Religious accessories bans are wrong: Coercive power

It’s been a long series, but I think I’ve debunked every argument made for religious accessories bans, and shown the very idea to be absurd, anti-secular, and offensive to human rights. There’s only thing left to discuss: the idea of limiting religious accessories bans to people in positions of coercive power.

Let’s go back to the very beginning of the series’ discussion on religious accessories bans. Right from the outset I had to explain that there are several variants of RABs advocated by proponents. Some – those on the extreme end – want to ban all religious accessories from being worn by anyone, anywhere in public. Others would limit the ban to only public servants on the job, or only “ostentatious” symbols of religion.

[A chart created by Andy Riga that shows the positions of the various Québec political parties on religious accessories bans. Details at: https://montrealgazette.com/news/quebec/breaking-down-quebec-parties-positions-on-religious-symbols-crucifix ]
A chart created by Andy Riga that shows the positions of the various Québec political parties on religious accessories bans at the beginning of 2019.

The most limited, most conservative form of religious accessories ban would see it only applied to persons in positions where they wield the “coercive power” of the state. The “coercive” part is to clarify that this isn’t meant to apply to everyone who holds a public service where they have some level of “power” over others. The rude clerk at the passport office may have the “power” of a petty tyrant to keep you waiting if you don’t show them deference, but it can hardly be argued they can wield the coercive power of the state. The manager of the local transit authority, while they may have significant “power” over their employees and the operation of the buses in the city, doesn’t wield coercive power. Generally, if someone doesn’t like what the manager is doing, they can quit, resist, or protest. That’s not the case for the power wielded by judges, cops, and the like. You can’t just say “fuck you” and walk away from them. If they tell you to do something, you fucking well do it, or you can face serious consequences – possibly even death.

(This, of course, hasn’t stopped people from ignoring the “coercive” part, and expanding the ban to cover any public employee who holds some vaguely defined “power” over some group of people. The most common example is teachers, who hold absolutely nothing that could be reasonably understood as “the state’s coercive power”, yet are still among the most popular targets for religious accessories bans.)

The Bouchard–Taylor Commission (the Consultation Commission on Accommodation Practices Related to Cultural Differences) report included a recommendation that people who wield the state’s coercive power should be banned from wearing visible religious accessories. They didn’t really provide much of an argument for it. Instead, they framed it as a compromise:

In our view, a general rule that applies to all agents of the State, from the employee who performs simple technical tasks and has no contact with the public to the Chief Justice of the Superior Court of Quebec would be excessive. The prohibition of the wearing of religious signs in respect of a restricted range of duties is nonetheless more justifiable. In the brief that it presented to the Commission, the Bloc Québécois maintained, for example, that the wearing of religious signs should be prohibited in the performance of duties that “embody the State and its necessary neutrality.” Some examples are judges, Crown prosecutors, the president of the National Assembly of Québec, police officers, and so on. In support of this nuanced proposal we can maintain that the separation of Church and State must be marked symbolically and that this is a principle that we must highlight and promote. We can also suggest that the requirement of the appearance of impartiality imposes itself at the highest level in the case of judges, police officers and prison guards, all of whom possess a power of punishment and even of coercion in respect of individuals such as defendants, accused persons and inmates, who are in a position of dependence and vulnerability.

Everyone will agree that this type of situation must be broached with the utmost caution. The case of judges is probably the most complex and the hardest to decide upon. It is essential that the parties involved in a trial, especially the respondent, who may be punished, can assume the judge’s impartiality. Could a Muslim respondent assume the impartiality of a Jewish judge wearing a kippah or a Hindu judge displaying a tilak?

[ … ]

Similarly, it is also difficult to decide on the case of police officers, who also exercise a power of punishment. On the one hand, we can claim that the prohibition on religious signs is, in certain contexts, a functional necessity in respect of the performance of the police officer’s duties. On the other hand, we should also take into consideration the hypothesis that a police force is likely to more readily gain the trust of a diversified population if it is diversified and inclusive.

What stance should we adopt in light of these contradictory considerations? We believe that a majority of Quebecers accept that a uniform prohibition applying to all government employees regardless of the nature of their position is excessive, but want those employees who occupy positions that embody at the highest level the necessary neutrality of the State, such as judges or the president of the National Assembly, for example, to impose on themselves a form of circumspection concerning the expression of their religious convictions. Some people maintain that the separation of Church and State must be embodied in certain symbols, in this case the appearance of agents who occupy positions that tangibly represent the different powers of the State. This expectation appears reasonable to us.

Having weighed up these considerations, we believe that the imposition of a duty of circumspection to this limited range of positions achieves the best balance for contemporary Québec society. These are positions that strikingly exemplify State neutrality and whose incumbents exercise a power of coercion.

Charles Taylor has since disavowed this recommendation, claiming he never really supported it in the first place, and that he only acquiesced to including it in the report as a way of throwing a bone to the extremists. Gérard Bouchard, on the other hand, continues to insist it’s necessary, though he offers no explanation for why, other than to complain that disavowing it means having to restart the process of finding a compromise from scratch.

But let’s not merely regurgitate the arguments of Bouchard and Taylor, try to suss out their actual meaning, then pick sides. Let’s try to think this through on our own.

I think it’s important to start by pointing out that, unlike most of the arguments covered in this series so far, the arguments for banning religious accessories for people in positions of coercive power aren’t completely dumb. There is some merit to them (which is perhaps why Taylor was willing to sign off on them, even if begrudgingly). Unlike the idea of a general religious accessories ban, this is something that reasonable people can have a reasonable debate about.

The key – and only – argument in favour of banning religious accessories for people in positions of coercive power is the symbolism argument.

The argument goes that it’s not good enough for the state to be merely functionally secular while still displaying the trappings of religiosity. For example, imagine a state that’s perfectly secular – there is absolutely no religious influence on its governmental functions, and the state does absolutely nothing to privilege or inhibit any religious practices – except that the government continues a tradition from antiquity of offering a sacrifice to the gods before any legislative session. The sacrifice is entirely symbolic; nobody even believes in that old religion any more, and even if they did, it has no impact on the actual functioning of government. It’s just a bit of theatre the legislatures goes through, for traditional reasons, offering up a pie to The Great Pumpkin or whatever.

And yet….

Symbolic and devoid of religious intent or effect though it may be, it would still be inappropriate for a supposedly secular government to maintain this ritual as an official practice. Mere tradition does not justify the continuation of purely religious practices by a government. Even if a state is being secular in everything it does in practice, it would still fail to be truly secular if it showed even only symbolic deference to religion. (There’s also the point that by showing even only symbolic deference to a particular religion or category of religious traditions, the government is privileging that religion, which is a direct violation of secularism.)

That’s why the Québec Assemblée nationale crucifix is incompatible with secularism. It doesn’t actually do anything – it certainly doesn’t have any impact on the actual business of the legislature – but its presence violates the state’s need to not just be secular, but also to look secular. The same is true for the prayers done in the federal parliament.

Okay, so the state can’t display religious symbols. I don’t think that’s in dispute by anyone who takes the idea of secularism even remotely seriously.

But “the state” is an abstract concept, so what are the physical manifestations of the state? There are two categories:

  • Official state spaces, like government meeting areas, obviously count – that’s why the Assemblée nationale crucifix is unacceptable. Indeed, any property owned or controlled by the state would count. That follows because if the state controls something, the state is responsible for the messages that thing sends to society, literally and metaphorically. That’s why religious symbols on public land are inappropriate (for example, monuments and memorials).

  • The state has no intrinsic agency, so it relies on people to act in its stead. These people are imbued with the state’s power – even if only a limited subset – and make decision and carry out duties in its name. Obviously when someone is acting as the state, they shouldn’t be doing anything religious (or anti-religious), because that would be equivalent to the state doing something religious (or anti-religious)… which is a direct violation of secularism. Yet when the same person is not acting as the state, they have the same freedom of religion as anyone else. This is why a public employee cannot proselytize on the job, but can still go to church or even preach on weekends.

The reason for the two distinct categories is due to the – I would hope obvious – fact that the state neither owns nor controls people. The state has absolute control and ultimate responsibility for anything it owns or controls, which would include buildings, property, and official spaces, so one cannot reasonably argue that a religious symbol on government property is not the state’s business.

But people are a different matter. The government does not have absolute authority over people. Getting a government job doesn’t mean surrendering your bodily autonomy, and giving the state control over what you eat, how you dress, or who you have sex with. And every reasonable person recognizes this. When I see someone working at the passport office wearing a particularly gaudy dress, I don’t assume the government is responsible for the fashion crime. I know that when that person chose that dress, they were acting as themselves, not as an agent of the state.

However, if that person were wearing a government-specified uniform for their job – like a police officer – and something about their outfit struck me as tacky, unnecessary, or impractical, I would blame the government… because the government did choose that outfit.

Thus far I don’t think there’s anything controversial. Ignoring fringe extremists, everyone who believes in secularism agrees to everything outlined so far:

  • The state must be secular.
  • A secular state should not show even symbolic deference to religion.
  • The state is:
    • everything the state owns or controls; and
    • everyone acting as the state in an official capacity.
  • The state is only responsible for a person’s actions or decisions when:
    • they are acting as the state in an official capacity; or
    • the state has mandated those actions or decisions.

So far so good. It is from this is the point that reasonable positions can begin to diverge.

While it makes no sense for the government to pass laws dictating dress codes for most people, or even for most public servants – because they don’t need dress codes, and don’t really have any – there are two special cases that might warrant exemptions:

  • public servants who do have dress codes – that is, uniforms – like police officers and the military; and
  • people whose positions have them acting as the state, and particularly in a manner where they wield the state’s most terrible, coercive powers.

Let’s consider the two cases separately.

Uniforms

The state is ultimately responsible for everything it owns or controls, but it doesn’t own or control people. It has no control, generally, over what people choose to wear. What it does control, though, is uniforms.

It would be an obvious violation of secularism for the government to require people to wear religious symbols, in any case. So, obviously, it would be inappropriate for the government to require people to wear religious symbols as part of an officially mandated uniform. A Christian or atheist recruit could justifiably refuse to wear a military uniform that had the shahada (“there is no god but Allah and Muhammad is his prophet”) printed on it – that would be forcing them to be part of a religious belief they don’t hold. Secularism forbids forcing people to be part of religious beliefs or practices.

But secularism is a two-pronged philosophy. It forbids forcing religion on people… but it also forbids prohibiting them from practising their beliefs. So we can’t force people to wear religious symbols… but does that mean we also can’t tell them they can’t wear religious symbols if they want to?

Well, not so fast.

It is technically not true that secularism forbids forcing or prohibiting religious practice completely. It is more correct to say secularism forbids forcing or prohibiting religious practice without a valid reason.

  • If there were a valid reason to force a religious practice on someone, then it would be okay to do so even under secularism. Of course, there will never be a valid reason to force a religious practice on someone, because the fundamental nature of religion is that there isn’t a valid reason for any of it – it’s faith-based.

  • However, there can be valid reasons to prohibit a religious practice. In fact, that’s quite common. There are lots of religious practices that are dangerous or that infringe on the rights of others, and we can justifiably prohibit them without violating the principles of secularism.

So the question here is: Is there a valid reason to prohibit the wearing of religious symbols with a uniform?

And this is where reasonable people can disagree.

On one side, the argument is:

  1. It wouldn’t be a uniform if it weren’t, yanno, uniform. If you allow functionally infinite variation to accommodate any religious practice a recruit comes up with, then you undermine the whole point of the uniform in the first place, which is to make the people who wear it instantly recognizable, and to make it easier to spot imposters.

  2. Also, the uniform itself is one of those things that’s under the absolute control of the state. Thus, it shouldn’t include any religious symbols.

  3. If you allow for some religious symbols, the government becomes responsible for determining which religious symbols are acceptable, which modifications or restrictions are tolerable (can the government mandate a certain colour of headscarf to match the uniform?), and how sincere someone’s request to wear an alternative uniform element is.

  4. It privileges religious people to be able to have additional uniform options that nonreligious people don’t have, and that’s not fair.

On the other side, the argument is:

  1. Uniformity is overrated. It’s not like when someone sees a police officer without their cap on, they have literally no idea of who that person is supposed to be. Clearly there’s room for limited variation.

  2. While it violates the principles of secularism to force or prohibit religious practice, it is not a violation to allow it. There is nothing wrong with a government requiring a baseline secular uniform while allowing for some variation to account for the population’s religious, ethnic, or cultural diversity.

  3. It’s overstating the problem to imagine that the government will be swamped with accommodation requests. In practice, it will always only be a tiny minority, and once you’ve figured out how to accommodate a particular group, the problem is solved for every future member of that group. Requests that are too impractical, or from a religious tradition that’s too small to justify an additional variation, can always be refused.

  4. Concerns about “unfairness” don’t hold water. Firstly, it is a misrepresentation to refer to an accommodation as an “exemption”. Accommodating a religious accessory does not mean simply “exempting” someone from the rules everyone else has to follow. In fact, an accommodation almost always comes with more rules: in addition to all the regular uniform rules, there would probably be a whole set of additional rules someone has to follow in order to wear a religious accessory. They might have to carry a card at all times, explaining that they have permission for the accessory, and may be required to present it on request at any time. Or they might be banned from wearing the uniform variant without their religious accessory. Alternatively, once a uniform variant has been approved, it might be offered to anyone, regardless of their beliefs. That would eliminate any “unfairness”.

  5. A point the first group has no answer for is: Banning religious accessories shrinks the pool of candidates. If you restrict a job to only people who either don’t wear religious accessories or will accept removing them, then you will only get the best candidates from that group… not the best candidates overall. There aren’t really any good arguments for lowering the competency level of your recruits for the sake of this principle; it’s not that important a principle.

Which side is right?

🤷🏼

I would love to see a decent debate on this issue. But it won’t happen while we’re stuck “discussing” positions that are completely without rational merit, like banning burkinis.

Symbolic positions

Let’s put the uniforms debate aside, go back to the beginning, and try looking at this from another perspective.

The state has lots employees, who perform duties ranging from sweeping the streets and picking up the trash, to teachers and doctors, right through to the members of legislative assemblies and justices on the Supreme Court. But while they’re all technically “agents” of the state for a broad enough definition of “agent”, there is a clear and undeniable difference in what kind of agents they are.

[Photo of Beverley McLachlin]
(Former) official portrait of Beverley McLachlin.

Certain positions – judges, police officers, and MLAs – are imbued with the state’s authority to use violence against its citizens. That violence isn’t always physical. These positions come with the authority – under the specific circumstances, and with specific limitations – to strip citizens of the rights and freedoms that the state otherwise has a duty to protect. Judges can order you imprisoned, or compel you to give up your property (for example, with fines). Police officers can detain you, or even straight-up kill you. And MLAs can decide to make laws that you must obey, or face consequences. These kinds of positions are very different from, for example, a street sweeper, bus driver, or school teacher – none of those positions come with the power to take away anyone’s rights or freedoms.

(There is another way to view the difference. If someone wanted to violently attack the government in order to force them to adopt some policy or another, who would be legitimate targets? Clearly attacking a school teacher or a bus driver cannot be justifiably characterized as attacking the state. If you put a gun to the head of a teacher, what the hell would you expect to accomplish? They have no real power or authority. They may be government employees, but they’re clearly ordinary civilians. By contrast, if you threatened legislators, judges, or police, you might actually accomplish something: a legislator could change the law to what you want, a judge could reinterpret or validate/invalidate existing law the way you want, and police could choose whether and how to actually enforce the law according to your whims. Note that I’m not saying that I approve of any of this; I do not approve of violence as a rule. I’m just pointing out that there are multiple ways to approach the question of who really wields the state’s power, and they all give basically the same answers.)

Because those positions come with such awesome power, it is not unreasonable to view anyone in such a position as the embodiment of the state itself, or at least part of it. Thus, it’s not unreasonable to put special restrictions and requirements on them that you couldn’t put on “regular” government employees.

So the argument goes that these people who embody the state and its awesome power should not wear religious symbols. They’re not “regular” schmoes just a-chuggin’ away at a government job, they are the state. And the state should not display religious symbols.

This is a compelling argument. It’s different from the uniform argument, because it’s not predicated on the fact that the state is choosing their outfit. It’s based instead on the nature of their jobs.

This is the argument that the Bouchard–Tayor report made, which led them to their conclusion to ban religious accessories for people in positions of “coercive power”, while not banning them for government employees in general. The nuance of this position has been completely ignored by all Québec political parties since, except Québec solidaire.

I don’t think it would be unreasonable to be convinced by this argument. However, for completeness, I am going to offer the counterargument.

Without disputing that the people who hold those special positions are, in a sense, “the state itself”… they’re still also people. They are not automatons operating mindlessly according to the state’s will. They retain their humanity and their individuality even while acting as the state.

[Photo of Rosalie Abella]
Official portrait of Rosalie Abella.

It is a gross and fundamentally dishonest position to deny their humanity and individuality even while they’re acting in their official capacity. And in reality… we don’t. Nobody really believes that people in these positions have no personal identity or individuality even while acting as the state. Take a look at the two images in this section. Both are images of Supreme Court Justices (former, in the case of McLachlin) that I happened to have in the media library. Both images are official portraits, that I took from the Supreme Court’s website (at the time of writing, McLachlin’s image has changed, but Abella’s has not). Note that both are wearing makeup and jewellery (and McLachlin is wearing makeup and jewellery in her more recent image, too). Who do you think chose those accessories? The state? Or the individual woman?

No reasonable person is going to answer “the state”. Everyone understands that it was those women, acting as private citizens, who chose those accessories because they thought they made them look more appealing… which is also not something the state has any concern in. And yet, there they are, sitting in their official pictures with their adornments, and no-one who looks at those pictures is led to believe the state approved their stylistic choices, or that those stylistic choices represent decisions or opinions of the state.

(It’s not just the women, either. The men on the Supreme Court also adorn themselves, though it’s usually less obvious and harder to see things like rings and watches and fancy shoes and such in the official photos. The only current Justices whose hands are visible are Moldaver and Brown. You can’t see Brown’s hands well enough, but Moldaver is clearly wearing jewellery. But “adornment” would also include general grooming, and CJ Wagner is rockin’ a well-styled beard.)

So why is it that we’re somehow capable of figuring out that when Rosalie Abella wears nice earrings, that was something Rosalie Abella chose to do in propria persona, yet if she were to wear a hijab, suddenly that’s Canada making the decision? Why is it that we can understand that Abella’s lipstick does not imply that the government of Canada is suggesting everyone should wear lipstick, but if she were to wear an “ostentatious” crucifix (yes, I know she’s Jewish, but it seemed silly to suggest a kippah and payot), that would imply a state endorsement of Christianity?

My answer to those questions is that it’s just ideologically-motivated dishonest faux-“ignorance”. We all know that someone’s religious accessories were chosen by the wearer and represent only the wearer’s beliefs. But some of us are ideologically motivated to pretend we don’t know that. For the sake of trying to make their position sound plausible, some people will fake misunderstanding that a religious accessory on a person might represent the state’s beliefs.

The symbolism argument suggests that a person who holds a position of coercive power should be viewed as the state itself. My position is that interpreting that to mean they shouldn’t wear religious symbols is stretching the metaphor too far. They are not literally the state. They are still individuals. Everyone understands this. No one really really believes that the accessories and adornments the person chooses to wear have anything to do with the state. All “confusion” is feigned for the sake of argument.

However, there is room for debate. You might disagree with me about taking the metaphor too literally. You may take the position that people in positions of “coercive power” are the state, for all intents and purposes, at least to the extent that banning them from wearing religious accessories makes sense. I disagree, but I acknowledge that’s not an unreasonable position. Unlike most other forms of religious accessories ban, this is a disagreement that we can have an adult, sensible discussion about.

Summary

You may have been surprised by the tone of this piece. Every other instalment in the series has been flatly stated, with no interest in even pretending that dissenting opinions have merit. Yet here I suggest there’s room for debate.

The reason for this is that while there is room for debate – as there is room for debate on most topics – the “debate” that’s taken up most of the oxygen of late has been neither productive, nor particularly intelligent. Extremists have flooded the discussion space, supported by shameless, pandering populist politicians, with positions that are frankly asinine, and they’re choking out any sensible, nuanced positions. Instead, we’re having discussions about banning burkinis and barring young girls from playing soccer or competing in tae kwon do.

I wanted to use this last instalment in the series to make the point that it’s not that there’s no possibility of mature disagreement and discussion on the topic. It’s that virtually all of the existing discussion is fucking idiotic. We can have adult discussions about religious accessories bans. But first we have to get serious about relegating the bizarre, ridiculous, and completely unjustifiable positions at the extremes to the fringes where they belong.

When the state mandates that certain types of employees have to wear uniforms, no part of those uniforms should be religious – a secular state can’t force people to wear religious accessories or symbols.

However, it may be acceptable for the state to allow variations on a uniform to accommodate religious traditions. These accommodations would of course be limited to variants that are appropriate for the job – there’s no need to allow a religious accessory that violates safety concerns – and to accessories that a large enough number of people might need – there’s no need to accommodate every religious tradition that exists.

Certain government jobs are special. People in those positions have the power – in certain situations, and with limits – to violate the rights and freedoms of citizens that the state is normally obligated to protect. While any government employee could be considered as acting in or according to the interests of the state, people with those special jobs could be seen as acting as the state. They are the state incarnate, at least partially.

It is not unreasonable to decide that if someone holds such a position, they should represent the state appropriately. It would be inappropriate for the state to display religious symbols, thus it is inappropriate for someone who “is” the state to display religious symbols.

However, the metaphor that someone who holds a position where they wield the state’s coercive power is the state is just that: a metaphor. It shouldn’t be taken too seriously, or too far. A person who is acting as the state is still a person. We all understand that even when acting in their official capacity as the state, they retain their individuality – we still allow them to choose their own clothing and accessories, and we don’t confuse their fashion choices with the will of the state.

There’s no conclusion here. I’ve offered my opinions, but I recognize that there are reasonable grounds to disagree.

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