There is a scene in the movie Charlie Wilson’s War where Congressman Charlie Wilson meets a businessman from his district in Nacogdoches, Texas who is lobbying him to intervene in a case involving a creche on a firehouse lawn. In the movie Wilson ends the meeting by telling the businessman that “there are 38 churches that the creche could be moved to and everybody lives.” The point that Wilson makes is that there are often practical, reasonable, solutions to conflicts over culture that allow both sides to maintain the practices and values that are most important to them. In Canada the Harper government is appealing a court decision allowing devout Muslim women to wear a niqab during citizenship ceremonies. The courts struck down a Harper government policy forbidding niqabs at ceremonies, finding that it comes into conflict with the existing law that requires that ceremonies allow for the greatest amount of freedom of religion possible. The Harper government’s decision to ban the niqab at citizenship ceremonies was a mistake. There are reasonable accommodations that allow the government to accomplish its goals while allowing those Muslim women that feel wearing a niqab is important to their religious practice to such beliefs and practices.
Religious freedom is worth protecting because of the central role that religion plays in the way that individuals define their identities. Religious beliefs go beyond simple preference and affect the deep convictions that people have about the way life should be lived. They deserve protection in much the same way that political beliefs deserve protection. Just as it is difficult to have a free society in which people are limited in the political viewpoints they can express, it is difficult to have a free society in which individuals are limited in the way they can exercise their beliefs about central religious questions regarding what beliefs and practices are moral. This is especially true given that the government cannot claim to have a unique insight into which religious and moral beliefs are correct. The government has no reason to believe that one set of religious beliefs is normatively better than another, and so it ought to stay neutral on matters of religion. This should not be taken as an argument against any law restricting religious practices. A right to freedom of religion should not be used to defend practices that harm others, that restrict the rights of members of the religious community, or that prevent a government from pursuing a clear and compelling state interest. As within any law restricting individual liberty, however, it should be the burden of government to justify why a restriction of freedom of religion can be justified under such criteria.
Many government and social practices have roots in religion, even if they have become divorced from there original religious meaning. A great deal of social customs and even government rules have been developed in societies that were (or even still are) predominantly Christian. In Canada, the rules that governments have made have developed to fit a Christian society, even if governments for the last half century have maintained a strong commitment to neutrality on religion. These rules and practices do not always fit with the practices of non-Christian religions. For example, a police uniform developed in a majority Christian society may include headwear that does not comply with the religious requirements of Jews, Muslims or Sikhs. A government in a majority Jewish, Muslim, or Sikh state, even a secular government, would most likely design different uniforms in order to respect the practices of the many within their country. A society that treats individuals from different religious backgrounds equally has to recognize that many of its practices and laws are not religiously neutral. Such societies ought to make adjustments to their rules in order to accommodate the practices of individuals with different religious beliefs, provided those accommodations do little to affect the goals of the law or practices.
Central to the case for these exemptions is that there is often no strong normative argument for the existing practice being debated. There is no inherent value to keeping one’s head uncovered, it is simply a cultural practice that has developed in majority Christian societies. One cultural group may see keeping one’s head uncovered as an important sign of respect while another may see it as a sign of disrespect. The same argument can be made for face coverings. The case that there is some inherent value to keeping one’s face uncovered is a tenuous one. Individuals who keep their faces covered are demanding a greater degree of privacy public than many in Canada are used to, but this amount of privacy is not unreasonable. Individuals, with the exception of security and other personal tasked with identifying people, do not have a right to identify every person that they come into contact with, and there is little value in doing so. It is not the way that many in Canada are used to doing things, but “it is the way we do things here” is a particularly poor argument for requiring others to fall in line with one’s cultural, religious, or social practices. There are situations in which society should limit religious practices, but it is the burden of the government banning the practice to justify the limitation.
There are two normative arguments made in favour of banning face coverings at citizenship ceremonies, one of which can be dealt with by accommodation and one of which can be responded to. The first argument against the presence of niqabs or other facial coverings at citizenship ceremonies is a practical one. Individuals receiving citizenship need to have their identity verified in order that government officials can be sure that they are who they say they are. The simple accommodation that can be made to deal with this problem is to allow the applicant to reveal their face to an official in private. This allows the government to be satisfied that they are granting the correct person citizenship while the applicant is allowed to maintain their own religious practices. Put another way, “everybody lives.”
The second argument is one that the Harper government has been making in defence of their policy. The Conservatives have argued that the niqab is somehow inherently anti-women, and that as a result it should be a practice discouraged in Canada. This is a weak claim to make in the face of a challenge to the law that is coming from a Muslim woman, Zuna Ishaq, seeking the right to wear a niqab at a citizenship ceremony. The government should certainly intervene in cases where communities seek to limit the rights of individuals within them, but it is far from clear that this the case in this situation and it should be the burden of government to prove that the community is exerting some kind of pressure on the individual. It is certainly possible that a Muslim woman wearing a niqab is bowing to pressure from her religious community. But, it is equally possible that she feels deeply committed to an interpretation of Islam that requires women to wear a niqab and has freely chosen to maintain the practice. Individuals follow all kinds of highly regimented and restrictive religious practices out of a deep religious conviction. Certain denominations of Christian priests make a commitment to celibacy, and ultra-orthodox Jews follow highly regimented rules governing everything from what they wear to who they are allowed to interact with and when (there are gender segregation rules practiced by ultra-orthodox Jews). Individuals freely choose to maintain many of these practices. While upbringing certainly influences these individuals’ decisions the fact that many leave these communities and that some convert to them suggests that individuals have the agency to decide whether they want to engage in these religious practices. It is not unreasonable to expect that a woman committed to a particular interpretation of Islam would freely choose to follow a requirement to wear a niqab. Absent evidence to the contrary, government’s should assume religious practices, even ones that are highly restrictive, are free choices. The government has a role to play in ensuring that individuals from all communities are exposed to different ideas and ways of life, but it should not deny the right of individuals to follow religious practices just because such practices are foreign to the vast majority of individuals with Canadian society.
On religious questions governments have to, to some degree, take individuals at their word when it comes to the sincerity of their beliefs. When a woman claims that wearing a niqab is important to her religious values she should be taken at her world. In the absence of any other evidence, the government should not claim that this somehow reflects a misunderstanding of her interests or an anti-women culture. A government committed to allowing a diversity of religious practice must further recognize that allowing for the equal practice of religions requires adjusting rules and norms that were developed in a society that is less religiously diverse than Canada is today. When these accommodations have limited costs and do not infringe on the rights of others they should be granted. The fact that most people do things differently is not in and of itself an argument to require others to fall in line within Canadian cultural practices.