Latest update: July 26th, 2012
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.
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.
About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.
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