Smith v. City of Atlantic City, 138 F.4th 759 (May 30, 2025) Porter, Circuit Judge.
PORTER, Circuit Judge, delivers the opinion of the Court as to Parts I, II, III. B., and III.D by a unanimous decision of the merits panel and as to parts III.A and III.E joined by CHA-GARES, Chief Judge. CHUNG, Circuit Judge, delivers the opinion of the Court as to part III.C joined by CHAGARES, Chief Judge.
Alexander Smith is a Christian who works for the Atlantic City Fire Department. The City prohibits Smith from growing a beard of any length, contrary to his religious beliefs. After the City denied his accommodation, Smith sued alleging violations of the Free Exercise Clause, the Equal Protection Clause, and Title VII’s accommodation and anti-retaliation provisions. The District Court denied Smith’s motion for a pre-liminary injunction. Following discovery, it granted summary judgment for the City on all four claims. We will vacate the District Court’s judgment as to Smith’s Title VII accommodation claim and free-exercise claim but will affirm the equal protection claim and the Title VII retaliation claim. We will also reverse the denial of Smith’s motion for a preliminary in-junction.
The Supreme Court has firmly taken the side of strict scrutiny. In Tandon v. Newsom, the Court embraced strict scrutiny as the general rule of review for laws failing Smith. 593 U.S. 61, 62 (2021). And in Kennedy v. Bremerton School District, the Court extended that rule to a public employment case in-volving “policies [that] were neither neutral nor generally applicable.” 597 U.S. 507, 526 (2022).The Court discerned no distinction between partial and neutral laws, or the targeting of government employees versus private-sector workers. It applied strict scrutiny, the one standard to rule all Free Exercise Clause claims not governed by Smith.
“[N]arrow tailoring re-quires the government to show that measures less restrictive of the First Amendment activity could not address its interest.” Tandon, 593 U.S. at 63. The City could remove Smith from fire suppression duty as it did before 2020or reclassify him as a civilian who is not subject to the SCBA and grooming policies. It could, as a simple fix, at least try and fittest Smith with facial hair to see if his facial hair, at any length, would interfere with the SCBA to a point that creates the risk of air leakage that the City fears. See Potter v. District of Columbia, 382 F. Supp. 2d 35, 38 (D.D.C. 2005) (Muslim employee seeking exception passed fit test with beard). There are likely more solutions than these three, but “so long as the government can achieve its interests in a manner that does not burden religion, it must do so. ”Fulton, 593 U.S. at 541. Because the policy fails strict scrutiny, we will vacate the District Court’s judgment.
