Public Religious Expression

[jwmorrice]

Here's a question that was polled on the Globe & Mail website. I thought it might be interesting enough to replicate here on Terb.

"In a recent ruling, the Supreme Court of Canada essentially expanded the legal basis for religious expression. France, on the other hand, has moved to restrict the display of religious symbols in the belief that they are divisive. Which country, in your opinion, is on the right track?"

The following article is the background:

Jews' religious huts legal on balconies, top court rules

By KIRK MAKIN
JUSTICE REPORTER
Thursday, July 1, 2004 - Page A12

Freedom of religion encompasses the right of Orthodox Jews to erect religious shelters on the balconies of their Montreal luxury condominiums in violation of an ownership agreement, the Supreme Court of Canada ruled yesterday.

In a hotly disputed 5-4 ruling that fleshes out the legal meaning of religion and religious practice, the majority said that erecting succot conforms to a sincerely held belief.

The majority rejected arguments that the Jewish residents stubbornly declined a compromise -- the erection of a communal succah in the gardens of the complex -- that would have respected the privacy rights of other owners.

"The potential annoyance caused by a few succahs being set up for a period of nine days each year would undoubtedly be quite trivial," Mr. Justice Frank Iacobucci wrote for the majority.

The appellants -- Moise Anselem, Gladys Bouhadana, Antal Klein and Gabriel Fonfeder -- argued that the Bible compels them to dwell in small, enclosed temporary huts on their balconies each year during the nine-day Jewish religious festival of Succot.

They were opposed by a company that co-owns the buildings -- Syndicat Northcrest -- which obtained injunctions from the Quebec Superior Court judge and the Quebec Court of Appeal permitting the demolition of the succot. The company said the structures were unsightly, a fire hazard and lowered property values.

The court majority said yesterday that religion involves "freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to his or her self-definition and spiritual fulfilment."

They said a strong subjective element to religious freedom operates regardless "of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials."

Judge Iacobucci was impatient with an argument that the appellants ought to have known what they were getting into when they bought units at the buildings.

"They had no choice but to sign the declaration of co-ownership if they wanted to reside at that complex," he said.

"It would be both insensitive and morally repugnant to intimate that the appellants simply move elsewhere if they take issue with a clause restricting their right to freedom of religion."

In dissenting reasons, Mr. Justice Michel Bastarache, Mr. Justice Louis LeBel and Madam Justice Marie Deschamps said the appellants' religion dictated only that they eat meals in the structures. The co-owners' concern for their environment and their compromise offer was legitimate, they said.

Yesterday's ruling applies to both the Quebec and Canadian Charters of Rights.

 

[Goober Mcfly]

Judge Iacobucci was impatient with an argument that the appellants ought to have known what they were getting into when they bought units at the buildings.

"They had no choice but to sign the declaration of co-ownership if they wanted to reside at that complex," he said.

"It would be both insensitive and morally repugnant to intimate that the appellants simply move elsewhere if they take issue with a clause restricting their right to freedom of religion."

Bullshiat.

I'm very supportive of people practicing their religions however they want (within the law, of course), but that doesn't exempt them from the responsibility to THINK before they do things. In this example, they should have known (or asked) that they weren't allowed to erect structures on their balconies at this particular complex.

This is like the people who buy a house next to the railway and then complain that there are trains going by in the middle of the night.

This is NOT a freedom of religion issue.

 

[Flower]

Basically I agree with Goober ......

Judge Iacobucci was impatient with an argument that the appellants ought to have known what they were getting into when they bought units at the buildings.

But then again ...........

"The potential annoyance caused by a few succahs being set up for a period of nine days each year would undoubtedly be quite trivial," Mr. Justice Frank Iacobucci wrote for the majority.

Why not live and let live?

 

[happygrump]

Sorry, Goober, but I cannot agree

The analogy of the person living beside a railway track and then complaining about the noise, to me, doesn't really follow the same logic.

This, to me, doesn't seem much different than Christians putting up lights and xmas trees on their balconies, or Muslims bowing to the east (on their balconies) a few times a day.

Besides, isn't the value of religious freedom more vital to the community than the appearance of a building for a few days? Maybe that's a value judgement, and therefore can be argued both ways. But to me personally, freedom of expression - even if we find it uncomfortable or unsightly - is one of the prime movers of civilized society.

 

[Goober Mcfly]

If a building has a "No Christmas Lights" policy, then you don't put up Christmas lights. But you are notified of this policy before you move in.

I missed the point about it being only a few days a year. Yes, I agree that's tolerable, but it's still silly that they agreed to a lease/whatever and then took offense LATER to a clause in the lease/whatever they signed.

</JMHO>

 

[Paul Waters]

I think we should be tolerant of religious rituals when the fundie religious people agree to stop trying to impose their religion on us.

 

[healer677]

I'm a walking symbol of my religious beliefs......

cross on a chain, several large and prominent tattoos - I dont have a problem with religious expression. As long as you leave me alone and not try to cram your beliefs down my throat.

 

[shack]

The only issue in favour of not allowing the succot as I see it is one of safety. If indeed the succot are a significant fire hazard, I see a comparison to not allowing the religious daggers of the Sikhs (I believe) in schools as it would then be an endagerment to others. If the building corporation is simply using the fire hazard issue as a smokescreen (no pun intended, but it's pretty good anyway) then it's comparable to Xmas lights.

Aside from that, live and let live, just don't make me change the way I live. The way somebody else's condo looks does not affect the way I live.

 

[pool]

I agree with flower ...

The way somebody else's condo looks does not affect the way I live.

exactly.

I'm somewhat conflicted with the situation in France as I do believe that religions are part of what causes conflict and friction within the human race.

However, I find it deplorable and repugnant that "conformity" is forced upon a group of individuals by a "higher power" in this context. It's not even freedom of expression as such, but stripping the individual of their choice to be who they are.

It may be argued that one has to draw a line at some point. An extreme and maybe not the best example would be, should students be allowed to sport swastikas in the context of expressing their nazi beliefs. I think the difference is that merely wearing clothing that is the dress of a persons culture/ religion is not the same type of "expression". It does not, in itself, impose anything on anybody and hence not a symbol of expression, as such.

On many levels, it very much depends on others perceptions and reaction with very little to do with the individuals in question...

Instating "rules" against clothing relating to religion may only compound the problem of perceived divisiveness because, in essence, it is stating that it is different and wrong from the perspective of the sacred "norm". It also perpetuates intolerance as in itself it is intolerant ...

Maybe their motivations and intent are good in their apparent aim toward "unity". However it is not only a form of intolerance, but an insensitive invasion of human dignity.

Canada is definitely on the right track, as imposed suppression and degradation of others personal beliefs are not healthy options or ones that I can stomach.

 

[baci2004]

If everyone kept their religion a secret it would make it difficult for someone else to hate them for it.

 

[Morgan Ellis]

I think we should be tolerant of religious rituals when the fundie religious people agree to stop trying to impose their religion on us.

Yeah, I hate it when those pesky door to door Orthodox Jews show up at my doorstep, trying to convince me to convert...


-- Morgan

 

[LeatherDoll]

There is merit in both approaches, but ... PART 1: The Human Rights Context

A long-term Human Rights advocate I worked at the Ontario Human Rights Commission’s Systemic Investigations & Special Programmes Unit over its existence. I operate from a Feminist approach that does not view (but opposes the definition of) equity as “sameness,” using “outcome and impact in opportunity” as the measure of “fairness” instead

The philosophy is based on a strict substantive model as opposed to the traditional Aristotelian/legal approach. The analysis requires an examination of not only 1) similarity in treatment - typically assessed as uniform application of the rule to all individuals regardless of group status, but also 2) its validity in achieving the desired goals, and 3) the resulting impact of its imposition on opportunities for participation and goal achievement arising only from membership in an identifiable group now “protected” because of empirically established long term social, cultural, and historic disadvantage and discrimination

The Aristotelian model routinely asks only if the rule is applied similarly in all circumstances without examining the rule itself or its impact. On occasion, analysis has revealed this method results in de facto exclusionary discrimination when the rule selects out applicants because otherwise irrelevant, measurable characteristics unique to their membership in a protected group (such as lower average height in women) cause proportionally different outcome from the remaning (non group) population to which the rule is applied

The Substantive model includes not only the 3 part analysis (above) for outcine equality across groups, but also the understanding that redress of differences obtained only because of group membership is needed to overcome long term disadvantage and lack of equity imposed by the particular (or similar) rules.

“Accommodation” of excluded protected groups, through modification or differential application of the rule to ensure validity and balance outcome codifies the notion that there is more than one legitimate way to reach a goal, and that immediate monetary cost does not necessarily outweigh long term social and cultural implications/costs borne by depriving people their right to equality of opportunity (i.e., the right to succeed and fail at the same proportional rate) as others based simply on their membership in a protected group. Similarly, past success achieved through the privilege of not being excluded does not entitle one to its continued benefit. The redress may require that this privileged status be frozen until those that had previously been denied opportuntity are allowed to “catch up” to what would have been their place on a “level playing field” if it had existed and the discrimination had not

This is the basis for Section 15 (Equality Rights) of the Canadian Charter of Rights and Equalities

(Equality before and under law and equal protection and benefit of law) 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination...
(Affirmative action programs) (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups...

and Section 11 (Constructive Discrimination)of the Ontario Human Rights Code

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination...except where

• (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
• (b) it is declared in this Act...that to discriminate because of such ground is not an infringement of a right

...(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any...

Canada is the first and only place in the world to formally adopt this approach as a constitutionally legislated philosophy

 

[jwmorrice]

Re: There is merit in both approaches, but ... PART 1: The Human Rights Context

...Canada is the first and only place in the world to formally adopt this approach as a constitutionally legislated philiosophy.

Not sure we should be proud of that. Perhaps this approach itself should be submitted to the empirical test. Are we as a society better off for doing things in this more complicated manner? Or are we just providing employment for ideologues and creating a human rights industry?

jwm

 

[LeatherDoll]

Goober: A Point of Information

The lease clause is both meaningless and illegal. One cannot sign away their (Consitutional) rights in Canada, nor can they be forced to do so in order to obtain something to which they would otherwise be entitled if their group membership were not a factor. Thus, any obligation to agree to a rule that imposes on their freedoms in order to obtain a contract (such as a housing lease) is not legally binding, despite signing the document.

For example, despite the inclusion of a clause that states a property owner cannot be held responsible for injuries resulting from a lack of property maintenance, and the fact that the lease holder signed the agreement with the clause included, a civil suit to obtain compensation for any ensuing injuries can (and likely will) prevail.

Further, if a person were denied the contract (and, thus, its benefits – housing in the current example) because of the illegal clause, grounds for a successful Human Rights complaint would exist - arguing discrimination in housing because of religion. The arguments will also be made under Section 11 of the Ontario Human Rights Code. - constructive discrimination – supported by the statistical analysis that demonstrates a differential effect on members of a protected (religious) group – Jews - when compared to the success rate of the remaining population of housing seekers who are not members of the group (non-Jews) as functionally impacted by the contract clause.

 

[LeatherDoll]

Part 2: My (2¢ worth of an) Opinion on two fronts

One: The legislation and its underlying philosophy

Long term, I believe that the approach adopted in France is correct. I recognize, however, that an intermediate, stepping stone, approach is needed to achieve its implementation. Canada’s laws are just that.

There is a difference between public representation of religious symbolism (headdress, jewelry) and ritual activities or displays carried out in private - even if private place (in this case the home balcony - equivalent to a yard) is publicly viewable.

For example, a counter clerk at my local postal station (not a franchise outlet) has a sign referencing his religious philosophy. It is imposed upon me every time I enter to conduct my post-related business. Its display, particularly in a Federal office on view to the public violates the (Federally owned) law that is specifically intended to govern public environments. Had he posted it in his living room, it would be fine.

Now, the substantive approach does not necessarily eliminate the possibility of displays, but it does suggest that displaying only one approach will likely be ruled discriminatory. Thus, there really is no problem with displaying a Christmas tree in an office, just in displaying ONLY a Christmas tree, as opposed to also displaying a Hanukkia (menorah), a Quansi reference, etc. On the other hand, religion, just as sexuality, aught not reasonably be a part of the office environment - the workplace is not a private place - and its public status binds its obligation to uphold all legislation, including Canadian Charter of Rights and Equalities and Ontario Human Rights Code not just in application, but also in appearance.

In the long run, France has recognized that religion underlies long term historical, cultural, and social disadvantage - including exclusionary discrimination, xenophobia, hatred, and violence - and has made the very strong statement that it is their belief that in order for these effects to be eliminated in their culture, its public demonstration will eventually need to be eliminated. The law is a proactive step on the part of the government to impose cultural change that they believe is in the overall best (or better) interest of all the citizens of the country (than the right to public display of religious belief).

Human Rights questions are, ultimately, always caused by a conflict in rights by members of different protected groups and their resolution is the determination, legally, of whose (or which) rights are more important, and thus, superceding, in a particular context. In this case, France has decided that the lack of incitement of the effects of religious differences is a greater cultural imperative than the individual’s right to public display of their religious beliefs. Thus, while France is NOT imposing that religion be eliminated or denied its citizens, it has legislatively declared that religion does not have a place in the public environment. Its citizens are still free to religious expression and practice in their own homes and in other private places (such as houses of worship).

My opinion is, long term, this is the way to go. It is a bold and daring move on France’s part and I support it. I also believe that Canada’s approach is the one that will eventually pave the way for the successful implementation of France’s legislation designed to achieve cultural change and better treatment of individual’s in their society.

 

[pool]

Leatherdoll,

While, from an analytical standpoint, I would agree that the decision in France, in the end, may turn out for the "greater good of all", my previous post still stands.

For the record, I am not a religious person by any means and in the past would be considered anti [organised] religion, but I have developed a tolerance, understanding, empathy and respect for religion over time. This came to pass through exposure.

It seems to me that their method is very much , in effect, burying the problems rather than addressing them. I find it interesting that you seem to view it as a step forward, while I see it as a step backward. In fact, it could be seen as a step forward, but sacrificing certain groups of peoples current religious identity; much like the philosophy of war.

I could be wrong and it may just be an unfortunate result of this "philosophy", but it seems to be discriminatory toward religious groups in which it is an integral part of their belief to dress in a visibly obvious manner (sikhs, muslims, orthodox jews etc ) While, I presume they also have banned adornment of the cross as a christian symbol, it does seem to me that this decision is, in part, influenced by or at least unintentionally bias toward Christianity.

While I clearly see the difference between exhibiting a sign of ones belief in public and in the privacy of ones own home, it troubles me that there is an apparent lack of empathy toward those it will effect on a very personal level. Some of these individuals within religions may adapt and/or accept it over time, while others may even welcome the change, but it is not for others to impose any change and create conflict within the individuals and their religious circle ( a possible fall out effect )

I don't think these individuals who make these decisions for the greater good of all are fully aware that, in many cases, religious style of dress is one of their beliefs and therefor they are forcibly eliminating it in a public context.

There once was a black woman who refused to sit on the back of a bus. That is what I consider a step forward. You can't change the colour of peoples skin, but unfortunately it seems you can force them to conform in their beliefs.

I'm just glad I live in Canada.

 

[Don]

Excellent post pool. I completely agree.

Let's not forget that freedom of expression is something that should be valued, even if it may contrast with our beliefs.

It is wrong to ban expression (religious or otherwise) because it may been seen as offensive by some. That is called censorship, something that we should not encourage.

 

[shack]

Yeah, I hate it when those pesky door to door Orthodox Jews show up at my doorstep, trying to convince me to convert...


-- Morgan

I hope they at least bring wigs with them for your immediate use once they've converted you.

 

[C Dick]

I thought that the issue in France was complicated by the fact that they had not totally banned the head scarves, but only banned them in public schools? This had resulted in some Muslim girls no longer attending public schools, instead either attending religious schools, or no schools at all. So the unintended effect of the law was to further polarize society, and Muslims in particular, based on how important they considered the scarves to be.

The French seem to tolerate dramatic policies, where Canadians always like to compromise, so presumably we will get some restrictions here, but not too many.

 

[LeatherDoll]

One of Many Replies Separated by Theme (Its a Complicated Topic) .. Part 3

Three: Continuing the Underlying Philosophy and Introducing the Numerical Analysis

Yes, it does appear a backward move, but that is because we are not yet ready for its adoption. As I said, it is surprisingly early in history to see such an approach legislatively adopted. However, France’s has simply made a public declaration that its long-term goal is to eliminate the non-consensual imposition of religion on its citizen’s in public spaces. Canada’s approach is the appropriate, responsible, and necessary stepping stone to achieving this.

Remember, the purpose in the creation and imposition of Human Rights law isits ultimate demise; its underlying philosophical design is self-eradication. The hope is that, eventually, through determined application, the need for the law will be abolished, since discrimination and systemic barriers will no longer actively influence human interaction.

The ultimate goal is creation of a “level playing field#### so that differences attributable to one’s membership in a protected group have no effect on an individual’s ability to fully participate in all societal opportunities.

This condition can be empirically demonstrated through a mathematical analysis whose formula is derived from the theory of “distributive justice:” the likelihood that the number of members of an (identifiable) protected group will both succeed and fail in (attempting to) participate in any particular circumstance or opportunity should be equivalent to the proportion of group members in the total pool from which candidates were selected, when compared to the likelihood of success and failure found in that population as a whole. Graphically this is seen when the curve that represents the distribution of outcomes achieved by members of a protected group is identically shaped (although not necessarily identically placed) to the distribution of outcomes obtained by the entire population from which all competitors were drawn

A disproportional outcome determined by this analysis is accepted as de facto evidence that a rule or policy has a systemic “adverse impact” in its application. For example, if the graduate student population is the only place from which faculty members are hired, and women represent 70% of graduate students but only 5% of all faculty, all other things being equal the conclusion will be that the hiring process inappropriately discriminates against (or limits the opportunity of) female graduate students to participate (or obtain positions) as faculty.

Accordingly, a subsequent review and modification of the policies and procedures governing the process that awarded the opportunities would be imposed such that the disproportional outcome is eliminated, even if it means temporarily suspending the current procedure in favour of one designed to overcome the group identified discriminatory disadvantage. Since the skewed outcome is likely the result of long term treatment, it is not expected that an immediate change will be seen as a result of these modifications, however; demonstrable representational goals, derived by the same statistically analytic result, and reasonable timetables to effect the desired change must be established.

These are three fundamental components of “special programmes” - as defined and recommended in Section 15 of the Canadian Charter of Rights and Equalities (quoted above) – designed to redress to historical and social disadvantage verified by disproportional representation of protected groups in a particular context, such as employment. (In the United States, these are called “affirmative action” programmes.) Continuous monitoring of the results is a final component, required to ensure that that the timetables are being followed and the goals are being progressively achieved.

Thus, while Human Rights law imposes no expectation for equality in outcome in a particular circumstance right now, it does insist on immediate implementation of policy and procedural changes, coupled with statistical analysis and continuous monitoring, to ensure equity for all participants, regardless of group membership, in the (not so distant) future.