still waiting for concrete examples

[ArtSpitzer at aol.com]

Chris Lund writes:

> 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.
> 

It would have been very hard to prove the Department's bad motivation.   
The Fire Department would have argued that our case made it reexamine the 
facial hair issue, and it concluded that safety required everyone to be 
clean-shaven.   (That's essentially what it did say.)   
And I'm not so sure that issuing a religion-neutral regulation because your 
lawyer advises you that if you continue to make medical exceptions you'll 
also have to make religious exceptions makes the regulation non-neutral.   
It's not as if there was no support for the Department's safety argument.   
There was support.

Art Spitzer


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