I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.

After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”

What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the  fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.

I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.