Although I named myself here Navy Vet Terp, after the Navy, and after law school thanks to the GI Bill, I went back into the military, this time as an Air Force JAG officer, serving from 1979 to 1983. Although I was allowed to prosecute some cases, often they sent full time prosecutors to military bases to prosecute particular cases. One of these prosecutors struck me as a rather arrogant fellow, and he would set into motion a case that went all the way to the Supreme Court.
Simcha Goldman entered the Air Force in 1976 as a clinical psychologist. He was an Orthodox rabbi, although not a chaplain, and he wore a kippah (Hebrew for the Yiddush yamulke, which is the small head covering worn by observant Jews). In 1981 he encountered the prosecutor when he testified as a defense witness. The prosecutor (who from my experience took every defense witness as a personal insult) ordered Captain Goldman to take off his kippah, but Goldman refused. After the court-martial, the prosecutor complained to Goldman's commanding officer at the hospital, asserting that wearing a kippah while in uniform violated Air Force regulations. The hospital commander ordered Goldman not to wear a kippah anymore, anytime he was in uniform. Goldman asked if he could continue working in civilian clothes so he could continue to wear his kippah, but the commander refused. Goldman was given a letter of reprimand and threatened with court-martial if he continued to wear his kippah in uniform. Goldman sued the Department of Defense, asserting the military was violating his religious freedom, and the case went up to the Supreme Court.
In Goldman v. Weinberger (1986), the Supreme Court, 5-4, held that Jews had no right to wear kippahs while serving in the military and wearing a military uniform. Chief Justice Rehnquist, writing for the majority, wrote that "the considered professional judgment of the Air Force" was that denying Jews the right to wear a kippah while in uniform advanced "the overall group mission." The military was "under no constitutional mandate to abandon their considered professional judgment" and "the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations."
In 1988 Congress overturned this regulation by legislating that "a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member's armed force," and President Reagan signed the enactment into law. But that was after I had left the Air Force. The controversy, provoked by someone I knew personally, offended me, even though, outside of the synagogue and home observances (such as our recent sedars), I never wear a kippah. I felt my religious rights were being trampled upon for bogus reasons. My decision not to wear a kippah should be mine, not the Air Force's.
One day I told my colonel, the staff judge advocate, how I felt. He replied that allowing Jews to wear kippahs would be the end of discipline in the Armed Forces. The Air Force's effectiveness as a fighting force would be put in jeopardy. Why, allow kippahs, and you would have to allow a Sikh to wear a turban. My response, "So?" was not a response he appreciated.
Of course, the military was providing the same justification for hunting down gays and discharging them with general, that is, less than honorable, discharges. It would later become the same excuse for Don't Ask, Don't Tell. Somehow, our Armed Forces have survived since 1988, when Jews were allowed to wear kippahs, and since December 2010, when Congress, in its last days of Democratic control, repealed DADT.
There are so many more examples today of such "reasonable" discrimination. And by "reasonable" I don't mean that this discrimination is reasonable, but that the Republicans have disclaimed any discriminatory intent and instead claim to foster some beneficent goal that all can agree on.
We all want a strong and effective military - but to have one we can't allow Jewish soldiers to wear kippahs, or Sikh soldiers to wear a turban, or allow gays to serve, that would destroy military effectiveness. So, whether we like it or not, kippahs and turbans and gays have to be kept out of the military.
We are all against voting fraud, so we need voter I/D and other voting restrictions to make sure there is no voting fraud. And if hundreds of thousands or millions of legitimate voters are kept from voting, that's the price we need to pay to stamp out voting fraud.
We all want abortion clinics to be safe places where women can go to for medical services. Of course, if the regulations make it impossible for abortion clinics to stay open, and women die in self induced or back alley abortions, and women are forced to carry horribly deformed fetuses to term at the peril of their lives, that's the price we have to pay for safe clinics. At least no woman will die for lack of state regulation of the clinics.
We all believe in religious freedom and seek to protect it. I opened this diary with an example of how I felt my religious freedom was restricted for bogus reasons. Of course, if the laws Republican legislatures are passing, and the decisions Republican judges are handing down, restrict the freedom of others - the freedom of employees to secure insurance that covers birth control, or the freedom of a gay couple to make arrangements for their marriage without being continually denied services, then that's the price we have to pay to protect religious freedom.
Thousands of years ago, the author of Ecclesiastes wrote (1:9):
What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.
The author of Ecclesiastes (reputed to be Solomon), was very wise. For we have seen these types of laws before, and in 1886, in
Yick Wo v. Hopkins, the Supreme Court considered such a law, this one enacted by the San Francisco Board of Supervisors:
SEC. 1. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.
. . . .
SEC. 3. Any person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment.
The city of San Francisco argued that the ordinance was enacted to lessen the danger of fire, as laundries needed hot fires to boil water, and there was a danger of fire. In fact, there had been fires that not only destroyed the wooden laundries but damaged adjacent buildings as well. The Supreme Court of California agreed and upheld the law. But a unanimous SCOTUS, in a decision written by the otherwise forgotten
Justice Stanley Matthews, disagreed.
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
. . . .
It appears that both petitioners have complied with every requisite deemed by the law or by the public officers charged with its administration necessary for the protection of neighboring property from fire or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of the petitioners is, therefore, illegal, and they must be discharged.
Yick Wo v. Hopkins would be cited by civil rights attorneys for the next 70 years, and for the first 35 years after
Yick Wo v. Hopkins would usually be cited with futility. But it stands as one of the landmark SCOTUS cases of the 19th Century, and demonstrates the lie that the Governor Pences and other Republicans proclaim in enacting these so-called religious freedom statutes.