Let’s start the actual debunking of the idea of religious accessories bans at a place most proponents never bother to go. Before we begin to consider what should be banned or even whether a ban is necessary or reasonable, let’s consider a more fundamental problem.
For this argument we can make a bunch of assumptions to really steel-man the pro-ban position. Let’s assume:
- a religious accessories ban (RAB) is something a secular government can do (without violating the principles of secularism)
- a RAB can be justified by a rational, secular argument; and
- a RAB can be implemented:
- in a secular, fair manner (without privileging some religions, or unfairly targeting others)
- in a coherent, practical manner (there is a sensible, secular, and fair way to define which accessories are covered by the ban, and who the ban applies to); and
- in a legal, enforceable manner (without violating the Constitution)
Quick preview of what’s ahead: none of the above is true. And we’ll cover exactly why in the remainder of the series.
But for now, we can assume they are true, so that we can focus on the deeper, more fundamental questions of this article.
Religious accessories bans violate fundamental rights
This needs to pointed out loudly and clearly: Religious accessories bans violate people’s fundamental rights.
That is not an opinion. That is an incontrovertible fact.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
A religious accessories ban would clearly violate both §2(a) and §2(b).
There are a number of people who want a RAB but who dislike the Charter because of its emphasis on multiculturalism. For those people, perhaps the weight of the Charter means nothing. But the Charter isn’t the only human rights instrument that rules out RABs. Article 18 of the Universal Declaration of Human Rights – which Canada is bound to follow by international treaty – states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Now, in my experience, quite a few of the people who advocate for religious accessories bans will dismiss the fundamental right of religious freedom. They either dismiss it as completely invalid, or they rank it as a “lesser” right, of little importance. I am trying, in this series, to be as respectful as possible when describing my opponents and their positions. But this? This is fucking stupid.
First of all, the reason this fundamental right seems to be given short shrift is merely because the word “religious” is there. So virulent is some people’s hatred for religion, that the mere word taints whatever it is attached to.
These same people that pooh-pooh the right to religious freedom will usually demand their right to freedom of conscience and opinion, and the right to express their opinions. Never does it occur to their hate-addled brains that there is literally no difference between that right, and the right to religion. The fact that most human rights instruments make a point of specifically mentioning religion even though it is redundant with mentioning freedom of thought, conscience, opinion, or belief is simply because they’re trying to cover as many bases as possible. You don’t want to leave wiggle room in a fundamental human rights instrument.
So, if you are so virulently hateful of religion that even the word gives you conniptions, then, fine, don’t use it. This is not about freedom of religion. It’s about freedom of belief or opinion or thought, and freedom of conscience or expression. It’s still covered by §2(a) and §2(b) of the Charter. And as for the UDHR, well, it’s Article 19 instead of Article 18. Big diff.
And as for prioritizing religious freedom as a “lesser” right: The idea of prioritizing rights is not completely without merit. But it has to be given far more careful thought than most people bother with. For example, should even a trivial violation of a higher-priority right trump an extreme violation of a lower-priority right? Whatever your answer to that, there’s still this point: even if rights were to be prioritized, that should absolutely not imply that lower-priority rights can simply be waved away or ignored. You can’t simply say: “religious freedom has a lower priority than most other fundamental rights, so fuck it.” It’s still a fundamental right. You still need to take it seriously.
In any case, if you don’t care about religious rights, that means you don’t respect people’s rights to hold beliefs or to live according those beliefs. So… why should anyone respect your beliefs? Why should anyone care that you won’t be able to live according to the secular values you hold dear (even if it were true that people’s religious accessories somehow interfere with that)?
They’re called fundamental rights for a reason. You can’t start throwing them away and have it only affect others and not lose anything yourself.
So this is not up for debate. It’s a fact: Religious accessories bans violate fundamental human rights. It’s a fact that even the people writing the bans understand and acknowledge… they just don’t care, and are intending to use the Charter’s notwithstanding clause to get around that little problem.
Anyone who refuses to admit that is not a worthwhile participant in the discussion, and can be summarily ignored.
Despite the fact that religious accessories bans obviously violate fundamental rights – and even the governments pushing them recognize this – you will run into people intent on denying this.
Often the denial is based on the idea that “taking off an accessory is no big deal”. It’s hard to understate just how ignorant and offensive that thinking is. The severity of a violation is not determined by some rando onlooker or, worse, someone actually advocating for the violation. It is determined by the victim. For example, you may think nothing of having your chest or buttocks groped, slapped, or pinched by a coworker… you may think it’s all just good sport, no harm intended… but that does not make it “no big deal”. I would hope we’re at a place now where our civilization and ethics has evolved enough for that to be uncontroversial.
Another way the violation is denied is by minimizing it – by pointing out that it’s not the most extreme violation possible, and so it shouldn’t be taken seriously. Most commonly, you’ll hear people saying: “it’s no big deal because it’s just during work hours; they still have all their freedoms at home.”
Once again, it’s hard to understate the level of ignorance necessary to seriously entertain that argument.
First of all, the idea that one can simply… “surrender”… one’s fundamental rights and freedoms… is bonkers. Even crazier, the idea that one can be forced to surrender them in order to get a public service job… that’s offensively stupid.
Think about what that would imply! If it’s possible for employers to demand that people waive their fundamental rights to get a paycheck, then what’s to stop an employer from forcing people to surrender their fundamental right to body autonomy? “You want a job? Then you gotta let me grope you, or worse, whenever I want!” It would be ridiculous enough if people thought that was fine… but spend any time debating religious accessories bans, and you will eventually run into someone willing to argue that this libertarian nightmare is actually ideal.
Second, it blows my mind that people can’t seem to understand that the exact… same… rights… that protect them as nonreligious people from abuse by the religious, are the same rights that protect religious people from abuse by the nonreligious. You can’t take these fundamental rights away from them without losing them yourself.
Ban supporters seem to have enough wherewithal to understand that an employer can’t be allowed to force nonbelievers into religious practices, like declaring that God exists. But they don’t seem to have enough sense to understand that also means an employer can’t force believers into nonreligious practices, like denying that God exists. Or removing their religious accessories.
So an employer – public or private – can’t simply look at a religious practice and say: “eh, I don’t like it; stop doing it.” And they can’t do it for the exact same reasons that they can’t look at an atheist and say: “you know what? I don’t like your atheism; from now on, you’re praying.” Without a legitimate reason to justify demanding or denying a religious practice, an employer cannot make such a demand. Doesn’t matter whether the employer is the government or not.
Rights are not necessarily absolute
Now, just because something violates fundamental human rights doesn’t mean it can’t be justified. We lock dangerous people up in prisons and psychiatric institutions against their will; a clear violation of their right to liberty (§7 of the Charter; Article 3 of the UDHR).
But if you’re going to violate a fundamental right… you need a damn good reason for doing so.
Whenever a fundamental right is being violated, the reason is always to protect another fundamental right. For example: The reason we’re okay with violating dangerous people’s right to liberty is in order to protect the right to life of others.
So, if you want to violate people’s fundamental right to religious expression, it must be for the purpose of protecting some other fundamental right. So…:
- which fundamental right are you protecting?
- how is that right threatened by religious accessories?
- why does that right override the right of religious freedom?
You need to answer all of those questions, and you need to make your answers clear, or you don’t really have a justification for violating a fundamental right. You can’t just hand-wave away this problem by mumbling, “muh ‘secularism’”.
Do religious accessories violate the right to equality?
The only attempt I’ve heard to even try to answer this issue is to claim that “equality” trumps people’s fundamental right to religious freedom. Nothing about that claim makes any sense, which presents a problem for me if I want to steel-man it to rebut it, but I’ll see what I can do.
As near as I am able to extract a coherent argument from the “equality” claim, it seems to boil down to one of three things:
“Because different religions have different religious accessories (and some have none), allowing religious accessories means that you’re giving different treatment to different religions, which violates equality.”
“Because only religions have religious accessories, allowing religious accessories privileges them over the nonreligious, which violates equality.”
“Because religious accessories are usually specific to either men or women, they are represent different standards for men and women, which violates equality.”
All of these are amazingly silly. Using any of them to justify a religious accessories ban is the equivalent of saying something like: “The fundamental right to bodily autonomy shouldn’t apply to parts that not all people have. Since not everyone has a vagina, applying that right to vaginas is a violation of equality, because a biological male can’t enjoy the same right. Therefore, vaginas should not be protected by that right.” (And yes, I am aware that people have made arguments similar to that, for example, to justify denying sex-specific medical services to women.)
The fact that not everyone needs to exercise a fundamental right does not make that fundamental right superfluous, optional, or unequal. An extremely agoraphobic person or a misanthropic hermit doesn’t really need the right to peaceful assembly. That doesn’t make that right “invalid”, or the fact that it exists “unequal”.
The second form is actually worse because it’s flat-out wrong. You don’t need to be religious to claim the right to wear some special accessory. Look at the Charter’s §2 again: both §2(a) and §2(b) list nonreligious fundamental rights to “conscience”, “thought, belief, opinion and expression”. In other words, if you actually have a nonreligious reason why wearing some accessory is deeply important to you… then you can do it. Thing is, it has to be deeply important to you; if you just want to wear a colander to prove a point, it is not deeply important to you. (The point you’re trying to prove may deeply important, but the colander itself is not.) It’s not common or likely that a nonreligious person would have an accessory that is deeply important to them… but they could.
The third form may actually be both the dumbest and the scariest of all. It also seems to be the thinking that Québec’s Bill 21 is using, as it declares in its preamble:
CONSIDÉRANT l’importance que la nation québécoise accorde à l’égalité entre les femmes et les hommes;
AS the Québec nation attaches importance to the equality of women and men;
It is a bizarre, offensive, and frightful misunderstanding of “equality” that requires stripping people of their differences to make them equal. This is literally the ideology of fascist nationalists, who insist that the only way to make a nation peaceful is to homogenize the population (usually by race).
(I could also point out the absurdity of the position, on multiple levels. For example, a headscarf worn by a man is not a religious accessory, while a headscarf worn by a woman (supposedly) is… therefore if one were to ban religious accessories, a man could still wear one while a woman could not. Equality™! Also, in (some forms of) Islam, the women are required to wear a hijab, while the men are not required to wear anything… therefore a religious accessories ban means the women can’t do public service jobs, while the men still can. Equality™!)
So allowing religious accessories does not violate equality because:
- the fact that not everyone needs to exercise a right doesn’t make it unequal to allow that right
- everyone does have the ability to exercise the right if they really need to (but most people will never need to because their practice will never be challenged); and
- you don’t need to homogenize everybody to make them equal, especially for any definition of “equal” that the state uses.
So what fundamental right does the wearing of religious accessories violate? I’ve never heard a sensible answer.
Before we even start to consider whether a specific type of religious accessories ban makes sense… before we start to consider whether even the basic idea makes sense… there are some fundamental hurdles that have to be overcome. One of those hurdles is the issue of fundamental rights.
Anyone who wants a religious accessories ban needs to acknowledge that they are violating people’s fundamental rights. If they refuse to do that, or if they try to dismiss people’s fundamental rights as not mattering, that’s the end of the discussion. They don’t deserve further acknowledgement. After all, if they won’t recognize other people’s rights to have a belief and express it, why should you recognize theirs?
Anyone who wants a religious accessories ban needs to explain why violating people’s fundamental rights is justified and necessary. The most practical way of doing so is showing that there are other rights that are being threatened, and explaining why the balance of those rights means violating religious freedom via a religious accessories ban. This needs to be done explicitly and clearly.
Unfortunately, these are not steps one commonly sees taken when arguments are made for bans. At best, they’re glossed over or hand-waved away. Usually, they’re not even acknowledged.
Now, to be clear, these are not arguments against religious accessories bans. We don’t even need arguments against religious accessories bans until these issues are answered. If someone actually takes the time to properly deal with these things, then they’ll be a large part of the way toward successfully arguing for a ban.
The problem is: No-one ever does. And as long as they don’t, the case for a religious accessories ban is dead in the water. It’s wrong before the arguments even start.