Police department’s grooming policy runs up against religious practices

Friday, July 17, 1998

City officials in Newark, N.J., claim two Muslim police officers, who adamantly refuse on religious grounds to shave their beards, should be fired.

Last year a federal court in New Jersey barred the city from dismissing the officers, concluding that the police chief's demand that they comply with the grooming policy amounted to an infringement upon the Muslims' free exercise of religion rights.

The city, which maintains the policy is necessary to foster uniformity in and confidence of the police force, has not given up its quest to enforce the policy. Attorneys for the city have asked the U.S. Court of Appeals for the 3rd Circuit to strike down the district court decision and allow the police department enforce the policy, created in 1971 in response to the wearing of long hair and beards in the 1960s and '70s.

Lawyers for the city argue the district judge misapplied a 1990 U.S. Supreme Court precedent in its decision in favor of Faruq Abdul-Aziz and Shakoor Mustafa, who have both been on the force for about nine years.

Specifically, the city says the district court should only have required the city to show a rational basis for the grooming policy. Newark's position is that the police chief's directive to shave beards and cut long hair was applied to all officers regardless of their religious leanings.

In Employment Div., v. Smith, the Supreme Court noted 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 protection, the First Amendment has not been offended.” In order to restrict religious practices intentionally, the court said, government must show that it has a compelling interest in doing so, such as to protect public safety.

U.S. District Judge John Bissell, however, refused to apply the Smith decision in the Muslim officers' situation, claiming that Smith applied only to legislative actions, not management decisions by government officials.

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

Bissell instead ruled that the city would have to show a “sufficient magnitude to override” the religious interests of the Muslim officers. The city's claim that the requirement for all officers to shave would create uniformity did not convince Bissell that city's need for the grooming policy outweighed the right of the Muslim officers to be faithful to their religious tenants.

The Becket Fund For Religious Liberty, a Washington, D.C.-based law firm and education center that advocates greater protection for public expression of religious beliefs, has filed a friend-of-the-court brief with the 3rd Circuit claiming the district judge was correct in not ruling that the Smith case was applicable.

“The District Court correctly recognized that the case at bar raises none of the concerns articulated in Smith,” Eric Treene, the group's litigation director, noted in the legal brief. “The regulation at issue is not even a law. Rather, it is the decision of the chief of police, expressed in his memorandum … .”

Treene also questions the city's assertion that its grooming policy is generally applicable.

“In Smith, the Court noted the continued vitality of a long line of opinions finding that laws are not neutral and generally applicable when they contain individualized exemptions but exclude religious exemptions,” Treene wrote.

Newark's grooming policy does include some exemptions. Specifically, the policy permits officers with sensitive skin to grow beards for medical reasons, but refuses to allow beards for religious reasons.

Treene said that if the city makes special exceptions for other reasons, it should make exceptions for religious reasons, too.

“The city has in essence argued it should not have to show any reason for its policy,” except to say that noncompliance with the policy would undermine the force's uniformity, Treve said.

At a hearing before the appeals court last month, Circuit Judge Samuel Alito Jr. seemed to question the city's contention that discipline and cohesion of the force hinged, in part, on the enforcement of the policy, even over religious-liberty objections.

“The discipline of the force is not undermined by a small number of officers who have this medical condition,” Alito noted.

Christopher Eisgruber, a constitutional scholar and law professor at New York University, said. “It would require a stretching of the imagination to say the police department's policy was intended to target religion.”

Nonetheless, he said the district court's decision should be upheld and that he was disappointed that Newark city officials have continued fighting for the policy.

“It should seem sensible to department officials that if they are making exemptions for police officers with skin rashes, [they should] also make exemptions for religious reasons,” Eisgruber said. “I hoped that, when the district judge pointed this out to them, they would have just granted the exemptions to the officers.”