Compulsory Diversity
One of my hobbyhorse issues is the erosion of the right of association. For as long as I’ve been alive, the right of association has been under steady and subtle assault. The ObamaCare legislation, for example, has all sorts of rules that make life more difficult for the religious to be religious by limiting association.
Businesses, for example, are required to pay for things that are against the religious beliefs of the owners. In effect, the owner is now required to hire people that hate him and he has to subsidize their efforts to destroy his religion. In a sane world he would simply refuse to hire people his religion found unacceptable.
But, it’s not just the crowding out of liberty that is the inevitable result of limits on association. We accept all sorts of limits on liberty as long as the trade-off is acceptable. Prohibitions on speech, for example, are welcomed by fee societies in order to buttress public morality. We don’t allow men to copulate with their sisters because we don’t want a bunch of pinheads running around. Public policy is about trade-offs and we often trade away a little freedom for something we find beneficial.
The big issue for me is the irrationality of ceding our right of association to a central authority. This case before the court is a good example.
Justice Samuel A. Alito Jr. on Wednesday warned that “this is going to sound like a joke,” and then posed an unusual question about four hypothetical job applicants. If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab and a Catholic nun wears a habit, must employers recognize that their garb connotes faith — or should they assume, Justice Alito asked, that it is “a fashion statement”?
The question arose in a vigorous Supreme Court argument that explored religious stereotypes, employment discrimination and the symbolism of the Muslim head scarf known as the hijab, all arising from a 2008 encounter at Woodland Hills Mall in Tulsa, Okla.
Samantha Elauf, then 17, sought a job in a children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.
The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” The desired look, Justice Alito said, was that of “the mythical preppy.”
Ms. Elauf recalled the experience in a statement issued after the argument.
“When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion,” she said. “I had worked in two other retail stores and was excited to work at the Abercrombie store. No one had ever told me that I could not wear a head scarf and sell clothing.”
“Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith,” she added. “This was shocking to me.”
Putting aside the fact this Muslim woman is a liar, why in the world should anyone be required to accommodate her religious beliefs? More important, why should this be a court matter? The court is wholly unequipped to adjudicate these matters. The judges are not businessmen and they have no way of knowing if this company’s dress code is good business. They have no way of knowing if this woman is just a nut causing trouble.
Ms. Elauf, now 24, works at an Urban Outfitters store in Tulsa. A spokeswoman for the Equal Employment Opportunity Commission, which sued Abercrombie on her behalf, said Ms. Elauf was declining interview requests.
A spokesman for Abercrombie & Fitch, Michael Scheiner, said the company “has a longstanding commitment to diversity and inclusion, and consistent with the law has granted numerous religious accommodations when requested, including hijabs.”
The Supreme Court on Wednesday seemed sympathetic to Ms. Elauf’s position, which is that she should not have been required to make a specific request for a religious accommodation to wear a hijab. The company’s position is that it should not have been made to guess that Ms. Elauf wore a head scarf for religious reasons.
In response to Justice Alito’s question about the four hypothetical applicants, Shay Dvoretzky, a lawyer for the company, conceded that some kinds of religious dress presented harder questions, but he said the court should require applicants to raise the issue of religious accommodations.
Several justices suggested that an employer should simply describe its dress code and ask if it posed a problem. That would shift the burden to the applicant, they said. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.
This is the problem created by the state’s encroachment on our freedom of association. It turns all of us into lying weasels. Most American companies know that is not a great idea to hire Muslims to deal with the public. They should be able to not hire Muslims or Hindus or Gingers or whomever. Ms. Elauf would be faced with a choice. She can assimilate or head back to the home country. In other words, she would retain her freedom of association and the business would retain its right to hire as it sees fit.
Instead, the state tries to craft more and more laws to meet every possible condition. Assortativity, the natural inclination of human beings, therefore requires everyone to come up with clever ways to dodge the rules. In response, the state comes up with ever more rules that are often in conflict with other rules. We now live in a country where a Christian store owner is prohibited from exercising his religious inclinations, but must allow his employees to advertise their religious affiliations in his place of business. That’s simply madness.
That’s ultimately the problem with all of this. It is fundamentally at odds with human nature and it is riddled with internal contradictions. Worse yet, it fosters a subtle hostility between people, forced together against their will by rules that make no sense. As the saying goes, things that cannot last eventually end. In the case of crackpot social engineering schemes, the end tends to be very messy.
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