Anyone who thinks that Britain is the only country where the authorities, in the name of avoiding conflict, refrain from upholding fundamental principles of the rule of law and instead find ways to administer around them should take a closer look at a Danish Supreme Court judgment handed down on 13 May this year.
Last week, I wrote about the British government’s rollback of so-called non-crime hate incidents, under which the police have for decades recorded lawful speech and conduct that someone perceived as hateful. The practice is now being rolled back because it has produced manifestly unreasonable consequences and consumed police resources.
But the thinking behind it remains intact.
We can perform the same trick here in Denmark. Just in a different guise.
When a handshake becomes a matter of principle
A Muslim woman was due to undertake a teaching placement at a school in Albertslund Municipality. At a meeting, she was willing to shake hands with her female placement supervisor, but not with a male supervisor. Her reason was her religious belief.
The school, however, had a clear rule: if you shake hands, you shake hands with both men and women. The requirement was based on the principle of equal treatment of the sexes.
The woman maintained that she would not shake hands with men, the placement was terminated, and the case eventually went first to the Board of Equal Treatment and subsequently to the Supreme Court.
The parties agreed that the school’s requirement to shake hands with people regardless of sex was objectively justified by the legitimate aim of ensuring equal treatment of men and women. They also agreed that the handshake requirement was an appropriate means of achieving that aim.
The remaining question was whether it was also necessary in order to ensure equal treatment.
Six of the seven Supreme Court justices said no.
It sounds almost like a joke.
It isn’t.
Equal treatment or special treatment?
The Supreme Court majority held that the school should have investigated whether the conflict could have been resolved in another way. The woman could, for example, have refrained from shaking hands with both men and women, instead greeting both sexes respectfully by placing a hand on her chest and bowing her head.
And voilà: equal treatment was apparently restored.
Except that the woman’s religious reason for refusing to shake a man’s hand had not disappeared. She did not wish to avoid physical contact with people in general, only with men – because they were men. By also refraining from shaking women’s hands, her outward behaviour could admittedly be made gender-neutral, but the religious belief that had created the conflict remained untouched.
The conflict was therefore not resolved, nor was the fundamental principle of equal treatment upheld. Instead, the Supreme Court constructed a reality on top of it in which the conflict was no longer visible.
And that is rather serious, because these are not two equivalent principles competing with one another.
On one side stands the fundamental secular principle of equality between men and women and a common rule that applies to everyone. On the other stands an individual, religiously motivated demand to be exempted from that rule.
Yet no fewer than six of the seven Supreme Court justices held that the common norm should accommodate the special claim.
In Denmark, shaking hands is a customary greeting and a traditional way of showing respect and acknowledgement. The school’s rule was simple: if you shake hands, you do not distinguish between men and women.
The Supreme Court allowed that common norm to give way to a religious demand for special accommodation.
True, the woman would also have had to refrain from shaking women’s hands. But she did not have to abandon the religious belief that had created the conflict. The institution, by contrast, had to accept that its ordinary rule requiring handshakes regardless of sex could not be enforced against her.
The case is therefore about something far more fundamental than a handshake.
When the rule of law finds ways around its own principles
This is where the Danish Supreme Court judgment begins to resemble the British story of non-crime hate incidents, although at first sight the two cases appear to have nothing whatsoever in common.
In Britain, the thinking behind the recording of lawful speech remains intact, while the practice is being changed because its consequences have become untenable.
In Denmark, the principle of equality between the sexes remains intact in words, while a solution is constructed that removes the need to uphold it when it collides with a religious demand for special accommodation.
The principle is retained in words but not upheld in practice.
A principle of the rule of law does not exist merely because it appears in legislation or because we profess our allegiance to it. It exists as a living principle because society’s institutions are prepared to uphold it when it is challenged.
That is a core responsibility of public authorities.
Citizens must be able to trust that the authorities will protect their fundamental freedoms and uphold the common rules on which a secular democratic society rests – with the courts, and ultimately the Supreme Court, acting as the final guarantor.
If the institutions charged with protecting those principles instead begin finding ways around them, it is not only the principles themselves that are weakened.
Public trust in the institutions is weakened as well.
Britain shows what is at stake
That is one reason why developments in Britain are worth following so closely. Trust in key institutions there is under severe pressure, and the perception that the police and other public authorities no longer enforce rules and rights impartially has become part of the political conflict.
Denmark is not Britain. But that is precisely why we should react when we recognise the same mechanism at work here.
Because in this case it is not a municipal official or a conflict-averse headteacher who has bent a common rule.
It is the Supreme Court – by six votes to one.
Words such as accommodation, inclusion and compromise are almost automatically invested with positive moral value. But accommodation does not become virtuous merely because it is accommodation. What matters is what is being accommodated – and what is required to give way.
That is precisely why we have principles: to ensure that an individual’s wishes, beliefs and interests do not determine which common rules apply.
In the handshake judgment, the Supreme Court failed in that task, allowing the religious rationale to remain untouched at the expense of the common secular rule.
A principle must be upheld if it is to survive
Our institutions are not merely administrators of society. They are the guarantors of the principles and rights that allow citizens to feel secure in the society that is theirs and to trust the authorities that govern it.
No one needs formally to abolish equality between the sexes. No one needs to declare that religion takes precedence. No one needs to decide that the principles of the secular rule of law must give way.
All that is required is to find a practical solution. To show consideration. To administer around the conflict.
But a principle that the rule of law is no longer prepared to uphold eventually becomes nothing more than a principle on paper.
And a state governed by the rule of law whose citizens no longer trust its institutions to protect their fundamental rights has a far greater problem than a handshake.
