One of the most memorable figures in the 2015 federal election campaign was Zunera Ishaq, the observant Muslim woman who fought for and won the right to wear a face-covering when she took the oath of Canadian citizenship.
She had been banned from doing so by the Harper government, so she sued. The Federal Court of Appeal ruled in her favour, saying the policy required Ms. Ishaq to renounce a basic tenet of her religion, as she interpreted it. The Conservatives, hoping to make a wedge issue out of it, appealed the decision to the Supreme Court.
The Tories had many Canadians on their side. One poll showed 82 per cent of Canadians thought people taking the citizenship oath should publicly show their faces. (Note, a niqab-wearer becoming a citizen still has to show her face and prove her identity, privately – something that was never in question.) Stephen Harper, the Conservative leader, said it was “offensive” for new Canadians to wear a niqab while taking the oath.
Ms. Ishaq won a victory for religious freedom, and many consider her a hero. At the same time, a majority of Canadians likely don’t agree with the outcome. Many find the idea of hiding a woman’s face to be problematic and offensive, even discriminatory.
The story is illustrative of how religious freedom works in Canada. People have the right to their beliefs, and to practise their faith, within reason. Ms. Ishaq and other Muslim Canadian women who wear a niqab or burqa know they must reveal their faces at times, such as when they get a driver’s licence, or to prove their identity to an authority before taking an oath. The system accommodates them by not obliging them to do so in front of other people, as much as possible.
This balancing act, in which the rights of one group must be weighed against another and accommodations must be made, is why the B.C. Court of Appeal ruled this week that Trinity Western University, a religious institution, should be allowed to operate a law school.
The court ruled that the private B.C. university could do so even though it requires students to sign a “community covenant” in which they vow to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
The judges acknowledged that this definition of marriage could have a detrimental impact on the rights of LGBTQ people, but that it had to be balanced against the school’s right to ask students to live according to sincerely held beliefs.
There was a broader issue, too. “A society that does not admit of and accommodate differences cannot be a free and democratic society – one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” the judges wrote. “This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in fact intolerant and illiberal.”
That well-intentioned majority the judges refer to includes the Law Society of British Columbia, which refused to accredit Trinity Western on the grounds that it discriminates against LGBTQ people.
Which it surely does. The school says LGBTQ people are welcome – but married gay people have to pledge to abstain from sex, whereas straight couples do not. That is disingenuous.
But the thing to remember is that the school and its students have rights, too – religious ones. The proper balancing act is to allow it to continue to oblige its students to sign a covenant that is based on the belief that its interpretation of the Bible is “without error” – something it has been doing for years, and which was tested in another case that went to the Supreme Court in 2001.
In that case, Trinity Western wanted to become a full-fledged teacher training college. The court ruled that the British Columbia College of Teachers had to accredit it as such in spite of its views on human sexuality. The judges rightly shot down the fear that teachers trained there might go on to spread their beliefs in the public system.
And that is the crux of the issue. On any given day, we deal with people of all stripes who may hold beliefs – religious, social, sexual, whatever – that don’t match ours. We ourselves might have opinions that others would find objectionable, and yet we still interact with each other, and obey the same laws. In a liberal society, we must be able to express, hold and express those beliefs, and to associate with like-minded people and others, without interference – up to a point.
“The proper place to draw the line,” the Supreme Court said in 2001, “is generally between belief and action. The freedom to hold beliefs is broader than the freedom to act on them.”
Zunera Ishaq is entitled to wear a niqab, and encourage others to do so, as long as she is willing to reveal her face under reasonable circumstances – and recognize that other Canadians have just as much right to choose not to wear a niqab. The future law students of Trinity Western University are similarly entitled to hold unpopular beliefs about marriage and sexuality, and to associate with others who think the same.
But the minute they step off that campus to practise law, they enter another world. If one day a Trinity Western law school grad is up for a seat on one of Canada’s courts, they may be questioned about their alma mater and the potentially discriminatory beliefs their education implies. They will have to demonstrate that they can believe devoutly in the strictures of their religion, as they are entitled to under the law and the Charter of Rights, while simultaneously recognizing that other parts of the law and the Charter – to which they owe their duty as lawyers – are in disagreement with their beliefs.
We hope they’ll be able to see that rights are a two-way street. After all, future Trinity Western graduates will be practising law because of Canada’s respect for their – our – most fundamental freedoms.Report Typo/Error
Follow us on Twitter: