Fraternal Order of Police v. Newark (1999)
In an opinion frequently cited in First Amendment casebooks, the Court of Appeals for the Third
Circuit followed the Becket Fund’s lead, setting a remarkable precedent in favor of religious freedom. The unanimous panel held that when government grants accommodations for non-religious purposes, it must provide similar accommodations for religious ones too.
Two Sunni Muslim police officers—whose religion required them to wear beards—sought an exemption from their government employer’s “no-beard” policy. The policy permitted some exemptions for secular reasons (for example, a medical condition) but none for religious reasons.
The Becket Fund represented a group of amici—including the ACLU and the Anti-Defamation League. We argued before the three-judge panel that the City had not proven a compelling governmental interest in preventing officers from wearing beards.
The Court of Appeals agreed with the Becket Fund’s position. Then-Judge Samuel Alito authored the opinion, holding that the policy created a categorical exemption for a secular objection but not for a religious one and was thus susceptible to the compelling governmental interest standard, which the city failed to satisfy. Victorious, the officers were able to continue to serve the public without violating their faith.
Additional Resources
The Becket Fund’s Supreme Court Amicus Brief (Brief in Opposition to Cert)
Law Reviews
Thomas C. Berg, “Religious Liberty in America at the End of the Century” (at 194)
Thomas C. Berg, “The New Attacks on Religious Freedom Legislation and Why They Are Wrong” (at 439)
Thomas C. Berg, “The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States” (at 1294-95)
Alan Brownstein, “Taking Free Exercise Rights Seriously” (at 126-128)
Alan Brownstein, “Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality” (at 196-197)
Richard F. Duncan, “Free Exercise is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement” (at 872-874)
Frederick Mark Gedicks, “The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States” (at 1214-17)
Douglas Laycock, “The Supreme Court and Religious Liberty” (at 32-33)
Douglas Laycock, “The Religious Exemption Debate” (at 146)
Douglas Laycock, “Theology Scholarships, The Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty” (at 209)
Christopher C. Lund, “A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence” (at 645-649)
Ira C. Lupu, “The Case Against Legislative Codification of Religious Liberty” (at 572)
Roman P. Storzer and Anthony R. Picarello, Jr., “The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices” (at 980-981)
Eric W. Treene, “Religion, The Public Square, and The Presidency” (at 610-612)
