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Religious motivation smoked out

This story evidently got going in February, but I just recently learned of it. New York City, not having anything better to do, is suing various Hasidic stores for posting the following dress code:

No shorts
No barefoot
No sleeveless
No low-cut neckline
Allowed in this store

Reports state that the ground for the suit is that the stores are allegedly discriminating on the grounds of religion! Yes, you got that right. The claim is that they are trying to impose their religious norms on customers, hence, they are discriminating on religious grounds against customers who don't share their religion.

Now, that, to me, is the story. Stupid lawsuit by city is bad enough, but that argument is extremely troubling. As others have pointed out, plenty of stores have for a long time required shirt and shoes to receive service. Moreover, fancy restaurants have highly specific dress codes. Nobody tells any of those places that they are discriminating on the grounds of religion. There are also still on the books public decency statutes that would, for example, prohibit public nudity. So evidently what is motivating this lawsuit is that the alleged motivation for this dress code is religious, which makes this dress code "religious discrimination."

That's a very bad precedent. If you tell your customers to dress in a certain way to be stylish or classy-looking or so as not to drag down the worldly reputation of your restaurant, Bloomberg's minions consider that, shall we say, kosher. But if we happen to know that you are religious and that your motive for your basic and rather minimal modesty-related dress code is religious, then you get sued. What this means is that if you try to apply any code of decent behavior or modesty in your business establishment, even a prima facie reasonable one, you will be allowed to do so only to the extent that your motive for that reasonable standard is not religious. The minute your motive is thought to be religious, then you can't ask anything of your customers.

The claim that this is an enforcement of the store-owner's religious dress norms is false in any event. Actual Hasidic women do a lot more than just not wearing sleeveless dresses, shorts, and low necklines in public! The dress code here falls far short of the Hasidic businessmen's own religious standards.

So what happens next? If public nudity becomes more common and a known-to-be-Christian businessman puts, "No nude customers will be served" on the door, is his motive presumptively religious, and can he therefore be sued for religious discrimination against all those non-Christians who want to shop in the buff? This is now not a merely satiric question.

Comments (34)

I suppose legal precedent is the only logical stopping point for claiming that being against larceny is religiously motivated ("Thou shalt not steal"). You are right that while its a classic case of America's Funniest Town Ordinances, the argument is quite disturbing in that we've had decades of Politically Correctinistas finding racism and sexism under every innocent act. Now comes the fight against religionism.

It would irony, indeed, if the Hasidic stores would quote Acts 5:29 at the Mayor. At some point brave people will just have start telling the government types that they no longer recognize their authority. Clearly, Law has become God to these types, or, rather, they mistake God for a universal Yes-man to their every whim. The ultimate problem, of course, is that they have yet to be able to give a coherent answer to the question Karl Menninger asked fifty years, ago - "Whatever Happened to Sin." To them, sin is anything that might put someone else (say, God) in charge of determining right and wrong, truth and falsehood. Are they doing this for the common good? Hardly, since this would imply that they have the moral sensibility to understand that good flows from God, not the mayor's office.

The Chicken

The ultimate irony is that claiming the religious motivation for the dress code is discriminatory is itself an unconstitutional act of discrimination. If two dress code policies are identical, but one is allegedly religiously motivated while the other is not, then on its face it would be discriminatory to punish the religiously motivated one but not the secular one. Either both should stand, or neither of them. Hopefully they will counterclaim.

It seems as though it should be easy to put this down to an unconstitutional infringement on the store-owners' religion since, as c matt says, the government is openly declaring that its motive for pursuing the suit is the religious orientation of the defendants, not the dress code as such (which is replicated at fine dining restaurants all over the city). But of course I don't know anything interesting about how existing law and jurisprudence would confront the counterclaim. My understanding, though, is that identity neutrality is required on the part of the government when imposing reasonable limits on any exercise of the First Amendment.

The entire suit seems shaky (again, with the caveat that I'm no expert on these matters), and is obviously driven by hostility to the orthodox religious character of the defendants. This is not altogether unlike the novel and frankly un-American argument presented by opponents of Prop 8 in California, that if they could show some "irrational" (read: religious) motive on the part of any of the bill's most visible advocates, then the entire referendum is ipso facto at variance with the US Constitution. What is so perverse about this kind of reasoning is that it turns the First Amendment on its head by in effect precluding anyone with a religious bone in his body from petitioning the government on any issue which could remotely be said to be addressed by the teachings of his faith. In fact it goes further, by asserting that no one even can join with religious people from petitioning the government, because the whole enterprise will be thereby tainted.

This has no basis in the text of the First Amendment, nor in the any historically recognized principle of American civil society.

My understanding is that the dress codes at high-class restaurants are not identical but are specific and do make demands on both male and female customers. E.g. Formal dresses required. (The Haaretz article that I originally read gave some examples of those dress codes at high-brow restaurants, but before I could post it disappeared, except for the first few paragraphs, behind a paywall.) So they won't be able to argue that all aspects of another dress code are identical. Or, for example, another store might duplicate some aspects, such as "no shirt, no shoes, no service" but wouldn't have the "no sleeveless" line. Nonetheless, the focus on religious motivation is said in news stories to be quite explicit by the city. I didn't mention in the main post that the city is also tied up in knots by the fact that some aspects of the code seem directed towards women ("no low-cut neckline") and hence are allegedly grounds for claiming "gender discrimination." But one can parry by pointing to restaurants that require men to wear a tie.

The basis of this lawsuit is moronic. Strike that!, it is sub-moronic.

Could a government agency more effectively discredit itself than by attempting to force its arbitrary standards on private businesses in the name of "human rights," while claiming to prevent private business owners from forcing their views on others? Call me crazy, but the only "attempt to force" anyone to do anything I see in this ridiculous story is perpetrated by this so called Commission of Human Rights. But what else should we expect from skunks working in a skunk's profession? Such people need to find something useful to do.

The lawsuit assumes that everyone has a "right" to shop in a privately owned store. It puts the rights of the shopper above the rights of the store owners to do as they wish with their own property. So this lawsuit could be fought on property rights as well.

Daniel, I agree with you, but I recall that there is some special category of treatment for "public accommodation" on private property that precludes certain types of discrimination. For example, if you own a piece of land and build a house on it, you are free to decide for your self "no black allowed." If you build a warehouse-sized barn, start storing large amounts of food bought wholesale, and then start selling it retail to your own select group of friends at your convenience and specific invitation, that right to exclude probably still holds. But if you build a store and open business selling groceries to "any chance customer", that private property option to exclude blacks may no longer apply.

But Tony, that's because of local, state, and even federal ordinances on that very subject of "having to sell to everybody." If you ask me, we maybe should consider that, even though such ordinances have outlawed certain genuinely unpleasant and even wrong "discriminatory" behaviors, they may be more trouble than they are worth. As in the example in the main post. And of course, the extension of such public accommodations ordinances to "discrimination on the grounds of sexual orientation" has been nearly the whole camel in the tent as far as forcing everybody to endorse a particular lifestyle. The idea of making people of other religions feel uncomfortable or unwelcome and hence allegedly violating non-discrimination ordinances has even been used, I'm told, to tell banks and other businesses that serve the public that they cannot have conspicuous posting of Bible verses and the like.

So I'm not necessarily a big fan of public accommodations ordinances.

Right, I agree, and I meant to point out that what I said was independent of whether such "accommodation" rules are a good idea. I was just responding to Daniel's "fought on private property rights" idea. We should be cautious about the theories of accommodation in general. I guess you might say that Daniel's recommendation should be followed, but it might not be successful without also fighting the encroachment of the accommodation theory.

Lydia, if you ask me such ordinances are definitely more trouble than they're worth. I mean, who, and what, are they generally aimed at accomodating?

Does it just make too much sense to let nature take its course in such matters, or what? If the dress policy of these businesses is considered to be too terribly "oppressive" or whatever by their patrons, will the business owners not, in a number of ways, feel the effects of this and consider, at least, reforming their policy to accomodate a certain ... variety of patron ... without government intervention?

We're a few steps away from the federal government suing Chik-fil-A on the suspicion that their refusal to serve the public on Sundays is religiously motivated. "Imposing their beliefs" on the public, and all that. I mean, why should any atheist have to do without his chicken nuggets just because it's Sunday?

My recollection is that Chik-fil-A has stated categorically that they are a "family oriented/Christian oriented" business. So it ought to be a fairly simple procedure for the government to "prove" (to itself) that this somehow violates the principle of separation of church and State enshrined in the establishment and free exercise clauses of the first amendment.

In all seriousness, I doubt they could do that (about stores closed on Sundays) since the store closes to all customers. But perhaps I'm too sanguine about the logical nature of law.

This lawsuit, however, shows that some liberals _will_ try to do it for a lot of things that give the business a distinctive flavor in a way that might make some customers feel "unwanted" or "uncomfortable." I wonder what would happen if a grocery store played only Christian radio over its speaker system, for example. Might this be argued to be "signaling" to non-Christian customers that they were unwanted?

The obvious question that New York City doesn't want to address is whether the dress code of the Hasidic stores is really a kind of generic modesty rule based on an attempt to create a "seemly" store atmosphere and not a narrowly religious rule. The city's argument seems to imply that the rule is akin to requiring customers to say the Shema in order to be served! But that is ridiculous. Is modesty religious? Traditionalists would say that it ain't necessarily so, just as laws against complete public nudity or public sex are not per se religious and are certainly not distinctive to some _one_ religion. They are, rather, matters of common sense and public decency. Unfortunately, the phrase "common sense and public decency" strikes too many people as being uttered in another language.

Personally I think that the City of New York ought to be free to govern itself with regard to such matters basically any ol' way it chooses. If it decides that half-dressed, bikini clad women must be served in any and all public markets, then so be it. Such ordinances are insane in my opinion, but I don't have to live there, or ever go there for that matter.

It's funny you mention grocery stores and the types of people they might be accused of trying to alienate under a given scenario. Ever since the State of Oklahoma began dividing food stamp allotments (called "ACCESS" here) between three days during each month, it has become increasingly difficult to avoid the grocery stores on days when you don't run into dozens of these people, and all of the fodder they carry along with them wherever they go - foul and loud mouths, inappropriate dress, an apparent inability to keep private personal matters unto themselves, children who are utterly undisciplined, etc. And to make matters even worse, all of the grocery stores here put their best sales on during these times of the month, trying to draw in that element of the society. So you literally can't win for losing. My son responds to this by suggesting that we open a cash only grocery store - no food stamps, no WIC accepted as payment. But, of course, this would be impossible due to the accomodation laws you speak of. (Can you imagine how quickly any number of lawsuits would be filed against us IF we even managed to get the doors opened for business to begin with?!)

But under your scenario of a grocery store (or any kind of store) playing explicitly and exclusively Christian music, I would think it would be accused of trying to proselytize a certain element of its customer base, and not necessarily trying to alienate them. I don't know which is the greater "crime" against humanity to the minds of liberals, but I'd hedge my bets on the former. But anyway, that's the world we live in, God help us all.

Many stores have a sign posted somewhere near the entrance that says "we reserve the right to refuse service to anyone". Is this "right" based on law?

In all seriousness, I doubt they could do that (about stores closed on Sundays) since the store closes to all customers. But perhaps I'm too sanguine about the logical nature of law.

Two words for you: Disparate impact.

I think the best way to fight this kind of nonsense would be to see if we could enlist some Muslim businesses to start enforcing a policy that no women will be admitted who don't have their heads covered. The heads of the New York City "human rights" enforcers would probably explode trying to figure out how to square that circle.

Daniel, I've never seen a sign like that. In short, I doubt that they could really apply that sign in just any way they pleased without getting in trouble with non-discrimination ordinances. For example, they couldn't refuse to serve a woman because she is a woman. Just to answer the legal question.

The thing is, Seamus, that a head covering requirement really _is_ fairly specific to Islam, whereas "please don't show your cleavage" is not specific to Hasidic Judaism. (Conservative Christians and Mormons, for example, would share this notion of modesty.) As a matter of fact, Hasidic Jewsish women do have a head/hair covering requirement, but their custom is to do it (I have read) using a wig, not a hijab. The very fact that the requirements in the sign are so far from actual Hasidic practice is evidence against the claim that it is a form of religious discrimination.


The chickens are coming home to roost. Recall that Robert Audi, echoing Rawls, once claimed that an argument is distinctively religious merely if it has some kind of religious etiology, *even if* there are perfectly good non-religious arguments in favor of its conclusion.

This immediately leads to a double-standard: Conservative Jews cannot exclude people from their stores on the basis of immodesty, because the demand for modesty is religious in origin. But, by the same token, the secular dude down the street can have a "no shirt, no shoes, no service" sign up front and that is no big deal. Why? Because the first has a "religious" etiology and the second does not. The second is within the "space of reasons" while the first is not.

Isn't it blinding obvious what is going on here? Our elites are trying with all their might to stamp out traditional religion. They aren't even trying to hide it anymore.

And yes, I know that Robert Audi is a "believer" in some nebulous sense. But under the current dire circumstances, I would classify him, with all due respect, as "useful idiot".

Audi's writings on this subject are not only pernicious in their effects. They are also self-congratulatory, poorly argued, and unworthy of a philosopher, especially of an analytic philosopher. I say that with regret, having met Audi and found him a genial fellow. Nonetheless, I calls 'em like I sees 'em. It is blindingly obvious to anyone who reads his book on the subject of religion in the public square that he is for the most part simply rationalizing his own (politically liberal) prejudices. To wit: He considers it a *foundational truth* that slavery is wrong. Hence, the religious etiology of much actual, historical abolitionist rhetoric is something he doesn't need to worry too much about, since he's declared this conclusion to be foundationally known. I don't even necessarily disagree with him re. slavery; I just point out the convenience for him of the position and its contrast with his treatment of other subjects where the conclusion has *at least* as good a claim to be foundationally knowable. E.g., He apparently considers opposition to abortion to be religious! He goes so far in one footnote as to say that to declare an unborn child to be a human being is "religious or at least philosophical." What the point is of "at least philosophical," and why it should be a problem to a philosopher (!) is a bit obscure to me, but the rhetorical point is quite clear: The declaration that the unborn child is a human being is _not_ a scientific statement, hence it is subjective, hence...well..there y'go.

You are quite right here, Untenured. Several years ago, I read about a pedophile group in the Netherlands who claimed that laws against their behavior should be struck down on the grounds of their religiously tainted etiology. One wonders what the avid secularists, who have made exactly the same argument on other subjects, said to them.


Daniel, I've never seen a sign like that.

Really? I saw one in a restaurant yesterday! I see them all the time here in Oregon. Maybe it's a west coast thing?

BTW Lydia,
I think you will want to see my last two comments in the "Various pieces of news from the medical ethics world" thread (I didn't know where else to post it). The video I link to is one that I believe every pro-life person needs to share in every way they possible can.

From reading the linked articles and Googling a bit, I'm a little unclear as to whether NYC is claiming that problem with the signs is that they're motivated by religious beliefs, or whether they are claiming that the signs amount to a proxy for discrimination on the basis of religion. (I'm on the fence about public accommodation principles.)

I would want to send in some prospective customers to these shops as test cases, such as women dressed in what most American Christians would consider a modest manner, but which nevertheless seriously violate Hasidic standards of modesty, and also a few obvious non-Jews (e.g. clericals, an obvious cross or Christian t-shirt).

Brock, I already pointed out that the requirements are _quite different_ from Hasidic requirements. What more do you want? If "most American Christians" consider it modest to have cleavage-showing shirts or sleeveless tank tops, then they would presumably be violating the policies, but that wouldn't mean that the policies are "proxies for discrimination on the basis of religion."

Also, if I may say so, I defy anyone to make a really sharp distinction between "religious motivation" and "a proxy for discrimination on the basis of religion." What is _meant_ by "religious motivation" is the allegation that "you want everyone you deal with to behave like members of your religion." In other words, the accursed "religious motivation" *just is* supposed to be an attempt to "enforce one's religious standards on others." So "proxy" talk really is motive-grubbing, and I have little sympathy with it. If it so happens that everyone in a town except for the Hasidic Jews walks around completely naked and the Hasidic Jews don't want to serve people who are buck-naked, that doesn't make a sign that says "Only customers wearing clothing will be served" some sort of invidious "proxy for discrimination on the basis of religion."

Maybe I'm not expressing myself well. I think the Hasidic shops have the perfect right to display such signs and enforce them as written. It's just that I wonder if the signs are actually being enforced as written (and with terms such as 'low cut neckline' defined in line with typical American standards), or being used as excuses not to serve those who don't belong to the religious community.

Maybe I'm biased, because I DO periodically buy in shops where I've never seen anyone who is not dressed like a Hasid – in fact I feel a bit self-conscious because actual Hasidim can see that I'm an outsider, because the clothing details are not quite in line with one particular sect – and I feel a strong reluctance to test what would happen if I walked in in my normal clothing (which is quite modest by US/UK standards). These are reportedly Satmar shops, and they are very separatist – I've seen Satmar Hasidim blank out Orthodox, just look right through them, simply for using Hebrew instead of Yiddish to wish them a happy holiday.

These are reportedly Satmar shops

I mean the ones in the lawsuit, not the ones I've been to. Again, personal bias, because I've never been in a Satmar shop, and it sort of falls in the 'not sure I'd dare' category.

Well, Brock, I didn't say this in the main post, because I'm honestly a sufficiently rampaging person on this stuff that I was a little disappointed, but the store owners' lawyer is making a point of saying that no one has ever been denied service on the basis of violating the signs! Now, as I say, I find that disappointing. I mean, heck, _why not_? It makes it hard to be as "for" them if they really would serve somebody who walked in in bare feet (for example), and the signs are just a bluff. I suppose the lawyer has to say this, assuming it's true, if it's going to help win the case. But it gave me a feeling of let-down. No doubt the city will counter that no one has ever been denied service on this basis because no one has ever tried. But in that case...well...the signs aren't being used as an excuse for _refusing_ service to non-sect members.

I have to admit, also, that I can't get much exercised if in point of fact the signs have some kind of "aura" or "indirect effect" of discouraging non-members from shopping at the store. I used to shop at a drug store in a different city that had stacks of free Pentecostal pamphlets around everywhere. I suppose if one were really uncomfortable with that kind of thing one wouldn't shop there, but that certainly isn't a legal matter, or shouldn't be.

I have to admit, also, that I can't get much exercised if in point of fact the signs have some kind of "aura" or "indirect effect" of discouraging non-members from shopping at the store.

Even more than "not much exercised", it seems to me that if a store owner really doesn't want a clientele that includes the general public but only his own in-group, like Hasidim, he should be able to do arrange that by making the store unattractive to non-Hasidim. There is nothing inherently improper about wanting to serve only Hasidim, even if the reason you want that is "only" a religious reason. Laws that preclude setting out to do just that are, in effect, laws that set aside your liberty to engage in an activity of your own choice. Engaging in your business is...YOUR business. What would we think of a law that said "you cannot choose to give money to one charity without giving money to all charities"? Or, a law that said "you cannot root for one team to the exclusion of the other team"? "You must buy food from all national groups equally" "You must celebrate every holiday of every group around, without exception."

Tony, I agree, and you're bringing up something here that I venture into only with some trepidation. (Mainly because I don't know what other commentators it might bring out of the woodwork.) The 1964 Civil Rights Acts and their progeny have pretty much shredded all the analogies you just made. Ever since the lunch counter sit-ins and all the rest, no one is allowed to analogize business activity for a profit to private activity. Your home may be your castle (maybe), your money may be your own (except what the government takes by force), but your business...well...if you sell "to the public," then it ain't your castle anymore. Freedom of association no longer applies. The assumption is that you're somewhere out there in this zone between private and government, and you are more or less required to deal with all comers. It's _especially_ considered evil or invidious if you have some in-group/out-group distinction (discrimination) you are making and if you want to live by it.

I may be one of the only people I know who feels uncomfortable about the historical idolization of lunch counter sit-ins for that very reason: In those sit-ins, and in the hero-worship of those who engaged in them, I see the handwriting on the wall for any notion that "you can choose to do business with whomever you wish to do business with." Not anymore, and not for a long time. Business now = public = no longer under your control.

Lydia, you make an interesting point. I'm genuinely not sure what to think about that. I don't know if that attitude about restaurants is necessarily a bad thing or not.

I mean, it depends on the nature of the business too-a restaurant is one thing, but say you're a Christian religious book store, and you'd prefer to sell only to Christians (I'm not really sure a Christian book store should be doing this, given the call to evangelize, but whatever). I think in that case you should probably be allowed.

But Joe's steakhouse refusing service to black people? That would seem to be different. I'm not sure, though, how to have your cake and eat it too in this case. Difficult indeed.

Lydia, I have been thinking about that, and I suspect that with the internet it may become possible once again. Suppose I only sell to those I send a specific invite to, and after I establish a relationship with the buyer, I give them an incentive to invite 2 or 3 of their friends to peruse my offerings, with specific pass codes for each. I guess because it is not a brick and mortar store, it would be fine (legally, that is).

It is still possible to be a contractor and/or consultant and pick and choose who you work for - if you don't advertise. If you rely on word of mouth and the like, you have no problem. Even if you advertise, you still have the right to pick and choose to some extent who you will take contracts to work for. Generally, you have the right to become contractually bound to some service or not, before you have agreed to any contract. Yes, there are boundaries and test cases.

But Joe's steakhouse refusing service to black people? That would seem to be different. I'm not sure, though, how to have your cake and eat it too in this case. Difficult indeed.

MA, you're right, that's difficult. I would say that first off, having individual liberty means not everything that is morally wrong or stupid is also illegal - the law should not be in the business of prohibiting everything that ought to be censured by society. Some things ought to be left to shame, ridicule, and ostracism, as well as "voting with your feet". In an ideal society, of course, Joe wouldn't perceive any rationale for not serving blacks. In a slightly less ideal world, Joe might try it and find even his white clientele dried up because they wouldn't choose to associate with him. It is always good to remember that law isn't the ONLY way society acts responsibly in dealing with offenders of the common good. Often individuals have their own serious responsibility to act for the good of others.

There is a big difference between allowing blacks to be treated differently before the law and allowing blacks to be treated differently in other venues. Not every act in the public view is an act of the government. Businesses are (or are supposed to be) private enterprise that acts upon the public to some extent, but not normally on behalf of the public. So when a private individual does something socially offensive and morally wrong, that may be a matter for the state, but not automatically. Not taking a shower for 3 days of digging ditches, and then riding the subway, would be extraordinarily offensive to the other riders - but it shouldn't be a matter of law.

Ever since the lunch counter sit-ins and all the rest, no one is allowed to analogize business activity for a profit to private activity. Your home may be your castle (maybe), your money may be your own (except what the government takes by force), but your business...well...if you sell "to the public," then it ain't your castle anymore.

"Sit-ins and all the rest"? Wow. Lydia, I've never understood your root-cause analysis on past racial issues. I've never understood where they are supposed to meet reality. In Greensboro there were private citizens exploiting the fact that Woolworth's depended on their business and treated them poorly. They were private citizens interacting non-violently with private businesses to get what they wanted. How is this bad, and was it really what led to what you don't like now? I'm highly doubtful.

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