Free ex. plaintiffs win

[Eric Treene]

    In Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark,
(D.N.J. July 29, 1997) (Civ. No. 97-2672), the District Court held that
the application of a police department grooming policy to two Sunni
Muslim uniformed officers violated the Free Exercise Clause.  The two
men had worn beards for seven and ten years, respectively.  The Police
Department, however, decided to start enforcing its grooming policy
that had been on the books since the 1970's in what it called a new
"zero-tolerance policy".  The policy permits mustaches but no hair below
the lip.  Exemptions are given to officers with a medical necessity to
wear a beard (i.e., those with PFB).  Undercover officers are also
exempt.

 The District Court found for the two officers.  The Court found that
Goldman v. Weinberger is specifically limited to the military.  Then,
more interestingly, the court held that the core holding of Smith was
limited to laws, i.e., acts of the legislature.  Work rules are
different, the Court held, and therefore applied the Yoder balancing
test.  The City lost because it had not challenged the Plaintiffs'
affidavit from an Imam that it is an unequivocal sin not to wear a beard
and that the officers have no choice but to wear them.  The City also
did not present any evidence of the need for the grooming policy: they
just made conclusory assertions  in their brief to the need for
uniformity and a "monolithic police force" (a phrase that should make
civil libertarians--and anyone aware of the ethnic diversity of
Newark--cringe).

 The Court, however,  rejected plaintiffs' exemption argument, similar
to the one that prevailed in Rader v. Johnston, which has been discussed
on this list, that the medical exemption rendered the rule not general,
not neutral and therefore discriminatory.  The Court held that class
exemptions like medical reasons are different from individualized
exemptions like those discussed in Sherbert.  The court stated that the
exemption argument was limited by Smith's discussion of Sherbert to
individualized exemptions.

 The City appealed to the Third Circuit, and has submitted its brief.  I
am working on an amicus brief on behalf of  the Becket Fund and the ACLU
of New Jersey supporting the two officers.  We will advance the Rader
argument that the District Court rejected as an alternative ground for
affirmance, along with several other arguments (hybrid speech/religion,
Equal Protection, limiting Smith to laws and broad regulations).

Eric Treene
The Becket Fund for Religious Liberty