Photo Credit: CBS News screenshot
Williamsburg storefront sign bans immodest attire.

If a snooty restaurant can require that men wear dinner jackets in order to be served, is it okay for shopkeepers to require its customers to wear modest attire?  That’s the kind of question being debated in the Williamsburg section of Brooklyn, these days.

Restaurants with a “no shoes, no service” rule have been commonplace for years.  That rule is partly for health purposes, but it is also partly because many people are turned off by seeing someone else’s bare feet when they eat.  If someone is barefoot and hungry, they’ll just have to go to a different restaurant and no one thinks about raising claims of discrimination.

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But for some reason the ban by certain Orthodox Brooklyn shopkeepers on customers’ cleavage and bare shoulders has raised the ire of some local consumers, and confused the general public and even law professors concerning permissible limitations on public attire.

One of the complaints is that the stores with the dress codes serve lots of people, not just Jews.

“Religious freedom is one thing, but we do not have the right to enforce our beliefs on someone else,” one local resident claimed.

Another added, “Why should they be able to say that on their signs?  It’s not OK.”

Actually, it is.

So long as the shopkeepers are only telling you what you cannot do in their store – in other words, not requiring you to change your own lifestyle to conform to their own – the shopkeeper has wide latitude about what can be required of customers.  And it isn’t as if the Brooklyn dress codes require customers to follow the religious practices of the storeowners.  There is no prohibition on women wearing pants, for example, nor is there a distinction made between men and women – the discrimination is appearance-based, not gender based.

Marci Hamilton teaches Constitutional Law at Cardozo Law School.  Presumably she knows the difference between discrimination imposed by the government – which is virtually always verboten – and restrictions imposed by private actors, such as shopkeepers, on their personal property, which is almost always permissible, so long as not overtly discriminatory.

When asked to comment on signs hanging in Brooklyn shop windows that state: “No Low Cut Neckline Allowed in the Store,” or “Entry here in modest dress only,” Hamilton bristled.

According to an account in the New York Post, Hamilton referred to the Orthodox dress code as a form of “Balkanization” of the United States.  She said, “It’s no longer sufficient that [the Orthodox] have shared norms among themselves, they are increasingly trying to impose their norms on the rest of the culture.”

UCLA Constitutional Law professor Eugene Volokh, however, points out that there is no constitutional clause against Balkanization.  “Indeed, it is perfectly legal and a part of American tradition that certain communities in the United States prefer to interact primarily within their own parameters, the Amish, for example.”

For Volokh, so long as the dress code applies equally – and it need not even be applied exactly equally – and doesn’t single out people of a certain race, color or gender – there is nothing unconstitutional about the dress codes.

“There are still plenty of fancy restaurants in New York City that require men wear jackets, aren’t there?” Volokh asked.  “What’s the difference?”  In fact, a quick check reveals the famous 21 Club in Manhattan prohibits sneakers and jeans, and dinner jackets are required for male patrons.

Nonetheless, Hamilton maintained, “There’s a movement toward insularity among religious groups.  It’s dangerous for tolerance, and it’s also dangerous for peace.”

The dress code requirements of Orthodox shopkeepers may be dangerous for their own bank accounts, but it’s hard to understand how such standards could endanger peace.

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19 COMMENTS

  1. The Russian Tea Room in NYC has ties on hand, and maybe even jackets, for male patrons who don't arrive wearing them. In Israel I went to a synagogue where my friend was given a piece of old shmata to wear because her knees were showing. There are actually rules like this all over the world. I just try to carry a pashmina with me in case of emergencies. However, I think that if someone is clean and wearing clothes that should really be enough.

  2. It's a private business, the rule is legal but, since I don't like to be told what to wear, I won't patron it (and I'm a practicing Jew who dresses modestly).

  3. Right or wrong the shop owner does have this right–what shop owners do not have is the right to contravene the US constitution–even though some states have upheld their so called right to do so–but in this case the constitution was not violated!

  4. The New York Post turned this story into their typical incitement against the Orthodox Jewish community.If somebody doesn't like it they can shop elsewhere.It really is a non-story but the NYPOST is now at war with our community and especially the Chasidim.Not a week goes by without some type of libel or exaggerations.I have seen almost no reaction to the now weekly attacks in a formerly friendly newspaper.

  5. That is correct. Store owners should be allowed to serve or not serve whomever they want, just as long as they make it clear from the start, such as posting a sign to indicate it. I say the same thing for hiring people as well. This is America, not North Korea.

  6. The *Post* is a newspaper that promotes licentiousness and immodesty. But since it has a politically conservative editorial policy, it gets a pass from people who should know better.

    The owners have the right to impose whatever standards it wants, as long as it does not discriminate. I support them.

  7. The Post has changed in the last few years and no longer has a politically conservative editorial board.Times have changed in the last three years and not for the better.

  8. I'm Israeli, living here in the city. I totally agree that a business proprietor has the right to demand dress code in his business, so long as it does not discriminate against a specific group of people. I think the guys over in Williamsburg are well within their rights in this respect, and whoever is burdened by having to wear long sleeves on their hands or legs should just skip the business and use another.

    HOWEVER – I admire the quick and vehement response the American government as well as the American public always have against discrimination of any kind. I think if there is one thing to learn from the U.S it's the uncompromising fight for personal liberty. Israel, where women are told to sit in the back of buses by Hassidic passengers, for example, has a LOT to learn in this respect. In Israel, the sign would have been directed solely towards women. At least here they enforce their dresscode on everybody equally – And I respect that.

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