European Secularism Has Gone Down the Wrong Path

By Kyle Walker / Originally published March 15, 2017 in the New York Transatlantic

The latest development in European secularism should dismay liberals, conservatives and social democrats alike.

The European Court of Justice ruled yesterday that employers may ban religious symbols at work—as long as they don’t single out particular religions when doing so. An employer may only ban such symbols as part of a broader ban on the “visible wearing of any political, philosophical or religious sign.”1

The ruling endorses a disturbing trend in secularism, one hostile to the public display of religion and blind to its own its own presuppositions. Although the Court was careful to ensure that all religions be equally treated, it has nevertheless created a situation where equal treatment means being treated equally badly. Assuming that employers apply their policies uniformly, the best case scenario here is that all of Europe’s believers lose an equal measure of religious freedom.

Yesterday’s ruling came in the case of Samira Achbita, a Muslim woman in Belgium who had been fired for refusing to comes to work sans headscarf. She began working in 2003 for G4S Secure Solutions, a Belgian company that provides reception services. In 2006, she decided that she wished to wear a headscarf to work. Her managers told her that this would violate an unwritten policy at G4S (later codified) prohibiting the visible display of personal beliefs. G4S wished to maintain a “position of neutrality,” in the words of the court, and the display of religious attire would undermine that position. Achbita continued to wear her headscarf, and G4S fired her for it.2

I want to focus on that “position of neutrality,” because it exemplifies the sort of bad thinking about religion and society on which this opinion thrives. My point will be the following: There is no neutral position. But first read what the court has to say about it.

[T]he desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate. … An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in [the European Charter of Fundamental Rights] … 3

In other words, the preferences of an employer trump even the most timid religious expression. In the name of “neutrality” an employer may enforce a self-evidently un-neutral policy. After all, the lukewarm believers-in-name-only don’t suffer from such a policy. Nor do diehard secularists (that’s me by the way) lose much if they can’t wear “Darwin Rules, Jesus Drools” T-shirts to work. The only losers in such a policy are people of faith. Among them, the particular losers will be Jews, Muslims and Sikhs, whose beliefs require distinctive garb.

The ruling turns on a fallacy. It assumes that forbidding all religious expression is somehow religiously neutral. To believers, that is obviously, even laughably false. The ruling assumes that one style of dress (hair down, tight-fitting clothes) is neutral, while another (headscarf, loose outerwear) is religious. Yet clearly each outfit reflects the wearer’s values.

One cannot achieve neutrality by neutering religious expression. This was the mistake made in France, Europe’s most aggressively secular country, when it banned the conspicuous display of religious symbols in schools. That resulted in such stupidities as a Muslim girl being asked to change because her skirt was too long (i.e., too modest).4 Far from creating a neutral atmosphere for religious expression, policies like these display overt hostility to religious belief. They are reminiscent of a Kulturkampf, an attack by the reigning spiritual ethos (in this case, secularism) on the free exercise of non-conforming groups.

France is broadly representative of that particular strand of modern secularism, one I’ll call “interventionist.” There’s another strand, more in line with the German or American approaches, that I’ll call “liberal.” Liberal secularism would guarantee the individual’s freedom to express his or her religious beliefs as long as it does not interfere with the same right of others. Interventionist secularism would restrict religion to the private sphere—to the church and the home.

The ECJ’s ruling in Achbita’s case belongs to the interventionist strand. Although it does not impose a ban on religious symbols in the workplace, it does grant employers enormous control over the religious freedoms of their employees. For an American, it is shocking to see this come from the European Union’s highest court: European countries have generally been far more protective of employee autonomy than the United States. Consider France’s recent “right to disconnect” law that allows employees to ignore work emails outside work hours.5

European anxiety about Islam seems to be the driving factor here, and we should expect employers to display more concern about the Muslim hijab than the Christian cross. At least the court foresaw this outcome. The judges wrote that any “indirect discrimination”—that is, the inconsistent application of apparently faith-blind rules—would still be illegal. No sending the Muslims home while the Christians walk around with cross necklaces.

But still, even if employers discriminate against all religions equally, they are still discriminating. It’s a shame that Europe’s highest court chose less religious freedom, rather than more.

  1. Jennifer Rankin and Philip Oltermann, “Europe’s Right Hails EU Court’s Headscarf Ruling,” The Guardian, March 14, 2017.

  2. See the case summary in Judgement of 14 March 2017, Achbita v. G4S Secure Solutions, C-157/15, EU:C:2017:203, paragraphs 11–16.

  3. Achbita v. G4S Secure Solutions, paragraph 37–38.

  4. Agence France Presse, “French Muslim Student Banned from School for Wearing Long Skirt,” The Guardian, April 28, 2015.

  5. Amy B. Wang, “French Employees Can Legally Ignore Work Emails Outside Work Hours,” Washington Post, January 1, 2017.