Wolf in Sheep's Clothing
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Alito supports religious Muslims AND puts secular concerns on par with religious rights. You got yourselves a live one here, folks.
3rd Circuit: Muslim Cops
Can't Be Made to Shave
By Shannon P. Duffy
The Legal Intelligencer
Thursday, March 4, 1999
Two Muslim police officers in Newark, N.J., must
be allowed to grow beards for religious reasons, a
federal appeals court ruled yesterday, because the
department already makes exceptions to its rule
against beards for officers who can't shave for
medical reasons.
Writing for a unanimous, three-judge panel, U.S.
Circuit Judge Samuel A. Alito rejected the police
department's argument that allowing beards for
religious reasons would undermine both public
confidence and the force's morale.
"We are at a loss to understand why religious
exemptions threaten important city interests, but
medical exemptions do not," Alito wrote in an
opinion joined by U.S. Circuit Judges Morton I.
Greenberg and Theodore A. McKee.
Legally, the decision is significant because Alito
found that an employer cannot agree to bend its
rules in order to make a "reasonable
accommodation" for medical reasons under the
Americans with Disabilities Act while refusing to
bend the same rule to make a religious
accommodation under Title VII.
"It is true that the ADA requires employers to
make `reasonable accommodations' for individuals
with disabilities. However, Title VII imposes an
identical obligation on employers with respect to
accommodating religion," Alito wrote.
"We cannot accept the department's position that
its differential treatment of medical exemptions and
religious exemptions is premised on a good-faith
belief that the former may be required by law while
the latter are not," he wrote.
According to court papers, Newark has prohibited
its male police officers from sporting any facial hair
other than mustaches and sideburns since 1971.
Only undercover officers are exempted.
The court challenge began when the city
threatened to discipline officers Faruq Abdul-Aziz
and Shakoor Mustafa -- both devout Sunni Muslims
-- for violating the rule.
A Sunni imam testified that the Koran "commands
the wearing of a beard" and that it is a "major sin"
for a Sunni man who has the ability to grow a
beard to refuse to do so.
"This is not a discretionary instruction; it is a
commandment," the imam wrote in an affidavit. "A
Sunni Muslim male will not be saved from this
major sin because of an instruction of another,
even an employer, to shave his beard, and the
penalties will be meted out by Allah."
When Aziz and Mustafa were questioned about
their non-compliance with the rule, they informed
the department that they were growing beards for
religious reasons. But their explanations were
deemed inadequate, and each was hit with a
discipline notice saying that if he continued to
disobey the rule, he could be fired.
Both sued and U.S. District Judge John W. Bissell
enjoined the department from enforcing its
no-beard rule since doing so would violate the two
Muslims' right to free exercise of religion.
On appeal, the department argued that its
distinction between medical and religious
exemptions was justified since the medical
exemptions are required to comply with the ADA.
But Alito said such reasoning violates the Supreme
Court's instructions that governmental entities
should not be deciding that secular concerns are
more important than religious motivations.
"This concern is only further implicated when the
government does not merely create a mechanism
for individualized exemptions, but instead, actually
creates a categorical exemption for individuals with
a secular objection but not for individuals with a
religious objection," Alito wrote.
The department argued that it wanted to foster a
"uniform appearance" among its officers in order to
inspire public confidence.
But Alito found that allowing only for a medical
exemption "raises concern because it indicates
that the department has made a value judgment
that (i.e. medical) motivations for wearing a beard
are important enough to overcome its general
interest in uniformity, but that religious motivations
are not."
The officers were represented by Robert R. Cannan
and Mario E. DiRienzo of Spevack & Cannan in
Iselin, N.J.
The Becket Fund for Religious Liberty filed an
amicus brief in the plaintiffs' support that was
joined by the American Civil Liberties Union of New
Jersey and the Anti-Defamation League in New
York.
The department was represented by Newark city
attorneys Michelle Hollar-Gregory and Darryl M.
Saunders.
of Police v. Abdul-Aziz, PICS NO. 99-0409, are
available from The Legal Intelligencer.)
