by Matt Barr

ACLU applauds Alito

Careful (it seems in retrospect) not to mention the name of the judge who wrote the opinion of the court, the ACLU in 1999 hailed Judge Alito's decision in F.O.P. Newark Lodge v. City of Newark. In his majority opinion, Alito wrote that where the Newark Police Department made exceptions to its no-beard policy for medical reasons, its refusal to make religious exceptions on behalf of Sunni Muslims violated the free exercise clause of the First Amendment.

The ACLU of New Jersey joined with the Becket Fund for Religious Liberty and the Anti-Defamation League as amici curiae -- "friends of the court" -- in the case.

The case required Alito and his fellow judges to navigate changing Supreme Court landscape on religious burden cases. Alito reasoned that heightened scrutiny must be applied to rules where "mechanisms for individualized exemptions" are in place, but where an individual exemption is denied someone based on religious belief or practice. He concluded that the Police Department was unable to allege and prove an interest in prohibiting beard growth where an officer's religious beliefs required him to wear a beard.

The ACLU applauded:

"This decision is an important reaffirmation that public employees do not lose their right to religious freedom during working hours," said David Rocah, Staff Attorney for the ACLU of New Jersey. "When the government grants secular exemptions to workplace rules, it should not be able to deny comparable religious exemptions without a compelling reason."

The [Newark Police] Department argued that allowing religious exemptions would undermine discipline, uniformity, and "esprit de corps" among officers. The United States Court of Appeals for the Third Circuit rejected that argument, stating that 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."

Kevin Hasson, President of the Becket Fund, was more effusive. He said Alito's opinion "is another installment in the return of common sense to the law of religious liberty."

On behalf of Alito supporters everywhere, I thank the ACLU for its kind words about the nominee.

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