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A Philadelphia firefighter who is a practicing Muslim should not have to shave his beard in order to stay on the job, a common pleas judge has ruled in a decision that is apparently the first to interpret Pennsylvania’s Religious Freedom Protection Act. In DeVeaux v. City of Philadelphia, Judge Joseph A. Dych argued that the Commonwealth Court should affirm his decision to grant Curtis DeVeaux a preliminary injunction. According to Dych’s opinion, DeVeaux has been suspended since February without pay for refusing to shave his beard as required by Fire Department Directive No. 13. “It appears to be undisputed, and in any event the record clearly establishes, that Fire Department Directive #13 imposes a substantial burden upon plaintiff’s free exercise of religion by, inter alia, forcing him to chose between his religion and his job,” Dych wrote. Under Pennsylvania’s RFPA, which was passed in 2002, all ordinances or regulations adopted by political subdivisions or executive agencies must be construed as not imposing substantial burdens upon free exercises of religions “without compelling justification,” according to the opinion. In a June 2005 order, Dych granted DeVeaux’s emergency petition for a preliminary injunction and enjoined the city from firing DeVeaux or reducing his compensation or benefits while his case is pending. Dych rejected the city’s argument that allowing firefighters to sport beards creates a safety risk. One study involving pressurized firefighting masks indicates that there is no significant difference between the protection afforded by cleanly shaven faces as opposed to bearded ones, he found. “At least one metropolitan fire department — [that of] Washington, D.C. — has relaxed its no-beard policy after litigation by a group of Muslim firefighters,” Dych wrote. He went on to note that while the preliminary injunction amounts to a provisional remedy, and a hearing must still be held as to the merits of the case, “plaintiff would suffer immediate and irreparable harm that cannot be compensated by money damages if this injunction did not issue.”"The injunction that issued was tailored to alleviate defendant’s safety concerns until they are heard on the merits by a trial court by providing only that defendant may not terminate plaintiff’s employment or benefits,” Dych wrote. “It does not order the city to use DeVeaux to fight fires. Thus, the alleged wrongful conduct by [the city] is manifest and the instant relief was suited to abate it.” The city was represented in DeVeaux by Anne Barden of the law department’s labor and employment unit. Her office did not immediately respond to a request for comment on Dych’s decision. Mary Catherine Roper, the American Civil Liberties Union of Pennsylvania’s Philadelphia staff attorney, was counsel for DeVeaux. She said her client, who is 25, was at the time of his suspension working with Engine 44 in West Philadelphia. Dych’s decision is significant because it marks the first time a judge has applied the RFPA, Roper said. In granting the preliminary injunction, she said, Dych did “exactly what the Legislature intended him to do when they passed this law.”DeVeaux’s beard has always been trim and neat, she said, and does not currently measure more than a quarter of an inch in length. “Our position is not that he should be able to serve with any [length of] beard,” she said. “Our position is that he should be given the opportunity to test the respiratory mask with the beard he has, and show that it doesn’t interfere with his work.”

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