The opinion of the court was delivered by: James Robertson United States District Judge
Justice Holmes once wrote that it brought him the greatest pleasure to enforce those laws which he believed "to be as bad as possible," because he thereby marked the boundary between his beliefs and the law. See Letter from Oliver Wendell Holmes to John T. Morse (Nov. 28, 1926), quoted in LOUIS MENAND, THE METAPHYSICAL CLUB 67 (2001). His faith was never tested by the Religious Freedom Restoration Act of 1993 (RFRA), Pub. L. No. 103-141, 107 Stat. 1488, (codified at 42 U.S.C. §§ 2000bb et seq.). RFRA, by its own terms, imposes upon the courts of the United States the duty of "striking sensible balances between religious liberty and competing prior governmental interests," 42 U.S.C. § 2000bb(a)(5), an obligation whose faithful performance demands the very kind of inquiry judges have tried to avoid since the advent of rational basis review in the New Deal era. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955), United States v. Carolene Products Co., 304 U.S. 144 (1938).
The dispute in these RFRA cases -- as in most RFRA cases -- is precisely the sort of police power matter that is best entrusted to the politically accountable branches. Courts have little competence to locate and set the proper boundary between the accommodations demanded by persons with religious needs and the general safety and welfare of the public. See generally Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 439 (2006) ("We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause."); see also Employment Division v. Smith, 494 U.S. 872, 885-90 (1990). Without RFRA, it would not be the business of the judicial branch to decide whether it is safe enough for a firefighter to wear a religiously required beard, or whether the mission of a fire brigade is compromised by steps taken to accommodate this religious expression. Yet, whether or not it was wise to assign such questions to the courts, Congress has done so, and I am charged with answering them here.
For the reasons set forth below, I have concluded that in the District of Columbia -- the only local jurisdiction in which enforcement of RFRA is constitutional, see City of Boerne v. Flores, 521 U.S. 507 (1997) -- the fire department may not impose a shaving requirement on men who wear their beards for religious reasons.
Plaintiffs are firefighters and paramedics who wear beards in observance of sincerely held religious beliefs. They are suing the District of Columbia, aggrieved by the shaving requirement of Special Order 20, a regulation of the District's Department of Fire and Emergency Medical Services ("Department" or "FEMS").
Plaintiffs initiated this suit in 2001 to challenge the Department's then-recently enacted "grooming policy." [Potter Dkt. 1]. On June 22, 2001, I preliminarily enjoined the Department from enforcing its grooming policy by the imposition of any sanction upon the plaintiffs for refusing to violate their religious beliefs. [Potter Dkt. 34]. Nearly two years later, on May 22, 2003, I dismissed the case for want of prosecution, [Potter Dkt. 40], when it appeared from a joint status report [Potter Dkt. 39] that the Department was accommodating plaintiffs and that they had no need to press the issue further.
The parties asked that the case be reopened, however, [Potter Dkt. 41], and a subsequent status report revealed that, while the Department was accommodating plaintiffs under its "grooming policy," it was drafting a "safety policy" that might implicate RFRA. [Potter Dkt. 46]. The Department finally produced its new safety policy on February 28, 2005. [Potter Dkt. 61]. That policy, now embodied in Special Order 20, would forbid FEMS workers who use "tight-fitting facepieces" to have "facial hair that comes between the sealing surface of the facepiece and face." Id. There would be no exemption for those who objected on religious grounds, id. at 2; if they refused to shave, they risked termination. [Potter Dkt. 140, Attachment #6] at ¶ 3.
The new safety policy had the same effect as the already-enjoined grooming policy on the employment prospects of the plaintiffs, and they filed for various forms of relief. They moved for a "clarification" as to whether the original preliminary injunction covered this new policy, [Potter Dkt. 62]; they moved for a permanent injunction against the new policy, [Potter Dkt. 63]; they moved for an order to show cause why the fire chief should not be held in contempt under the original injunction when he began enforcing the new policy, [Potter Dkt. 73]; and they moved for an injunction preserving the status quo if the contempt motion was not to be granted. See id.; [Potter Dkt. 74]. The District, for its part, moved for judgment as a matter of law that the new policy was not in violation of RFRA. [Potter Dkt. 66, 67]. After considerable briefing, see [Potter Dkt. 92, 93, 95, 96] and a full-day evidentiary hearing, I granted the motion to clarify the preliminary injunction and denied all other relief on August 11, 2005. [Potter Dkt. 97, 98].
At the time of that order, the major dispute between the parties was the Department's refusal to "face-fit test" the plaintiffs to determine whether they could obtain an adequate seal between their faces and their masks while wearing their beards. The Department maintained that any testing of a bearded person would be incompatible with its standards and refused the plaintiffs even the opportunity to prove that they could obtain a satisfactory seal using their masks. My clarification of the preliminary injunction thus focused on the issue of fit testing. I required that the Department afford the plaintiffs a "reasonable opportunity to demonstrate that they can pass an appropriate face-fit test," but did permit the Department to require individual plaintiffs to pass such a test before being assigned to field operations. See [Potter Dkt. 97, 98].
Considerable hullabaloo followed the 2005 order. On September 9, 2005, a second group of plaintiffs filed a complaint, seeking to ensure that the orders in the Potter matter applied to them as well. [Chasin Dkt. 1]. I granted their request that the terms of the Potter injunction be applied to them, [Chasin Dkt. 11], and consolidated the cases in November of 2005. Id.
Two of the Potter plaintiffs passed fit tests in September 2005. They moved for immediate restoration to field duty, [Potter Dkt. 100], but I declined to order such relief in view of the Department's position that a series of tests would be needed to determine whether a consistent fit was possible. [Potter Dkt. 101]. When those plaintiffs passed two subsequent fit tests, I granted their requests for reinstatement -- along with those of the Chasin plaintiffs -- on March 20, 2006, upon the condition that they continue to pass monthly face-fit tests. [Potter Dkt. 111]; [Chasin Dkt. 34].
The order of March 20, 2006 was cross-appealed. While the appeals were pending, the Department moved for a stay of the relief I had ordered, in part because two of the plaintiffs had failed subsequent fit tests.*fn1 [Potter Dkt. 114, 115]. The plaintiffs' response was that those tests had not been properly conducted. [Potter Dkt. 116, 117]. I allowed the Department to continue to exclude from active duty those plaintiffs who had failed a fit test, I declined to recognize a right to regrow beards in those plaintiffs who had shaved, and I did not require further fit testing by the Department after a failed test,*fn2 noting that:
[t]he Department's hostility towards plaintiffs' facial hair is now quite evident, and it appears that, at least during the pendency of the appeals, face-fit testing will be an adversary process. I will neither sit as face-fit test monitor nor appoint a special master for that purpose.
Id. at 2-3. These proceedings and holdings related to relief under the preliminary injunction; I made no final judgment as to whether it would be safe for plaintiffs to return to active duty given these fit test failures.
On July 7, 2006, the Department moved for summary judgment. [Potter Dkt. 124]. Plaintiffs responded on October 13, 2006, [Potter Dkt. 132], and cross-moved for summary judgment on October 16, 2006. [Potter Dkt. 133]. These ...