Amicus Curiae Brief — Goldman v. Weinberger

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No. 84-1097 JOSE: P| r LiL JR.

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Supreme Court, U.S.

FILED

gerp 3 1985

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

S. SIMCHA GOLDMAN,

Petitioner,

Vv.

CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF OF THE AMERICAN JEWISH COMMITTEE

AND CHRISTIAN LEGAL SOCIETY AS AMICI CURIAE

SUPPORTING PETITIONER

SAMUEL RABINOVE SAMUEL ERIC HANS ERICSSON

RICHARD T. FOLTIN Counsel of Record

THE AMERICAN KIMBERLEE W0oD COLBY

JEWISH COMMITTEE CHRISTIAN LEGAL SOCIETY

165 E. 56th Street P.O. Box 1492

New York, New York 10022 Springfield, VA 22151

(212) 751-4000 (703) 941-3192

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QUESTION PRESENTED

Whether the government may compel a military psy-

chologist to violate his deeply held religious convictions

by prohibiting his wearing an unobtrusive yarmulke.

(i)

TABLE OF CONTENTS

Page

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ae iv

INTEREST OF AMICI CURIAE ........................................ 1

ES yee 2

i cntteoemvonanens 3

I. THE CONSTITUTION REQUIRES THAT

STATE REGULATORY ACTIVITY ACCOM-

MODATE THE FREE EXERCISE OF RE-

LIGION, EXCEPT WHERE TO DO SO

WOULD BE INCOMPATIBLE WITH SOCI-

ETY’S COMPELLING INTERESTS ................. 3

II. THE MILITARY IS REQUIRED BY THE

FREE EXERCISE CLAUSE TO MAKE THE

NARROW AND MINOR REGULATORY EX-

CEPTION SOUGHT BY PETITIONER. ............. 7

i _ sethettinddendnasendinaceenaeeceeses 13

(iii)

TABLE OF AUTHORITIES

CASES: Page

Bob Jones University v. United States, 460 U.S.

a ccmrtnens 6

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 5

Chappell v. Wallace, 462 U.S. 296 (1983) ............ 8

Gillette v. United States, 401 U.S. 487 (1971) ...... 6

Goldman v. Weinberger, 734 F.2d 1531, reh. de-

nied, 739 F.2d 657 (D.C. Cir. 1984) -................... 9-13

McDaniel v. Paty, 485 U.S. 618 (1978) ..................

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ....... 5

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 5

Prince v. Massachusetts, 321 U.S. 158 (1944) ......... 6

Reynolds v. United States, 98 U.S. 145 (1878) ....... 3,6

Rostker v. Goldberg, 453 U.S. 57 (1981) —.............. 8,9

School District of Abington Township v. Schempp,

ee a cet 4

Schlesinger v. Ballard, 419 U.S. 498 (1975) ........... 8

Sherbert v. Verner, 374 U.S. 398 (1963) ................. 4-7

Thomas V. Review Board, 450 U.S. 707 (1981) ....... 5, 7

Thornton Vv. Caldor, 105 S.Ct. 2914 (1985) ........... 4

Torcaso V. Watkins, 367 U.S. 488 (1961) -................ 5

United States v. Lee, 455 U.S. 252 (1982).............. 6

United States v. Seeger, 380 U.S. 163 (1965)........ 6

Wallace v. Jaffree, 105 S.Ct. 2479 (1985) —............ 5

Welsh v. United States, 398 U.S. 333 (1970) _......... 6

Wisconsin Vv. Yoder, 406 U.S. 205 (1972) —............ 3, 5, 7

Zorach Vv. Clauson, 343 U.S. 306 (1952) .....0.......... 7

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. I _.............. scdichedeseteadsiiatenatiianbienapiinated passim

I scesnsumnntpnenstteaaphintit 7

OTHER AUTHORITIES:

L. Tribe, American Constitutional Law (1978)... 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1097

S. SIMCHA GOLDMAN,

- Petitioner,

CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF OF THE AMERICAN JEWISH COMMITTEE

AND CHRISTIAN LEGAL SOCIETY AS AMICI CURIAE

SUPPORTING PETITIONER

INTEREST OF THE AMICI CURIAE

The American Jewish Committee (“AJC”), a na-

tional organization of approximately 50,000 members,

was founded in 1906 to protect the civil and religious

rights of Jews. It is the AJC’s conviction that the civil

and religious rights of Jews will be secure only when

the civil and religious rights of Americans of all faiths

are equally secure. To fulfill this aspiration, the Ameri-

can Jewish Committee strongly supports the First

Amendment principle of separation of religion and gov-

ernment, which is encapsulated in both the Establishment

Clause and the Free Exercise Clause. One corollary of

this principle is that only when justified by the com-

pelling interests of society may the state prevent an

individual from carrying out a practice dictated by his

religious beliefs.

The Christian Legal Society is a non-profit profes-

sional association of 3,500 Christian judges, attorneys,

law professors, and law students, founded in 1961. The

Center for Law and Religious Freedom is a division of

the Christian Legal Society founded in 1975 to protect

and promote the freedom of both Christians and other

persons in the exercise of their religious beliefs. The

Christian Legal Society believes that accommodation by

the state of the individual citizen’s religious beliefs, as

required by the First Amendment, strengthens the indi-

vidual citizen’s respect for, and allegiance to, our con-

stitutional government.

SUMMARY OF ARGUMENT

Captain Goldman is a clinical psychologist in a mili-

tary hospital, whose service record has been excellent.

For many years, he has worn an unobtrusive yarmulke

while working, in accordance with his deeply held reli-

gious convictions as an Orthodox Jew. After several years

of meritorious service, he was ordered to remove his

yarmulke while working, an order directly contrary to

his traditional and sincerely held religious beliefs.

The First Amendment requires the state to accom-

modate an individual citizen’s sincerely held religious

beliefs, unless a compelling state interest exists, un-

achievable by less restrictive means. On the facts of

this case, in which the wearing of a yarmulke was un-

challenged for several years, the military’s interest in

enforcement of its regulations, merely for the sake of

enforcement, does not constitute a state interest of the

necessary magnitude to justify abridgment of a service-

man’s free exercise rights. Under the First Amendment,

Captain Goldman may serve both his religion and his

country.

ARGUMENT

I. THE CONSTITUTION REQUIRES THAT STATE

REGULATORY ACTIVITY ACCOMMODATE THE

FREE EXERCISE OF RELIGION, EXCEPT WHERE .

TO DO SO WOULD BE INCOMPATIBLE WITH

SOCIETY’S COMPELLING INTERESTS.

Normally, when government acts within the limits of

its powers, it is entitled to expect that its laws will pre-

vail over individual beliefs. The “concept of ordered

liberty precludes allowing every person to make his own

standards on matters of conduct in which society as a

whole has important interests.” Wisconsin v. Yoder, 406

U.S. 205, 215-16 (1972). Even religious belief cannot

“permit every citizen to become a law unto himself.”

Reynolds v. United States, 98 U.S. 145, 167 (1878).

However, where an impediment to individual religious

activity is traceable to state action, the Court has recog-

nized that the Free Exercise Clause often compels the

government to remove or mitigate such state-imposed

impediments. Because of the high value taat the Fram-

ers placed on religious liberties, this Court’s cases have

emphasized that “‘only those interests of the highest order

and those not otherwise served can overbalance legiti-

mate claims to the free exercise of religion.”” Wisconsin

v. Yoder, 406 U.S. at 215 (1972).

Thus, the principle of “accommodation” has been prop-

erly invoked by the Court to resolve the conflict between

a state-created program of regulations and an individ-

ual’s religious beliefs. Indeed, it is the very fact of that

state-created conflict which the Court has relied upon

to rebut the argument that “an exception from a gen-

eral obligation of citizenship on religious grounds may

run afoul of the Establishment Clause.” Wisconsin v.

Yoder, 406 U.S. at 220-21.

Such accommodation is not contrary to this Court’s

recent reaffirmation in Wallace v. Jaffree, 105 S.Ct. 2479,

2492 (1985), of “the established principle that the Gov-

ernment must pursue a course of complete neutrality to-

ward religion.” As one noted commentator has stated,

neutrality as understood by the Court is not a “ ‘strict

neutrality’ theory, which would hold that ‘government

cannct utilize religion as a standard for action or in-

action because [the two religion clauses] prohibit classi-

fication in terms of religion either to confer a benefit

or impose a burden.’” L. Tribe, American Constitutional

Law 821 (1978), quoting P. Kurland, Religion and the

Law 18 (1962). So to understand the Religion Clauses

would ignore an existential reality: a seemingly neutral

statute may, under certain circumstances, have an un-

necessarily greater negative impact upon a religious than

upon a nonreligious person because of the former’s reli-

gious obligations. Rather, this Court has affirmed:

The fullest realization of true religious liberty re-

quires that government neither engage in nor com-

pel religious practices, that it effect no favoritism

among sects or between religion and nonreligion, and

that it work deterrence of no religious belief.

School District of Abington Township v. Schempp, 374

U.S. 203, 305 (1963) (Goldberg, J., joined by Harlan, J.,

concurring). This notion of neutrality—which requires,

as an essential element, that state action “‘work deter-

rence of no religious belief’—clearly contemplates that

there may be times when, in order to ensure that state

action is neutral with respect to effect, a religion-con-

scious accommodation will be permissible (see Zorach v.

Clauson, 343 U.S. 306 (1952)) or, at times, compelled.

See Sherbert v. Verner, 374 U.S. 398 (1963).

1 The principle of accommodation is consistent with this Court’s

recent holding in Thornton v. Caldor, 105 S.Ct. 2914 (1985),

which struck down, as a violation of the Establishment Clause,

Connecticut’s statute which provided Sabbath observers with an

absolute and unqualified right not to work on their chosen Sabbath.

That so-called “accommodation” involved no state action which

deterred religious practice. Because it attempted “to lift a burden

This Court’s cases have outlined the areas in which a

state’s interest is not deemed sufficiently compelling to

override a claim to free exercise of religion, so that

accommodation of religious practice is required. The

state may not engage in regulative activity which has

the effect of compelling or prohibiting, regulating, or

taxing the expression of religious beliefs, where a more

narrowly drawn regulation would suffice to serve the

state’s compelling interests. See Cantwell v. Connecticut,

310 U.S. 296 (1940) ; Murdock v. Pennsylvania, 319 U.S.

105 (1943); Torcaso v. Watkins, 367 U.S. 488 (1961).

Neither may a state enact a qualification for public serv-

ice which, without sufficient connection to a legitimate

government objective, deters an individual from engag-

ing in activities compelled, or powerfully induced, by

his religious beliefs. See, e.g., McDaniel v. Paty, 435

U.S. 618 (1978). Such actions with respect to religion

clearly lie outside the government’s ambit of authority.

Similarly, where a government-mandated system of com-

pulsory education poses obstacles to deeply held religious

beliefs, believers are guaranteed an opportunity to send

their children to privately financed religious schools or,

in certain situations, to refrain from schooling alto-

gether. See generally, Pierce v. Society of Sisters, 268

U.S. 510 (1925), and Wisconsin v. Yoder, supra. A pub-

lic system of unempioyment compensation that provides

no benefits to persons who voluntarily refrain from work

may not deny coverage to an employee whose resignation

was precipitated by a conflict between work requirements

and sincere religious convictions. Thomas v. Review

Board, 450 U.S. 707 (1981); Sherbert v. Verner, supra.

Thus, this Court has limited governmental regulation

of overt acts prompted by religious principles to cases

on religious practice . . . imposed by private employers” it was

“not the sort of accommodation statute specifically contemplated

by the Free Exercise Clause.” Jd. at 2919 (O’Connor, J., con-

curring). See Wallace v. Jaffree, 105 S.Ct. at 2497 (O’Connor,

J., concurring).

where the regulated conduct poses “some substantial

threat to public safety, peace or order.” Sherbert Vv.

Verner, 374 U.S. at 403 (1963). The cases in which

this Court has upheld the claim of governmental author-

ity against a free exercise challenge uniformly fit within

these narrow categories.” Thus, the interest of the state

is not only valid but compelling in matters of health

and child welfare, Prince v. Massachusetts, 321 U.S. 158

(1944) (child labor laws enforceable so as to prevent

children’s sale of religious literature), or where the duty

from which an individual seeks exemption is one of the

essential responsibilities of citizenship in our modern

society, necessary to preserve peace or the orderly oper-

ation of society. See Gillette v. United States, 401 U.S.

437, 461-462 (1971) (no free exercise right to avoid

military service based upon religiously-based conscien-

tious objection to a particular war) ;* United States v.

Lee, 455 U.S. 252 (1982) (no free exercise right to

avoid paying taxes) .*

2 An additional category of “morals” is sometimes added. Obvi-

ously, this is not taken to mean that government may decide which

religions are “moral” or “immoral”. Rather, this category is not

altogether distinct from threats to “public order’, in that restric-

tions are justifiable only when the conduct in question assaults one

of the most fundamental bedrock values of our society or legal

order, such as the principle of nondiscrimination embodied in the

Fourteenth Amendment or the prohibition of polygamy. Bob Jones

University v. United States, 460 U.S. 574 (1983); Reynolds v.

United States, 98 U.S. 145 (1878).

3 While there may not be a First Amendment right to avoid

military service on religious grounds, this Court has clearly

established that the allowance of such accommodation of religious

belief (broadly defined) is within Congress’ prerogative. Welsh v.

United States, 398 U.S. 333 (1970); United States v. Seeger, 380

U.S. 163 (1965).

* The decision in Lee was predicated on the realistic assessment

that the sccial security system is not an individual “insurance”

system (from which a religious group providing its own system

of social and personal insurance might legitimately claim exemp-

By way of contrast, this Court has found even com-

pelling state interests insufficient to override a claim to

exemption from state programs, based upon religious be-

lief, where granting the religious claim would cause no

harm to others and would involve only de minimis altera-

tions of a governmental legislative or regulatory scheme.

See, e.g., Wisconsin v. Yoder, supra (state compulsory

education laws); Thomas v. Review Board, supra (state

unemployment benefits system); Sherbert v. Verner,

supra (same).

Il. THE MILITARY IS REQUIRED BY THE FREE

EXERCISE CLAUSE TO MAKE THE NARROW

AND MINOR REGULATORY EXCEPTION SOUGHT

BY PETITIONER.

Were it not for the military setting in which this case

arises, there would be no question whatever, based upon

the principles enunciated above, that the precedents of

this Court would compel judgment for Captain Goldman.

The case at bar involves a claim to a minor exception

from governmental rules imposed for the sake of uniform-

ity and administrative convenience. The legitimacy and

sincerity of the claimant’s religious belief is unchallenged.

Captain Goldman asks for no special benefits of a sub-

stantive nature; nor does he ask for exemption from fun-

damental duties incident to citizenship in the nation, such

as payment of taxes, or. availability for military service;

nor does the exception sought interfere with any govern-

ment rule designed to insure safety, peace, health or pub-

lic order. All Captain Goldman asks is that civil govern-

ment “accommodate[] the public service to [his] spiritual

needs.” Zorach v. Clauson, 343 U.S. at 314 (1952). Not-

withstanding the military setting, a fair application of

tion), but a system of general taxation and transfer payments and,

as such, indistinguishable from the obligation to pay taxes gen-

erally. 455 U.S. at 258 (“mandatory participation is indispensable

to the fiscal vitality of the social security system”). See U.S.

Const. Amend. XVI.

the Free Exercise Clause requires that Captain Goldman

be granted the narrow, limited exception which he seeks

from the dress regulations promulgated by the United

States Air Force.

This Court has consistently provided more that its usual

“customary deference” to a coequal branch of govern-

ment in determining the constitutionality of congressional

judgments with respect to the national defense and mili-

tary matters. See Chappell v. Wallace, 462 U.S. 296, 300

(1983) ; Rostker v. Goldberg, 453 U.S. 57, 64-66 (1981).

Nevertheless, the Court explicitly has acknowledged that

military matters are subject to constitutional limitations,

stating:

None of this is to say that Congress is free to dis-

regard the Constitution when it acts in the area of

military affairs. In that area, as in any other, Con-

gress remains subject to the limitations of the Due

Process Clause, but the tests and limitations to be

applied may differ because of the military context.

We of course do not abdicate our ultimate responsi-

bility to decide the constitutional question, but sim-

ply recognize that the Constitution itself requires

such deference to congressional choice.

Rostker, 453 U.S. at 67 (citations omitted).

In according this deference, however, this Court ex-

plicitly declined the Government’s invitation further to

refine the applicable tests, where allegations of constitu-

tional violations are directed at the military, so as to

require only that challenged regulations bear a “rational

relation to some legitimate Government purpose”. Zd. at

69. To the contrary, this Court explicitly noted that it

had not previously applied “a different equal protection

test because of the military context,” id. at 71 (citing

Schlesinger v. Ballard, 419 U.S. 498 (1975)), and pro-

ceeded to determine whether the challenged “action trans-

gressed an explicit guarantee of individual rights”, even

in light of the judicial deference to congressional mili-

tary expertise. Jd. at 70. Whatever the appropriate stand-

ard for examination of a military determination subject

to constitutional challenge (whether “strict scrutiny” or

an intermediate standard), it is clear, under Rostker, that

there is a judicial obligation to determine whether indi-

vidual rights guaranteed by the Constitution—be they

the right of free exercise or the right to equal protection

—have unjustifiably been subject to encroachment.

The court below acknowledged its constitutional obliga-

tion, consonant with Rostker, to determine whether the

Air Force’s refusal to accommodate the requirements of

its dress code to Captain Goldman’s religiously compelled

requirements to wear a yarmulke served “legitimate mili-

tary ends .. . sought to be achieved by means designed to

accommodate the individual rigui to an appropriate de-

gree.” 734 F.2d 1531, 1536. However, notwithstanding

this acknowledgment, the Court of Appeals failed prop-

erly to balance “legitimate military ends” against “indi-

vidual rights.” Rather, the Court of Appeals abdicated

even the limited role which the judiciary must play in

the context of the military. This appears evident from

the Court of Appeals’ own enumeration and assessment of

the Air Force’s justifications for its refusal to accom-

modate Captain Goldman’s religious practices.

Thus, the Court of Appeals rightly found “unpersua-

sive” the Air Force’s argument that one reason for

scrupulous uniformity with respect to its dress code is

safety, finding that “more narrowly drawn regulations,

accommodating religious practices to a greater degree,

would satisfy such safety concerns”. 734 F.2d at 1539.

The court also noted the potential weakness of the argu-

ment that “if members of numerous other religions with

distinctive garb flood the Air Force with requests for ex-

emptions, . . . severe disruption would result”, by observ-

ing that “[t]his argument assumes that substantial num-

bers of these sects have enlisted and would be likely to

request exemptions. .. .” Id.

The Court of Appeals further found “weak” an Air

Force argument that “it cannot reasonably distinguish

{the relative obtrusiveness] among various religious prac-

tices, but must either allow or disallow all requested ex-

ceptions.” Jd. In a telling critique of this Air Force ra-

tionale, the Court of Appeals stated:

[It] appears that the Air Force already distinguishes

among practices that may be religious, for the regu-

lations permit certain deviations from complete visi-

ble uniformity, such as the wearing of rings and

bracelets of nonuniform design, see AFR 35-10 § 1-

12(b) (1) (b), and have been interpreted to allow the

wearing of nonuniform undergarments and orna-

ments, provided they are not visible beneath the re-

quired uniform, despite the existence of military-

issue undergarments. The Air Force, therefore, does

distinguish, for example, Mormons who wear “tem-

ple garments” underneath their outer clothing from

Orthodox Jews, whose religious garb, though visible,

is nearly as unobtrusive. If obtrusiveness is the

underlying standard actually employed in making

these distinctions, the Air Force arguably should be

required to employ it in a more thoroughgoing man-

ner, in order to accommodate rights of free exercise

to the greatest possible extent.

Id. at 1540.

Having effectively rebutted the Air Force’s assertion

that the challenged regulations were necessarily connected

to various purported regulatory purposes, the Court of

Appeals nonetheless abruptly concluded that:

(T]he peculiar nature of the Air Force’s interest in

uniformity renders the strict enforcement of its regu-

lation permissible. That interest lies in the enforce-

ment of regulations, not for the sake of the regula-

tions themselves, but for the sake of enforcement.

Its regulations are necessarily arbitrary .... Unlike

the states in Wisconsin v. Yoder, Thomas v. Review

Board, and Sherbert v. Verner, whose interests in

enforcing their rules would not be greatly impaired

by making exceptions when enforcement would not

serve the purpose underlying the rules, the Air Force

has no concrete interest separate from the effect of

strict enforcement itself.

Id. This finding was premised on the Air Force’s asser-

tion that flexibility as to Captain Goldman’s religious

claim would breed resentment among other servicemen

and thereby adversely affect discipline.

Thus, the challenged regulations were, in essence, up-

held by the Court of Appeals solely because the military’s

need for discipline requires uniform adherence to its

rules, no matter how arbitrary and regardless of counter-

vailing constitutional considerations. The rationale that

uniform application of regulations is necessary for its

own sake may be justifiable when fundamental constitu-

tional rights are not directly and uncontrovertibly impli-

cated. However, when a fundamental constitutional right

is undeniably at stake, to uphold governmental regula-

tions without further judicial inquiry is to create a stand-

ard of inquiry which places virtually any military action

beyond review of the courts. Manifestly, any regulation,

having otherwise failed of justification, can be justified

as necessary not for its own sake, “but for the sake of

enforcement.” As Judge Starr, dissenting from the de-

nial of the petition for a rehearing en banc, cogently

stated :

Not a scintilla of evidence in the record suggests

that [Petitioner’s] wearing of a yarmulke caused

any resentment whatever in others. The claim is con-

tradicted by expert testimony, credited by the trial

court, that making exceptions to accommodate deeply

held religious beliefs would defuse rather than cause

resentment. The claim is also at odds with’common

sense. Reasonable servicemen would more justly be

annoyed with the mechanical enforcement of arbi-

trary rules that prevent the wearing of such unob-

trusive symbols of religious faith while allowing oth-

ers to wear religious rings and bracelets.

739 F.2d 657, 659. It should be stressed in this regard

that Captain Goldman wore his yarmulke on duty for

many years, with no hint of “resentment” among his

fellow servicemen. /d.

The Air Force’s justification for enforcement of an ad-

mittedly arbitrary dress regulation, in the face of Captain

Goldman’s religiously-compelled obligation to wear a small

skulleap which is neither obtrusive nor displaces military

dress, runs counter to expert testimony and common

sense. Moreover, it runs counter to the fundamental no-

tion that the Free Exercise Clause requires “those in au-

thority to accommodate those who wish to exercise their

religious liberties, unless the accommodation would prove

unduly burdensome.” Jd. Even the appropriately great

deference that this Court must allow to the military with

respect to determination of its own needs cannot allow the

Air Force to sweep aside First Amendment guarantees,

with no more than conclusory assertions, contradicted by

the record and by common sense.

The imperative that the Court diligently pursue its

otigation to determine whether the accommodation of

religion sought by Captain Goldman “would prove unduly

burdensome” is made even more compelling when one con-

siders that the Air Force’s mechanical enforcement of an

arbitrary dress regulation prevented Captain Goldman’s

wearing of an unobtrusive symbol of religious faith even

while allowing others to wear, for religious reasons, items

of apparel which were not part of the standard uniform.

The Court of Appeals itself acknowledged, in rebutting

the claim that the prevention of “obtrusiveness” had been

the Air Force’s guiding principle, that:

[It is} no answer to assert . . . that wearing rings

and special undergarments are not exceptions to the

uniform requirements, on the ground that the regu-

lation specifically allows them, because the reason

for the difference in treatment of various nonstand-

ardized articles of clothing and ornaments, rather

than the fact of the difference, would [then] be at

issue.

734 F.2d at 1246. However, the Court of Appeals’ ruling,

premised on the military’s assertion that the uniformity

imposed by the dress regulation is necessary for the sake

of enforcement, raises exactly that issue—the issue of why

regulations were enacted allowing one variety of religious

observance, while, at the same time, other regulations

forbid a practice of another faith which is indistinguish-

able in terms of obtrusiveness or interference with duty.

Not only free exercise concerns, but also weighty con-

cerns of equal protection, are raised when the military

may arbitrarily, and without objectively verifiable justifi-

cations, ordain that certain religiously-compelled dress

requirements are forbidden and others are not.

In the absence of any evidence supporting the justi-

fications espoused by the Air Force for its failure to ac-

commodate Captain Goldman, accommodation is required.

In the alternative, at the least, this matter should be re-

manded for further evidence with respect to those justifi-

cations.

CONCLUSION

Accordingly, amici curiae urge this Court to reverse

the judgment of the court below.

Respectfully submitted,