Opinion

JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins, dissenting.

The issue posed in this case is whether, consistent with the Free Exercise Clause of the First Amendment, the Air Force may prohibit Captain Goldman, an Orthodox Jewish psychologist, from wearing a yarmulke while he is in uniform on duty inside a military hospital.

The Court rejects Captain Goldman's claim without even the slightest attempt to weigh his asserted right to the free exercise of his religion against the interest of the Air Force in uniformity of dress within the military hospital. No test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity.

JUSTICE STEVENS acknowledges that

Captain Goldman's military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force's military mission.

Ante at 475 U. S. 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a governmental regulation based on any "neutral, completely objective standard," ante at 475 U. S. 513, will survive a free exercise challenge.

In contrast, JUSTICE BRENNAN recognizes that the Court "overlooks the sincere and serious nature of [the] constitutional claim." Ante at 475 U. S. 514 (dissenting). He properly notes that, even with respect to military rules and regulations, the courts have a duty to weigh sincere First Amendment claims of its members against the necessity of the particular application of the rule. But JUSTICE BRENNAN applies no particular test or standard to determine such claims.

JUSTICE BLACKMUN focuses on the particular ways in which the military may pursue its interest in uniformity, ante at 475 U. S. 526 -527 (dissenting), but nonetheless declines "to determine the extent to which the ordinary test for inroads on religious freedom must be modified in the military context," ante at 475 U. S. 526.

I believe that the Court should attempt to articulate and apply an appropriate standard for a free exercise claim in the military context, and should examine Captain Goldman's claim in light of that standard.

Like the Court today in this case involving the military, the Court in the past has had some difficulty, even in the civilian context, in articulating a clear standard for evaluating free exercise claims that result from the application of general state laws burdening religious conduct. In Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), the Court required the States to demonstrate that their challenged policies were "the least restrictive means of achieving some compelling state interest" in order to deprive claimants of unemployment benefits when the refusal to work was based on sincere religious beliefs. Thomas, supra, at 450 U. S. 718. See also Sherbert, supra, at 374 U. S. 406 -408. In Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 215 (1972), the Court noted that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion" in deciding that the Amish were exempt from a State's requirement that children attend school through the age of 16. In United States v. Lee, 455 U. S. 252, 455 U. S. 257 -258 (1982), the Court stated that

[t]he State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,

and held that the Amish could not exempt themselves from the Social Security system on religious grounds. See also Gillette v. United States, 401 U. S. 437 (1971) (rejecting challenges under the Establishment and Free Exercise Clauses to the Federal Government's refusal to give conscientious objector status to those objecting on religious grounds only to a particular war, rather than to all wars).

These tests, though similar, are not identical. One can, however, glean at least two consistent themes from this Court's precedents. First, when the government attempts to deny a free exercise claim, it must show that an unusually important interest is at stake, whether that interest is denominated "compelling," "of the highest order," or "overriding." Second, the government must show that granting the requested exemption will do substantial harm to that interest, whether by showing that the means adopted is the "least restrictive" or "essential," or that the interest will not "otherwise be served." These two requirements are entirely sensible in the context of the assertion of a free exercise claim. First, because the government is attempting to override an interest specifically protected by the Bill of Rights, the government must show that the opposing interest it asserts is of especial importance before there is any chance that its claim can prevail. Second, since the Bill of Rights is expressly designed to protect the individual against the aggregated and sometimes intolerant powers of the state, the government must show that the interest asserted will, in fact, be substantially harmed by granting the type of exemption requested by the individual.

There is no reason why these general principles should not apply in the military, as well as the civilian, context. As this Court has stated unanimously, " our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.'" Chappell v. Wallace, 462 U. S. 296, 462 U. S. 304 (1983) (quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962)). Furthermore, the test that one can glean from this Court's decisions in the civilian context is sufficiently flexible to take into account the special importance of defending our Nation without abandoning completely the freedoms that make it worth defending.

The first question that the Court should face here, therefore, is whether the interest that the Government asserts against the religiously based claim of the individual is of unusual importance. It is perfectly appropriate at this step of the analysis to take account of the special role of the military. The mission of our Armed Services is to protect our Nation from those who would destroy all our freedoms. I agree that, in order to fulfill that mission, the military is entitled to take some freedoms from its members. As the Court notes, the military " must insist upon a respect for duty and a discipline without counterpart in civilian life.'" Ante at 475 U. S. 507 (quoting Schlesinger v. Councilman, 420 U. S. 738, 420 U. S. 757 (1975)). The need for military discipline and esprit de corps is unquestionably an especially important governmental interest.

But the mere presence of such an interest cannot, as the majority implicitly believes, end the analysis of whether a refusal by the Government to honor the free exercise of an individual's religion is constitutionally acceptable. A citizen pursuing even the most noble cause must remain within the bounds of the law. So, too, the Government may, even in pursuing its most compelling interests, be subject to specific restraints in doing so. The second question in the analysis of a free exercise claim under this Court's precedents must also be reached here: will granting an exemption of the type requested by the individual do substantial harm to the especially important governmental interest?

I have no doubt that there are many instances in which the unique fragility of military discipline and esprit de corps necessitates rigidity by the Government when similar rigidity to preserve an assertedly analogous interest would not pass constitutional muster in the civilian sphere. Compare Greer v. Spock, 424 U. S. 828 (1976), with Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981), and West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 630 -634 (1943). Nonetheless, as JUSTICE BRENNAN persuasively argues, the Government can present no sufficiently convincing proof in this case to support an assertion that granting an exemption of the type requested here would do substantial harm to military discipline and esprit de corps. Ante at 475 U. S. 517 -620 (dissenting).

First, the Government's asserted need for absolute uniformity is contradicted by the Government's own exceptions to its rule. As JUSTICE BRENNAN notes, ante at 475 U. S. 518, an Air Force dress code in force at the time of Captain Goldman's service states:

Neither the Air Force nor the public expects absolute uniformity of appearance. Each member has the right, within limits, to express individuality through his or her appearance. However, the image of a disciplined service member who can be relied on to do his or her. job excludes the extreme, the unusual, and the fad.

AFR 35-10, 1-12.a.(2) (1978). Furthermore, the Government does not assert, and could not plausibly argue, that petitioner's decision to wear his yarmulke while indoors at the hospital presents a threat to health or safety. And finally, the District Court found as fact that, in this particular case, far from creating discontent or indiscipline in the hospital where Captain Goldman worked, "[f]rom September, 1977, to May 7, 1981, no objection was raised to Goldman's wearing of his yarmulke while in uniform."

See Goldman v. Secretary of Defense, 29 EPD 32,753, p. 25,539 (1982) (emphasis added).

In the rare instances where the military has not consistently or plausibly justified its asserted need for rigidity of enforcement, and where the individual seeking the exemption establishes that the assertion by the military of a threat to discipline or esprit de corps is in his or her case completely unfounded, I would hold that the Government's policy of uniformity must yield to the individual's assertion of the right of free exercise of religion. On the facts of this case, therefore, I would require the Government to accommodate the sincere religious belief of Captain Goldman. Napoleon may have been correct to assert that, in the military sphere, morale is to all other factors as three is to one, * but contradicted assertions of necessity by the military do not on the scales of justice bear a similarly disproportionate weight to sincere religious beliefs of the individual.

I respectfully dissent.

* See Letter, Aug. 27, 1808 ("In war, moral considerations account for three-quarters, the balance of actual forces only for the other quarter"), as translated and quoted in J. Cohen & M. Cohen, The Penguin Dictionary of Quotations 268 (1962).