Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-1999

F.O.P, Newark, et.al. v. City of Newark, et.al.
Precedential or Non-Precedential:

Docket 97-5542




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Filed March 3, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5542

FRATERNAL ORDER OF POLICE
NEWARK LODGE NO. 12;
FARUQ ABDUL-AZIZ; SHAKOOR MUSTAFA

v.

CITY OF NEWARK; NEWARK POLICE DEPARTMENT;
JOSEPH J. SANTIAGO, NEWARK POLICE DIRECTOR;
THOMAS C. O'REILLY, NEWARK CHIEF OF POLICE,
Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 97-02672)
(District Judge: Honorable John W. Bissell)

Argued: June 25, 1998

Before: GREENBERG, ALITO, and McKEE, Circuit Judges

(Opinion Filed: March 3, 1999)

       MICHELLE HOLLAR-GREGORY
       DARRYL M. SAUNDERS (Argued)
       City of Newark
       920 Broad Street
       Newark, NJ 07102

       Counsel for Appellants
ROBERT R. CANNAN (Argued)
MARIO E. DIRIENZO
Spevack & Cannan
525 Green Street
Iselin, NJ 08830

Counsel for Appellees

KEVIN J. HASSON (Argued)
ERIC W. TREENE
ROMAN STORZER
The Becket Fund for Religious
 Liberty
2000 Pennsylvania Ave. NW,
 Suite 3580
Washington, DC 20006

RONALD K. CHEN
DAVID ROCAH
American Civil Liberties Union of
 New Jersey
2 Washington Place
Newark, NJ 07102

STEVEN M. FREEMAN
DAVID ROSENBERG
ERICA M. BROIDO
LAUREN LEVIN
Anti-Defamation League
823 United Nations Plaza
New York, NY 10017

Counsel for Amici Curiae in Support
of Appellees

                           2
OPINION OF THE COURT

ALITO, Circuit Judge:

This appeal presents the question whether the policy of
the Newark (N.J.) Police Department regarding the wearing
of beards by officers violates the Free Exercise Clause of the
First Amendment. Under that policy, which the District
Court held to be unconstitutional, exemptions are made for
medical reasons (typically because of a skin condition
called pseudo folliculitis barbae), but the Department
refuses to make exemptions for officers whose religious
beliefs prohibit them from shaving their beards. Because
the Department makes exemptions from its policy for
secular reasons and has not offered any substantial
justification for refusing to provide similar treatment for
officers who are required to wear beards for religious
reasons, we conclude that the Department's policy violates
the First Amendment. Accordingly, we affirm the District
Court's order permanently enjoining the Department from
disciplining two Islamic officers who have refused to shave
their beards for religious reasons.

I

Since 1971, male officers in the Newark Police
Department have been subject to an internal order that
requires them to shave their beards. In relevant part, the
order provides:

       Full beards, goatees or other growths of hair below the
       lower lip, on the chin, or lower jaw bone area are
       prohibited.

App. at 94 (Special Order from the Chief of Police No. 71-
15, p.2 ("Order 71-15")). The order permits officers to wear
mustaches and sideburns, 

allows exemptions
from the "no-beard" rule for undercover officers whose
"assignments or duties permit a departure from the
requirements." 

See Appellees' Br. at 14; Reply Br.
at 9.

                                3
Officers Faruq Abdul-Aziz and Shakoor Mustafa are both
devout Sunni Muslims who assert that they believe that
they are under a religious obligation to grow their beards.
See App. at 9-10; Supp. App. 3-4. According to the affidavit
of an imam, "it is an obligation for men who can grow a
beard, to do so" and not to shave. Supp. App. at 3. The
affidavit continues:

       . . . The Quran commands the wearing of a beard
       implicitly. The Sunnah is the detailed explanation of
       the general injunctions contained in the Quran. The
       Sunnah says in too many verses to recount [:]"Grow
       the beard, trim the mustache."

       . . . I teach as the Prophet Mohammed taught that
       the Sunnah must be followed as well as the Quran.
       This in the unequivocal teaching for the past 1,418
       years, by the one billion living Sunni Muslims world
       wide.

       . . . The refusal by a Sunni Muslim male who can
       grow a beard, to wear one is a major sin. I teach based
       upon the way I was taught and it is understood in my
       faith that the non-wearing of a beard by the male who
       can, for any reason is as [serious] a sin as eating pork.

       . . . This is not a discretionary instruction; it is a
       commandment. 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.

Supp. App. at 4. The defendants have not disputed the
sincerity of the plaintiffs' beliefs.1

When Aziz and Mustafa were questioned about their non-
compliance with Order 71-15, they informed Department
officials that they were growing their beards for religious
reasons. See Supp. App. at 1 & 5. This explanation was
apparently deemed inadequate, and Mustafa received a
Preliminary Notice of Disciplinary Action in July 1996
charging him with disobeying an oral command to comply
_________________________________________________________________

1. Cf. Lewis v. Scott, 

, 287 (E.D. Tex. 1995) (testimony
of an Islamic chaplin regarding whether a beard is obligatory).

                               4
with Order 71-15. App. at 96-97. Aziz received a similar
notice in January 1997. 

In both cases, the
notices informed the officers that their actions might
warrant "removal" from the Department. 

& 98.

On January 24, 1997, Chief of Police Thomas C. O'Reilly
announced a "Zero Tolerance" policy for officers who were
not in compliance with Order 71-15 and had not received
"medical clearance" to wear a beard. App. at 95
(Memorandum from the Chief of Police No. 97-30 ("Memo
97-30")). Consistent with this policy, the Department
ordered Officers Aziz and Mustafa to appear for disciplinary
hearing in May 1997.

Prior to the hearing, Mustafa and Aziz filed a complaint
in the District Court requesting permanent injunctive relief
on the ground that the Department's enforcement of Order
71-15 would violate their rights under the Free Exercise
Clause of the First Amendment.2 After the defendants filed
a motion to dismiss, and the plaintiffs filed a motion for
summary judgment, the District Court held a hearing and
concluded that the Department's application of Order 71-15
to Mustafa and Aziz would violate their free exercise rights.
Accordingly, the District Court permanently enjoined the
defendants "from disciplining or otherwise disadvantaging
Plaintiffs Aziz and Mustafa for violating Order 71-15 or any
other directive which would require them to shave or trim
their beards in violation of their religious beliefs." App. at
23.

II

The Free Exercise Clause of the First Amendment, which
has been made applicable to the States through the
Fourteenth Amendment, see Cantwell v. Connecticut, 

, 303 (1940), provides that "Congress shall make
no law . . . prohibiting the free exercise" of religion. U.S.
Const. amend. I. For many years, the Supreme Court
appeared to interpret the free exercise clause as requiring
_________________________________________________________________

2. Mustafa and Aziz brought several other claims, all of which were
dismissed by the District Court. See App. at 15-16. The plaintiffs have
not appealed these dismissals.

                               5
the government to make religious exemptions from neutral,
generally applicable laws that have the incidental effect of
substantially burdening religious conduct. See Wisconsin v.
Yoder, 

, 220 (1972) ("[T]here are areas of
conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to
control, even under regulations of general applicability.");
see also Frazee v. Illinois Dep't of Employment Sec., 

, 832-34 (1989); Thomas v. Review Bd. of Indiana
Employment Div., 

, 717 (1981); Sherbert v.
Verner, 

, 403-404 (1963). In these cases, the
Court required the government to meet "strict scrutiny"
when application of a given law or regulation served to
impose a substantial burden on religious activity. See

("The state may justify an inroad
on religious liberty by showing that it is the least restrictive
means of achieving some compelling state interest."); 

("[O]nly those interests of the highest order
and those not otherwise served can overbalance legitimate
claims to the free exercise of religion.").

In 1986, a plurality of the Court raised doubts about the
breadth of the Court's "exemption" jurisprudence and
proposed a new approach. See Bowen v. Roy, 

,
703-08 (1986) (Burger, C.J., joined by Rehnquist and
Powell, J.J.). In Roy, a mother and father who wished to
participate in the Aid to Families with Dependent Children
program objected on religious grounds to the requirement
that they furnish their daughter's Social Security number
as a condition of receiving benefits. 

Although the
Court's precedent indicated that these circumstances were
sufficient to trigger strict scrutiny because the government
had "condition[ed] receipt of an important benefit upon
conduct proscribed by a religious faith," 

, the plurality opinion applied rational basis
review. 

. The opinion explained:

       We conclude . . . that government regulation that
       indirectly and incidentally calls for a choice between
       securing a governmental benefit and adherence to
       religious beliefs is wholly different from governmental
       action or legislation that criminalizes religiously
       inspired activity or inescapably compels conduct that

                               6
       some find objectionable for religious reasons. Although
       the denial of government benefits over religious
       objection can raise serious Free Exercise problems,
       these two very different forms of government action are
       not governed by the same constitutional standard.

(emphasis added). See also 

In sum, the plurality proposed that the Court continue to
apply heightened scrutiny to neutral, generally applicable
laws that burden religious activity by affirmatively
compelling or prohibiting conduct, but apply rational basis
scrutiny to neutral, generally applicable rules governing
benefits programs. However, rather than advocating the
overruling of the Court's prior benefits-exemption cases,
such as Sherbert and Thomas, the plurality distinguished
those decisions on the ground that they concerned laws
that already included "mechanism[s] for individualized
exemptions." 

. The plurality explained
that if "a state creates such a mechanism, its refusal to
extend an exemption to an instance of religious hardship
suggests a discriminatory intent," and it is"appropriate to
require the State to demonstrate a compelling reason for
denying the requested exemption." 

statutory
framework at issue in Roy did not provide for individualized
exemptions, the plurality did not believe that the Court's
prior benefits decisions were controlling.

The Roy plurality's attempt to distinguish the Court's
previous decisions and apply rational basis review failed to
garner a majority of the Court. See 

(Blackmun, J., concurring in part); 

(O'Connor,
J., joined by Brennan and Marshall, J.J., concurring in
part and dissenting in part); 

(White, J.,
dissenting). In 1990, however, the legal landscape changed
dramatically when the Supreme Court handed down its
decision in Employment Div., Dep't of Human Resources of
Oregon v. Smith, 

(1990). Smith concerned two
individuals who were denied state unemployment
compensation benefits after being fired from their jobs for
ingesting peyote, a controlled substance under Oregon law.

The individuals challenged the denial of benefits
on the ground that they were entitled to religious
exemptions since they had ingested peyote for sacramental

                               7
purposes at a ceremony of the Native American Church.
Declining to apply strict scrutiny, the Court concluded that
"the right of free exercise does not relieve an individual of
the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or
proscribes)." 

(quotations omitted).
See also 

(explaining that"if prohibiting the
exercise of religion" is "merely the incidental effect of a
generally applicable and otherwise valid provision, the First
Amendment has not been offended"). Accordingly, the Court
held that Oregon could, consistent with the Free Exercise
Clause, criminalize religious peyote use and deny
unemployment compensation benefits to individuals whose
job dismissals resulted from such use. 

The Smith Court, however, did not overrule its prior free
exercise decisions, but rather distinguished them. See

.3 In this case, the plaintiffs
contend that their Free Exercise claim is not governed by
the generally applicable Smith rule but is instead governed
by the Court's pre-Smith decisions. In this connection, the
plaintiffs make three arguments. First, they contend that
the Smith decision should be limited to cases involving
criminal prohibitions. Second, they argue that the Smith
analysis does not apply to government rules that, like the
"no-beard" policy, already make secular exemptions for
certain individuals. Finally, they maintain that the Smith
rule does not bar their exemption claim because they are
relying on both the Free Exercise Clause and the Free
Speech Clause. The District Court accepted the plaintiffs'
first argument, applied the Court's pre-Smith
jurisprudence, and concluded that the Free Exercise Clause
prohibits the Department from enforcing its "no-beard"
policy against Aziz and Mustafa. While we disagree with the
District Court's conclusion that Smith is limited to the
criminal context, we believe that the plaintiffs are entitled
to a religious exemption since the Department already
makes secular exemptions. As a result, we need not reach
_________________________________________________________________

3. See generally Note, James M. Oleske, Jr., Undue Burdens and the Free
Exercise of Religion: Reworking a "Jurisprudence of Doubt", 85 Geo. L.J.
751 (1997).

                               8
the plaintiffs' "hybrid" free speech/free exercise argument.4
See generally 

(distinguishing
"hybrid" claims from free exercise claims).

III

A

Aziz and Mustafa first contend that the Smith rule applies
only to cases involving criminal prohibitions. Since this
case concerns a non-criminal prohibition, Aziz and Mustafa
argue that the Court's pre-Smith decisions govern and
heightened scrutiny applies. This position, however, has
already been rejected by our court. See Salvation Army v.
Department of Community Affairs of New Jersey, 

, 194-96 (3d Cir. 1990). Salvation Army involved a claim
by The Salvation Army ("TSA") that it was entitled to a
religious exemption from the requirements of the New
Jersey Rooming and Boarding House Act of 1979, N.J. Stat.
Ann. S 55:13B-1 (West 1989), and the regulations
promulgated thereunder. Salvation 

.
Like Aziz and Mustafa, TSA argued that "the Court's
holding in Smith was limited to free exercise challenges to
neutral, generally applicable criminal statutes ." 

(emphasis in original). Our response was unequivocal: "We
cannot accept this interpretation of Smith." 

to the analysis provided in Salvation Army,

, we believe there are two further
reasons to conclude that Smith is not limited to cases
involving criminal statutes. First, under a contrary reading
of Smith, the Free Exercise Clause would not be implicated
when the government prohibits religious conduct through
generally applicable laws, 

, but
would be implicated when the government imposes a lesser
burden on religion through a generally applicable civil
_________________________________________________________________

4. We do note, however, that the plaintiffs failed to allege a free speech
violation in their complaint, see App. at 83-92, and explicitly disavowed
such a claim before the District Court. See App. at 58 (July 18, 1997
Hearing) (counsel for plaintiffs) ("We can all agree that freedom of
expression would not extend to the wearing of beards.").

                               9
regulation. This counter-intuitive interpretation of the First
Amendment is undermined by the very language of the
Smith opinion:

       [I]f a state has prohibited through its criminal laws
       certain kinds of religiously motivated conduct without
       violating the First Amendment, it certainly follows that
       it may impose the lesser burden of denying
       unemployment compensation benefits to persons who
       engage in that conduct.

(quotation omitted) (emphasis
added). See also 

(opinion of O'Connor, J.,
joined by Brennan, Marshall, and Blackmun, J.J.) ("A
neutral criminal law prohibiting conduct that a State may
legitimately regulate is, if anything, more burdensome than
a neutral civil statute placing legitimate conditions on the
award of a state benefit.").

Second, the Supreme Court's most recent
characterization of Smith supports our holding in Salvation
Army that Smith is not limited to the criminal context. In
City of Boerne v. Flores, 

(1997), the
Supreme Court stated:

       Smith held that neutral, generally applicable laws may
       be applied to religious practices even when not
       supported by a compelling governmental interest.

Nowhere in its discussion of Smith did the
Flores Court indicate that the Smith decision only applied to
generally applicable criminal laws. In fact, the law at issue
in Flores was a non-criminal landmark ordinance. See

. If the plaintiffs are correct, and
Smith does not apply to non-criminal provisions, there
would have been no need for the Flores Court even to
discuss Smith. However, the Flores Court did much more
than to discuss Smith; it struck down the Religious
Freedom Restoration Act of 1993, insofar as it applied to
the states, for the very reason that it was inconsistent with
Smith. See 

. In light of Flores,
it is difficult to say that Smith has no application to cases
involving non-criminal statutes.

Because this court has already rejected the argument
that Smith is limited to cases involving criminal statutes,

                               10
and because that rejection is amply supported by both the
Smith opinion itself and recent Supreme Court case law, we
cannot agree with the plaintiffs and the District Court that
Smith is distinguishable on the ground that it concerned a
criminal statute.

B

Aziz and Mustafa's second argument is that the
Department's refusal to make religious exemptions from its
no-beard policy should be reviewed under strict scrutiny
because the Department makes secular exemptions to its
policy. This contention rests on the following passage from
Smith in which the Court explained why some of its earlier
religious exemption cases had applied strict scrutiny:

       The statutory conditions in Sherbert and Thomas
       provided that a person was not eligible for
       unemployment compensation benefits if, `without good
       cause,' he had quit work or refused available work. The
       `good cause' standard created a mechanism for
       individualized exemptions. As the plurality pointed out
       in Roy, our decisions in the unemployment cases stand
       for the proposition that where the State has in place a
       system of individual exemptions, it may not refuse to
       extend that system to cases of religious hardship
       without compelling reason.

(quotations, citations, and
alterations omitted).

The Court reiterated this understanding of its religious
exemption jurisprudence, and applied it outside the
unemployment compensation context, in Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 

,
537-38 (1993). In Lukumi, the Court reviewed several
municipal ordinances regulating the slaughter of animals,
one of which prescribed punishments for "[w]hoever . . .
unnecessarily . . . kills any animal." 

The Court
explained that this ordinance could not be applied to
punish the ritual slaughter of animals by members of the
Santeria religion when the ordinance was not applied to
secular killings:

                               11
         [B]ecause [the ordinance] requires an evaluation of the
         particular justification for the killing, this ordinance
         represents a system of individualized governmental
         assessment of the reasons for the relevant conduct. As
         we noted in Smith, in circumstances in which
         individualized exemptions from a general requirement
         are available, the government may not refuse to extend
         that system to cases of "religious hardship" without
         compelling reason. Respondent's application of the test
         of necessity devalues religious reasons for killing by
         judging them to be of lesser import than nonreligious
         reasons. Thus religious practice is being singled out for
         discriminatory treatment.

(emphasis added) (quotations
and citations omitted).5

Aziz and Mustafa contend that, since the Department
provides medical -- but not religious -- exemptions from its
"no-beard" policy,6 it has unconstitutionally devalued their
religious reasons for wearing beards by judging them to be
of lesser import than medical reasons. The Department, on
the other hand, maintains that its distinction between
medical exemptions and religious exemptions does not
represent an impermissible value judgment because
medical exemptions are made only so as to comply with the
Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12101
_________________________________________________________________

5. See also 

(plurality opinion):

         If a state creates a mechanism [for exemptions], its refusal to
extend
       an exemption to an instance of religious hardship suggests a
       discriminatory intent. Thus . . . to consider a religiously
motivated
       resignation to be "without good cause" tends to exhibit hostility,
not
       neutrality, towards religion.

6. In their reply brief, the defendants argue for the first time that the
District Court "incorrectly decided the City of Newark has a medical
exception." Reply Br. at 14. We will not entertain this argument as it
conflicts with the defendants' position both in the District Court and in
their opening brief to this court. See Defendants' Answer P 3; Brief in
Support of Defendants' Motion to Dismiss at 11; Appellants' Br. at 11.
Moreover, we are at a loss to understand the defendants' new position
given that Memo 97-30 clearly provides exemptions from the "Zero
Tolerance" policy for those who "have received medical clearance." App.
at 95.

                                 12
(1994). See Brief in Support of the Defendants' Motion to
Dismiss at 11. While this argument initially appears
persuasive, it ultimately cannot be sustained.

It is true that the ADA requires employers to make
"reasonable accommodations" for individuals with
disabilities. 42 U.S.C. S 12111(b)(5)(A) (1994). However, Title
VII of the Civil Rights Act of 1964 imposes an identical
obligation on employers with respect to accommodating
religion. 42 U.S.C. S 2000e(j) (1994). This parallel
requirement undermines the Department's contention that
it provides a medical exception, but not a religious
exception, because it believes that "the law may require" a
medical exception. Brief in Support of Defendants' Motion
to Dismiss at 11. Furthermore, it is noteworthy that the
Department has clearly been put on notice of Title VII's
religious accommodation requirements. See EEOC
Determination Letter, Charge No. 171970408 (attached to
Plaintiffs' Letter Brief in Response to Defendants' Cross
Motion for Summary Judgment); App. at 83 (Plaintiffs'
Complaint) (citing Title VII). In light of these circumstances,
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.

We also reject the argument that, because the medical
exemption is not an "individualized exemption," the
Smith/Lukumi rule does not apply. See App. at 19 (Dist. Ct.
Op. at 12). While the Supreme Court did speak in terms of
"individualized exemptions" in Smith and Lukumi, it is clear
from those decisions that the Court's concern was the
prospect of the government's deciding that secular
motivations are more important than religious motivations.
If anything, 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.
See generally 

(1992) ("All laws are
selective to some extent, but categories of selection are of
paramount concern when a law has the incidental effect of
burdening religious practice.) (emphasis added). Therefore,

                               13
we conclude that the Department's decision to provide
medical exemptions while refusing religious exemptions is
sufficiently suggestive of discriminatory intent so as to
trigger heightened scrutiny under Smith and Lukumi.

Contrary to the Department's contention, our decision to
apply heightened scrutiny is entirely consistent with the
result in Smith. In Smith, the Court upheld an Oregon law
that prohibited the "knowing or intentional possession of a
`controlled substance' unless the substance has been
prescribed by a medical practitioner." 

. The Department argues that, since the prescription
exception did not prompt the Smith Court to apply
heightened scrutiny to the Oregon law, we should not apply
heightened scrutiny in the instant case based on the
Department's allowance of medical exemptions. See
Appellants' Br. at 8-9. This argument, however, overlooks a
critical difference between the prescription exception in the
Oregon law and the medical exemption in this case.

The Department's decision to allow officers to wear
beards for medical reasons undoubtably undermines the
Department's interest in fostering a uniform appearance
through its "no-beard" policy. By contrast, the prescription
exception to Oregon's drug law does not necessarily
undermine Oregon's interest in curbing the unregulated
use of dangerous drugs. Rather, the prescription exception
is more akin to the Department's undercover exception,
which does not undermine the Department's interest in
uniformity because undercover officers "obviously are not
held out to the public as law enforcement person[nel]."
Reply Br. at 9. The prescription exception and the
undercover exception do not trigger heightened scrutiny
because the Free Exercise Clause does not require the
government to apply its laws to activities that it does not
have an interest in preventing. However, the medical
exemption raises concern because it indicates that the
Department has made a value judgment that secular (i.e.,
medical) motivations for wearing a beard are important
enough to overcome its general interest in uniformity but
that religious motivations are not. As discussed above,
when the government makes a value judgment in favor of

                               14
secular motivations, but not religious motivations, the
government's actions must survive heightened scrutiny.7

C

The Department has not offered any interest in defense of
its policy that is able to withstand any form of heightened
scrutiny. The Department contends that it wants to convey
the image of a " `monolithic, highly disciplined force' " and
that "[u]niformity [of appearance] not only benefits the men
and women that risk their lives on a daily basis, but offers
the public a sense of security in having readily identifiable
and trusted public servants." Appellant's Brief at 14
(citation omitted). We will address separately all of the
interests that we can discern in this passage.

The Department hints that other officers and citizens
might have difficulty identifying a bearded officer as a
genuine Newark police officer and that this might
undermine safety. But while safety is undoubtedly an
interest of the greatest importance, the Department's
partial no-beard policy is not tailored to serve that interest.
Uniformed officers, whether bearded or clean-shaven,
should be readily identifiable. Officers who wear plain
clothes are not supposed to stand out to the same degree
as uniformed officers, and in any event the Department
permits such officers to wear beards for medical reasons.
The Department does not contend that these medical
exemptions pose a serious threat to the safety of the
members of the force or to the general public, and there is
no apparent reason why permitting officers to wear beards
for religious reasons should create any greater difficulties in
this regard.

The Department also suggests that permitting officers to
wear beards for religious reasons would undermine the
_________________________________________________________________

7. While Smith and Lukumi speak in terms of strict scrutiny when
discussing the requirements for making distinctions between religious
and secular exemptions, see 

(requiring a
"compelling reason"); 

(same), we will assume
that an intermediate level of scrutiny applies since this case arose in
the
public employment context and since the Department's actions cannot
survive even that level of scrutiny.

                               15
force's morale and esprit de corps. However, the
Department has provided no legitimate explanation as to
why the presence of officers who wear beards for medical
reasons does not have this effect but the presence of
officers who wear beards for religious reasons would. And
the same is true with respect to the Department's
suggestion that the presence of officers who wear beards for
religious reasons would undermine public confidence in the
force. We are at a loss to understand why religious
exemptions threaten important city interests but medical
exemptions do not. Conceivably, the Department may think
that permitting officers to wear beards for religious reasons
would present a greater threat to the sense of uniformity
that it wishes to foster because the difference that this
practice highlights -- namely, a difference in religious belief
and practice -- is not superficial (like the presence of
pseudo folliculitis barbae) and thus may cause divisions in
the ranks and among the public. (There is no doubt that
religious differences have been a cause of dissension
throughout much of human history.) But if this is the
Department's thinking -- and we emphasize that the
Department has not spelled out this argument in so many
words -- what it means is that Sunni Muslim officers who
share the plaintiffs' religious beliefs are prohibited from
wearing beards precisely for the purpose of obscuring the
fact that they hold those beliefs and that they differ in this
respect from most of the other members of the force. In
other words, if this is the real reason for the distinction
that is drawn between medical and religious exemptions,
we have before us a policy the very purpose of which is to
suppress manifestations of the religious diversity that the
First Amendment safeguards. Before sanctioning such a
policy, we would require a far more substantial showing
than the Department has made in this case. We thus
conclude that the Department's policy cannot survive any
degree of heightened scrutiny and thus cannot be sustained.8
_________________________________________________________________

8. We also reject the defendants' argument that the District Court erred
in awarding some $12,000 in attorney's fees in favor of the plaintiffs.
The
defendants argue that this amount was unnecessary because the
plaintiffs might have prevailed without federal court litigation had they
pursued available administrative remedies. We conclude, however, that
the District Court acted well within the proper bounds of its discretion
in making the award that it did under the circumstances present here.

                               16
IV

For the reasons set out above, we affirm the decision of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               17