Frum dress codes v. human rights?

By Jonathan Mark

New York Jewish Week

For years, the modest dress of Satmar chasidim, and their request that visitors dress in kind, was seen by some non-Jews as Amish-like charming, by some liberal Jews as annoying or religious bullying, and within their own Satmar world as a gentle way to bring holiness to something as ordinary as the length of a sleeve or socks.

What chasidic modesty has never been called in the United States is illegal, a violation of human rights. But New York City is now saying exactly that, filing charges against seven chasidic store owners in Brooklyn for modesty requests that have allegedly gone too far. Any chasid who doesn’t want to pay fines of several thousand dollars can tell it to a judge in June.

Despite no one claiming they were denied service, the city’s Commission on Human Rights has served papers alleging illegal discrimination by seven chasidic shopkeepers on Lee Avenue, the main Satmar strip in Williamsburg, for posting, or allowing to be posted, signs near the doorway informing customers: “No shorts; no barefoot; no sleeveless; no low cut necklines; thank you.”

Satmar chasidim are sometimes seen as “the Jews” of the Jews, a people that dwells alone, but they are hardly alone as their court date approaches. The case has become a First Amendment battleground, and the Lee Avenue Seven are being supported with legal advice from the Jewish Community Relations Council and the American Jewish Committee. The JCRC approached Jay Lefkowitz to take the case and he immediately agreed. Lefkowitz is on the management committee of the Kirkland & Ellis law firm, which accepted the case pro bono. Lefkowitz brought in one of their leading associates, Devora Allon. Lefkowitz, who worked in President George W. Bush’s administration in various domestic policy posts, has had prior experience in human rights cases, some far from Brooklyn, having been the American envoy on human rights to North Korea.

“From Kirkland’s perspective,” said Allon, “this case has important implications for religious rights and freedom of speech. There are worthwhile issues to litigate here.”

Additionally, The Becket Fund for Religious Liberty, the Washington, D.C., firm specializing in First Amendment religious issues, the largest such firm in the country, is monitoring the case and told The Jewish Week that “it wouldn’t be out of the question” for Becket to offer assistance “if the case proceeds. We often get involved at the appellate stage.”

Cliff Mulqueen, deputy commissioner and general counsel for the Commission on Human Rights, explained the city’s case: The seven stores—a printer, two grocers, a bakery, a luggage store, a hardware store and a clothing store—“posted a sign that basically indicated that customers had to obey the Jewish laws of modesty.”

How different is that from fancy restaurants that have a dress code? “Dress codes are OK,” said Mulqueen. “Telling someone to wear a jacket is saying we want a certain kind of clientele here; we want to project a certain image. It has nothing to do with a protected class. Whereas telling someone they have to abide by certain rules of the Jewish faith crosses the line into [establishing] a protected class. You can’t post a sign that makes someone’s patronage appear unwelcome. That’s what the law says.”

In fact, the swank Union League Club in Manhattan posts its own modesty signs: “Traditional business attire, jacket and tie for gentlemen and equally formal attire for ladies,” is required on most days. “Denim, sneakers, athletic apparel of any description, or immodest attire are never permitted,” or service would be denied.

The Becket Fund’s deputy general counsel, Eric Rassbach, said by telephone, “How is it discrimination and a human rights violation when the request is made by a poor chasidic Jew but perfectly fine if posted in an upscale establishment? You may disagree with what an owner of a restaurant or business wants you to do, but disagreement is not discrimination.”

Has anyone been denied service by these chasidim? “That’s not relevant,” said Mulqueen. “That would be a separate cause of action, of discrimination, if they actually turned people away.”

The Lee Avenue case rests more on discrimination based on “creed” than on gender. “It is arguable,” said Mulqueen, “whether these [modesty signs] apply to women, or to both men and women.”

If anyone was being discriminated against, said Rassbach of the Becket Fund, it was the chasidim, and it was City Hall that was doing the discriminating.

Marc Stern, general counsel for the American Jewish Committee, agreed: “We know of no evidence of discrimination by any of the store owners,” said Stern. On the other hand, “there’s lots of evidence of discrimination by the City Commission on Human Rights, which seems to stereotype chasidim.”

Jonathan Mark is associate editor of The New York Jewish Week, from which this article was reprinted by permission.