Just How Much Religious Freedom Should Canada’s Courts Permit?

There’s no place for courts in the churches and temples of the nation. But as religious clashes and violence become all too common – from York University to the offices of Charlie Hebdo – lawmakers are being forced to consider just how accommodating religious freedom should be

Supreme Court of Canada Ottawa 750wideImagined you’re enrolled in an online university course. The classroom is virtual but interactive, requiring you to read articles, post reports, and engage with the other students and the professor. And while your classmates are scattered across a large geographic area, you feel part of a community—one where you can learn while you’re in your slippers. Once during the term, you are required to gather with your study group, in person, at a weekend retreat. You look forward to this.

But then something strange happens. The professor explains that a male study group member claims that his religion forbids him to sit with the women in the group. The student has asked to be exempt from the retreat.

How would you react? Would you be glad not to have to face someone with those beliefs? Disappointed that a university student could have such unenlightened views? Or furious because the student is able to shirk responsibility based on a bizarre and outdated view of gender relations?

When this happened at Toronto’s York University in 2012, the professor and most of the students in the course were outraged. Not only did they think the student’s behaviour discriminatory, but no one could point to any religion forbidding male and female university students to work together. Feeling confident that he would be supported in refusing the student’s request, the professor sought advice from university administrators.

What they said shocked him. The university’s position was that the student’s request should be honoured. It relied on a Canadian legal doctrine that says religious freedoms need to be accommodated. The professor and students remained indignant. The university’s official position never wavered, however, because it was in no position to judge the validity of a student’s religious views. It may seem otherwise, but we’re lucky to have laws that supported the university in this case. They’re the reason such disputes are resolved peacefully.

Religious clashes like these are becoming all too common in the west—sometimes playing out as small incidents in classrooms and workplaces, sometimes as singular and tragic events. In the past few years we’ve seen violence erupt over the publication in Denmark of cartoons depicting the prophet Mohammad; growth of a “new atheism” literature, claiming the irrationality of religious belief; a proposed Charter of Values in Quebec prohibiting the wearing of conspicuous religious symbols; and the massacre of Charlie Hebdo staff in Paris by Muslim fanatics.

For the most part, Canada’s broad and open immigration policies, multiculturalism, increased diversity and pluralism have given rise to an amazing social and cultural mosaic, but they have no doubt also contributed to flashpoints like the one at York. Accommodating religious beliefs can be very complex, partly because of the nearly infinite ways in which religious beliefs are manifested. The Supreme Court of Canada’s test for assessing whether something is religious is wide open. To meet the test, all one need do is show that a practice, such as not working face-to-face with female students, is connected with a higher purpose. The subjectivity of the belief is what’s interesting here: no one has to cite scripture or refer to religious experts to support their position. A religion is pretty much one’s own. All one need do is assert, in good faith and sincerely, that a particular practice or belief has a nexus with religion. That, the Supreme Court says, is sufficient.

Courts are secular institutions—there is no place for them in the pews of the nation.

It’s not a difficult burden to meet. Gurbaj Singh, a Sikh student in a grade school in Quebec, was allowed to attend school wearing a kirpan—a religious and ceremonial dagger—because he claimed it was part of his religious practice. Non-Sikhs, in contrast, aren’t allowed to carry knives. The Supreme Court found that all Singh had to do was establish that his personal and subjective belief in the religious significance of the kirpan was sincere. He didn’t have to establish that a kirpan isn’t a weapon or that Sikhism requires wearing one.

The reasons for treating freedom of religion subjectively are practical and principled. Courts are secular institutions—there is no place for them in the pews of the nation.

But this subjective approach brings potential challenges. No one can say my belief—however unusual or even socially disruptive it might seem to others—isn’t valid. There needs to be sincerity in that belief, and some connection to a basic idea of religion (related to the divine, or spiritual faith), but nothing more than that. So the York student fervently believed his religion didn’t allow contact with women (at least in a student setting). He was sincere in that belief (at least initially; he later recanted in some way, since he ended up attending the weekend session). The university accepted that belief and determined that the only reasonable accommodation was to grant him dispensation from the weekend retreat.

When accommodation doesn’t occur, the results can give rise to a different set of problems. In February, Quebec Judge Eliana Marengo refused to hear Rania El-Alloul’s testimony because El-Alloul was wearing a hijab. Like the York incident, the outcry was swift, and the positions of each side quickly became entrenched. For El-Alloul, religious freedom meant that a hijab should be acceptable attire pretty much anywhere. For Marengo, establishing a measure of respect in the courtroom is part of a judge’s authority over controlling the court, and entitles her to set rules related to decorum and dress.

For me, the Quebec courtroom case is far from morally equivalent to the York case. Unlike the professor and other students who felt discriminated against by the exemption-seeking student, it is hard to imagine that the judge would feel discriminated against. Rather, it seems to be no more than an exercise of power. Why couldn’t the judge accommodate? It isn’t going to lessen her authority to have one witness wear a headscarf. Marengo comes across not as a wise sage, but as tone deaf to the Supreme Court of Canada’s pronouncements on the subjective nature of religious belief. And in the end, justice was not served by her decision.

No doubt accommodation, which allows difference to flourish, may sometimes seem unfair to those who must do the accommodating (and even discriminatory to those who are not offered the same treatment). Those feelings can be hard to shake, as attested by the York professor and students. But accommodating religion is one legal method we use in Canada to ensure society remains uninterested in religious beliefs. The Quebec judge missed the point. It’s a necessary paradox—by vigorously maintaining reasonable accommodation of religious beliefs, we actually protect the secular nature of our state. Maybe our relative peacefulness—our lack of killings over cartoons, for instance—isn’t just luck after all. We’ve stacked the deck a little by aligning the law with an ideal but practical kind of justice. And I thank god for that.

This story is from the spring 2015 issue of Eighteen Bridges. Like what you read? Subscribe here.

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