The opinion of the court was delivered by: JOHN G. KOELTL
JOHN G. KOELTL, District Judge:
The plaintiffs have challenged the directive, on its face and as applied, claiming that their statutory and constitutional rights to the free exercise of religion have been violated. The defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Plaintiffs Andrew Francis ("Francis") and Ramon Brown ("Brown"), who are African-American, have been employed by DOCS as correctional officers for over five years.
Since some time in 1991, the plaintiffs have been attending the Rastifarian Church at 116th Street and Eighth Avenue in New York City and following its beliefs, practices and tenets. At approximately the same time, the plaintiffs began to wear their hair in short braids, a form of modified dreadlocks, as expressions of their religious beliefs.
Until October or November of 1992, the plaintiffs wore their hair in the modified dreadlocks without incident. No one at Sing Sing commented to the plaintiffs about their hair or reprimanded them in any way relating to their hair. Until that time, correctional officers at Sing Sing were permitted to wear hats both inside and outside of the facility. However, both plaintiffs contend that even with the policy of allowing hats, their colleagues and superiors at Sing Sing knew of their modified dreadlocks since the time they began to wear them.
In October or November of 1992, the policy with respect to hats was changed; correctional officers no longer were permitted to wear their hats inside the facility with very limited exceptions. Sometime around that date, the plaintiffs were informed that they no longer could wear their modified dreadlocks and on December 18, 1992, they were issued directives requiring them to re-style their hair by December 21, 1992. Believing that complying with the directives would lead them to violate their religious beliefs and fearing suspension for insubordination if they failed to cut their hair, the plaintiffs initially chose not to return to work after December 21, 1992, but later decided to cut their hair and return to work pending the resolution of their case.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
In support of their motion, the defendants argue that the directive does not violate the plaintiffs' right to the free exercise of religion. They contend that the directive does not, on its face, implicate the plaintiffs' free exercise rights, and that, with respect to any incidental burden on the plaintiffs' rights, deference should be accorded to the judgment of DOCS that the directive is essential to safety, discipline and esprit de corps. Looking to other contexts in which courts frequently have addressed challenges to grooming and dress requirements, the defendants argue that they are entitled to summary judgment because no issues of material fact remain with respect to the magnitude of the interests that purportedly underlie the directive, as well as with respect to the appropriateness of the directive to advance such interests.
RFRA provides a statutory claim or defense to persons whose religious exercise is substantially burdened by the government. See 42 U.S.C. § 2000bb(b).
RFRA purports to restore the compelling state interest test to facially neutral laws of general applicability that substantially burden the free exercise of religion which had been modified by the Supreme Court's decision in Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990).
Prior to 1990, the Supreme Court subjected laws that burdened the free exercise of religion to the strictest level of scrutiny under which such laws had to be narrowly tailored to serve compelling state interests. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 215, 234, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (The Free Exercise Clause of the First Amendment barred the application of compulsory school attendance law to Old Order Amish who did not send their children to school after the eighth grade because "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Sherbert v. Verner, 374 U.S. 398, 403, 410, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) (applying the compelling state interest test and holding that the disqualification of a Sabbatarian from receiving unemployment benefits because of her refusal to work on Saturdays violated the Free Exercise Clause); see also Thomas v. Review Board, Indiana Employment Sec. Comm'n, 450 U.S. 707, 718 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.").
In Smith, the Supreme Court rejected this compelling state interest test for facially neutral laws of general applicability that only incidentally burden the free exercise of religion. 494 U.S. at 883-85. In Smith, the Supreme Court held that the Free Exercise Clause of the First Amendment did not forbid the state of Oregon from either banning sacramental peyote use by Native Americans through its general criminal prohibition of ingestion of the drug or denying unemployment benefits to persons terminated from their jobs for such religiously inspired peyote use. 494 U.S. at 890; see also Church of Lukumi Babalu Aye, Inc., 124 L. Ed. 2d 472, 113 S. Ct. 2217, 2226 (1993) ("Our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.") (citation omitted).
Congress responded to Smith by passing RFRA. See 42 U.S.C. § 2000bb. RFRA's purpose is to "restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) and to guarantee its application in all ...