Reconciling the Law

In the eyes of our British cousins, American courts are Bible-thumping and reactionary, often by a vote of five to four, while English courts are uniformly pragmatic, reasonable, and incorruptible. Three recent English cases would seem to reinforce this perception:

• An employment tribunal ruled that a Church of England bishop violated the rights of a male homosexual who had applied for a job as a Church youth worker. The prelate had probed the applicant's past sexual practices as bearing on "the spiritual, moral and ethical leadership within the diocese." The tribunal refused to apply religious exemptions allowed by the Employment Equality (Sexual Orientation) regulations. The court is considering damages against the diocese.

• The High Court ruled that Millais School in Horsham, West Sussex, was within its rights in forbidding one Lydia Playfoot, age 16, from wearing a small "chastity ring," the talisman of the evangelical Silver Ring Thing chastity movement in America, to declare her commitment to remaining a virgin until she married. The Court ruled that the "chastity ring" was not a proper manifestation of her faith and ordered Ms. Playfoot's father, a minister, to pay nearly $40,000 in court costs — in England, the loser pays the winner's legal fees. Millais School permits Muslim students to wear headscarves but not hijab or full face veils. The father, Reverend Phil Playfoot said, "this country is tolerant of any views except those of Christians."

• Bearing out Rev. Playfoot's accusation of excessive tolerance of minority religions, another High Court ruling saved a tubercular bull from death holding that the slaughter would infringe on the human rights of Hindus to practice their religion. Among Hindus, the cow is sacred. The Court of Appeals understandably reversed the ruling and ordered the execution to proceed in keeping with agricultural safeguards enshrined in English law for generations. Can the three English cases be reconciled? Or, as Mr. Bumble put it, do they stand for the venerable proposition that the "law is a ass"? We wonder.

No one can assess how these cases would have been decided in America. Here, we have seen a smattering of lawsuits against schools that would impose uniform requirements on their students in the tradition of the English public school. All have been unsuccessful. It is unexceptionable that there is no constitutional right to dress as one pleases in a school regime.

In England, the subtext for the "chastity ring" case is the red hot issue, stemming from recent waves of European immigration from the Islamic world, as to how a democratic society is to accommodate the practices of an unassimilated minority.

In Britain, controversy still rages over the full-face veil worn by Muslim women, a hijab, in school, the workplace, or other public venues. Is Ms. Playfoot's chastity ring, like a hijab, a manifestation of a religious tenet that the courts must protect from interference or the assertion of a kind of unpopular expression that may be curbed in appropriate circumstances?

When the former foreign minister of Britain, Jack Straw, suggested that Muslim women take off their veils in public places, he provoked anger from Muslim leaders who found his comments "offensive and disturbing." Mr. Straw said he saw a hijab as a "statement of separation and difference" making community relations more difficult. We wonder whether Mr. Straw would have the same reaction to Sikh turbans, skullcaps, or large crucifixes — all arguably "statements of separation and difference."

And then there are the French. France, perhaps because of the secularism stemming from its revolutionary background, has enacted its own "law against the veil," which bans any sign or dress in its public schools that "ostensibly manifests" the religious beliefs of its students. In other words, Muslim students must uncover if they want a French education. Islam is France's second largest religion.

When the grandson of Winston Churchill prophesied in 1993 that in 50 years "the muezzin will be calling Allah's faithful to the High Street mosque" for Friday prayers in preference to "spinsters … cycling to Communion on Sunday morning," he was savaged in Parliament as "putrid and racist," and the government castigated him for "damaging race relations." But this was well before the July 7 London subway bombings and the recent events in London and Glasgow.

When, also in 1993, the Catholic Archbishop of Toronto, Aloysius Amrozic, lamented that, "I'm afraid that Europe is going to be overwhelmed again, not by military conquest, but by immigration from the Arab countries," he riled multiculturalists. Today, these dire predictions might be taken more seriously in some quarters where perhaps the cauldron of a Muslim backlash is briskly simmering.

Thus far, however, the English courts have been unbending in applying the law without taking a position on the underlying cultural issue. American courts, however, have not been so neutral. In Justice Scalia's moralistic dissent in Lawrence v. Texas, the 2003 gay rights case in which the Supreme Court struck down the Texas sodomy law, he chided the majority for having "taken sides in the culture war" and then appeared to take sides himself by noting piously that, "many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle they believe to be immoral and destructive."

Courts on both sides of the Atlantic are supposed to, among other things, curb the excesses of the majority. But, is there a constitutional right to express the ideas that society hates? The answer is, it depends.

The issue really is not whether the courts are to make moral judgments on the issues of the day, but, as Justice Scalia neatly put it, to "exercise their traditional role of assuring, as neutral observer that democratic rules of engagement are observed." As Oscar Wilde said, "morality is simply the attitude we adopt towards people whom we personally dislike."

The modern multicultural society congregates around a commitment to the shared principles inherent in the rule of law — not necessarily the moral vision of a common religious belief. These values can often be at odds. "O the times, o the customs!" as Cicero expressed the frustration to the Roman Senate in 63 BC.

Mr. Zirin, a trial lawyer in New York who frequently writes on issues of British and American law, is a co-host of the cable talk show "The Digital Age."