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

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

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.

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, id., and it allows exemptions

from the "no-beard" rule for undercover officers whose

"assignments or duties permit a departure from the

requirements." Id. at 93. See Appellees' Br. at 14; Reply Br.

at 9.

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

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1. Cf. Lewis v. Scott, 910 F.Supp. 282, 287 (E.D. Tex. 1995) (testimony

of an Islamic chaplin regarding whether a beard is obligatory).

with Order 71-15. App. at 96-97. Aziz received a similar

notice in January 1997. Id. at 98-99. In both cases, the

notices informed the officers that their actions might

warrant "removal" from the Department. Id. at 96 & 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.

The Free Exercise Clause of the First Amendment, which

has been made applicable to the States through the

Fourteenth Amendment, see Cantwell v. Connecticut, 310

U.S. 296, 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.

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, 406 U.S. 205, 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., 489

U.S. 829, 832-34 (1989); Thomas v. Review Bd. of Indiana

Employment Div., 450 U.S. 707, 717 (1981); Sherbert v.

Verner, 374 U.S. 398, 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

Thomas, 450 U.S. at 718 ("The state may justify an inroad

on religious liberty by showing that it is the least restrictive

means of achieving some compelling state interest."); Yoder,

406 U.S. at 215 ("[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, 476 U.S. 693,

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. Id. at 695. 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," Thomas, 450 U.S.

at 717-718, the plurality opinion applied rational basis

review. Roy, 476 U.S. at 707-08. 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

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.

Id. at 706 (emphasis added). See also id. at 704.

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." Roy, 476 U.S. at 708. 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." Id. Since the 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 id. at 715-16

(Blackmun, J., concurring in part); id. at 728-32 (O'Connor,

J., joined by Brennan and Marshall, J.J., concurring in

part and dissenting in part); id. at 733 (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, 494 U.S. 872 (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.

Id. at 874. The individuals challenged the denial of benefits

on the ground that they were entitled to religious

exemptions since they had ingested peyote for sacramental

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)." Smith, 494 U.S. at 879 (quotations omitted).

See also id. at 878 (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. Id. at 890.

The Smith Court, however, did not overrule its prior free

exercise decisions, but rather distinguished them. See

Smith, 494 U.S. at 881-884.3 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).

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

See generally Smith, 494 U.S. at 881-882 (distinguishing

"hybrid" claims from free exercise claims).

III

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, 919 F.2d

183, 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. � 55:13B-1 (West 1989), and the regulations

promulgated thereunder. Salvation Army, 919 F.2d. at 185.

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 ." Id. at 194

(emphasis in original). Our response was unequivocal: "We

cannot accept this interpretation of Smith." Id.

In addition to the analysis provided in Salvation Army,

see 919 F.2d at 194-96, 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, Smith, 494 U.S. at 878-79, 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.").

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.

Smith, 494 U.S. at 875 (quotation omitted) (emphasis

added). See also id. at 898-99 (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, 117 S. Ct. 2157 (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.

Id. at 2161. 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

Flores, 117 S. Ct. at 2160. 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 Flores, 117 S. Ct. at 2171-72. 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,

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.

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.

Smith, 494 U.S. at 884 (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, 508 U.S. 520,

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." Id. at 537. 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:

[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.

Lukumi, 508 U.S. at 537-38 (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. � 12101

_________________________________________________________________

5. See also Roy, 476 U.S. at 708 (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 � 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.

(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. � 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. � 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 Lukumi, 508 U.S. at 542 (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,

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." Smith, 494 U.S. at

874. 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

secular motivations, but not religious motivations, the

government's actions must survive heightened scrutiny.7

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 Smith, 494 U.S. at 884 (requiring a

"compelling reason"); Lukumi, 508 U.S. at 537 (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.

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

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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.

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