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EU court says public employees may be barred from wearing head scarf
(www.reuters.com)
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this post was submitted on 28 Nov 2023
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That is a very false dichotomy.
No, it's not imho. For there to be a middle ground, there would have to be comparable things across religions or any ruling would become unfair. Think about it: You allow religiously motivated head scarfs. Now some really, really old school Christian comes in and wants to wear their penitential robe to work. Now, of course the orthodox jews want to wear their clothing as well, but their locks are dangerous at the worksite because they might get caught in some hard hat or something and you can't allow that. Now Christians and Muslims have a permission the Jews don't get. What do you give to the Jews instead? And if you give them something else, the others will claim they want something along those lines as well. So in order for the state to stay neutral in religious quesions, there are only two possibilities: Allow it all, or grant no special status whatsoever.
If there isn't a specific reason that something cannot be worn, such as a safety concern or an obstruction to others, then it should be allowed by default. A headscarf doesn't affect anyone. Same way a kippah doesn't affect anyone.
That is completely non-comparable to denying someone service on the basis of religion. And the idea that the only two options are allow religious people to discriminate on the basis of their religion, or ban all clothing that indicates religion, is a false dichotomy.
I think we have an issue at the very start. The underlying motive is: The state cannot be biased towards any religion whatsoever. Now there is a rule that employees aren't allowed to wear head coverings at work (for whatever reason)
So if one religion is allowed to claim special status for their head covering (Head scarf), can an orthodox jew wear their hat? Can someone believing in druidism wear antlers to work?
And what is with people who happen to have no religion they believe in. Why are they granted less rights by the state than the religious people?
So: Which other possibilities does a state have to resolve this besides
a) allow it all
b) deny "religion" as justification for any exceptions (Meaning "you cannot cite religious reasons for anything")
To be clear here: the second option is not "ban religious symbols alltogether", it's "we have our rules, there is no way for you to get an exception with the reason 'religion'"
And maybe that rule is the stupid one.
Except it isn't necessarily claiming a special status.
The argument can simply be that the headwear ban should be removed, unless there is good reason for it. So yes, anyone can wear any headwear, so long as it doesn't interfere with the task at hand or other people. The antlers would probably fall afoul of those requirements.
They wouldn't be. The removal of a ban doesn't somehow mean that atheists have fewer rights. They'd be allowed to wear their desired headwear too.
Still a false dichotomy here.
The option is not to allow "religion" to be used as an exception, but rather set rules that are permissive to everyone, including religious people, within the limits of the task at hand and inconvenience to other people.
A headwear ban is pretty clearly discriminatory towards Muslim people, and probably also to certain Jewish people though I'm not 100% sure of that. The goal should not be to give them exceptions, but rather rethink the headwear rule.
What you are describing is my variant number 2. If the rule by itself is dumb or not is another matter.
I tried to describe my second path poorly perhaps. Let's try with a made up dialogue.
First variant how a state can be fair towards all religions:
Employee: Hey boss, I want an exception for the "no hats" rule because a head scarf is my religion
Boss: Of course, "religion" is always a valid reason to get an exception, since I can't judge how much we'd interfere with your religion if we deny that
Second variant:
Employee: Hey boss, I want an exception for the "no hats" rule because a head scarf is my religion
Boss: Your religion you say? Yeah, that's not anything we care about, honestly. If your head scarf had a medical use, there'd be an exception, but "religion" is not what we accept. You cannot be allowed to wear a headdress because "it's your religion", our rules apply to everyone equally.
No. It's not another matter. It's the entire matter. That's my point.
I know what I described is your second option. But I'm deliberately putting the focus on the original rule, because that is where the problem lies.
The rule disproportionately affects people who wear headwear. The rule basically makes that job inaccessible to those whose religion requires headwear. The rule is discriminatory in its effect, even if not in its wording or intention. So the appropriate action is to rethink the rule. If there is no strong reason why the rule exists, and it has these discriminatory effects, then the rule should change.
Oh, I wholeheartedly agree that any rule that infringes on the freedom of expression of people should be able to be challenged and I agree that there are rules that only exist to please old "but in my time people still had manners" people and that those rules should go away immediately. Yet, that's not what the court was asked to decide here. The EU-court doesn't really decide on cases themselves usually, but it gets asked by lower courts to rule on matters of interpretation. So they didn't rule if the "no hats" rule should go, they were asked if such a rule - if it exists - is applicable to religious hats or if the right to religious freedom protects such symbols. So they rule on half-theoretical questions that are often narrower than the case itself.
A little addition:
The "no hats" rule in this case wasn't a "no hats" rule, but a "no religious symbols are allowed to be worn by anybody" rule. The court saw such a rule as justified because it did not discriminate against specific religions or symbols.
And I find that very structure harmful. Because by formulating the question asked of the court in a specific way, then limiting the answers it can give to only that question, you can force these kinds of discriminatory judgements while pretending that that wasn't the point.
The court should be able to say, as part of the ruling, that while exemptions should not be given on religious grounds, justification for rules that are considered to infringe on religious freedoms may be asked for.
We can easily give a reason why discrimination should not be allowed while serving the public, and similarly why antlers cannot be worn in a workshop.
Which is ridiculous because a hypothetical religion could use pants as a symbol of their faith and suddenly pants are banned.
We should absolutely do that! A rule like that is usually just not enforced at best and leads to utter confusion at worst.... idk what the people who made the rule thought they were doing.
They can absolutely do that. The court is not like "Yeah, we know this is bullshit but hey, they omitted that part in their question, so shrug". They ruled that the rule was okay, since the rule itself is not discriminating, since all religions are treated the same. They do absolutely look at the case itself, they will just not issue rulings on the case itself since that
a) is in the jurisdiction of the member state
b) depends on the specific norms of the member state the case was filed in which the EU court just may not know completely (they may be able to rule on the EU-wide laws, but they might not be able to judge how the punishment for someone should be in Spain or something)
So the structure is actually pretty beneficial if you look at the structure of the EU.
Or place reasonable scrutiny. “You can wear yarmulkes but no hair can extend below X location, the same applies for everyone and to head coverings. Also no flowing clothes for similar reasons this is a worksite and safety regulations must take precedence over religious garb”