. Once again, Dr. Rosman, so we can put this in a

time frame, what was—do you recall the day of the week

that you...

A. It was a Wednesday.

Q. What did you do after you indicated you con-

tacted counsel?

Who was the counsel at the time?

A. Mr. Lewin.

113

(p. 98) [Mr. Butler hands another document to Mr.

Lawrence to view. ]

BY MR. BUTLER:

Q. Dr. Rosman, I place before you what has been

marked for identification as Plaintiff’s Exhibit Number

10.

(The exhibit is handed to the witness, who looks at it.]

BY MR. BUTLER:

Q. Can you identify that document?

A. It is a copy of a letter that was sent to a Mr. David

Johnson in the Office of General Counsel, Department of

the Air Force, by Mr. Lewin on my behalf.

Q. Did you request that Mr. Lewin send that letter

for you?

A. I did.

Q. Did you receive a copy of that letter at or around

the time that it was sent?

A. Yes, I did.

MR. BUTLER: Your Honor, I move for the admis-

sion of Plaintiff’s Exhibit Number 10.

MR. LAWRENCE: Your Honor, we make the same

hearsay objection, that the statement is not made by the

declarant, he is unavailable.

MR. LEWIN: Your Honor, I certainly do not wish

avs

THE COURT: One moment.

(p.99) MR.LEWIN: Certainly.

114

THE COURT: One lawyer at a time.

MR. LEWIN: Yes, sir.

MR. BUTLER: Your Honor, first, I am prepared

for Mr. Lewin to authenticate the document if mecessary.

THE COURT: I know you are.

MR. BUTLER: But, more importantly, the witness

has testified that this letter was sent at his request, at his

direction, and that he received a copy of the letter at the

time.

THE COURT: I do not know that it is particularly

relevant. That is my problem.

MR. BUTLER: The substance of this letter, I be-

lieve, addresses the very issues that are addressed in this

lawsuit.

And the matters were considered at the time by the

Air Force.

And in the instance of Dr. Rosman, the same kinds

of issues were considered by the Air Force in the case

of Dr. Goldman.

THE COURT: The issues that are considered by

the Air Force at the time vis-a-vis Goldman or anybody

else are not necessarily controlling as to the issues to be

decided here as we tried to frame it.

Are you saying they are estopped...

MR. BUTLER: No, sir.

(p. 100) They are...

THE COURT: ... From treating the plaintiff in

this case, Goldman, any different than they treated Dr.

Rosman?

115

MR. BUTLER: No, sir.

I am simply maintaining, as a matter of policy, the

Air Force has considered this matter before and treated it

differently than they did today.

THE COURT: Not at the highest level where they

are trying to have the policy established.

There has been no—I think they would stipulate. The

Air Force would stipulate that you could probably dredge

up a significant number of people, 15 or 20, over the

years who may have had ad hoc determinations made for

tiiem.

MR. BUTLER: The particular addressee of Plain-

tiff’s Exhibit Number 10 is the Office of the General Coun-

sel at the Pentagon.

Other recipients of the letter were the Deputy Assis-

tant Secretary of the General Counsel.

THE COURT: I will reserve on this until I hear

the testimony of Dr. Rosman.

MR. BUTLER: Very well.

MR. LAWRENCE: Your Honor, the relevancy ob-

jection runs through the whole gamut of the testimony, in-

cluding the exhibits offered in support of it.

THE COURT: Yes, I understand that.

(p. 101) MR. LAWRENCE: Thank you, Your

Honor.

BY MR. BUTLER:

Q. Thereafter, did you have, after the letter was

sent in your behalf and at your request, did you have an

116

opportunity to meet again with Colonel Burpee concerning

the question of your yarmulke?

A. Iwas told in Colonel Burpee’s office the follow-

ing Tuesday.

And at that point in time, Colonel Burpee told me

that it weuld be permissible for me to wear my yarmulke

while on active duty while wearing my uniform.

MR. LAWRENCE: For the record, we object and

ask that the hearsay testimony be stricken.

THE COURT: For the record, your objection is over-

ruled.

BY MR. BUTLER:

Q. Approximately how many days went by then

where you did not wear your yarmulke?

A. Three or four days.

Q. After your meeting with Colonel Burpee, did you

commence wearing your yarmulke and continue wearing

it for the full two years of your service?

A. Yes, I wore my yarmulke from that point on until

I was discharged from extended active duty.

Q. Did Colonel Burpee impose any restrictions on

where (p. 102) on base you could wear your yarmulke?

A. No.

You were permitted to wear it everywhere?

That’s correct.

Even wore it in the hospital?

Yes, I did.

PrP oP ©

117

Q. You wore it while you were treating patients?

A. Yes,

Q. And you wore it while you were working at the

nursing center?

A. That’s right.

Q. During that two-year period, did you receive any

inquiries or comments from your patients concerning your

wearing of the yarmulke?

A. Occasionally.

As a pediatrician treating children who had never

seen the yarmulke before, they would ask me what it was.

Occasionally, their parents would tell them that it was

my religious belief to have my head covered.

And if the parents would not, then I would tell them

that it was my religious belief to have my head covered

in deference to God.

Q. Did any of the s~listed men on base question you

about wearing the yarmulke?

A. No.

(p. 103) Q. Did you receive any indication that the

yarmulke in any way interfered with your ability to per-

form your duties as a pediatrician?

A. No.

Q. Once you were permitted to wear your yarmulke

for that period of time, did you have any indication that

any kind of discipline problems developed at Pease Air

Force Base as a result of your wearing the yarmulke?

118

A. No.

MR. BUTLER: I have nothing further, Your Honor.

THE COURT: All right.

THE COURT: Mr. Lawrence?

MR. LAWRENCE: Your Honor, I have no ques-

tions of this witness.

Again I move that his testimony be stricken as ir-

relevant.

THE COURT: I will take that motion under advise-

ment.

THE COURT: You may step down, Dr. Rosman.

{The witness leaves the stand. ]

MR. LEWIN: Your Honor, the plaintiff will call

Dr. Samuel Levinson.

(p. 105) Direct Examination

BY MR. LEWIN:

Q. Dr. Levinson, would you please state your full

name and address.

A. Samuel Levinson, 12207 Devilwood Drive, Poto-

mac, Maryland.

And, Dr. Levinson, what is your occupation ?

I am a clinical psychologist.

Are you self-employed?

PoP eO

At the moment, yes; at the time, yes.

119

Q. Dr. Levinson, could you please briefly summarize

your formal education from college on.

A. I got my undergraduate degree in Emporia, Kan-

sas, in 1951; came aboard in the Air Force; got an Air

Force-sponsored master’s degree and a commission in °55

—I guess it was ’55; and in ’57, was assigned by the Air

Force for a doctoral program at Denver; finally finished

that doctorate at the University (p. 106) of London in ’68,

Q. So you have a Ph.D. in psychology?

A. And the American Boards, which is a supple-

mentary designation or equivalent to medical residency.

Q. So you have received Board certification as well?

A. Yes.

Q. Have you served with the United States Air

Force?

A. Twenty-six years.

Q. And what was the final position that you held

with the United States Air Forve?

A. I was chief clinical psychologist.

Q. Could you speak up, please.

A. I was chief clinical psychologist to the Air Force

surgeon.

Q. At what period of time were you chief clinical

psychologist to the Air Force?

A. From ’71 to ’77, until I retired.

Q. And prior to that, had you held other positions

in the field of psychology with the Air Force?

A. Yes.

Q. All right.

I place before you, Dr. Levinson, what has been

marked as plaintiff’s Exhibit Number 11 for identifca-

tion,...

[The exhibit is handed to the witness, who looks at it. ]

(p. 107) BY MR. LEWIN:

Q. ...A copy of which I gave to government counsel

before we resumed this afternoon.

Could you tell us what that is.

A. That is my resume.

Q. And it includes your various Board certifications

and employment?

A. Yes.

Q. It also includes on the second page various con-

sulting positions you have held?

A. Yes.

Q. Are you a member of professional organizations

in the field of psychology?

A. lam.

Q. Specifically, the American Psychological Associa-

tion?

A. Yes.

Q. And the Virginia Psychological Association?

A. Uh-huh.

121

Q. And you have received professional honors from

the United States Air Force, commendations, medals, as

indicated on page 2?

A. Yes.

Q. Have you also engaged in teaching or lecturing?

A. Yes.

Q. And that is reflected on plaintiff’s Exhibit 11 for

(p. 108) identification?

A. Uh-huh.

Q. Is it?

A. Yes.

Q. And you have also given speeches and lectures in

the field of psychology?

A. Yes, I have.

Q. All right.

MR. LEWIN: I would like to, first off, offer plain-

tiff’s Exhibit 11 for identification into evidence.

MR. LAWRENCE: No objection.

THE COURT: It will be received.

[Plaintiff’s Exhibit No. 11 for identification was re-

ceived in evidence. |

MR. LEWIN: And at this time, on the basis of Dr.

Levinson’s testimony, also I would like to offer him as an

expert in military psychology—military psychology.

THE COURT: Do you wish to voir dire?

122

MR. LAWRENCE: Your Honor, I will just reserve

for cross-examination.

I will pick it up on cross.

THE COURT: Very well.

He will be accepted as an expert.

BY MR. LEWIN:

(p. 109) Q. Now, during what period of time were

you chief clinical psychologist for the Air Force?

A. From ’71 to ’77.

Q. And prior to that, from—is it 1954 you had served

as a psychologist in the Air Force. Is that right?

A. Prior to 1954, yes.

Yes, I served as a psychologist in the Air Force. The

Air Force did not require a Ph.D. at that time.

Q. Now, I direct your attentions specifically, Dr. Lev-

inson, to the question of Air Force uniform, the Air Force

dress code.

A. Yes.

Q. Could you please tell the Court whether as an

expert psychologist your view is that the wearing of a uni-

form is beneficial in some way to the military service?

A. There is no question about that.

Q. All right.

A. It is a means of identification and all things that

come with it.

Q. And there has been testimony that it affects mat-

ters such as discipline, teamwork, motivation, esprit de

123

corps, and image of Air Force personnel to wear an Air

Force uniform. Do you agree that those things are af-

fected?

A. Certainly. Certainly.

Q. By the way, are you aware, as a psychologist, of

any (p. 110) studies that the military has undertaken in

this regard?

A. No.

oS Ge. «.

A. Not to my knowledge, they have not.

They have assumed with great conviction these mat-

ters, but have not really tested them.

The Defense Department has bought millions of dol-

lars of research and leadership in personnel matters of

this kind, but have always taken the stance that this is

the way it has always been and this is the way it is and

this is the way it perhaps has to be.

And they have had ample opportunity to buy that re-

search as well.

Q. Now, let me direct your attention to...

THE COURT: Well, let me ask this:

THE WITNESS: Yes, sir.

THE COURT: ... During the time that you were

in your capacity, did you ever suggest to them that there

was not any basis for the assumption they had made in

that regard, that research was necessary in order to vali-

date it?

124

THE WITNESS: The issue never came up.

And as a medic, the issue of uniforms, unless they

became issues of litigation and I would be involved as an

expert witness, did not come up.

The medics do not get involved in defining uniforms

(p. 111) except as they related to life-support systems.

Now, the question of its impact on the psychology of

personnel and on morale and my role as a psychologist

responsible to counsel with youngsters with valid discipline

problems, I would be familiar with it in that context.

BY MR. LEWIN:

Q. Now, Dr. Levinson, let me direct your attention to

the question of exemptions or exceptions to the dress code.

In your experience and from your experience, do ex-

emptions or exceptions to the dress code necessarily un-

dermine the various beneficial factors I have enumerated

and that you have agreed to with regard to military dress?

A. The common phrase, such as good order and dis-

cipline—the exceptions more often than not create a sense

of being special, a sense of esprit de corps around lim-

ited exceptions, the black beret, the Air Force policemen

wear now, the pilots that like to wander around in their

flight suits—and you see them in the PX and in the offic-

ers’ clubs wandering in.

You know, people look for something a little special

that sets them aside; and in a positive way, this has kind

of always worked.

Nobody has really made an issue of those things un-

less their unrigidity was such that they could not handle

125

the flexibility or unless they needed a weapon to go after

somebody that had bugged them and they could not get

them on a legitimate (p. 112) issue that they were con-

cerned with.

Q. Well, directing your attention specifically to your

own experience, do you know during your—those twenty-

how many years?

A. Twentyssix.

Q. ... twenty-six years in the Air Force, of excep-

tions to the military dress code, that there were instances

when people did violate the military dress code?

A. Every day you would see people with yarmulkes

in the PX.

Occasionally, we would see people walking around in

their flight suits. We would see people in the hospital

wearing their operating-room green.

Q. Well, let us take the operating room green. Is

there a restriction with regard to—you are talking about

the green smock that a doctor wears .. .

A. Yes.

Q. ... In the operating room?

A. Yes.

That is not part of a hallway uniform. It is not part

of a uniform that you wear in a clinic. That is for the

operating room.

Q. And by regulations, limited to the operating room?

A. I think so.

126

Q. And, nonetheless, people would walk around out-

side (p. 113) the operating room...

A. Simply because it was convenient and they were

more concerned about getting their job done than whether

or not somebody wore greens or whites.

Q. Other exceptions—another exception you men-

tioned was pilots in flight suits.

How was that an exception ...

A. All right.

Because you are not to wear...

Q. ... or variation?

A. You are not to wear flight suits off the flight

line.

But, you know, it is a badge of honor; and you would

see them in the PX, at the officers’ club, and around until

it bothered somebody; and then it would probably be

brought up.

There is another little bit: I noticed people wearing

the ‘‘I Gave’’ or ‘‘We Gave’’ combined Federal campaign

badge.

Q. You mean the little button, the little medal?

A. The little button, yes.

Q. And that is not permitted by the dress code?

A. To the best of my knowledge, no restriction pro-

hibited it; except that it was not decreed as a formal part

of the regulations.

But nobody came up with any issue about it.

People worked during the campaign; and if they cared

(p. 114) to, or they wore it if they were assigned as a

127

project officer; and, therefore, if he wanted or needed to

make a bit of it—and then it disappeared.

Q. Had there been items of dress or clothing that

are now permitted by Air Force regulations which began

as really a variation from that Air Force code?

A. Well, I would think of the baseball cap.

@. Baseball caps are not permitted?

A. Well, they gave—the N avy gave President Reagan

a baseball cap when he was on the aircraft carrier re-

cently; and they had taken to wearing baseball caps as

official uniform now on the flight lines.

But, initially, I do not think they were declared offi-

ciai uniform.

It just turned out that those who wore them found

that they were more effective than what was uniform at

the time, and then they have since become uniform, I

suppose.

Q. As a psychologist with your years of experience

in the Air Force, could you just describe for the Court

how you view or whether there are any beneficial aspects

to granting an exemption or an exception to variations

from the dress code.

A. Well, I think in the context of a rigid system,

when youngsters kind of feel that things are boxed in

pretty tight, if there are things that demonstrate that

there is indeed flexibility, is indeed compassion, or that

changes can be made (p. 115) rationally, that things are

not imposed in a rigid or, as the youngsters refer to it

as, in a ‘‘chicken’’ fashion, then it gives some sense of

humanness about it.

128

And you feel less a victim of the absolute, less a vic-

tim of rigidity, less necessary to oppose or to resist or

to get into struggles with it.

Zumwalt demonstrated this with the beard issue in

the Navy some years ago.

Q. Are you talking about Admiral Elmo Zumwalt?

A. Yes.

You know, I thought it was a rather brilliant psycho-

logical move to recognize that there were a lot of young

people with natural opposition tendencies that could read-

ily marshal around this and make a cause celebre and

waste a great deal of time and money.

And if he could avoid the then need to develop and

act out these oppositional needs on issues of importance,

which he, in my view, did—the youngsters then went and

had their beards—it did not have any significant nega-

tive effect on the Navy and he disarmed this struggle.

They had a place to do their thing.

Q. Is there, in your view, necessarily a negative im-

pact on other personnel of the military service if there

are variations or exceptions permitted, in other words?

Do others view that as a basis for resentment, (p. 116)

envy,...

A. I think that depends...

Q. ... or jealousy?

A. I think that depends on what it is.

If you get the feeling that someone else is a favorite

child in the family and the daddy commander, then there

would be some resentment for that.

129

But if it is an issue that relates to something and to

somebody that carries respect, then you view it as a state-

ment of humanness in the system.

Q. All right.

We have not to this point, Dr Levinson, discussed

this in the context of religious demands or religious ex-

emptions.

Do you think that exemptions from the dress code

based on the religious need of an observer add anything

to your analysis you provided heretofore?

A. No, I do not think variations, you know, as long

as they are not gross, would contribute to, you know, good

taste and they would contribute to the sense of humanness.

In the years I have observed, I have noticed no nega-

tive—I have had no negative experience, you know.

Q. All right.

Would the fact that a particular variation from the

dress code based on religion affect other personnel’s view

of (p. 117) that variation in any way?

A. No, I think what they would do is treat it with

respect and get a sense of the system is somewhat flexible

and that the system does respect—does respect religion.

And that if they indeed wanted to modify their uni-

form in the same way, they could look into converting.

There was a non-religious issue, the concern among

black troops with psuedofolliculitis.

Adolescent blacks tend to get ingrown hair. And it

became a power struggle very often on a training base.

130

Q. Were there exemptions from the grooming re-

quirements...

A. There were...

Q. ... for medical reasons...

A. ... exemptions.

Q. ...and those who could not shave?

A. And I would often serve as ombudsman for young-

sters whose administrative people would resent the fact

that they went to the hospital and resented the hospital

for giving them one.

They said, ‘‘you cannot do that’’—an inappropriate

power struggle.

Q. But once it was recognized that this was based on

medical grounds, was that respected by fellow members

of the service?

A. Then it ceased to be an issue.

(p. 118) Q. And with regard to religious variations,

is it your view as a psychologist that the same would be

true if exemptions were permitted for religious varia-

tions...

A. Yes.

Q. ... from the dress code?

A. Yes.

Q. Would that in any way have any educational im-

pact on Air Force personnel as well as with regard to our

pluralistic society?

A. Yes, I think it would teach people that there is

room for differences, differences that are not flaunted in

a aeeeeneaeiitieemnennnenial

131

a negative or power-struggle kind of way, differences

that have little or nothing to do with the mission at hand,

you know.

Q. Did the name, Simcha Goldman, come across your

desk at any time while you were in the Air Force?

A. Iam responsible for Simcha Goldman in the Air

Force.

Q. How are you responsible for Mr. Goldman—Dr.

Goldman?

A. As chief psychologist, I recruited him for a doc-

toral training program.

Q. Did you meet him personally?

A. No, only on the phone through his credentials.

Q. Did you know at the time that you recruited him

that he was of the Orthodox Jewish faith?

A. Yes.

(p. 119) Q. Are you yourself Orthodox Jewish?

A. lam Jewish, but not Orthodox.

Q. How did you know that he was Orthodox Jewish?

A. I asked him as a matter of, you know, being able

to consider where we might get him training and where

he might need to be assigned.

Q. Did you know he had previously been a Chaplain?

A. Yes.

Q. And were you aware of any religious observances

that he had?

132

A. It never became a subject of conversation as

though it would be a problem.

I knew he was a Chaplain in the Navy, had served

in the Carolinas somewhere with a Navy jail, had done

a good deal of counseling, and that part attracted me.

And I thought that given his rabbinical training,

demonstrating that he could do the graduate work, and

his pastoral counseling experience, that we were half-way

home in having an experienced military officer functional

in clinical psychology, compared to a youngster recruited

fresh out of graduate school that would take a couple

of years to train.

So I was quite anxious to get him onc

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