Americans are about equally religious and litigious, so they have made a cottage industry of litigation concerning the first 16 words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Those two topics, "establishment" and "free exercise," can become interestingly tangled.
In 1981 S. Simcha Goldman, an Orthodox Jew and ordained rabbi and Air Force officer, decided to fight Air Force restrictions on the wearing of yarmulkes. The regulation restricts the wearing of headgear indoors. Goldman did what any real, not to mention devout, American would do. He sued.
He said the regulation infringed his right to "free exercise" of his beliefs. A U.S. District Court agreed and permanently enjoined the Air Force from enforcing its regulation against him. But permanence is a sometime thing in this rollicking republic, and a U.S. Court of Appeals held for the Air Force. In the Supreme Court, Goldman had four justices with him, but that was one brick shy of a load.
Justice Rehnquist (joined by Burger, White, Powell and Stevens) reiterated the court's view that the military is a specialized society and that judicial review of military regulations should be "far more deferential" than review of similar laws or regulations in civilian society. The essence of military service is subordination of the individual's desires and interests to the needs of the collective enterprise. Standardized uniforms are means to a valid end, a sense of hierarchical unity.
Goldman said studies might show that more liberal regulations regarding religious apparel would enhance morale, a thought that cut no ice with Rehnquist, who said: Judicial deference "is at its apogee" when dealing with decisions of the armed services. But Justice Brennan's dander reaches an impressive apogee when such deference is mentioned. He, joined by Justice Marshall, dissented. O'Connor and Blackmun also dissented mildly, but Brennan understands that if you are going to dissent, break some crockery.
The court, he thundered, has abdicated its role as expositor of the Constitution and protector of individual liberty "in favor of credulous deference to unsupported assertions of military necessity." All is fair in love and war and constitutional law, and Brennan never met a straw man he didn't like. He said the court had affirmed the Air Force's contention that a more liberal policy regarding yarmulkes would mean "our fighting forces slip down the treacherous slope toward unkempt appearance, anarchy and, ultimately, defeat at the hands of our enemies."
That caricature is jolly fun, but the court was saying something more temperate. It was talking only about the allocation of discretion within particular agencies of government, concerning particular spheres of individual autonomy. However, a fascinating facet of Brennan's passionateness is that he is equally passionate about guaranteeing "free exercise" and preventing "establishment" of religion.
Whenever government action can imaginatively be construed as "establishment," Brennan so construes it, using the court's baroque "tripartite test." Under that test, government action touching religion is presumptively unconstitutional unless 1)it has a secular purpose, 2)its primary effect neither advances nor inhibits religion, and 3)it does not foster excessive entanglement of government with religion.
However, in 1972, about the time the tripartite test was concocted, Brennan joined in a ruling that, in effect, established a religion, and did so in the name of "free expression."
Jonas Yoder, an adherent of the Old Order Amish, disobeyed the Wisconsin law requiring parents to send their children to school until age 16. The validity of the law was not questioned. Yet the court upheld Yoder's exemption from that law. Walter Berns, a distinguished constitutional scholar, argues that, in a sense, Old Order Amish is now an established religion of the United States because its members enjoy special exemption from a valid law.
The tripartite rule for detecting "establishment" expresses the court's view that the establishment clause requires government to be scrupulously neutral, not merely between religious sects, but also between religion and secularism. However, Brennan's sensitivity to the slightest trace of "establishment" -- the most minute departure from governmental neutrality -- illustrates a problem. Such punctilious concern for free exercise, a concern expressed in exemptions from state laws and military regulations, violates the spirit of the tripartite test.
Government, in the form of the court, becomes entangled with religion in ways that suggest government favors policies that advance religion. Under Brennan's sort of passionate fine-tuning, extremism in defense of "free exercise" and in opposition to "establishment" produces an incoherence that keeps the cottage industry of litigation humming.