still waiting for concrete examples

[Douglas Laycock]

Kim is right.  Congress fixed this one by statute. 

Quoting Kimberlee Wood Colby <kimcolby at verizon.net>:

> Perhaps this example has already been mentioned but Goldman v. Weinberger,
> 475 US 503, 505 (1986), presents a good example of a religious accommodation
> that was working well until someone essentially decided to retaliate against
> the religious person by revoking the accommodation.  Goldman was an Air
> Force officer who needed to wear a yarmulke because of his religious faith.
> As the Supreme Court described the facts:
>
> "Until 1981, petitioner was not prevented from wearing his yarmulke on the
> base. He avoided controversy by remaining close to his duty station in the
> health clinic and by wearing his service cap over the yarmulke when out of
> doors. But in April 1981, after he testified as a defense witness at a
> court-martial wearing his yarmulke but not his service cap, opposing counsel
> lodged a complaint with Colonel Joseph Gregory, the Hospital Commander,
> arguing that petitioner's practice of wearing his yarmulke was a violation
> of Air Force Regulation (AFR) 35-10. This regulation states in pertinent
> part that “[h]eadgear will not be worn ... [w]hile indoors except by armed
> security police in the performance of their duties.” AFR 35-10, ¶
> 1-6.h(2)(f) (1980).
>
> Colonel Gregory informed petitioner that wearing a yarmulke while on duty
> does indeed violate AFR 35-10, and ordered him not to violate this
> regulation outside the hospital. Although virtually all of petitioner's time
> on the base was spent in the hospital, he refused. Later, after petitioner's
> attorney protested to the Air Force General Counsel, Colonel Gregory revised
> his order to prohibit petitioner from wearing the yarmulke even in the
> hospital. Petitioner's request to report for duty in civilian clothing
> pending legal resolution of the issue was denied. The next day he received a
> formal letter of reprimand, and was warned that failure to obey AFR 35-10
> could subject him to a court-martial. Colonel Gregory also withdrew a
> recommendation that petitioner's application to extend the term of his
> active service be approved, and substituted a negative recommendation."
>
> The Court then held against Goldman based on the military's interest in
> uniformity.  I believe that Congress subsequently enacted an accommodation
> but am not sure about that.
>
> Kim Colby
>
>   _____
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marc Stern
> Sent: Tuesday, June 23, 2009 9:46 AM
> To: religionlaw at lists.ucla.edu
> Subject: Re: still waiting for concrete examples
>
>
>
> Doug could also have pointed to many such instances in the analogous area of
> religious accommodation of employees. In both reported and unreported cases
> it is quite common for a new supervisor to cancel an accommodation for no
> apparent reason although proving an illicit motive is often impossible. In
> some cases, the cancelled accommodation may have been improvidentally
> granted but in most cases I have seen the best that can be said is that the
> supervisor is simply flexing muscle to show who is in charge
> Marc
>
> ----- Original Message -----
> From: religionlaw-bounces at lists.ucla.edu
> <religionlaw-bounces at lists.ucla.edu>
> To: religionlaw at lists.ucla.edu <religionlaw at lists.ucla.edu>
> Sent: Mon Jun 22 23:49:38 2009
> Subject: Re: still waiting for concrete examples
>
> This e-mail reveals a very important fact.  A new chief arrived who said
> rules are rules and no exceptions.  This is a very common story --
> exemptions are granted and cause no problems, the institution functions just
> fine and its employees, students, clients, whatever, can practice their
> religion.  Then a new administrator comes in and says screw this crap about
> exception; there aren't going to be any exceptions.
>
> That's the story here. That's the story in Mozert v. Hawkins County Board of
> Ed.  That's the story in the case of the kid at the University of Nebraska
> who didn't want to live in the dorm.  I don't remember for sure, but I think
> that was the case in Swanson in the 10th Circuit, where a home schooler
> wanted to take a course or too at the the school.
>
> Quoting ArtSpitzer at aol.com:
>
>>> Marci asks:   Why [didn't the Fire Dep't] just give up and let everyone
>>> wear a beard?
>>>
>> Because (a) that would mean admitting they were wrong, and (b) a Fire
> Dep't
>> is a paramilitary organization and the two new chiefs from out of town who
>> imposed this policy think beards look scuzzy -- the new chief who first
>> imposed this "safety" policy simultaneously banned dreadlocks and
> religious
>> headcoverings, with no plausible safety rationale.
>>
>> To give the Department more credit (perhaps more than due), it's following
>> a policy of erring on the side of safety.   But for RFRA, that policy
> would
>> apply to all firefighters.   Under RFRA, the Department  should have
> thought
>> seriously about whether it could accommodate a few beards.   But the Fire
>> Chief's attitude was "orders are orders."   Much as Judge Robertson
>> apparently doesn't like RFRA, he took his responsibility more
>> seriously and found
>> that in a department with hundreds of firefighters, of course a few could
> be
>> accommodated, even assuming that without accommodation their safety would
> be
>> compromised in the rare hypothetical situation (it's never yet occurred)
>> posited by the Department.
>>
>> I was puzzled by the Judge's complaint about RFRA.   It may have its
>> problems, but the fact that it "imposes upon the courts of the United
>> States the
>> duty of 'striking sensible balances between
>> ...   competing ... interests,'? is hardly a legitimate ground for
>> complaint.   Judges strike (hopefully) sensible balances between
>> competing interests
>> every time they sit in equity.
>>
>> Art S.
>>
>>
>> In a message dated 6/22/09 9:09:42 PM, Hamilton02 at aol.com writes:
>>
>>
>>> Art--  We may only be talking to each other at this point, but the facts
>>> matter in these cases.  So why do you think DC moved to an
> across-the-board
>>> rule regarding beards and why does the rule appear in fire companies
>>> across the country?  If it was all a pretext, why not just give up and
> let
>>> everyone wear a beard?
>>>
>>>
>>>  In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
>>> ArtSpitzer at aol.com writes:
>>>
>>>  In a message dated 6/22/09 1:31:13 PM, Hamilton02 writes:
>>>
>>>
>>> I have to ask Art one question--  It seems quite clear from the record
>>> that there really is a danger to those with facial hair in responding to
>>> emergencies....
>>>
>>>
>>> Those not interested in the minutiae of the case can press delete now.
>>> I've pasted below a short (500 word) excerpt on safety from my opposition
> to
>>> the Fire Department's petition for rehearing.  The petition was denied.
>>>
>>> Art
>>>
>>> III.     This Case Does Not Present a Serious Issue of Public Safety.
>>>
>>>      The District urges the Court to apply a ?particularly strong?
>>> preference for resolving this case on the merits, because ?public
>>> safety is at
>>> issue.?  Pet. at 8.  But the district court's judgment poses no threat to
>>> public safety.
>>>      The D.C. Fire Department, as a matter of official policy, allowed
>>> hundreds of firefighters to wear beards from sometime before 1973 until
>>> mid-2005. [Citation.] While initially limited to men with a skin
>>> condition, from
>>> 1994 until 2005 all employees were permitted to wear beards, and many
> did.
>>> [Citation omitted.] It is uncontradicted that these thousands of
> man-years
>>> of bearded firefighting did not result in a single safety problem.
>>> [Citation.]
>>>      At the very outset of this litigation, the retired Chief of Safety
> of
>>> the F.D.N.Y. explained in detail why facial hair does not undermine the
>>> safety of an SCBA [Self-Contained Breathing Apparatus].  [Citation.]
> Faced
>>> with that compelling evidence, the Fire Department did not appeal the
>>> preliminary injunction issued at that time, and made no effort to pursue
> the
>>> litigation in the district court for four years, during which time all
>>> firefighters remained free to wear beards. [Footnote omitted.] That
>>> changed in
>>> 2005, when the district court grew tired of having this case sit
>>> dormant on its
>>> docket and ordered the Fire Department to file within 15 days ?a plain
>>> statement of what its official policy is with respect to facial
>>> hair.? R. Doc.
>>> 60.  Seventeen days later the Department announced the new policy that is
>>> at issue in this case. R. Doc. 61.
>>>      When called before the district court to justify the new rule, the
>>> Fire Department represented--at length and unambiguously--that its safety
>>> concern was limited to the use of negative-pressure respirators in
>>> circumstances not requiring the greater protection of SCBAs.
>>> [Citation.]  The
>>> Department explained that ?what we're worried about is a situation
>>> where you have
>>> to go into a contaminated area for an extended period of time,? and an
> SCBA
>>> would not be suitable because ?once the air runs out, that's it,? while ?
>>> negative pressure masks . . . will allow them to work.  They can work the
>>> eight hours. [Citation.]  That explanation never changed until after
> summary
>>> judgment had been entered.
>>>      The district court rejected the District's argument on the ground
>>> that it had not adduced credible evidence that in such a situation
> ?bearded
>>> firefighters  . . . could not be redeployed either 'up' to areas of duty
>>> where SCBA use is required, or 'down' to cold zones where no respiratory
>>> protection is needed.?  Mem. Op. at 19.  The District did not
>>> contest that ruling
>>> on appeal.
>>>      The record here should therefore leave the Court entirely
> comfortable
>>> that its affirmance of the district court's judgment creates no danger to
>>> the public safety of the District of Columbia.  The handful of bearded
>>> firefighters and paramedics protected by the permanent injunction in
>>> this case
>>> can hardly be cause for alarm in light of the undisputed fact that the
> D.C.
>>> Fire Department protected the city for more than 30 years with hundreds
> of
>>> bearded firefighters, without a single beard-related safety incident.
>>>
>>>
>>
>>
>>
>>
>> **************
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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
>
>
>
>

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

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