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Monday, September 03, 2007

Of Kirpans and Jilbabs... A Minority Report

Eighteenth-century English jurist William Blackstone said, “The law is the embodiment of the moral sentiment of the people.” The manner in which a society treats its religious minorities equally speaks about the value that society places on religious liberty.

The accommodation of religious minorities is a significant canary in the mine shaft. In recent times, the Western world’s record in this regard has been inconsistent at best. One immediately recalls France’s ban on religious symbols and clothing in its schools. Other than a fear or discomfort with the unusual or unattractive, how can a society that values individual freedom embrace such bans?....

On the one hand, standards that protect the lives and safety of people in the community are laudable. On the other, some of these standards go beyond that, communicating a refusal to accommodate cultural or religious differences. For example, one of the standards states that “children cannot carry any weapons … symbolic or not.” On first blush, that makes perfect sense. Why should students be armed?

Gurbaj was initially successful, but lost on appeal. He then appealed to the Supreme Court of Canada. The Court acknowledged that freedom of conscience and religion as guaranteed in section 2(a) of the Charter of Rights and Freedoms can be limited when a person’s freedom to act may cause harm to or interfere with the rights of others. However, the Court reiterated prior decisions that required the state to justify any restrictions on freedom of religion it has chosen.6

The Court was convinced that Gurbaj Multani, an orthodox Sikh, sincerely believed that he was required to wear his metal kirpan at all times, even in bed. In essence, young Gurbaj was being compelled to either abandon his religious belief or leave the public school system. As such, there was little doubt that his freedom of religion was compromised.

The Court went on to accept that the school board’s objective of ensuring safety in schools was important, potentially important enough to override a constitutional right. However, the school board did not minimally impair Gurbaj’s rights, since he was prepared to accept conditions on the wearing of the kirpan designed to alleviate safety concerns. Gurbaj had never had behavioral problems, and the probability that the kirpan would ever be used for violence was very low.7 He would wear it under his clothes, in a wooden sheath, and wrapped and sewn securely in a sturdy cloth envelope.8

The Supreme Court of Canada held that failing to accommodate Gurbaj’s religious practice contravened the constitutional guarantee of religious freedom. This decision is consistent with Canadian human rights jurisprudence, in which reasonable accommodation of religion is deeply entrenched. 9

The Multani decision affirmed, probably conclusively, that democratic efforts to prevent the wearing of religious clothing or symbols in schools in Canada will not be acceptable. This should differentiate Canada from France, in which a ban on religious clothing in schools has apparently met with general acceptance.

The Multani case shows there is a real need for good constitutional protection from the vagaries of public opinion, like the opinion inherent in Hérouxville’s “standards.” It should have been a clear signal to Hérouxville that its democratically motivated attempts at compelling homogeneity of cultural and religious practices within its community are out of step with Canadian constitutional precedent.

Compare that with the “jilbab” case from the United Kingdom, which is reminiscent of France’s ban on religious apparel in schools.
Although Canada remains very similar to the United Kingdom in its laws and legal traditions, it appears to be significantly departing from this close relationship in how it deals with religious accommodation in public schools.

In the Begum case,10 the House of Lords11 struck down the complaint of a student who was prohibited from wearing a jilbab to school. A jilbab is a long, flowing, baggy overgarment worn by some Muslim women who believe that it fulfills the Islamic demands for modesty, or “hijab.” The modern jilbab covers the entire body, except for hands, feet, face, and head (which is then covered by a scarf or wrap).

Denbigh High School refused to allow Ms. Begum, then 14 years old, to wear a jilbab. It required her to wear either the school uniform or a “shalwar kameeze,” another form of religious dress that was worn by some Muslim, Hindu, and Sikh students, and was approved by the school. The problem was that Ms. Begum and her family did not believe that the shalwar kameeze met her religious requirements because it did not conceal the contours of the female body to the same extent as the jilbab.

Similar to the Canadian Court’s finding in Multani , the House of Lords accepted that Ms. Begum sincerely believed that she was religiously required to wear the jilbab and categorized the ultimate issue as whether her right to manifest her religious belief should be subject to a justifiable limitation.12 The applicable provision of the European Convention on Human Rights is similar in text and structure to the portions of the CanadianCharter of Rights and Freedoms that was an issue inMultani.
13 As such, there were similarities both in legal structure and in the factual substance of the cases. Both cases came down to the issue of reasonable justification of the infringement of religious freedom.

Lord Bingham of Cornhill thought it would be best to defer to the decision of the school, as it had a “power of decision” with respect to uniforms and was “best placed to exercise it.”14 He held that the school did not intend to exclude Ms. Begum from the school; it wanted only to ensure that Ms. Begum adhered to its uniform policy. He rejected the concept of adverse effect discrimination of Ms. Begum in the case by holding that she was not, de facto, excluded from the school. 15The precedent of Multani was brought to his attention, but he dismissed the comparison out of hand. 16

Another of the Law Lords, Lord Hoffmann, concluded similarly, relying on prior European authority holding that the rights of a man who became a Seventh-day Adventist in Finland were not infringed when he was required to work after sundown on Fridays, since he was “free to relinquish his post.” 17

This analysis cannot hold up to scrutiny. Ms. Begum’s right to attend school was removed because of her need to conform to a standard of dress she believed was required by her religious beliefs. It is an impoverished sense of religious liberty to grant a person a choice between adhering to their religious practices and leaving their job or a public school. A robust sense of religious freedom and a society that values such freedom accommodates religious practices, except to the extent that such practices cause real harm or undermine the rights of others.

The fact that Denbigh High School wanted to maintain a certain standard of dress does not rise to the level that should be required to undermine religious liberty. Ms. Begum was not undermining the morals of the school by immodest dress. Quite the contrary: Ms. Begum found the required dress to be insufficiently modest. The only complaint was that she did not conform and, perhaps, that her preferred style of dress made others uncomfortable, as it was out of step with modern feminist thinking.

Lord Scott of Foscote found the discrimination against Ms. Begum to be reasonable since “Muslims are well represented in the management structure of the school,”18 and the shalwar kameeze was designed to be “suitable for Muslim girls.” 19 That is irrelevant.

Religion and religious observance are deeply personal and must be examined on the basis of how each individual sincerely believes he or she is required to obey God. The extent to which accommodation of religion should be achieved must be examined on an individual basis, examining primarily the sincerity of the religious claim and whether it causes actual harm to others. [Link]

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