D.C.'s Firestorm Over Beards And Religion
How important is the freedom to express yourself by determining how you look? Is the right to grow a beard, whether as a personal statement or part of a religious belief system, more important than your life or the lives of your co-workers?
A panel of federal court judges has grappled with this question in the case of D.C. firefighters who have argued since 2001 that their faith requires them to have facial hair, even if the city's fire department had rules mandating clean-shaven faces.
The District's rules were not some archaic regimen for enforcing discipline and presenting a clean, efficient face to the public. Rather, the rules are based on fire safety: When a firefighter charges into a burning building, the only thing that gives him a decent chance of getting the job done and coming out alive is the mask that supplies uncontaminated air from a tank rather than the poisonous smoke he must wade through.
In a unanimous ruling last week, a three-judge panel of the U.S. Court of Appeals said the city must let firefighters wear beards because there is a breathing apparatus that works even with facial hair. But one of the three judges, Stephen Williams, issued a scathing separate opinion saying that if it weren't for the District's "muddled litigation strategy," the court would have come down on the opposite side. "If the sole aim of the law were an open search for truth, we would plainly reverse" the lower court ruling in the firefighters' favor, Williams wrote.
Williams looks beyond the legal arguments and focuses on the actual evidence about how the fire department's breathing apparatus operates--and what he finds is that facial hair can break the mask's seal with firefighters' skin, allowing them to breath in noxious smoke. The judge notes that federal safety regulations conclude that "facial hair poses risks for the use of respirators generally." Williams says this ruling will open the door for the District to conduct an experiment with the lives of its firefighters.
Maybe it's not strictly a federal appeals court judge's role to look for the right thing to do, but as Williams notes, "While a judge isn't a pig hunting for truffles in the parties' papers, neither is he a potted plant." And this non-potted plant is shooting up a warning flare: Because of the ruling allowing facial hair, "the likelihood of acute calamity--and thus the risk that response teams will be stretched to the breaking point--seems greater in the District than almost any other American city."
The other judges in the ruling, curiously enough, sort of agree with Williams, noting that if the District hadn't done such a sloppy job of legal work, the city would have raised the safety issue in the lower court, and this appeals court would have been able to uphold the ban on beards.
There are two basic kinds of breathing masks: One creates positive pressure, forcing air to blow out of the mask if the seal with the firefighter's face breaks. The other creates negative pressure, allowing smoky air to enter if that seal breaks. It's the latter type of mask that causes the danger to people with beards. In tests conducted by the D.C. fire department, some fire fighters passed, meaning that the seal on their masks didn't break because of their facial hair, and some failed.
But the D.C. government argued in its appeal that even the positive-pressure masks can be dangerous for bearded fire fighters--an argument the appeals court says the city failed to make when it counted, earlier in the process. Sorry, the judges say now: You may not raise a new issue at the appeal level.
The sad truth is that the scientific evidence confirms what common sense would tell you: Wearing a beard makes it more likely that a breathing mask would not seal properly and would not protect you in a fire. "The scientific literature clearly and consistently recognizes the fact
that facial hair at the sealing surface of a respirator causes increased respirator leakage," the ruling quotes a fire expert saying. "Persons with excessive facial hair . . . cannot expect to obtain as high a degree of respirator performance as persons who are clean shaven."
Thanks to what the judges describe as the District's sub-par legal work, the court never really gets to the question of whether religious beliefs are enough to overcome safety concerns. In our court system, it's often not about the truth. The unfortunate truth in this case is that the failure of the D.C. government to mount its legal arguments in a clear and timely manner will now subject some fire fighters to life-threatening danger.
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