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?
Recently, the municipal council of Municipalité Hérouxville, a small town in the Province of Quebec,1 made public "certain standards already in place and very well anchored in the lives of [its] electors."2 Apparently the good people of Hérouxville, while inviting "all people from outside" to move to their territory, "without discrimination," believe it prudent to tell those accepting the invitation what is acceptable conduct once they have settled in their new environs.
Some of the "standards" hardly need to be stated. Such things as "we consider that killing women in public beatings, or burning them alive are not part of our standards of life" are unobjectionable in themselves.
Other "standards" come closer to the edge of what is reasonable accommodation of minority religious practices. For example, the standards set out that "patients are offered traditional meals" in hospitals and that "you may not hide your face as to be able to identify you while you are in public."
Not surprisingly, Muslims, being a minority group that appears to be targeted by these standards, reacted negatively. Salam Elmenyawi, head of the Muslim Council of Montreal, was quoted in the media as stating that these standards are "totally distasteful."3
Not only Muslims took offence, as some of the standards seemed to target Hasidic Jews. Steven Slimovitch, national legal counsel for B’nai Brith Canada, reportedly stated that the standards "make a mockery of this whole debate about reasonable accommodation, and it tries (sic) to say that these are our rules and if you don’t like them, don’t come here."4 Why should an Orthodox Jew be denied kosher food in a public hospital or a Muslim be served pork without an alternative? How does that foster freedom within the society?
It does not. It fosters uniformity and may foster community cohesion, but individual religious liberty requires that the society embrace religious differences and the standards of conduct that accompany such differences.
How About Accommodating Religious "Weapons"?
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?
In the larger context, this "standard" appears to be a reaction to a 2006 decision of the Supreme Court of Canada,5 which held that a Sikh student should be permitted to wear his kirpan, or ceremonial dagger, to his public school in Quebec. The case was difficult, as it is on the edge of what would normally be considered reasonable accommodation of the practices of a religious minority.
Gurbaj Multani is an orthodox Sikh, born in 1989, who believes that his religion requires him to wear a kirpan, made of metal, at all times. In 2001 he accidentally dropped the kirpan he was wearing under his clothes in the school yard. The school board prohibited Gurbaj from wearing his kirpan, but suggested that a pendant or a kirpan made of another substance could be substituted. This was not religiously acceptable, so Gurbaj sued, asking the Court to grant him permission to wear his kirpan if it were sealed and sewn up inside his clothing. This, he suggested, would be a reasonable accommodation of his religious freedom.
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.
Where Is the Harm?
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 Canadian Charter of Rights and Freedoms that was an issue in Multani.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.15 The 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.
As a concept, accommodation of religious minorities developed in an environment in which most nontraditional religions still fit roughly within the West’s Judeo-Christian heritage. With increasing globalization and multiculturalism, the religious minorities are less Judeo-Christian in nature. They tend to be from Eastern religions and Islam.
The result is a mixture of traditional and nontraditional Jewish and Christian practices, together with more peculiar habits with which the West has little historical resonance, such as the wearing of a kirpan or jilbab. This tends to increase tension, and people see the new arrivals as challenging broader cultural norms. Such tension is evident from the standards published by Hérouxville.
Is the West Permitting Intolerance to Fester?
Intolerances seem to have gained some strength in the wake of September 11, 2001, and other terror attacks. Some commentators seem eager to embrace a crusade—a battle of religious ideologies—feeding into intolerance of the religious practices of the innocent. Others, in a blind effort to be tolerant, want to entirely deny a religious connection in the conflict between the West and terrorists within Islam. Neither approach is balanced or healthy.
Instead, there should be a broad acceptance that accommodating religious belief is for the good of all society. The accommodation should be to the point of undue hardship. Stated differently, religious accommodation should extend to the point where there would be actual danger to individuals, or a direct infringement of the human rights of others, if the practice were accommodated.
In other words, the Supreme Court of Canada got it right in the Multani decision, and the House of Lords in the U.K. was wrong in Begum.
Someone else’s religious beliefs will often seem wrong, perhaps manifestly so. Otherwise we would adopt them for ourselves. Religious freedom is not about projecting the majority onto the minority. Neither is it about protecting those beliefs with which we agree or that seem rational and reasonable. It is about protecting what we consider manifestly wrong, provided it does no real harm.
How the Western world treats newer minorities and the level of accommodation of their religious practices will speak volumes about our true commitment to religious liberty. One can easily sympathize with the controversy in Multani, given the potential safety issues involved in allowing students to bring weapons to school. However, there was no safety issue or conflict of rights in Begum, and so the result is less understandable. There is no harm in permitting students to wear nondangerous religious garb to public schools.
There is a natural resistance to change, including the change that comes with immigration and the mixing of cultures. There is no harm in attempts at preserving aspects of culture that a society highly values. When those attempts cross over to prevent people from participating in public institutions and services because of their religious practices, there is a greater harm than the loss of the culture. There is then the loss of tolerance, of understanding religious liberty. Hérouxville has crossed that line and communicated that those with nontraditional religious beliefs and practices are unwelcome.
The highest court in the United Kingdom, the House of Lord’s’ should understand that and, one would expect, act similar to how the Canadian Supreme Court decided Multani. Unfortunately, the House of Lord’s decision in Begum seems more akin to the closed-mindedness of Hérouxville. And that is something of which neither should be proud.
Kevin L. Boonstra is a partner in the law firm Kuhn & Company, practicing in Vancouver and Abbotsford, British Columbia.
1 Quebec is a predominantly French-speaking province in Canada.
2 At the time of writing, the standards could be found online at http://municipalite.herouxville.qc.ca/Standards.pdf.
3 "Retract Xenophobic ‘Standards,’ Quebec Town Asked," Jill Mahoney, Globe and Mail, January 31, 2007.
4 Ibid.
5 Multani v. Commission Scolaire Marguerite-Bourgeoys, [2006], 1 S.C.R. p. 256.
6 R.v. M. Drug Mart Ltd., [1985] 1 S.C.R. p. 295; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. p. 551; B(R) v. Children’s Aid Society, [1995] 1 S.C.R. p. 315; Ross v. New Brunswick School District, [1996]1 S.C.R. p. 825.
7 Ibid., Note 5, paras. 44, 57, 58.
8 Ibid., Note 5a, para. 8.
9 See for example, Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. p. 561; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. p. 970; and Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. p. 536.
10 Begum v. Headteacher and Governors of Denbigh High School, [2006] U.K.H.L. p. 15.
11 The House of Lords is the unelected upper chamber of the British Parliament. Its salaried judicial members, or Law Lords, act as the highest court of appeal in the United Kingdom.
12 Ibid., Note 10, para. 21.
13 In Begum, the applicable provision was article 9 of the Convention, which stated that "everyone has the right to freedom of thought, conscience and religion … to manifest his religion or belief in worship, teaching, practice and observance." This is stated to be "subject only to such limitations as are prescribed by law and are necessary in a democratic society…." With respect to Multani, section 2(a) of the Charter reads that "everyone has … freedom of conscience and religion." This includes the right "to manifest religious belief by worship and practice or by teaching and dissemination." (R.v. Big M Drug Mart, [1985] 1 S.C.R. p. 295). Section 1 of the Charter indicates that these rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
14 Ibid., Note 10, para. 34.
15 Ibid., Note 10, paras. 38, 39.
16 Ibid., Note 10, para. 34.
17 Kontinnen v. Finland (1996) 87 D.R. 68 at p. 75.
18 Ibid., Note 10, para. 74.
19 Ibid., Note 10, para. 77.
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