AL CAPONE WOULD recognized the tactic. When Hungary introduced a law banning the “promotion” or positive portrayal of same-sex relationships or transgender people in schools, lawyers for the European Commission got to work. Brussels has little jurisdiction over the educational policy of a country. No matter. Just as the Chicago gangster fell for tax evasion rather than racketeering or murder, Viktor Orban’s government found itself on July 15 accused of violating the Audiovisual Media Services Directive on the possibility of broadcasting beyond boundaries, among other laws. Imagine “Les Intouchables” with fewer machine guns and a lot more paperwork.
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The same day, 140 miles from Brussels, another story unfolded. In Luxembourg, the European Court of Justice ruled that European companies were within their rights to fire Muslim women for refusing to take off a headscarf. Such a decision did not violate the EUThe s rules on discrimination in the workplace as long as the rule prohibited all religious clothing and was necessary to stop “social conflict” or to avoid displeasing customers.
In fgeneral, EU the law is supposed to provide a floor. National governments are free to offer higher protection – more maternity leave, say – than the EU minimum. Regarding the bloc’s rules on discrimination at work, EU the judges dug a basement. The decision bends over prejudices for profit, says Martijn van den Brink of the University of Oxford.
It was a curious moment. A law designed primarily to ensure that European television channels are not inundated with American imports has found itself used to stop a Hungarian education law. Meanwhile, the EULaws against discrimination in the workplace offered little protection to Muslim women dismissed for their hairdressing. With regard to minority rights, the EU can be an ally or an accomplice: he can defend them, or he can anchor prejudices.
There was a time when the EU might just ignore such questions. When it was largely an economic bloc, governments could do whatever they wanted beyond the EUnarrow skills. Now the EU covers the whole gamut of European life, from money in an Italian’s wallet to the limits of religion in the public sphere and the treatment of homosexuals. Everything is everyone’s business.
This has political consequences. At a recent summit, EU leaders lined up to attack Mr Orban’s anti-gay bill. Dutch Prime Minister Mark Rutte told Orban that Hungary should leave the EU if it passes such laws. Normally, Hungarian domestic politics would not wake up a Dutch prime minister. But more money at EU level means more money distributed to the poorest countries. Dutch taxpayers are footing the bill for Hungarian bigotry, which means Dutch politicians now care intensely. Punishment blows will continue until morals improve.
The EU is, after all, a tool. It obeys the orders of its political masters, which are national governments and, ultimately, European voters. For homosexuals, it has been positive. Since the turn of the millennium, their fate within the EU has improved markedly as the old views have changed. Where only a few Member States allowed civil partnerships twenty years ago, most do now. Countries with once deeply homophobic laws, such as Ireland, where homosexual sex was criminalized until 1993, have caught up. While progress has been much slower in Eastern Europe, actively retreating countries like Hungary and Poland are outliers. By aggressively pursuing Poland and Hungary, the EU institutions are blown by political winds.
They don’t always blow in a liberal direction. During the same period, countries cracked down on religious clothing. France has led the way by banning religious articles for public sector staff in order to uphold the state’s strict secularism. Although it applies to all religions, this decision hits the country’s Muslims the hardest. Other countries have followed suit. Now, a third of EU countries have rules prohibiting the burqa or headscarf in certain circumstances. Britain, the biggest proponent of a multicultural laissez-faire approach, left the EU. (When Boris Johnson wrote a column ridiculing some Muslim women like letterboxes, it was to defend their right to dress as they wish.)
A particular view – that a company has the right to fire someone for wearing a headscarf or kippah – is now entrenched in EU law, thanks to the club’s highest court. The commission could intervene, by proposing to toughen the law or by adopting the Capone approach. He doesn’t want to do it. Some think it’s just too controversial to try; others believe that the French approach is better than the Anglo-Saxon approach. Just like the EUThe institutional power of has now swayed behind gay rights, as it follows the trend in religious clothing, leaving Muslim women, Jewish men wearing kippahs, and turbaned Sikhs in awe.
Platitudes or a punch
Such fights will become more frequent. Across the club, European politicians are talking more and more about “European values”. Before, they reported platitudes. European values boil down to democracy, human dignity and the long holidays in August. Now they are reporting punch-ups. All EU government that tramples on gay rights can expect a political attack and a bureaucratic beating. Depending on who you ask, allowing companies to fire workers for religious protests is either a defense of European values or an affront to them. The EU decided it was the first.
Unlike the problems of its usual economic domain, these are not policies where one can divide the difference. Disputes in the EU are usually solved by money and bargaining. More lenient regulation of an expensive industry here, the removal of a veto there and a bag of European subsidies for a bag of votes. As the EU addresses questions of identity, these problems are less solvable. EU institutions have to choose sides, someone has to win and someone has to lose. ■
This article appeared in the Europe section of the print edition under the title “The Rights and Injuries of Minorities”