Are NYC's Anti-Discrimination Laws Discriminatory?

Mayor Bloomberg may be a national advocate for gun control, but New York City has become the leading advocate for the right to bear arms — well, the right to show bare arms, anyway. The city’s Commission on Human Rights recently filed a lawsuit against several Hasidic Jewish business owners in Brooklyn for posting signs that ask customers to dress modestly. The business owners argue that the policy reflects their sect’s religious tradition of modest attire. The city, however, interprets the policy as a blatant act of gender discrimination.

In truth, all the controversy really shows is that non-discrimination laws are open to distortion and that society needs more laws like Kentucky's Religious Freedom Act to protect religious minorities from overzealous regulation.

The current controversy arose when several Hasidic Jewish businesses, in accordance with their religious beliefs, posted several signs that read: "No shorts, no barefoot, no sleeveless, no low-cut neckline allowed in this store." Believing that women dress more risqué than men, the city has interpreted the signs as "pretty specific to women" and, therefore, a violation the city’s public accommodation law, which prohibits stores from discriminating between customers.

The city’s interpretation seems a little rash. The language on the signs is facially neutral. It expects the same type of modest dress from both men and women. More to the point, there is no evidence that the stores enforced their 'dress code' discriminately. Indeed, there is no evidence to suggest that the stores enforced the signs at all. The city could not offer a single instance in its complaints of a customer being denied service because of the way he or she dressed. Thus, the signs seem better understood as a plea to customers to respect the proprietors’ religious values than as a bar on customer service.

Prosecuting Jewish business owners, then, will not remedy a great injustice imposed on female patrons. It will, however, inflict a great injury on religious business owners, who wish to create a commercial atmosphere that reflects their religious values.

Non-discrimination laws add to an already heavy burden religious individuals face when entering the market. The expansion of the state has led to a growing number of occasions where public policy brushes against the religious beliefs of business owners (ie. the HHS contraception mandate). Instead of trying to reasonably accommodate these beliefs, the government has demanded that religious professionals bow down to the 'greater' wisdom of state morality. The result is an arrangement where religious individuals risk losing their right to freely exercise their beliefs in order to pursue a livelihood. No exception is made for controversies where, as here, the benefit gained is negligible to the burden imposed.  

This way of thinking poses a dire threat to religious minorities. As I've written elsewhere, conflicts over religious morality and state policy can arise in a library of unrelated vocations. Non-discrimination laws are no different. Already the state has pursued litigation against t-shirt makers, florists, photographers, hotel owners, restaurant managers, bakers, lawyers, and caterers, all because the owners’ religion demanded that they in some way limit their professional services. Thus, absent legislatively-enacted conscience protections, religious professionals can easily find themselves excluded from entire segments of the market, lack of injured patron notwithstanding.

Minority religions are particularly affected. Unlike larger denominations, minority religions have less political recourse. They lack the number of votes necessary to induce politicians to take up their cause, and they often lack the financial capital to organize a legal defense against unnecessary and distorted enforcement. As a result, non-discrimination laws can lead to a perverse result, where instead of opening up the market to minority consumers, they close the market to minority entrepreneurs. It’s a failing that needs to be addressed by legislative reform.

Kentucky’s Religious Freedom Act proposes to do just that. Although criticized by several civil rights groups, the Act attempts to pressure local governments to give equal respect to the liberty interests of religious professionals. Specifically, it would prevent the government from "substantially burdening" a citizen's right to "act in a manner motivated by a sincerely held religious belief."

That is not to say the state could never regulate over a religious practice if a compelling reason presented itself. It simply means that the state would be required to show an actual and severe injury before it dismissed a cherished right. No longer could a municipality prosecute storeowners for merely requesting that patrons respect their religious values. It adds a degree of reasonability into the state’s calculation — a reasonability that helps to ensure that religious minorities can pursue a livelihood in accordance with their values.  

Non-discrimination laws are driven by a laudable purpose, and few would dispute that. They work to ensure that disfavored minorities have access to goods and services. But it is just as important that religious minorities have full access to the market as well. Religious minorities have the equal right to pursue a livelihood in accordance with their faith. States should seek to protect them from overzealous regulation whenever possible. Kentucky’s Religious Freedom Act is one way to do just that. 

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Kathleen Hunker

Kathleen Hunker is a classical liberal obsessed with law, politics, and constitutionalism. She is a graduate of Columbia University School of Law and has an LL.M. in Public Law and Human Rights from the University College London. Kathleen is the editor-in-chief of TheBellTowers.com. She has been published by Townhall.com, Ethika Politika, and the Harvard Journal of Law and Public Policy. A specialist in comparative constitutional law and natural rights, Kathleen currently works in Texas as a policy analyst and managing editor.

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