Abstract

In Goldman v. Weinberger, the United States Supreme Court reaffirmed its longstanding position on judicial deference to military decisionmaking. The Court held that military regulations preventing an Air Force captain, who was also an Orthodox Jew and an ordained rabbi, from wearing his yarmulke did not violate the free exercise clause of the first amendment. The Goldman Court concluded that the first amendment does not require the Air Force to accommodate religious practices that detract from the uniformity of standard dress regulations.

The Goldman decision was the latest in a long line of Supreme Court cases giving virtually unlimited deference to military decisionmaking where the constitutional rights of service people conflict with claimed military necessity. Although Goldman follows the general theme of these cases, the five-four split by the Court indicates significant dissatisfaction with the traditional stance.

This Comment will describe the judicial tradition of deferring to the military when it denies certain first amendment rights because of alleged military necessity. It will attempt to derive a workable standard of review for military decisionmaking affecting constitutional rights, a standard suggested by the three dissenting opinions in Goldman. Finally, it will explore the impact of Goldman and the possibility for change in this area in light of the membership of the current Supreme Court.

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