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

[Nelson Tebbe]

You're right-it's supremely odd.  That's always struck me as a problem with Eisgruber & Sager's theory of equal liberty.  Why should someone's religious freedom rights turn on the happenstance of whether the government has created an exemption for some other secular activity?

Got slammed this week, but I'm looking forward to reading  your paper and returning to our dialogue.

Nelson



On 8/13/08 11:33 AM, "Christopher Lund" <Lund at mc.edu> wrote:

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)


______________________________
Nelson Tebbe
Associate Professor of Law
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY  11201
718.780.7960
nelson.tebbe at brooklaw.edu
Papers available at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=343134

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