still waiting for concrete examples

[Christopher Lund]

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.
One question.  If the Department eliminated the medical exception to make the law generally applicable and thus defeat the Free Exercise claim * then doesn't it then run afoul of the neutrality requirement?  I mean, in such a case, the change was made "because of" and not merely "in spite of" its burden on religious practice.
 
Now it may be hard to show that the Department eliminated the medical exception deliberately to defeat the Free Exercise claim, but I imagine the temporal link between the two would be really good evidence of intent.
 
Best,
Chris
 
______________________
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)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 
 
>>> ArtSpitzer at aol.com 6/22/2009 12:43 PM >>>

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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