Islamic police officers maintain religious right to wear beards

Tuesday, June 30, 1998

Lawyers for Newark, N.J., have asked a federal appeals court panel to overturn a lower court decision barring the police department from firing two Muslims who refuse to shave their beards for religious reasons.

Before a three-judge panel of the 3rd Circuit Court of Appeals on Friday, city attorneys claimed the police department's interests in maintaining discipline and order trumped the two Sunni Muslim officers' religious practices.

Last summer, U.S. District Judge John W. Bissell issued a permanent injunction barring the city and the Newark Police Department from firing the two men for failing to comply with the department's grooming policy. The policy provides: “Full beards, goatees or other growths of hair below the lower lip, on the chin, or lower jaw bone are prohibited.” In early 1997, however, the department's chief issued a memorandum stating that officers who offered documented medical reasons for not shaving would be excused from the policy. Any others not complying would be fired.

Faruq Abdul-Azi...
Faruq Abdul-Aziz

Faruq Abdul-Aziz and Shakoor Mustafa, both followers of Islam, cited religious—not medical—reasons for refusing to shave their beards. Specifically, the officers are Sunni Muslims who follow the teachings of both the Koran and the Sunnah. The Sunnah states: “Do the opposite of what the Pagans do, cut the mustaches short and leave the beard (as it is).” Additionally, both men submitted affidavits to the district court stating that it is an unequivocal sin not to wear a beard and that they have no choice but to wear theirs.

Before being fired, Abdul-Aziz and Mustafa sued the city, claiming its enforcement of the grooming policy subverted their First Amendment right to the free exercise of religion.

Bissell agreed and ruled that the city's policy must be supported by a government interest that outweighs the two officers' religious-liberty rights.

The city of Newark and police department “have not shown the existence of a state interest which is sufficient to override that of the Plaintiffs' to practice their religion,” Bissell concluded.

Darryl Saunders, a city attorney, told the appellate panel that Bissell's decision should be vacated because the judge did not apply the proper standard for determining free exercise of religion violations and because the police department is akin to the military. Saunders cited a U.S. Supreme Court ruling that permitted the U.S. Air Force to uphold a dress code over religious objections.

In 1986, Justice William Rehnquist concluded in Goldman v. Weinberger that the Air Force could legally bar an Orthodox Jew and ordained rabbi from wearing a yarmulke while in uniform.

“Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society,” Rehnquist wrote. “The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.”

Like the military, the Newark police force is a paramilitary group whose grooming code is needed to create uniformity, discipline and order, Saunders argued. Moreover, he said that allowing the Muslim officers to wear their beards would create a “superior religious right” among the force.

Saunders also said Bissell failed to apply the standard used in Supreme Court's 1990 decision. In Employment Div., v. Smith, Justice Antontin Scalia concluded that “if prohibiting the exercise of religion . . . is not the object of the [statute,] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”

Saunders told the appellate court that if Bissell had followed both Goldman and Smith, then the department's ban on beards could be upheld, even in the face of religious objections. Saunders argued before Bissell and again before the appellate panel that unless the city enforced the beard policy, it would lose public confidence because the police force would not be “uniform.”

Bissell refused to apply Smith or Goldman, stating neither was analogous to Newark's attempts to enforce a grooming policy on city police.

“In the present case, we are not confronted with either a military or legislative determination which must be afforded similar deference,” Bissell wrote. “Order 71-15 [the department's grooming policy] is merely a management directive of an employer, and carries no greater significance because that employer is a police department.”

Bissell also wrote that Smith was limited to acts of legislatures. According to Bissell, “the Court found it 'critical' that 'the conduct at issue was prohibited by law.'”

Finally, Bissell refused to buy Saunders' argument that uniformity of the police force was essential to instilling and holding public confidence in the force.

“To the contrary, the presence of visibly devout Muslim officers could actually aid the department in demonstrating to the public that a police officer represents justice, fairness and help to all, including Muslim members of the community,” Bissell wrote.

The Becket Fund for Religious Liberty, a Washington, D.C.-based law firm and education center that advocates greater public expression of religious beliefs, has filed a friend-of-the-court brief on behalf of Abdul-Aziz and Mustafa.

Eric Treene, the group's litigation director, said that Bissell's ruling should be upheld.

“We believe that if the Newark Police Department balanced the interests in this situation, they would realize great benefits of a diverse police force, especially in a place as diverse as Newark,” Treene said. “People of religion should not be shut out of the police force; instead the force should be reflective of the community.”

Treene added that the group argues in its brief that the department's grooming policy is not a generally applicable regulation, since people with medical reasons don't have to comply.

“We maintain that laws providing exemptions for some people and not for others are not truly generally applicable neutral laws,” he said. “All we are saying is that the government should have to show grounds to overcome the religious needs of the police officers.”

The appellate court panel did not say when it would determine the constitutionality of Bissell's ruling.