Religious accessories bans are wrong: “There oughta be a law”

We’re still not yet ready to tackle the question of religious accessories bans directly. Before we can even begin to ask whether bans make sense, there’s still something very important that needs to be considered.

Some assumptions

As with the issue of fundamental rights, we can make a bunch assumptions to 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)

These are all wrong, but explaining why isn’t today’s task. For our purposes today, can assume they are true.

Laws tend to stick

Previously I explained that before you can even begin to seriously consider a religious accessories ban, you need to answer some questions about fundamental rights. Today’s topic is also a prerequisite; another thing you need to figure this out before you even begin to entertain the idea of a ban.

Here’s the problem: even if you could show that a religious accessories ban made sense, was justifiable, and was functionally implementable, it doesn’t automatically follow that you should do it. That’s because a ban would be, ultimately, a law. And laws should not be implemented willy-nilly.

This is something atheists should be painfully aware of. Once something is written into the law books, it is often extremely hard to get it out.

2018 was a banner year for removing laws-that-should-never-have-been. We repealed the blasphemy law, along with laws against “pretending to practice witchcraft”. We decriminalized cannabis. In fact, we’ve seen plenty of bad old laws repealed in the last few years, like the ban on medical assistance in dying. So we can just repeal laws that were mistakes, right? No problem, right?

Well… no. Look a little deeper.

The cannabis law, for example… repealing that was a major success! There was never any scientific evidence that cannabis is dangerous, nor any real reason why it should have been made illegal in the first place. In fact, no one really knows why it was originally criminalized; it may have actually been an accident.

And yet….

It took 95 fucking years to repeal the ban on cannabis. And the cost of the repeal effort was extensive.

Also costly was the human toll between creating the careless, haphazard law, and repealing it. Estimates of the number of Canadians impacted could be in the millions: half a million with criminal records related to cannabis, plus everyone indirectly impacted (family members of people with convictions, people impacted by crime associated with the illegal trade, and so on). And the financial cost was easily in the billions.

So, yeah, sure, if a shitty law was put on the books, it can be repealed. But the costs will be extensive.

Okay, so you might say I’m not being fair. Banning religious accessories would be a lot less like banning cannabis, and a lot more like banning blasphemy. So a more fair comparison might be the blasphemy law. Alrighty then. Let’s do that.

The ban on blasphemy was another law that was created more or less without any real thought. The original blasphemy law was drafted on a wave of indignant outrage triggered by one person’s outlandish (and hilarious) behaviour. Of course, no one was really being harmed… but then, no one is being harmed by religious accessories either; just like the blasphemous behaviour, it just pissed certain people off, and thus they decided there oughta be a law against it. The law ended up in Canadian law because no one bothered to question whether it was really necessary.

So the law was carelessly created, but meh. How much harm did it really cause?

Well, the blasphemy prohibition was certainly a lot less impactful than the cannabis prohibition. But it did cause harm. Several people ended up dragged into criminal charges, court cases, and even some convictions, with fines levied. At least one person’s life was destroyed; he ended up being kicked out of the country.

[Scan of a 1926 newspaper article describing the Eugene Sterry blasphemy case. There are drawings of Sterry and his lawyer, Elliot Cross. The visible text reads: “Sterry committed for trial. The larger picture, above, shows Ernest Victor Sterry, publisher of the Christian Inquirer, as he appeared in the police court to-day, when he was committed for trial on a charge of blasphemous libel, arising out of statements contained in his paper. In the smaller picture at the left, is shwon E. Lionel Cross, negro barrister, who defended Sterry. In addition to the blasphemy charge, Sterry is accused of stealing $200 from a Chinese laundryman. This allegation will probably be heard in police court next week.]
A 1926 article about the Eugene Sterry case.

On top of that, repealing it took 126 years! 126 years to repeal a law as “trivial” as the blasphemy law! There were multiple attempts before it finally succeeded. It took a concerted effort by a coalition of activists and groups to get it on the Justice Department’s radar. And the repeal costs must have been considerable (I wouldn’t even know how to estimate them, because it was repealed as part of a package with other laws).

And we still haven’t fully gotten rid of the ban on physician-assisted dying! Not to mention all those people whose criminal records have yet to be fully expunged for cannabis offences or even for the “crime” of being gay! It’s 2019 and we still haven’t fully fixed those messes.

So even a somewhat silly, mostly harmless law has real, serious consequences. Suppose we carelessly write a religious accessories ban into law and find out shortly after that it was a terrible idea. Are you okay with having to wait a century to fix it? Are you okay with all those wasted costs? Are you okay with the lives that will be destroyed in the meantime?

Don’t just say “yes” like an asshole because you’re not likely to be one of the victims affected. Make a case that justifies those costs.

You don’t use your ultimate tool just because you have it

I understand the impulse to use the power of the state to deal with things we don’t like. It’s a potent tool, after all, and it is our tool – the state does what we make it do.

But as the saying goes: with great power comes great responsibility. Often the wisest way to use power, is to not use it.

Almost every time someone grumbles that “there oughta be a law”, there really oughtn’t. Creating a law for something should be our absolute last resort, when all other avenues for dealing it with have failed. It should not be the first thing we reach for just because it’s “easy”, or because there happens to be a bunch of legislators who will rush to appease our outrage so we’ll elect them again.

We should neverever… make a law merely because something is annoying, offensive, or unpopular. If we’re going to use the state’s terrible power to deal with something, it needs to be something that causes real harm. We should not unleash that beast for anything less than life-or-death.

If you want to ban religious accessories, you need to justify the use of that dangerous power. You need to explain why it’s so important that religious accessories be banned that we should use the nuclear option. You can’t just say: “well, this isn’t ideal (or ‘I don’t like this’), so let’s use the state’s power to deal with it”. That is absolutely irresponsible, ignorant, and dangerous.

If we did implement a religious accessories ban, then we will be hurting people. We will be forcing people to choose between a paycheck and their beliefs, or their family, or their culture. In some cases, we will taking away opportunities for people to get out and be a part of society. We will be denying people the option of meeting secular society half-way – by being a part of it while still wearing their religious identity – which could leave them stuck in religious enclaves, and hamstring their chances of ultimately leaving their religion behind.

You don’t get to just pretend that hurt doesn’t happen, or that it doesn’t matter, because you think the victims could make it go away by simply not wearing their religious garb. The fact that you don’t have a problem not wearing something doesn’t give you the right to ignore it when someone does. It’s their rights being denied, not yours. It’s their lives being impacted, not yours.

So is it worth it? Given all the costs and risks of creating a law, is it worth it to do so for a religious accessories ban?

The answer isn’t just “yes”. It is to give a clearly explained, well thought-out reason for why it is so important that we ban religious accessories, that it is justified to do so despite the harm. It is to explain exactly what harm we prevent with a ban, and to show how that outweighs the harm the ban causes. It is certainly not to do what the current Québec government is doing, and ram the law through while insulating it from challenge because they’re tired of the debate.

I’m not saying it can’t be done. But if you want to argue for a ban, it can’t be ignored.

Summary

Those championing religious accessories bans rarely acknowledge the full gravity of what they’re asking for.

Bans would be laws, and laws are no small matter. Laws change lives; laws destroy lives.

That may be acceptable. What the law is protecting the general public from may be so harmful that we’re willing to accept that those who violate the law could face serious consequences.

But if that’s the case, it should be justified, not just asserted or brushed aside.

Bad laws, carelessly enacted, can stick around for decades… sometimes for a century or more. It’s so much easier, and so much less costly – both financially and in terms of the human cost – to just not create dumb laws in the first place. The best way to do that is to take great care when deciding whether something is worth writing into law in the first place.

It shouldn’t be too much to ask that that care be taken for religious accessories ban proposals. But it never is.

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