Amicus Curiae Brief — Goldman v. Weinberger

Supreme Court, U.s.

FILED

l AUG SL 1985

4

No. 84-1097 7 pep F. SPANIOL, I

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———

=———_

IN THE 4

Supreme Court of the United States

October Term, 1985

>

S. SIMCHA GOLDMAN,

Petitioner,

v.

CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, ef. ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH AS AMICUS CURIAE

DANIEL P. LEVITT

KRAMER, LEVIN, NESSEN, KAMIN

& FRANKEL

919 Third Avenue

New York, New York 10022

(212) 715-9100

Of Counsel:

SIGMUND S. WISSNER-GROSS

ABBE L. DIENSTAG

KRAMER, LEVIN, NESSEN, KAMIN & FRANKEL

919 Third Avenue

New York, New York 10022

JUSTIN J. FINGER

JEFFREY P. SINENSKY

Jitt L. KAHN

Anti-Defamation League of B'nai B'rith

823 United Nations Plaza

New York, New York 10017

Attorneys for Amicus Curiae

BEST AVAILABLE COPY §

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TABLE OF CONTENTS

PAGE

PRs Pe CEI civccsccesncecenssirinssensesesesesevese iil

INTEREST OF THE AMICUS CURIAE ..........000000+. l

IIIT onidieiccdiniscishisdsticcansstbasesiesinevoaineiovonenee

RPPNEED GEE FRRIPRIIIEIE ED secnsccncecesesensenevesisnsesseeses

IIITEED :ndelsicsiinhondaciprttsansertecedetinentesmnmesnensnmneniineseesnen

POINT I—AFR 35-10 IS UNCONSTITUTIONAL AS

APPLIED TO PETITIONER BECAUSE IT FAILS

REASONABLY TO ACCOMMODATE PETI-

TIONER’S FREE EXERCISE RIGHTS ................. 7

2

3

3

| NTE 5

6

7

A. Restrictions on the free exercise of religion can

ordinarily be justified only by a compelling

State interest that could not otherwise be

IEE Sescrsneennetdisastunsdbenesncbenpiesinescors 7

B. The Air Force is constitutionally required reason-

ably to accommodate petitioner’s free exercise

rights by promulgating narrowly drawn regula-

SII: saiciaisihcash tieidiihaiehiiataadendiidadialibiaeedaidepaeiqneiedtesescoce 9

C. Reasonable accommodation requires the Air

Force to permit Captain Goldman to wear a yar-

IEEE teblidiaddnbntiadicetiahibnstniiinlaninimandasiniscasinnatiadsnceneeeeee 13

1. The Air Force has failed to establish that its

objectives would be undermined were Captain

Goldman permitted to wear a yarmulke ...... 13

2. In the case of Captain Goldman’s yarmulke,

the Air Force is clearly required to make ex-

SR Ol EEE HTT Citnsnintetcecesevenntibncccensienses 17

(ii)

PAGE

POINT II—NO JUDICIAL DEFERENCE IS DUE

THE UNCONSTITUTIONAL DECISION OF

THE AIR FORCE NOT TO ACCOMMODATE

PETITIONER’S RELIGIOUS PRACTICES ........... 18

A. The ruling of the Court of Appeals that the mili-

tary may insist on compliance with its dress regu-

lations simply “for the sake of enforcement” is

deference that would arbitrarily strip service per-

sonnel of their First Amendment rights ............. 18

B. The judiciary’s lack of specialized expertise in mil-

itary matters does not render military judgments

on constitutional issues nonreviewable ................ 20

CONCLUSION o0cccccscssscssscccsseessesoesseossososessssesseessnesennenes 22

(iii)

TABLE OF AUTHORITIES

PAGE

Cases

Abington School District v. Schempp, 374 U.S. 203

LS TTT 9,14

American Ship Building Co. v. NLRB, 380 U.S. 300

al elisha cecctatnasivcssossconsececeeoceees 20

American Textile Manufacturers Institute v. Donovan,

1 20

Anderson v. Laird, 466 F.2d 283 (D.C. Cir.), cert. de-

I I ans csccccnsccesescoecoecsscccvece 19

Bitterman v. Secretary of Defense, 553 F. Supp. 719

(D.D.C. 1982), appeal docketed, No. 83-1177 (D.C.

a cccuneccococee 16

Braunfeld vy. Brown, 366 U.S. 599 (1961) ..........cccc000 8

Brown v. Board of Education, 347 U.S. 483 (1954) ... l

Brown v. Glines, 444 U.S. 348 (1980) 0.0.0.0 11, 12, 13

Cantwell v. Connecticut, 310 U.S. 296 (1940) «0.00.00... 8

Chappell v. Wallace, 462 U.S. 296 (1983) ......:.ccccccc 9, 19

City of Cleburne, Texas v. Cleburne Living Center, Inc.,

Se 16

Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976) .... 9

Everson v. Board of Education, 330 U.S. 1 (1946) ..... 7

Geller v. Secretary of Defense, 423 F. Supp. 16 (D.D.C.

ee i ass sesnecdncctecasicncoroocccece 16

Gilligan v. Morgan, 413 U.S. 1 (1973) cocccccccccccecceeeeees 19

Greer v. Spock, 424 U.S. 828 (1976) .....ccccccccccecceeeeeees 12, 13

Industrial Union Department, AFL-CIO v. American Pe-

troleum Institute, 448 U.S. 607 (1980) iatialniediecdene 20

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .. 2

(iv)

PAGE

Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) ........... 9

Kelley v. Johnson, 425 U.S. 238 (1976) ..cccccccccceeeeeeees 14

Khalsa v. Weinberger, 759 F.2d 1411 (9th Cir. 1985) ..... 15

Korematsu v. United States, 323 U.S. 214 (1944) ...... 13, 16

LeRoy Fibre Co. v. Chicago M. & St. P. Ry., 232 US.

PE MEIIPEED sncchsntecagrecsonasequctecipansieidndeesatalamaabbapiirtenibenin 17

Lynch v. Donnelly, 104 S. Ct. 1355 (1984) 0... 17

Marbury v. Madison, | Cranch 137 (1803) .......0....... 21

Marshall v. District of Columbia Government, 559 F.2d

Tae Ges OOD cacecesseinieidntshinsesidibibbiiaiiisenniacteniits 14

Middendorf v. Henry, 425 U.S. 25 (1976) ...cccccececeeeees 14, 19

NAACP v. Alabama, 377 U.S. 288 (1964) 0.0.0.0... 2

NAACP v. Button, 371 U.S. 415 (1963) c..cccccceeeeeees 10

Orloff v. Willoughby, 345 U.S. 83 (1953) ..ncccccceeeceees 19

Palmore v. Sidoti, 104 S. Ct. 1879 (1984) .............. 16

Parisi v. Davidson, 405 U.S. 34 (1972) ......ccceeeeeeeeeeeee 21

Parker v. Levy, 417 U.S. 733 (1974) w.ccccccccccccceesseeeseees 19

Reynolds v. United States, 98 U.S. 145 (1879) ........... 7

Rostker v. Goldberg, 453 U.S. 57 (1981) .....ccccceeeeeeee 5, 10, 21

Runyon v. McCrary, 427 U.S. 160 (1976)... 2

Schlesinger v. Councilman, 420 U.S. 738 (1975) ........ 19

Shelley v. Kraemer, 334 U.S. 1 (1948)... l

Sherbert v. Verner, 374 U.S. 398 (1963) «0.0... ee

Sherwood v. Brown, 619 F.2d 47 (9th Cir.), cert. denied,

GED UE. GED CAGRDP .ciccccrcrscesccrcsscsnsonentnmrasssnorsenesonnenes 15

Sweatt v. Painter, 339 U.S. 629 (1950) «00... eee l

(v)

PAGE

Thomas v. Review Board, 450 U.S. 707 (1981) .......... 8,9

Torcaso v. Watkins, 367 U.S. 488 (1961) ...............000.. 2

United States v. Robel, 389 U.S. 258 (1967) ........... 10, 13, 19

Wallace v. Jaffree, 105 S. Ct. 2479 (1985)... 2

West Virginia State Board of Education v. ae 3

Sete NTI eccceissiasisnasinninsisnnidiiseiitsaniamisdecnnnnuttestenebnnion 21

Wisconsin v. Yoder, 406 U.S. 205 (1972) ....ccccccceceeeeeeee 8,9, 13

Other Authorities

FAD Te ID BPE D cccesccsinccccstscccspstccnssonsnnssoness 11

TG TTT passim

Air Force Regulation 35-15(3)(a) (1) ........cccceeeeeeeeeeees 11

Defense Authorization Act, 1985, Pub. L. No. 98-525,

ey Ge SURO CP UMINED © srisictctiscctcnctecccnsencentoceveneesones 5

PR. PRReROM, FIRE SIMI CIDGD) ...ncccsccncecccsccccecsccecessees 3

Joint Service Study on Religious Matters, Religious

I NY ID cncscacsieicsssiennticshinidinguibisaniiadniaatsinne a | re

Maimonides, The Guide to the Perplexed (M. Friedland-

fp, REUTER SUCCEED eee 3

Talmud, Tractates Kiddushim and Shabbath (The

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IN THE

Supreme Court of the United States

October Term, 1985

No. 84-1097

&

S. SIMCHA GOLDMAN,

Petitioner,

v.

CASPAR W. WEINBERGER, ‘SECRETARY OF DEFENSE, ef. ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH AS AMICUS CURIAE

The Anti-Defamation League of B’nai B’rith submits this brief

in support of the petitioner and respectfully submits that the

judgment of the Court of Appeals for the District of Columbia

Circuit should be reversed.

INTEREST OF THE AMICUS CURIAE

B’nai B'rith, founded in 1843, is the oldest civic service organi-

zation of American Jews. The Anti-Defamation League

(“ADL”) was organized in 1913 as a section of the B’nai B’rith to

advance good will and mutual understanding among Americans

of all races and creeds and to combat racial and religious

prejudice in the United States.

Among its other activities directed to these ends, the ADL has

filed briefs amicus curiae opposing practices and policies which

impair the integrity and self-respect of individuals of all races.

Briefs have been filed in such cases as Shelley v. Kraemer, 334

U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); Brown v.

2

Board of Education, 347 U.S. 483 (1954); NAACP v. Alabama,

377 U.S. 288 (1964); Jones v. Alfred H. Mayer Co., 392 US.

409 (1968); and Runyon v. McCrary, 427 U.S. 160 (1976).

The ADL also supports the rights of all groups to practice their

religion free from unjustified governmental interference. The

ADL has filed briefs in Torcaso v. Watkins, 367 U.S. 488 (1961);

Sherbert v. Verner, 374 U.S. 398 (1963); Wallace v. Jaffree, 105

S. Ct. 2479 (1985), and other cases before this Court in support

of these vital First Amendment rights.

In the case now before it, the Court is asked to decide whether

the Court of Appeals for the District of Columbia Circuit erred in

holding that the Air Force, solely in the interest of enforcing a

headgear regulation which the Air Force concedes is “arbitrary”,

can require an Orthodox Jewish psychologist to violate a funda-

mental religious obligation by prohibiting him from wearing a

yarmulke while on duty at an Air Force hospital. As an organiza-

tion committed to safeguarding religious freedom and constitu-

tional guarantees against arbitrary and overly restrictive

regulations, the ADL believes that the fundamental strictures of

the First Amendment cannot be cast aside simply because the

setting for religious observance is in the military, and that this

Court should honor petitioner’s modest request to be permitted to

wear a yarmulke while serving our country as a psychologist at an

Air Force hospital.

The ADL respectfully submits that the decision of the Court of

Appeals for the District of Columbia Circuit should be reversed.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit is reported at 734 F.2d 1531. The

Findings of Fact and Conclusions of Law of the United States

District Court for the District of Columbia are unreported. The

opinion of the District Court granting a preliminary injunction is

reported at 530 F. Supp. 12.

3

STATEMENT OF THE CASE

1. The Facts

Petitioner S. Simcha Goldman, an Orthodox Jew who has

served with distinction in two branches of the United States mili-

tary for fourteen years, was assigned, after completing a Ph.D. in

clinical psychology in 1977, to work at the Mental Health Clinic

of the Air Force Regional Hospital at the March Air Force Base

(March AFB) in Riverside, California.' As an Orthodox Jew,

he wore at all times, as he has done throughout his life, a diminu-

tive head-covering known as a “yarmulke” in fulfillment of a

Jewish religious requirement that he keep his head covered at all

times. There is no dispute as to the sincerity of petitioner's

religious beliefs.

From September 1977 until May 1981, he wore a yarmulke

while on hospital duty without incident. There is no record that

his wearing a yarmulke disrupted the esprit de corps among Air

Force personnel at the hospital, that it inhibited teamwork at the

hospital, or that the Air Force’s other objectives such as “motiva-

tion” or “image” were tarnished or undermined. On the contrary,

Goldman’s performance as an Air Force psychologist was highly

praised. He scored high marks on the very professional qua ‘ities

that the Air Force contends would be imperiled were Goldman

1. Between 1970 and 1972, petitioner, who is an ordained rabbi,

served as a chaplain in the United States Navy, “where he wore a

yarmulke as a head covering while in uniform without incident.” 734

F.2d at 1532.

2. The religious practice of wearing a yarmulke, a head covering

worn by observant Jews, is of ancient origin. References to the practice

appear in the Talmud, an authoritative compendium of Jewish law

completed by ae mages 500 C.E. See Tractate Shabbath, \18b

and Tractate Kiddushim, 31a (The Traditional Press 1979). The prac-

tice has been firmly established since the Middle Ages. For example,

Maimonides wrote in his classic | 2th century philosophical treatise, The

Guide to the Perplexed, Part Ill, Chapter L!I, at 295 (M. Frie ‘ander

ed. 1881), that “The great men among our Sages would not uncover

their heads because they believed that God's glory was round them and

over them. .. .” And Rabbi S.R. Hirsch wrote in his 19th century

commentary on the Jewish Siddur (prayer book), Hirsch Siddur, at 14

(1969), that “[t] he Jew symbolically expresses [submission to God] by

keeping his head covered, and in this subordination to God he finds his

own honor.”

4

permitted to wear his yarmulke. As the Court below found,

“[t]hroughout his service he received consistently outstanding

evaluations in each of ten specified areas from his superiors,

including the category ‘Professional qualities’ (Attitude, dress,

cooperation, bearing).” 734 F.2d at 1533.

The fact that Goldman wore a yarmulke while working at the

hospital caused neither alarm nor opposition; no superior officer

during this three and one-half year period raised any objection to

Goldman’s practice. Only when Goldman wore his yarmulke

when testifying as a witness for the defense in a court-martial

proceeding was a complaint brought to the March AFB Hospital

Commander, Col. Joseph Gregory, alleging that wearing the yar-

mulke violated Air Force Regulation (“AFR”) 35-10.* On May

8, 1981, petitioner was first informed by Col. Gregory that he read

AFR 35-10 to prohibit wearing a yarmulke by Air Force person-

nel while in uniform. Col. Gregory offered to let Goldman wear

his yarmulke while in the hospital—if Goldman would not wear it

elsewhere at March AFB. Petitioner requested permission to con-

tinue wearing his yarmulke at all times, consistent with his relig-

ious practice. This request was denied.

On June 23, 1981, Col. Gregory ordered Goldman to stop wear-

ing his yarmulke while in uniform anywhere at March AFB. The

next day, petitioner was given a letter of reprimand and

chreatened with sanctions, including a court-martial. On June 25,

1981, petitioner was informed by Col. Gregory that “he had

decided to withdraw a positive recommendation he had submitted

in favor of [Goldman’s] application for a one-year extension of

his service in the Air Force and had, that day, submitted a nega-

tive recommendation on that application.” On June 30, 1981, peti-

tioner was informed that “formal processing of the letter of

reprimand was underway.” 530 F. Supp. at 13.

3. The regulation, AFR 35-10 § 1-6(h), which sets forth detailed

provisions regarding the wearing of headgear, provides in relevant part:

(2) Headgear will not be worn:

(f) While indoors except by armed security police in the per-

formance of their duties.

2. The Prior Proceedings

On July 2, 1981, Goldman applied for a temporary restraining

order enjoining the Air Force from enforcing AFR 35-10 so as to

prohibit him from wearing a yarmulke while in uniform. The

District Court for the District of Columbia granted this order,

and on July 10, 1981, granted Goldman’s motion for a preliminary

injunction. On April 26, 1982, the District Court permanently

enjoined the Air Force from enforcing AFR 35-10 as applied to

Goldman. Goldman v. Secretary of Defense, No. 81-1522

(D.D.C. April 26, 1982). In its Findings of Fact and Conclusions

of Law, the District Court, applying Rostker v. Goldberg, 453

U.S. 57 (1981), concluded that the Air Force failed to present

any reasoned analysis or evidence that the “military prohibition

of yarmulkes in the interest of discipline overrides individuals’

interests in exercising their freedom of religion.” Goldman,

supra, at 9,1 9.

Respondents appealed. In an opinion dated May 8, 1984, the

Court of Appeals for the District of Columbia Circuit reversed,

holding that the Air Force regulation, though not narrowly

drawn, must nonetheless be upheld “for the sake of enforcement.”

734 F.2d at 1540. The Court of Appeals concluded that the Air

Force’s interest in uniformity rendered strict enforcement of its

regulations permissible. While conceding that “the Air Force has

no concrete interest separate from the effect of strict enforcement

itself,” and though recognizing that Goldman’s religious obser-

vance implicated a fundamental First Amendment interest, the

Court of Appeals concluded that the Air Force was not required

to accommodate Goldman’s unobtrusive religious practice. With

three judges dissenting, the Court rejected petitioner’s motion for

an en banc rehearing. 739 F.2d 657.

In March 1985, the Secretary of Defense issued a Joint Service

Study on Religious Matters (“Religious Practice Study”) pursu-

ant to a congressional directive contained in Department of

Defense Authorization Act, Pub. L. No. 98-525, § 554, 98 Stat.

2532 (1984). The mandate of those conducting the study was to

6

examine ways to minimize conflict “between the interest of mem-

bers of the Armed Forces in abiding by their religious tenets and

the military interest in maintaining discipline.” Religious Prac-

tice Study, Executive Summary, at iii. On the issue of religious

dress, the study recommended that “[t]he military services

should designate living spaces in which religious articles may be

worn with the uniform when such wear will not adversely impact

unit cohesion”. Religious Practice Study, Executive Summary, at

xiv. On June 18, 1985, the Department of Defense issued Direc-

tive Number 1300.17 (the “Directive”), which established as a

goal that the “Military Departments should designate living

spaces in which religious articles may be worn with the uniform

when wear will not affect adversely unit cohesion.” As far as

Amicus has learned, regulations embodying the Directive have

not yet been promulgated by the Air Force. Assuming, arguendo,

that the Air Force amends AFR 35-10 to comply with the Direc-

tive, petitioner would remain prohibited from wearing his yar-

mulke outside of his barracks. Given the Directive’s ambiguity, it

is even unclear whether petitioner would be allowed to wear his

yarmulke at all times inside his living quarters. Accordingly, his

constitutional challenge to the application of military dress

requirements that fail to accommodate his free exercise rights

and that arbitrarily and unnecessarily conflict with religious prac-

tice survives the Directive, even if implemented.

SUMMARY OF ARGUMENT

I. The Court of Appeals erred in concluding that the Air

Force was not obligated to reasonably accommodate Captain

Goldman’s request to wear his yarmulke. This Court, in reviewing

constitutional challenges to military regulations or analogous

congressional statutes pertaining to national defense, requires

that such regulations or statutes be narrowly drawn reasonably to

accommodate a serviceman’s First Amendment rights. The Air

Force, in AFR 35-10, has made no such reasonable accommoda-

tion, although the record in this case indisputably confirms that

7

granting Captain Goldman’s request to wear a yarmulke posed no

threat to military discipline or cohesion.

II. The Court of Appeals, in reflexively capitulating to the

Air Force’s predilection for uniformity in matters of attire, imper-

missibly abdicated its judicial obligation to scrutinize the consti-

tutionality of AFR 35-10. Claiming deference to the “specialized

nature of judgments concerning internal military governance,”

734 F.2d at 1538, the Court of Appeals also misapplied the

deference that is due to the Air Force’s “judgment” in this case.

The Air Force has merely speculated as to the effect on unit

cohesion and discipline of permitting petitioner to wear his yar-

mulke; such a “judgment” is entitled to no judicial deference.

ARGUMENT

POINT I

AFR 35-10 IS UNCONSTITUTIONAL AS APPLIED TO

PETITIONER BECAUSE IT FAILS REASONABLY TO

ACCOMMODATE PETITIONER’S FREE EXERCISE

RIGHTS

A. Restrictions on the free exercise of religion can ordina-

rily be justified only by a compelling state interest that

could not otherwise be accomplished.

Guided by the historical legacy of the founding of the Republic,

the Framers of the Constitution chose through the First Amend-

ment’s “free exercise” clause to insulate religious practice from

interference by the state. Punishment for “entertaining or pro-

fessing religious beliefs or disbeliefs, for church attendance or

non-attendance” was strictly prohibited. Everson v. Board of

Education, 330 U:S. 1, 15-16 (1946); Reynolds v. United States,

98 U.S. 145, 164 (1878).* And while religiously grounded conduct

may be subject to regulation where conduct or actions have posed

some substantial threat to public safety, peace or order, Sherbert

v. Verner, 374 U.S. 398, 403 (1963), it is equally axiomatic “that

4. Although not the only religious minority to find America a safe

haven, the Jews have particular awareness of the experience of religious

persecution and of the importance of these constitutional safeguards.

Everson v. Board of Education, supra, 330 U.S. at 9.

8

there are areas of conduct protected by the Free Exercise Clause

of the First Amendment and thus beyond the power of the State

to control, even under regulations of general applicability.” Wis-

consin v. Yoder, 406 U.S. 205, 220 (1972). Thus, this Court has

upheld conduct guided by religious belief such as the Amish

practice of declining to send children to public or private school

after they graduate from eighth grade, Wisconsin v. Yoder, supra;

a Seventh-Day Adventist’s claim of entitlement to unemployment

compensation when the individual would not work on Saturday,

Sherbert v. Verner, supra; and a Jehovah Witness’s right to dis-

seminate religious literature on a street corner, Cantwell v. Con-

necticut, 310 U.S. 296 (1940).

The Court has ruled that “[i]f the purpose or effect of a law is

to impede the observance of one or all religions . . . that law is

constitutionally invalid even though the burden may be charac-

terized as being only indirect.” Braunfeld v. Brown, 366 U.S. 599,

607 (1961). Although a regulation may be neutral on its face, the

Court has recognized that “in its application, [the regulation

may] offend the constitutional requirement for government neu-

trality if it unduly burdens the free exercise of religion.” Wiscon-

sin v. Yoder, supra, 406 U.S. at 220; Thomas v. Review Board,

450 U.S. 707, 717 (1981). Especially when the effect of com-

pliance with state law requires abandonment of a particular reli-

gious observance, the Court has been reluctant to compel the

individual to choose between compliance and violation of his

religious belief. To protect this fundamental constitutional

guarantee, the Court has employed heightened scrutiny in review-

ing regulations or statutes challenged on free exercise grounds:

We must . . . consider whether some compelling state

interest . . . justifies the substantial infringement of appel-

lant’s First Amendment right. It is basic that no showing

merely of a rational relationship to some colorable state

interest would suffice. In this highly sensitive constitu-

tional area, “[o]nly the gravest abuses, endangering para-

mount interests, give occasion for permissible limitation.”

9

Sherbert v. Verner, supra, 374 U.S. at 406 (citation omitted).

See also Wisconsin v. Yoder, supra, 406 U.S. at 215 (“only those

interests of the highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of religion”);

Thomas v. Review Board, supra, 450 U.S. at 718.

The free exercise cases, in short, convincingly testify to the

weighty concerns implicated when government impinges on mat-

ters of religious conscience. There can be no doubt that, in the

civilian context, petitioner’s right to wear a yarmulke—a relig-

ious article obviously posing no threat to public safety, peace or

order, Sherbert v. Verner, supra—could not be proscribed or

subjected to regulation.

B. The Air Force is constitutionally required reasonably to

accommodate petitioner’s free exercise rights by

promulgating narrowly drawn regulations.

The Court has recognized that these fundamental rights are

not forfeited when one enters military service. To the contrary,

“our citizens in uniform may not be stripped of basic rights simply

because they have doffed their civilian clothes.” Chappell v. Wal-

lace, 462 U.S. 296, 304 (1983); Crawford v. Cushman, 531 F.2d

1114, 1120 (2d Cir. 1976) (“a succession of cases . . . has reiter-

ated the proposition that the military is subject to the Bill of

Rights and its constitutional implications” ).

Historically, the military has endeavored to promote, not

obstruct, a serviceman’s religious practice. The courts con-

sistently have upheld, if not applauded, the military’s concerted

effort to keep religious ritual and observance accessible to our

servicemen. See, e.g., Abington School District v. Schempp, 374

U.S. 203, 296-98 (1963) (Brennan, J., concurring); id. at 308-09

(Stewart, J., dissenting) (“[A] lonely soldier stationed at some

far away Outpost could surely complain that a government which

did not provide him the opportunity for pastoral guidance was

affirmatively prohibiting the free exercise of his religion.”);

Katcoff v. Marsh, 755 F.2d 223, 228 (2d Cir. 1985) (upholding

military chaplaincy against constitutional challenge; “the Army

has proceeded on the premise that having uprooted the soldiers

10

from their natural habitats it owes them a duty to satisfy their

Free Exercise rights, especially since the failure to do so would

diminish morale, thereby weakening our national defense”). The

recent Religious Practice Study at iv agrees, noting that

“(djuring the Revolutionary War commanders were tasked with

assuring that weekly religious services were conducted. Today a

detailed and inclusive command religious program is a vital ele-

ment in all military units. This program recognizes the impor-

tance of religious, spiritual and moral values to service members.”

Given the military’s historic solicitude for religious observ-

ances, its uncompromising objection to petitioner’s yarmulke is

surprising. The Air Force argues that permitting this inconspicu-

ous religious symbol might in unspecified circumstances under-

mine morale and discipline. Vague conjecture, however, cannot

justify a sweeping prohibition on religious dress appurtenances in

the military. Even when national security or defense is at stake,

“*[p]recision of regulation must be the touchstone in an area so

closely touching our most precious freedoms’.” United States v.

Robel, 389 U.S. 258, 265 (1967), quoting NAACP v. Button, 371

U.S. 415, 438 (1963). Government regulation in all circum-

stances must conform to the fundamental and peremptory consti-

tutional precepts that limit the power of government in order to

safeguard basic individual rights. As the Court observed in

Rostker v. Goldberg, supra, 453 U.S. at 70, “the courts are called

upon to decide whether Congress [or here, the military], acting

under an explicit grant of . . . authority, has by that action

transgressed an explicit guarantee of individual rights which lim-

its the authority so conferred.”

Robel, as the Court of Appeals recognized, 734 F.2d at 1536,

supplies the guiding principle. “[T] he Constitution requires that

the conflict between congressional power [over national security ]

and individual rights be accommodated by legislation drawn

more narrowly to avoid the conflict.” United States v. Robel,

supra, 389 U.S. at 268 n.20. Robel struck down legislation aimed

at protecting the Nation’s military secrets—a concern of the

highest order and certainly on a par with solicitude for military

1]

discipline—because the legislation imposed too substantial a bur-

den on the implied constitutional right of freedom of association.

Military regulations no less than congressional enactments must

accept that where First Amendment rights are implicated, a

regulation must be carefully tailored to minimize constitutional

conflict. With respect to military regulations which circumscribe

First Amendment freedoms, the inquiry becomes whether those

regulations are drafted and applied in a manner that reasonably

accommodates the exercise of those basic freedoms.

Brown v. Glines, 444 U.S. 348 (1980), is illustrative. Glines, a

captain in the Air Force Reserve, solicited signatures protesting

Air Force grooming standards in violation of applicable Air Force

regulations. Air Force Regulation 30-1(9) prohibited Air Force

personnel from soliciting or collecting signatures on a petition

“within an Air Force facility . .. without first obtaining authoriza-

tion from the appropriate commander”; AFR 35-15(3)(a) (1)

prohibited the distribution of “any printed or written material ...

within any Air Force installation without permission of the Com-

mander.” Glines was aware of these regulations, yet failed ini-

tially to seek authorization from the base commander.

The Court in that case upheid the challenged regulations, not-

ing that the regulations in question “restrict speech no more than

is reasonably necessary to protect the substantial government

interest” involved. Brown v. Glines, supra, 444 U.S. at 355. Sig-

nificantly, the Glines regulations, which implemented an Army

and Air Force directive, explicitly recognized that the military

must make every effort to accommodate even speech critical of

the military:

That directive advises commanders to preserve service-

men’s “right of expression . . . to the maximum extent

possible, consistent with good order and discipline and the

national security” .. . Thus, the regulations in both

services prevent commanders from interfering with the

circulation of any materials other than those posing a clear

danger to military loyalty, discipline or morale. .. .

Indeed, the Air Force regulations specifically prevent

12

commanders from halting the distribution of materials

that merely criticize the Government or its policies.

Id. at 35S.

Glines’ facial attack on the regulation failed because the chal-

lenged regulation embodied a substantial effort by the Air Force

to accommodate First Amendment-protected speech, permitting

the military to censure only those materials that “posed a clear

danger to military loyalty, discipline or morale.”

Greer v. Spock, 424 U.S. 828 (1976), is similarly instructive

and illustrates the distinction between permissible and impermis-

sible blanket prohibition on First Amendment exercise. The

Court in Spock made two determinations: first, that the military

had authority to ban all political campaign activities within the

confines of a military base; second, that the military may require

written campaign materials to be submitted for review before

distribution on a military installation. The ban on all on-base

political demonstrations was upheld as a legitimate attempt to

insulate the military “from both the reality and the appearance of

acting as a handmaiden for partisan political causes or candi-

dates.” 424 U.S. at 839. Almost by definition, pursuit of this goal

forecloses individualized determination concerning particular

political causes. On the other hand, the pre-clearance procedure

for written materials was designed to prevent distribution of

materials that would constitute “ ‘a clear danger to [military]

loyalty, discipline or morale.’ ” 424 U.S. at 840. The challenged

regulation obviously contemplated particularized review of

materials sought to be distributed, and the narrow and principled

basis on which distribution could be interdicted was clearly an

important factor in the Court’s approval of the regulation.

The contrast between the application of AFR 35-10 to preclude

all visual religious dress supplementing the Air Force uniform

and the regulations upheld in Brown v. Glines and Greer v. Spock

is striking. Although there can be no dispute that AFR 35-10, as

applied, infringes on free exercise by servicemen who are relig-

iously required to wear visible attire supplementing the Air Force

uniform, there are no guidelines or procedures for determining

13

whether particular religious garb would interfere with the objec-

tives that the Air Force seeks to further in mandating dress

uniformity. All departures are forbidden. This is not accommoda-

tion to the guarantee of religious observance contained in the Bill

of Rights and otherwise embraced by the military. Rather, it

reflects a rigid, unaccommodating and impermissible disregard of

that guarantee in favor of nothing more than military conven-

ience. Korematsu v. United States, 323 U.S. 214, 244-45 (1944)

(Jackson, J., dissenting).

C. Reasonable accommodation requires the Air Force to

permit Captain Goldman to wear a yarmulke.

The Air Force justifies its refusal to permit Captain Goldman

to wear his yarmulke by retreating behind broad generalizations

concerning military discipline, training and esprit de corps. With

legerdemain and shifting argument, it implies that these ends can

only be efficiently served if no deviation is permitted from strict

dress uniformity. “Where fundamental claims of religious free-

dom are at stake, however, we cannot accept such a sweeping

claim.” Wisconsin v. Yoder, supra, 406 U.S. at 221. Under the

principles of Wisconsin v. Yoder and kindred decisions of this

Court, as modified in the military context by Robel, Brown v.

Glines, and Greer v. Spock, the Air Force is required to make a

reasoned determination of its ability to relax dress regulations

where necessary to accommodate religious freedom in the indi-

vidual instance, and, on the facts of this case, to permit the

wearing of a yarmulke.

1. The Air Force has failed to establish that its objectives

would be undermined were Captain Goldman permit-

ted to wear a yarmulke.

The Air Force, although given ample opportunity, has made no

attempt to demonstrate how its goals are served by its action in

Captain Goldman’s case. The government tacitly recognizes that

its putative objective of uniform military dress as a vehicle for

achieving a cohesive and disciplined fighting force, however unas-

sailable as a general proposition, finds attenuated application to

14

Captain Goldman’s situation and his request for a de minimus

departure from the Air Force’s sartorial standard. Captain

Goldman is not trained to fight or to instruct men in combat; he is

an Air Force psychologist. His station is a military hospital, not

the battlefield or the barracks. The yarmulke that he must wear

according to the religious dictates of his conscience is a small and

unobtrusive head covering, hardly incongruous with Captain

Goldman’s otherwise conforming and well-kempt military attire.

As might be expected, the record is devoid of any suggestion that

the yarmulke has been the occasion for the slightest breach in Air

Force discipline or has in any way impacted on Air Force morale

or esprit de corps. If the constitutional guarantees afforded ser-

vice personnel are to have genuine import, the military must be

required to distinguish those religious practices that compromise

legitimate military ends and those, such as petitioner’s practice of

wearing a yarmulke, that do not. Cf. Abington School District v.

Schempp, supra, 374 U.S. at 308 (Goldberg, J. concurring)

(“[T]he measure of constitutional adjudication is the ability and

willingness to distinguish between real threat and mere

shadow.” )° If in these circumstances the judiciary were to profess

an unwillingness to review and strike a mi'itary regulation that

impermissibly compromises religious freedom, then the oft-

repeated assurance that “one’s constitutional rights are not sur-

rendered upon entering the Armed Services,” Middendorf v.

Henry, 425 U.S. 25, 50 (1976) (Powell, J., concurring), becomes

an empty, misleading platitude.

5. One must conclude that the uncompromising and rigid posture of

the Air Force arises out of a failure fully to appreciate the unique and

specially protected position freedom of religious observance occupies in

the constitutional scheme. The heavy reliance placed by the government

on Kelley v. Johnson, 425 U.S. 238 (1976) and, in the Court of Appeals,

Marshall v. District of Columbia Government, 559 F.2d 726 (D.C. Cir.

1977)—cases dealing with non-religiously based challenges to police

grooming regulations—is symptomatic of an inability to distinguish

between religious beliefs and other conduct-motivating philosophies and

opinions. This confusion is further illustrated by the government’s lump-

ing together of Me ethnic, or cultural traditions or simply per-

sonal taste” ( Brief of Respondents in Opposition to Petition for Writ of

Certiorari at 5), as if religious practice and personal taste were of the

same constitutiona! dimension.

15

Unable to explain how the important ends of dress uniformity

have been compromised in Captain Goldman’s case, the govern-

ment seizes upon speculative difficulties that might arise from

claims for exceptions to the dress code by other servicemen in

other circumstances. The spectre is presented of the dress code

under attack by a myriad of religious adherents demanding

exception to uniform regulations, and the inability of the military

to make reasoned decisions with regard to such claims. ( Brief for

Respondents in Opposition to Petition for Writ of Certiorari at 5-

6, 7-8). Here, the government embarks on a flight of conjecture

concerning the number and complexion of possible future claims

for dress exemptions—rank speculation resting neither on experi-

ence nor expertise. Indeed, the only evidence presented by the

government at trial was a general study of religious dress and

grooming, unconnected with religious observances in the military.

(Brief for Respondents in Opposition to Petition for Writ of

Certiorari at 5 n.5). Nor does the Religious Practice Study sup-

ply any instructive data. It summarizes the religious groups with

dress restrictions, but fails to indicate how many servicemen are

adherents of these religions, whether there have been any sub-

stantial number of requests for deviation from military garb

requirements, and the nature of such requests. Religious Practice

Study at 107-124. A questionnaire on religious practices in the

military is equally uninst. uctive, since it lumps together service-

men who have worn or will wear turbans, skull caps, sashes,

stoles, and medallions without differentiation, and was completed

by a grossly unrepresentative cross-section of the military, polling

only resident students in the various service schools. Religious

Practice Study at 127.

Moreover, the suggestion that requests for religiously moti-

vated exceptions to uniform dress requirements would somehow

overwhelm the administrative capabilities of the military is

unfounded. The record and the case law reflect only a few

instances in which the military has been requested or challenged

to make exception for visible religious dress appurtenances. See

Khalsa v. Weinberger, 759 F.2d 1411 (9th Cir. 1985) (turban);

16

Sherwood v. Brown, 619 F.2d 47 (9th Cir.), cert. denied, 449

U.S. 919 (1980) (same); Bitterman v. Secretary of Defense, 553

F. Supp. 719 (D.D.C. 1982), appeal docketed, No. 83-1177

(D.C. Cir. Feb. 15, 1983) (yarmulke); Geller v. Secretary of

Defense, 423 F. Supp. 16 (D.D.C. 1976) (beard). Abstract and

unproven speculation about alleged administrative difficulty or

claims of administrative inconvenience cannot serve as an excuse

for denying the fundamental right of servicemen to freedom of

religious practice. Cf. Korematsu v. United States, supra, 323

U.S. at 244 (“[I]f we cannot confine military expedients by the

Constitution, neither would I distort the Constitution to approve

all that the military may deem expedient.” )

A like argument advanced by the Air Force (and accepted as

dispositive by the Court of Appeals, 734 F.2d at 1540) is that

accommodation to certain religious practices would engender

hostilities among those groups for whom no exception is made.

The argument is equally unpersuasive, yet another instance of a

rationale advanced on the basis of sheer speculation unsupported

by identifiable military experience. Further, it is at variance with

the military’s stated lack of concern with claims of “favoritism” in

accommodating other religious practices. Religious Practice

Study at 95-96 (grumbling by servicemen about religious exemp-

tions from flu shots can be disregarded because it “almost never

rises above the nuisance level.” ). Indeed, it is apparently inconsis-

tent with the Air Force’s admitted practice of allowing airmen to

wear religious undergarments and ornaments despite the exis-

tence of military-issue undergarments, as well as an Air Force

regulation which permits the “wearing of rings and bracelets of

nonuniform design,” which presumably could include an insignia

of religious character. See 734 F.2d at 1540.°

6. Of course, the Air Force could not, under the pretext of facilitat-

ing unit cohesion and esprit de corps, forbid a religious practice because

it tends to arouse anti-Semitic reaction or other religious animosities

and biases. “‘Private biases may be outside the reach of the law, but the

law cannot, directly or indirectly, give them effect.”” City of Cleburne,

Texas v. Cleburne Living Center, Inc., 105 S. Ct. 3249, 3259 (1985),

quoting Palmore v. Sidoti, 104 S. Ct. 1879, 1882 (1984).

2 ee

17

The military might indeed be required to make hard-to-quan-

tify judgments whether a particular item of religious dress falls on

one side or the other of the line of acceptable departures from

standard military dress. Delineating the line will require par-

ticularized determination. See Lynch v. Donnelly, 104 S. Ct.

1355, 1361 (1984), where the Court noted that “[i]n each case,

the [Establishment Clause] inquiry calls for line drawing; no

fixed per se rule can be framed.” The decision whether to permit

certain types of dress while precluding others will necessarily

depend on differences of degree. Cf. LeRoy Fibre Co. v. Chicago

M. & St. P. Ry., 232 U.S. 340, 554 (1914) (Holmes, J., concur-

ring) (“The whole law [depends on differences in degree] as soon

as it is civilized.”). The inherent imprecision of the decisional

process does not, however, relieve the military of the constitu-

tional duty to decide each application for religious accommoda-

tion on its merits and to permit departure from the dress codes

when a reasonable accommodation can be made.

2. In the case of Captain Goldman’s yarmulke, the Air

Force is clearly required to make exception to AFR

35-10.

Once it is established that the Air Force cannot rely on broad

generalizations about the alleged imp >rtance of uniform dress to

justify an inflexible application of AFR 35-10, Captain

Goldman’s case becomes an easy one. There is no dispute that

“[d] uring his service at March Air Force Base, Goldman’s wear-

ing of a yarmulke while in military uniform did not adversely

affect the performance of his assigned duties nor the operations at

the Base Regional Hospital and did not result in complaints from

other personnel.” Findings of Fact and Conclusions of Law,

Goldman v. Secretary of Defense, No. 81-1522, at 6,114. No

evidence was presented by the Air Force to indicate that Captain

Goldman’s yarmulke had any detrimental influence on teamwork,

motivation, discipline, esprit de corps or image, the factors identi-

fied by the Air Force’s expert and accepted by the Court of

Appeals as compelling the uniform dress requirements in the

18

military. Wherever the Air Force may ultimately and legiti-

mately draw the line on unacceptable religious clothing, Captain

Goldman’s yarmulke undoubtedly falls on the side of permissible

dress. This is all that need be determined in this case.

POINT Il

NO JUDICIAL DEFERENCE IS DUE THE UNCONSTITU-

TIONAL DECISION OF THE AIR FORCE NOT TO ACCOM-

MODATE PETITIONER’S RELIGIOUS PRACTICES

A. The ruling of the Court of Appeals that the military may

insist on compliance with its dress regulations simply

“for the sake of enforcement” is deference that would

arbitrarily strip service personnel of their First Amend-

ment rights.

In upholding the decision of the Air Force forbidding Captain

Goldman from wearing his yarmulke, the Court of Appeals has

injected the confusing and troubling noticn that in its pursuit of

cohesion and obedience, the military may promulgate virtual!y

any conduct-regulating rule and insist on its absolutely uniform

enforcement. What renders the regulations unchallengeable,

according to the Court of Appeals, is that “the Air Force has no

concrete interest [in them] separate from the effect of strict

enforcement itself. The rules themselves are arbitrary and are

enforced up to an arbitrary cutoff point.” 734 F.2d at 1540. In

short, the less “interest” the military has in a regulation, the more

rigidly it may enforce it. This is not even minimal scrutiny of

constitutionally infringing military regulations, it is no scrutiny.

it is deference to the military run riot.

The notion that the Air Force’s interest in uniformity as such

inevitably trumps the freedom guaranteed by the Bill of Rights

elevates military uniformity to a super-constitutional principle,

one occupied by no other interest in American jurisprudence. On

this rationale, the military could order all servicemen regularly to

attend a randomly selected denominational religious service or to

recite a pledge of support for an arbitrarily chosen political party,

if such regulations were aimed at troop regimentation or the

19

conditioning of service personnel to instinctive obedience to com-

mand. It is inconceivable, of course, that such regulations could

survive constitutional scrutiny. See Anderson v. Laird, 466 F.2d

283, 295 (D.C. Cir.), cert. denied, 409 U.S. 1076 (1972), strik-

ing down compulsory chapel attendance at military academies as

a violation of the Establishment and Free Exercise Clauses. Even

if the ends be legitimate and even if they be ends of national

security, the means are unacceptable if they violate the “ ‘letter

and the spirit’ of the First Amendment.” United States v. Robel,

supra, $89 U.S. at 268 n.20. Dress uniformity in the military, like

any other military rule or practice, must bend to accommodate

First Amendment rights of the ‘ndividual serviceman, if

accommodation is possible without realistically compromising

the identified purposes of military morale, obedience and

cohesion.

Furthermore, this Court in its review of challenges to military

law or conduct implicating military self-governance, has always

identified a principled basis for deferring to military judgment.

For example, Middendorf v. Henry, supra, Parker v. Levy, 417

U.S. 733 (1974), and Schlesinger v. Councilman, 420 U.S. 738

(1975), involved the unique character of military justice and

were Clearly informed by the existence of a legislatively enacted

Code of Military Justice. Gilligan v. Morgan, 413 U.S. 1 (1973),

and Orloff v. Willoughby, 345 U.S. 83 (1953), in which expres-

sions of deference to military expertise are most striking and

pronounced, dealt with requests that the Court oversee military

training and the duty assignment of servicemen. In declining the

invitation, the Court forcefully explained that it would not pre-

sume to second-guess the military in matters paradigmatic of the

military’s specialized expertise. Out of kindred concerns in Chap-

pell v. Wallace, 462 U.S. 296, 300 (1983), the Court refused to

infer a Bivens-type constitutional tort in favor of servicemen

against their superiors, because to do so would in effect “tamper

with the established relationship between enlisted personnel and

their superior officers.” While solicitous of the prerogatives of the

military commanders in their proper sphere, these cases do not

20

relegate to military discretion the First Amendment rights of

servicemen.

By contrast, the Air Force in this case possesses no equivalent

specialized expertise. It has failed to adduce any evidence that

permitting Captain Goldman to wear a yarmulke has or would

incur resentment from other servicemen. In short, the Air Force

has merely speculated, without factual foundation, as to the effect

of excepting petitioner from the requirements of AFR 35-10.

Under the circumstances, the Air Force’s “judgment” is entitled

to no judicial deference.

B. The judiciary’s lack of specialized expertise in military

matters does not render military judgments on constitu-

tional issues non-reviewable.

The Court of Appeals’ too-ready conclusion that it can offer no

insight into the possible effect of petitioner’s continued wearing of

a yarmulke because of the military’s alleged expertise in such

matters misses the mark for another reason. Even in the civilian

context, the judiciary is called upon to rule upon the regulations

and judgments of uniquely qualified experts in disciplines which

lie outside the ordinary realm of judicial competence. On more

than one occasion, this Court has passed judgment on matters

involving highly technical scientific inquiries, far more esoteric

that the rather common sense issue presented in this case, where

lay persons would hardly presume to challenge adequately articu-

lated decisions of experts. See, e.g., Industrial Union Depart-

ment, AFL-CIO v. American Petroleum Institute, 448 U.S. 607

(1980), striking down OSHA standards for airborne benzene in

the workplace; American Textile Manufacturers Institute v.

Donovan, 452 U.S. 490 (1981), upholding OSHA’s cotton dust

standard. In cases such as these, the judiciary does not attempt to

second guess the qualified professional’s technical judgment.

Rather, the court probes whether such judgment has in fact been

exercised in a manner consistent with governing legal parameters.

In the oft-repeated aphorism of American Ship Building Co. v.

NLRB, 380 U.S. 300, 318 (1965), “[t]he deference owed to an

21

expert tribunal cannot be allowed to slip into a judicial

inertia... .”

If this philosophy of judicial review guides the Court in its

congressionally authorized oversight of administrative agencies,

it is certainly one which must find application in review of regula-

tions that cramp the exercise of basic First Amendment rights in

the military. The “very essence of judicial duty”, Marbury v.

Madison, | Cranch 137, 178 (1803), is the implementation and

protection of the constitutional scheme. In constitutional matters,

the Court and not the military is the expert. As Justice Douglas

observed, concurring in Parisi v. Davidson, 405 U.S. 34, 54-55

(1972):

[MJatters of the mind and spirit, rooted in the First

Amendment, are not in the keeping of the military....

When the military steps over those bounds, it leaves the

area of its expertise and foresakes its domain. The matter

then becomes one for civilian courts to resolve, consistent

with the statutes and with the Constitution.

See a'vo West Virginia State Board of Education v. Barnette, 319

U.S. 624, 640 (1943), observing that “[The Court] cannot

because of modest estimates of . . . competence[,] withhold the

judgment that history authenticates as the function of this Court

when liberty is infringed.”

The position taken by the government and endorsed by the

Court of Appeals, that the decision of the Air Force to prohibit all

departure from standard dress be upheld largely because of the

deference due the military, is an invitation to the judiciary in a

most sensitive constitutional area to “abdicate [its] ultimate

responsibility,” Rostker v. Goldberg, supra, 453 U.S. at 67. The

invitation is contrary both to the jurisprudence of the Court and

elementary logic. Neither extensive military experience nor years

of involvement in the military milieu is required to realize that the

Air Force has not made an honest attempt narrowly to draw AFR

35-10 to accommodate the rights of the petitioner in this case.

22

CONCLUSION

For the foregoing reasons, Amicus respectfully submits that

the judgment of the Court of Appeals for the District of Columbia

Circuit holding AFR 35-10 constitutional as applied to petitioner

should be reversed.

Respectfully submitted,

DANIEL P. LEVITT

KRAMER, LEVIN, NESSEN, KAMIN

& FRANKEL

919 Third Avenue

New York, New York 10022

(212) 715-9100

Of Counsel:

SIGMUND S. WISSNER-GROSS

ABBE L. DIENSTAG

KRAMER, LEVIN, NESSEN, KAMIN & FRANKEL

919 Third Avenue

New York, New York 10022

JUSTIN J. FINGER

JEFFREY P. SINENSKY

Jitt L. KAHN

Anti-Defamation League of B'nai B'rith

823 United Nations Plaza

New York, New York 10017

Attorneys for Amicus Curiae