still waiting for concrete examples

[ArtSpitzer at aol.com]

I don't think I understand the question, perhaps because I'm not familiar 
with the CLUB case.   A violation of RFRA doesn't depend on any 
discrimination; it's enough that the government declines to accommodate a religious 
exercise, that its failure to do so imposes a substantial burden on the 
plaintiff's exercise of religion, and that the government could accommodate the 
religious exercise without significantly undercutting a compelling interest.   
Right?   So when the Fire Department failed to show that half a dozen bearded 
men couldn't safely be accommodated, it lost.   (My own view is that an 
unlimited number of bearded men could be accommodated, but the court didn't have 
to find that.)

Had the Fire Department continued to allow scores of firefighters to wear 
beards for medical reasons (which it had allowed at from at least the 1970s 
until mid-2005), the case would have been over much sooner.   But the 
Department's lawyer realized that, and the (white) Chief decided that he'd rather 
force all those (black) firefighters with pseudofolliculitis barbae to shave 
than allow a small number of firefighter to wear religious beards.   It 
didn't make much sense to me.

Art

In a message dated 6/22/09 9:29:58 AM, Hamilton02 at aol.com writes:


> Thanks, Art.  Interesting case.  In CLUB v City of Chicago, the City 
> altered its land use scheme to eliminate the discriminatory treatment and the 
> City eventually won under RLUIPA.  Why did the Fire Department's elimination 
> of the beard policy not lead to a similar result under RFRA? 
>   
>  Marci
>   
>   
>   
>  In a message dated 6/21/2009 10:36:53 P.M. Eastern Daylight Time, 
> ArtSpitzer at aol.com writes:
> 
>  I don't know whether you consider forcing a person to choose between 
> shaving his religiously-mandated beard and losing his job to be a "very real 
> threat to religious freedom," but my clients did, and we just won such a case 
> in the DC Circuit under RFRA that we would have lost without it.
> 
> The appeal, Potter v. District of Columbia, 558 F.3d 542 (DC Cir 2009), 
> turned solely on civil procedure, but the district court's decision, 2007 WL 
> 2892685 (DDC 2007), was on the merits -- that the District of Columbia had 
> not carried its RFRA burden of showing that a "no facial hair" rule for 
> firefighters and EMTs was required for safety (safety being a concededly 
> compelling interest).
> 
> The Fire Deoartment avoided losing on constitutional grounds, a la FOP v. 
> City of Newark, by eliminating, in the middle of the case, its 
> long-existing exemption for men who had a medical need to avoid shaving.
> 
> Art Spitzer
> ACLU 
> 
> 
> 




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