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Federal appeals panel sides with Muslims in suit against police department

By Jeremy Leaming

A federal appellate court panel has upheld a district court decision that barred the Newark, N.J., police department from firing two Muslim officers who refused to shave their beards for religious reasons.

A three-judge panel for the 3rd U.S. Circuit Court of Appeals ruled March 3 that the Newark Police Department's policy requiring clean-shaven officers must allow exemptions for religious objectors. The panel in Fraternal Order of Police v. City of Newark concluded that since the policy granted exemptions for medical reasons it could not constitutionally deny them for religious ones. The panel also said the police department had no serious reason for not allowing a religious exemption.

"Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, we conclude that the Department's policy violates the First Amendment," Judge Samuel Alito wrote for the panel.

The police department's policy was created in 1971 to end the wearing of long hair and beards. Throughout the litigation, lawyers for the department have maintained the policy was needed to create uniformity and instill discipline and order. City lawyers also argued that because the policy was not intended to single out religious officers, the government needed only to show a "rational basis" for applying the policy to the Muslim officers.

Faruq Abdul-Aziz and Shakoor Mustafa, the Islamic officers, however, said their religious beliefs forbade them from shaving. According to affidavits submitted to the federal court by the officers, who have been on the force for about nine years, "it is an obligation for men who can grow a beard, to do so." Their affidavit cites portions of the Koran, Islam's holy book, which states that not wearing a beard is a sin that will result in penalties "meted out by Allah."

In 1997 U.S. District Judge John Bissell barred the city from firing Abdul-Aziz and Mustafa for their refusal to comply with the policy. Bissell, like the 3rd Circuit, noted that Newark's policy did permit exemptions for officers with medical reasons and concluded the city simply did not have a strong enough interest in upholding the policy in the face of a serious religious-liberty challenge.

The city's attorneys asked the 3rd Circuit, which also includes Pennsylvania and Delaware, to overturn Bissell's ruling and allow the police department to fire the Muslim officers. The attorneys argued in briefs and before the appellate panel that Bissell misapplied the 1990 U.S. Supreme Court ruling in Employment Div., v. Smith. In that case, the high court ruled that not all government actions or laws, which infringe on an individual's religious-liberty, rise to a constitutional violation. The high court said government had only to show a "rational basis" for enforcing laws that are intended to apply fairly to all.

Bissell, however, ruled that Smith did not apply and that the city of Newark would have to show a "compelling interest" in enforcing the policy against the Muslims.

The 3rd Circuit agreed with Bissell — although for different reasons — that Smith was not the correct standard to apply in the Newark situation. Alito, citing Smith and previous high court decisions, noted that when government provides individual exemptions, it may not deny them to religious objectors without showing a "compelling reason," a much higher standard to reach than a "rational basis."

"We conclude that the Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny," Alito wrote.

Alito then declared that "the Department has not offered any interest in defense of its policy that is able to withstand any form of heightened scrutiny." Neither the police department's interest in a "monolithic, highly disciplined force," or its need to provide a "public sense of security in having readily identifiable and trusted public servants," were compelling enough, the panel wrote, to justify a policy that in all actuality suppressed "manifestations of the religious diversity that the First Amendment safeguards."

The Becket Fund for Religious Liberty, a Washington, D.C.-based law firm and education center that advocates a greater protection for public expression of religious beliefs, had filed a friend-of-the court brief on behalf of the Muslim officers.

Eric Treene, the Becket Fund's litigation coordinator, said he was pleased the panel offered a scholarly and thoughtful opinion that should provide guidance for other federal courts in free exercise of religion jurisprudence.

"Where secular exemptions are given, the panel concluded that traditional free-exercise clause rules of requiring government to show a good faith reason for infringing on religious practices still applies," Treene said. "This ruling was important, because the city had in essence told the Muslim police officers that they must choose between their public employment and their faith. If the government can accommodate officers for good reasons, such as medical, then it must show why it could not accommodate others with similarly strong reasons, like religion."


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By Ron Collins, David Hudson Nominee's opinions show receptivity to First Amendment concerns. 10.31.05

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