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Catholic Sentinel | Portland, OR Saturday, August 27, 2016

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Religious rights concerns being raised over beards and turbans
Catholic News Service


WASHINGTON — It might appear as though the Supreme Court, the departments of Defense and Justice and the Equal Employment Opportunity Commission are paying attention to the current popularity of beards.

Recent actions by the four federal entities put a fuzzy face on some of the ongoing conflicts over religious freedom within the United States. The beards in question are worn as a sign of religious faith, however, not fashion.

A cluster of federal actions on beards and other outward expressions of faith illustrates the wide range of issues that fall under the heading of religious rights at a time when there is a lot of attention to faith-based litigation over requirements in the Affordable Care Act for certain types of benefits.

Charles Haynes, director of the Religious Freedom Education Project at the Newseum, and a senior scholar at the First Amendment Center, said cases over religious attire and grooming come out of the same corner of the legal landscape as do faith-based challenges to the ACA's contraceptive coverage requirement.

Their common ground lies in how the First Amendment's provision for free exercise of religion is accommodated in a secular society, Haynes said. But they also are ripple effects of a 1990 Supreme Court ruling, Employment Division v. Smith, and the laws passed by Congress to try to reverse its effects, said Haynes.

The Supreme Court agreed March 3 to hear the appeal of an Arkansas prison inmate who is arguing that the state's correctional system policy that bans beards of any length -- with rare exceptions for inmates with skin disorders -- violates a 2000 law intended to bolster religious rights after the Smith ruling.

In Smith, the court said a Native American tribe in Oregon had no right to use the illegal drug peyote in a religious ceremony. The court said judges only had to determine that a law applicable to all citizens reasonably advances a legitimate government policy. Previously, the standard for review of a religious claim for exemption from a law required finding a "compelling' interest in restricting religious freedom, a broader legal standard.

Congress responded by passing the Religious Freedom Restoration Act, or RFRA, which was later overturned except as it applies to federal agencies, and the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

RFRA is at the core of lawsuits against the federal government, challenging requirements for employers to include coverage for contraceptives in employee health insurance policies. Two such cases will be heard by the Supreme Court March 25, brought by for-profit companies whose owners say the requirements violate their religious beliefs.

In the prison case, in a handwritten appeal to the court, Gregory Holt (also known as Abdul Maalik Muhammad) argued that the no-beard policy violates RLUIPA's provisions that apply to inmates, which require prison officials to prove that policies that impose a burden on religious practices serve a compelling prison management interest and are the least restrictive approach to achieving that interest.

The state argues that the grooming policy is necessary for hygiene and safety reasons, preventing inmates from hiding contraband in their beards and making identification easier. Holt, who is serving a life sentence for domestic violence and burglary, is asking to be allowed to wear a half-inch beard in keeping with his Muslim faith.

Holt v. Hobbs will be heard in the court's term beginning in October.

That announcement came on the heels of the release in February of revised Department of Defense instructions about how to make accommodations in the military services for religiously based variations from uniforms and grooming requirements -- such as Muslims' beards or Sikhs' uncut hair worn under a turban.

The EEOC March 6 also issued guidelines and a fact sheet on religious garb and grooming in the workplace. They included advice for employers and employees and examples of the situations covered by the guidelines, including religious reasons for grooming or clothing practices.

And in Pennsylvania, the Justice Department sued the Philadelphia public school district March 5 over its demand that a Muslim security officer trim his beard.

The suit accuses the school district of religious discrimination after a grooming policy adopted in 2010 mandated a maximum beard length of a quarter of an inch for police and security guards. Siddiq Abu-Bakr has worn an untrimmed beard for the 27 years he has worked in the district "without evidence that the maintenance of an uncut beard has interfered with his job performance," said a statement from the Justice Department about the lawsuit.

Abu-Bakr has filed his own charge of religious discrimination with the EEOC.

Haynes said the legal landscape for religious-rights protection is "so convoluted these days," with some cases drawing on RFRA, others on state versions of RFRA passed after the court limited its application to the federal government, and still others under RLUIPA.

Requests for religious accommodations for land use or in prisons that are pursued under RLUIPA generally have fared pretty well in courts, Haynes observed. But "in other settings, it's been more difficult," hence the EEOC and Defense Department guidelines.

Bills known as the Workplace Religious Freedom Act have been introduced in Congress regularly since 1994, with different iterations reworked to accommodate objections raised by labor and business interests, among other tweaks, Haynes said.

Such a bill would strengthen the position of people seeking accommodations for their religious practices, Haynes said. Without it, "it has been easy to get around" the principle of accommodating employees, he added.

That the Supreme Court would take a case like Holt's -- handwritten appeals, not to mention those filed by non-lawyers on their own are accepted rarely, Haynes said. "It illustrates that there are some justices on the court who are really concerned about this area of accommodation."





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