Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli

[Brownstein, Alan]

Chris correctly points to one of the significant problems with Fraternal Order of Police analysis. It makes the availability of free exercise protection turn on the fortuity that there is a secular exception to the challenged rule. To illustrate this point, I use an example of a police department with a no beards and a no long hair requirement that has both a Moslem and a Native American officer on its staff. The Moslem wants an exemption from the no beard policy, the Native American wants an exemption from the no long hair policy -- both for religious reasons. Because of the medical exception from the no beards policy, the rejection of the Moslem's claim is subjected to serious review. Because there is no medical condition caused by a short hair cut, and accordingly no medical exception to this rule, the rejection of the Native American's claim is upheld under rational basis review.

Alan Brownstein
________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund [Lund at mc.edu]
Sent: Wednesday, August 13, 2008 8:33 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli


So he can wear a beard, but not a yarmulke - because secular exceptions have been made to the no-beard policy (for medical reasons), but there have been no such exceptions to the no-headgear policy.

I find this troubling.  The no-beard policy falls because people sometimes need beards for medical reasons (pseudo folliculitis barbae [PFB] being a medical condition common in African-American officers, and requiring accommodation under the ADA).  The no-headgear policy is okay because people rarely need hats for medical reasons (the only case I've seen is an ADA case where a plaintiff wanted - and got - a right to wear a hat to disguise a cranial disfigurement).

So we end up giving an accomodation to a religious person seeking to wear a beard, but not one wanting to wear a headcovering -- because the relative incidence of cranial disfigurement is higher than that of PFB?

And the irony is that the department seems to have much better reasons for the no-beard policy.  The Court says that beards can be used against officers in fights; they may impede putting on gas masks, etc, etc.  But there are no similar justifications against hats.  The department even lets officers wear hats outside and in vehicles, just not indoors.  (Why, I do not know.)

Best, Chris

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL 3211279 (D.
> Nev. 2008).  The court concludes, though, that the headgear regulation
> (which required the removal of all hats when entering any building, when
> not in uniform) isn't subject to strict scrutiny because "the regulation
> does not provide individualized exemptions for any reason, secular or
> religious."
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

_______

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
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