When the European Court of Justice (ECJ) ruled last month on the legality of companies that barred observant Muslim women from wearing the Muslim headscarf (hijab), I was reminded of the words of an American lawyer, made famous almost five decades ago. Leon Jaworski, the special prosecutor during the infamous Watergate scandal that eventually brought down then US president Richard Nixon, once said: “When dictators and tyrants seek to destroy the freedoms of men, their first target is the legal profession and through it the rule of law.” It’s a stern warning and one that bears remembering today.
The ECJ is the highest court in the EU. Its rulings earlier in July affirm the power of the state over individual freedoms, particularly a person's right to the freedom of religion.
Different European courts in different jurisdictions have circumscribed the niqab, often under the claim of upholding security; French courts have circumscribed the hijab in schools and public offices, under the claim of upholding "secularist" spaces – and there have been arguments about all those cases domestically. But this case goes even further.
The ECJ upheld a decision from a German court that companies can ban headscarves at the workplace to uphold a "neutral image". Consequently, Muslim women who insist on wearing their religious attire can be suspended or even dismissed from work.
It is a striking ruling, the disquieting nature of which goes beyond this case. It says something about the inability – or unwillingness – of Europe’s most senior legal institutions to stand on legal principle against the baser tendencies in a particular social environment.
In a society, when bigotry against a minority becomes almost common, members of that minority can be aided by one of two avenues. The first is political leadership; political figures could rise, insist that bigotry is unacceptable and demand change.
The second avenue is the hope that the law itself will hold the line and reject the arguments that give rise to such rulings. And while it might not necessarily force good relations between people, it will reject unethical treatment of the minority.
When it comes to political leadership, too much of the western political elite has been silent on anti-Muslim bigotry. Worse, in some cases, politicians have even thrived from it. Anti-Muslim bigotry is a vote-getter; the propagator of it is all too often rewarded with more popularity, not less. And such mainstreaming of far-right anti-Muslim sentiment has been extending deeper into our societies in the West for many years. To support this, there has been research about the mainstreaming of Islamophobia in different parts of the West and beyond. None of this is news and yet, it hasn’t caused sufficient pause.
On the contrary, what was seen in the ECJ’s ruling is a different kind of mainstreaming altogether, and it could be the worst kind of all. Ironically, the Council of Europe itself had warned of anti-Muslim hate speech only days before the July ruling.
But the ruling has taken things to another level. The implication is that a Muslim women who chooses to wear a headscarf, in observation of a mainstream Islamic practice, without the slightest impact on anyone else, is not protected from bigotry or discrimination.
We should be clear: there was no sacrosanct legal principle that was relied upon in this ruling, and nothing justified it. On the contrary, the ruling went to great lengths to deconstruct an overriding principle itself – namely, the freedom of religion.
Indeed, the court admitted that such bans could count as "discrimination", but justified that discrimination if it was based on "neutrality"; a concept that is subjective and has no basis in law. Nor did the court see it necessary to provide an objective definition of "neutrality" because it would appear that this is simply the enablement of anti-Muslim bigotry, with the term "neutrality" allowing for such trampling of individual freedoms, particularly ones that relate to the freedom of religion. All that, while using the law as a shield.
If the ECJ were to apply this interpretation of "neutrality" to other religious groups – or women, or ethnic minorities – it would be rightly decried as discriminatory on multiple levels. The concepts of impartiality and neutrality mean being fair, just and ensuring different parts of society are treated equitably.
But in this case, the ECJ has been incredibly partial. Worse, it has given succour to some far-right politicians, who openly celebrated the ruling. And that, alas, is the point. The court is meant to be above political discourse. It is not meant to be swayed by populist rhetoric about Muslims in Europe. But it is hard to see this ruling as anything except upholding the impact of the mainstreaming of bigotry in our political arenas and allowing it to seep into our judicial ones.
Aristotle once said: “Law is order, and good law is good order." One could also say, bad law is bad order – and this latest ruling is most certainly a bad law. The precedent has been set at the highest court of the EU and it will take a lot of hard work, political leadership and legal fortitude to repair.