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Following a two-day nonjury trial, a Philadelphia judge has ruled in favor of the city in the case of a Muslim firefighter who sued for the right to keep his beard without losing his job. In DeVeaux v. City of Philadelphia, Judge James Murray Lynn found the city had not broken the state’s Religious Freedom Protection Act when it suspended 25-year-old West Philadelphia fireman Curtis DeVeaux after he refused to shave his beard. “The city of Philadelphia has proven that the Philadelphia Fire Department’s Directive 13 furthers a compelling interest of maximizing safety for its members and that Directive 13′s requirement that members of the [PFD] be clean shaven without a beard is the least restrictive means of furthering its compelling interest in maximizing safety for its members,” Lynn wrote. In so holding, Lynn declined to address the city’s motion challenging the constitutionality of the RFPA. Anne Barden of the city’s Law Department, whose co-counsel was Stephen Miller, called the decision “very important” for the city. American Civil Liberties Union of Pennsylvania attorney Mary Catherine Roper, who represented DeVeaux, said Lynn’s decision would be appealed to the Commonwealth Court. A pretrial decision by a different city judge had given DeVeaux an early victory in the suit. Judge Joseph A. Dych, writing in support of a preliminary injunction in DeVeaux’s favor, ruled in July that DeVeaux should not have to shave his beard in order to stay on the job while the case is litigated. Dych’s decision was apparently the first to interpret the RFPA. He had concluded that Directive 13 “imposes a substantial burden upon plaintiff’s free exercise of religion by, inter alia, forcing him to choose between his religion and his job.” Directive 13 addresses grooming practices that the PFD thinks could prevent a tight face seal of the oxygen masks worn by firefighters. The directive states that while moustaches are allowed, beards or goatees are not. (Philadelphia Fire Commissioner Lloyd Ayers, who was called as a defense witness in DeVeaux, sports a moustache.) On Monday, DeVeaux called to the stand his only expert witness, former Fire Department of New York official Alexander Santora. Santora, who during the course of a 40-year career served as the FDNY’s deputy chief and chief of safety, told the court that, in his opinion, there is no reason why a bearded fireman couldn’t be safety tested with his facemask and then approved to fight fires despite his facial hair. Santora also said he had testified in a recent case in Washington that culminated in that city’s allowing its firefighters to wear beards. DeVeaux also took the stand Monday, testifying that he had fought fires while wearing a beard and that he would be willing to submit to more stringent face mask safety tests than his clean-shaven colleagues, if it would mean keeping both his beard and his job. In addition to Ayers, the city’s witness list also included a representative of Scott Health & Safety, the manufacturer of the facemasks used by Philadelphia’s firefighters. Lynn’s decision’s focus on the city’s safety argument obviates the need for a holding on its assertions that the RFPA violates both the Establishment Clause and the separation of powers doctrine of the Pennsylvania Constitution. The city raised those issues in a motion written by the Law Department’s Jane Istvan and filed Tuesday by Barden. “If this court were to determine that RFPA requires the city, in the face of the recommendations and policies of safety and governmental organizations and the manufacturer to the contrary, to allow Mr. DeVeaux to keep his beard and wear a respirator mask, such a requirement would demonstrate that RFPA unconstitutionally ‘elevate[s] accommodation of religious observances over [the City's need to maintain] safety,’” Istvan wrote, quoting relevant case precedent “It is important to keep in mind that RFPA puts a very high burden on government to justify its action,” Istvan continued later, “even when, as in this case, there is no evidence that the government is targeting religious persons. [U.S. Supreme Court] Justice [Antonin] Scalia has described the compelling interest standard employed by RFPA as one that renders government action ‘presumptively invalid.’”

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