Professor Erroneously Cites Military Religious Freedom

Noah Feldman, a columnist for Bloomberg and professor of constitutional and international law at Harvard, recently penned an article appealing for public support against Mississippi’s religious protection statutes [emphasis added]:

Signed in April, the Mississippi law calls itself the “Protecting Freedom of Conscience from Government Discrimination Act.” …

It should be held unconstitutional because it violates the establishment clause of the First Amendment by singling out one set of religious beliefs for positive treatment.

To buttress his argument against “the danger of religious exemptions,” Feldman cited Goldman v Weinberger, the landmark case in which the US Supreme Court decided the US Air Force did not have a constitutional obligation to accommodate a Jewish officer by allowing him to wear a yarmulke.

Citing the concurrence by Justice John Paul Stevens, Feldman said

“The very strength of Captain Goldman’s claim,” [Stevens] wrote, “creates the danger that a similar claim on behalf of a Sikh or a Rastafarian might readily be dismissed.”…

Stevens’ concern was that exemptions applied on a case-by-case basis would favor some religions over others. That’s exactly what the Mississippi law does.

That’s a twisting of Justice Stevens’ words, and intentionally leaves out an important part of the sentence. Justice Stevens was concerned that an analysis of religious beliefs based even on an objective “standard” might result in different treatment, particularly in cases like Sikhs or Rastafarians who might be viewed as

“so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed.”

Justice Stevens said that allowing a Jewish soldier to wear a yarmulke but prohibiting a Sikh from wearing a turban — an outcome he saw as likely — would not be uniform treatment of religious liberty, not that it would “favor some religions over others.” Stevens, then, believed that uniformity was required within the military’s construct of its treatment of religion. In fact, treating religion equally was so important, one could argue Stevens believed the simplest answer was to prohibit exercise by all or allow it by all — without any governmental “evaluation.”

Feldman also omits the fact that the American people, through their Congress, actually disagreed with the Supreme Court and, in effect, overturned the ruling. Congress revised military policies to allow religious accoutrements in uniform, explicitly allowing precisely one accoutrement: the Jewish yarmulke.

In other words, regardless of the Supreme Court’s ruling or Justice Stevens’ concurrence, religious liberty still “won.”

And, to this day, yarmulkes are permitted in the US military — while Sikh turbans are not. In that regard, Justice Stevens was correct.  However, that the Armed Services are, according to Feldman’s and Stevens’ analysis, misusing the power granted to them does not negate the value of religious liberty itself.

Ultimately, Feldman’s attempt to use military religious freedom to buttress his case against what he calls “anti-gay religion” fails. Goldman v Weinberger wasn’t about religious exemption, but religious accommodation — protecting religious exercise to the maximum extent, as required by the Constitution. Feldman would use Goldman to say the opposite — that religious accommodation is ultimately wrong, and that accommodating religious exercise, by its very nature, establishes religion.

Feldman advocates a dangerous, anti-liberty position.

Accommodation of religion does not favor one religion over another — or, to take it just one step futher, favor religion over non-religion. Rather, it protects religious liberty, as the US Constitution requires.