Judges Now Get to Decide what Europeans Can Wear at Work

by DANIEL HANNAN September 11, 2012

In an open society, the state's powers should be limited and contingent, the individual's expansive and residual. To put it more prosaically, the government shouldn't boss us around more than is absolutely necessary. It certainly shouldn't tell us what to wear - as, for example, the Taliban and French regimes do (the one requiring burqas, the other banning them).

An open society also implies free contract. You may apply for work where you please. Likewise, if you own a company, it's yours. If you want to employ only graduates, that's your own silly fault. If you want to impose a uniform code on your staff, that's between you and them.

These things were taken as read until a generation ago. The idea of passing laws specifying what people of different faiths might wear would have seemed like a throwback to the era of the Test Acts. Left-wing secularists would have been loudest in their condemnation, and they'd have had a point: the demerger of our civil and religious spheres is one of the things that made possible the miraculous advance of the West.

The trouble is that lobby groups in the 1970s approached the issue as one of minority rights rather than of conscience. Because new laws were initially demanded on behalf of immigrants - Sikhs not wanting to wear motorcycle helmets, Muslims wanting to wear veils - the debate was framed in terms of race rather than creed. For many Lefties, anti-racism is the highest card in the deck, trumping everything else.

The law was therefore dragged into what ought to have been a private sphere. Until the Seventies, the assumption had been that an employer who imposed restrictive dress codes was his own chief victim, since he was deterring job applicants. Common law would have mediated disputes as they came up, building up precedent case by case, rewarding common sense and moderation. Instead, MPs decided to pass sweeping statutes based on abstract and self-contradictory human rights principles.

Which brings us to the current cases brought to the European Court by Christians, including those wishing to wear religious insignia at work. I have remarked before on the remarkable inconsistency being shown by both sides in this debate. Such inconsistency is inevitable once you start legislating on the basis of collective rights and competing grievances.

In their determination to champion designated victim groups, rather than apply coherent principles, human rights activists are regularly forced into doublethink. Does the right of the atheist not to be confronted with religion in the public space trump that of a council worker who wants to wear a niqab? Does a woman's right to an abortion outweigh the right of her Muslim GP not to facilitate one?

As Mark Steyn noted, there were recently two police investigations into hate crimes, one triggered by a complaint from an LGBT organisation because a Muslim leader had claimed that Islam abhorred homosexuality, the other by a Muslim group upset by claims by an LBGT group that Islam was anti-gay.

Got that? If a Muslim says that Islam is opposed to homosexuality, Scotland Yard will investigate him for homophobia; but if a gay says that Islam is opposed to homosexuality, Scotland Yard will investigate him for Islamophobia.

Nor is this nonsense found only in the public sector. Keen to have the correct hierarchy of victimhood, British Airways brought in a dress code designed to allow hijabs and turbans but not crosses. It did so by decreeing that religious items might be worn by employees if there was a ‘mandatory scriptural requirement'. What constitutes a mandatory scriptural requirement? The question has divided theologians for centuries. It has led to schisms, even wars. But don't worry, we now have an ultimate arbiter: British Airways.

Perhaps it's too late to return to first principles, but let's at least be clear on what they were. An employer should have the right to impose whatever dress code he wants. Ideally, he will be reasonable in exercising this right: commercial self-interest and human decency both argue for a uniform that can accommodate religious insignia.

Indeed, with a little sensitivity, all the recent cases might have been quietly resolved. If a registrar doesn't want to recognise gay marriage, for example, it shouldn't be too hard to work her objection into the rota. The trouble is that, on both sides, grievance and self-righteousness have squeezed out any sense of moderation. The only winners, as always, are the human rights lawyers.