Reasonable Doubts

The gap between religious rights and the rights of the rest.

Accommodation has such a cosy sound. Even when it is applied to government policies, it carries a hint of rest after a tiring journey. But there is nothing cosy or comforting about the accommodation issues that Canadians face today.

Take the issue of the burqa, the all-concealing garment that has become the focus of frighteningly intense emotion in the West. In France this summer, a Mediterranean resort sought to ban the so-called burkini, an outfit that covers only marginally more than a standard female Victorian bathing costume. The country’s Council of State overturned the proposed ban, but not before social media hummed with photographs of gendarmes forcing women in Muslim dress to leave, pay fines or even partially disrobe on the beaches. Not to mention a popular Facebook posting by the imam of Florence, showing—without comment—fully clad nuns cavorting in the water.

The term niqab is more familiar than burqa in Canada, where the face-covering veil surfaced as an issue in our most recent federal election. Prime Minister Stephen Harper pledged to ban it for citizenship ceremonies—a pledge that would have affected only a minuscule number of women, whose identities could have been established easily before the ceremony began. It is one of the symbols that the Parti Québécois’s proposed Quebec Charter of Values would have banned for public servants.

But why is it such a flashpoint? The issue of the burqa and niqab somehow resists rational discourse. On one hand, these wholly concealing garments cannot actually be defended on religious grounds. You will not find any mention of them in the Koran, which prescribes modest dress for both women and men. Even the term hijab refers not to a head covering, but to the idea of separation, which is commanded only for the wives of the Prophet. The niqab derives from specific Middle Eastern cultures, not Islam.

On the other hand, the burqa and niqab are certainly not unique in the history of fashion. They do not cover much more than the outside garment of an affluent matron in ancient Rome, whose veil proclaimed her social and marital status.

Yet they arouse inappropriately strong emotional responses in many Canadians. I have met lifelong NDP voters (the NDP strongly opposed Harper’s proposal) who nonetheless experience a painful rush of adrenaline at the sight of a burqa or niqab. Yet how can anyone argue that their rights are violated by a woman wearing what amounts to a tent with eye slits, assuming that it is her own choice? Surely a democratic society has to allow people to wear what they want, whether it is a burqa or the clothing of an 18th-century Polish nobleman, the preferred look for some of Canada’s Hasidic Jews.

Some of my female friends justify their reaction as a feminist response. They see the niqab as an affront to the battle for equal rights to women. Maybe—but I remember a time when some non-Catholics reacted with the same exaggerated revulsion to nuns’ habits. There is something about the total otherness of a woman in a niqab or burqa, that feeling of an earlier world intruding into the present, that gives a lot of Canadians the creeps.

I think that unreasonable sensation is precisely the reason why we need civil discussions and debates that will lead to policies on accommodation now. That revulsion is one of the danger signals that unite our issues on accommodation—we need to develop principles to deal with the issues where we cannot trust our emotions.

That is as true for accommodating disabilities as it is for issues of faith. Few Canadians would admit to negative feelings when they confront disabilities. It is impossible to imagine a Canadian politician following the lead of Donald Trump in his mocking imitation of a journalist with a chronic joint condition. Nonetheless, disabilities—physical, emotional and intellectual—create unease in a lot of us, so we would rather just pretend they do not exist. Moreover, accommodating all disabilities fully would be prohibitively expensive. We need to start formulating policy on what constitutes reasonable accommodation.

You can see why any sane politician would want to leave these problems alone. Canadians pride themselves on seeming nice—so polite that we apologize when other people step on our feet. And there is no nice way to resolve the conflicts that reasonable accommodation is meant to address.

To be fair, Canada’s challenge is nowhere near as extreme as our neighbour’s to the south, where several fundamentalist ministers applauded Omar Mateen’s massacre at an Orlando gay nightclub. And that was only six months after students at Oberlin College presented the school’s administration with a list of non-negotiable demands aimed at correcting its existing “premises of imperialism, white supremacy, capitalism, ableism, and a cissexist heteropatriarchy.” Now that is an abyss in approaches that is going to be hard to bridge.

But we have our own problems, on the evidence of the headlines of our newspapers. If you enjoy feeling outrage, they provide plenty of fodder for all political persuasions:

An eleven-year-old First Nations girl died of cancer after a court granted her parents the right to decline further chemotherapy and to seek traditional treatment. The parents opted for a Florida clinic licensed as a massage establishment—not the only case of this kind in recent years.

Last year a Montreal judge refused to hear a case (involving a seized car) until the plaintiff removed her hijab. Two years earlier, the Quebec Soccer Federation had tried to ban turbans for its players, a move that was overturned after a directive from the Canadian Soccer Association and advice from FIFA.

In 2014, York University stood by its decision to allow a male student to avoid classes where he might have to interact with women.

This year, a potential student with dyslexia accused the University of Ottawa, a bilingual institution, of discriminating against him by forcing him to learn French. Coincidentally, the same university cancelled (briefly) a free yoga class run for its Centre for Students with Disabilities after accusations of cultural appropriation.

In 2013, during a provincial election, a PQ candidate suggested that Montreal’s Jewish General Hospital should drop the word “Jewish” from its title and cease offering circumcisions. Her own party rejected the proposal.

In June, the Ontario Court of Appeal ruled that the Law Society of Upper Canada is entitled to deny accreditation to the law school of Trinity Western University, whose “community covenant” enjoins students to refrain from sex outside of heterosexual marriage. Ezra Levant commented on the decision in The Rebel, under the headline: “Update On Trinity-Western University’s Fight Against Anti-Christian Bigotry.”

We do have a framework for dealing with these conflicts, but it is vague. Our Charter of Rights and Freedoms guarantees Canadians freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly; and freedom of association.

So far, so good. But then you hit Section 15.1, which proclaims that we are all “equal before and under the law … without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Put those two sections together and you run into trouble. The two sets of rights—religious freedom and the equality of all Canadians—are not always compatible. As for some of those other points, the Bible itself discriminates against people with disabilities. It bars from the Temple “a blind man, or a lame man, or he who has a disfigured face, or any deformed limb” (Leviticus 21:18), adding for good measure hunchbacks, dwarves and anyone with eczema or scabs or crushed testicles (Leviticus 21:20).

Fortunately, the Third Temple is unlikely to be built in our Dominion, so no one will have to take its priests to court. We have more pressing issues. In the area of accommodating religion, it is easy to identify the key conflicts: sexual orientation and conduct, reproductive rights and the right to die. If we were really courageous, we would add the issue of religion and education.

The clash between LBGTQ rights and the more conservative branches of religion is the one that grabs the most attention. I suspect that for most readers of this journal, it seems blindingly obvious that equal treatment regardless of gender or sexual orientation outweighs the scruples or distaste of the faithful. That is part of the problem: we all see our own reactions as common sense.

We are accustomed to addressing conflict with logic, so it is tempting to apply rational argument to the issue of some fundamentalist religions’ aversion to sexual freedom. Advocates often try. In June, Britain’s The Independent argued that Islam does not explicitly condemn homosexuality, noting that the Ottoman caliphate decriminalized gay sex in 1858, long before any western country.

You cannot make that claim for Judaism or Christianity, since Leviticus (20:13) denounces homosexuality as a capital offence. Moreover, Deuteronomy (22:5) blasts dressing in drag as “an abomination before the Lord your God.” But critics of fundamentalism point out that the Old Testament identifies a whole panoply of abominations, ranging from idolatry, false scales and “the hire of a harlot or the wages of a dog” (Deuteronomy 23:18) to pork, shellfish and insects, vultures, a lying tongue and “the proud in heart” (Proverbs 16.5). If you choose to embrace the Old Testament’s punitive attitude to sex, this argument runs, shouldn’t you also have to let your fields lie fallow every seventh year, to stop rounding off the side-growth of your heads and harming the edges of your beard (Leviticus 19:27) and to avoid mixing wool and linen?

That argument was popularized in rather more dismissive terms by a letter attacking the homophobia of Dr. Laura Schlessinger, an American radio host. (My favourite passage in the letter runs “Lev.25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can’t I own Canadians?”)

But rational argument, whether accurate or not, is not all that useful in this context. Homophobia is immune to facts. That is exactly why we need policies. We face an inescapable conflict: on one hand, a segment of the Canadian population trumpets its right to practise its religion freely—not just to worship as it chooses, but to restrict its membership, to control the education of its children and to avoid activities and people it condemns. For another segment, to which I belong, the rights of the religious should not be allowed to infringe on the rights of equality and security guaranteed in the Charter. For us, LBGTQ rights trump the rights of the religious. Moreover, we expect and demand other rights granted to us by the legal system, including the right to control our own reproductive and sexual lives and now the right to die, in strictly defined conditions, if life becomes too physically painful.

The right to die is, at this point, a game changer, forcing us to confront a conflict we have been ducking for years on abortion. Just ask the women of Prince Edward Island, who heard in July that they might finally be able to obtain abortions in their own province. Up until then, no doctor in PEI was willing to perform the procedure. Many doctors and other healthcare workers—out of religious belief or simply respect for the Hippocratic Oath—would have to violate their own consciences to assist in ending a life.

We need better guidelines for all of the areas where government and religion already intersect, and there are a surprising number of them. For instance, although an Ontario Muslim group has abandoned its efforts to establish sharia courts for some civil cases, Ontario does permit the use of both the Jewish Beth Din and Catholic canon-law courts.

In April, the Canada Food Inspection Agency began enforcing labelling regulations for halal food, as it already does for kosher certification.

Above all, we surely have to address the issue of religion and education. Publicly funded religious education has disappeared in Newfoundland, where all public schools were faith based not so long ago. But the governments of Alberta, Saskatchewan and Ontario still pay for Catholic education. Quebec, British Columbia, Alberta, Manitoba and Saskatchewan offer partial funding for any private school that meets specific criteria set by each province.

Defenders of these systems point to the unique historical status of the Catholic church in Canada, an argument with some validity. But those Catholic school boards were initially established in places and at a time when public schools were avowedly Protestant. Given that today public education is secular, and that many of the children in our schools belong to the Muslim, Hindu, Sikh and other faiths, this privileged status for one church seems manifestly unjust.

I see no reason for the public purse to pay for religious education, but then I am a secular person. I would like to see as many children as possible in public schools, precisely to ensure that they are exposed to a wide range of ideas and beliefs. For me, the French decision to ban girls in hijab or boys in kippot from public schools is counterproductive. I do not think that the cause of secularization is advanced by denying public education to the religious.

Of course, France is not the only country where policy produces undesirable and possibly unanticipated consequences. Ontario last year introduced a long overdue, more inclusive sex education curriculum in its public schools. That sparked angry and surprisingly large protests in some areas, often based on false information about what was being taught. The province held its ground, with the result that some parents, particularly in Toronto’s Thorncliffe area, are now homeschooling their children.

That is their right, of course. They blame the government for trying to force-feed their children homosexual propaganda. I blame them for their bigotry and authoritarianism. That is yet another reason to start gathering information and formulating policy, instead of playing politics: this is an issue where everyone is biased.

And, in spite of my biases and pace the Parti Québécois, we cannot actually base these policies on the simple premise that Canada is a secular state. That position is the starting point of Quebec’s sane and balanced 2008 report on the issue of religious accommodation, Building the Future: A Time for Reconciliation, by Gérard Bouchard and Charles Taylor. The authors wrote:

Liberal democracies, including Québec, all adhere to the principle of secularism, which can nonetheless be embodied in different systems. Any secular system achieves some form of balance between the following four principles: 1. the moral equality of persons; 2. freedom of conscience and religion; 3. the separation of Church and State; and 4. State neutrality in respect of religious and deep-seated secular convictions.

This sounds convincing, although state neutrality in respect of religious and deep-seated secular convictions is often impossible. But Quebec is, as we are so often reminded, a distinct society. You cannot actually prove that Canada as a whole is a secular state. The preamble to the Charter of Rights and Freedoms begins: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

Until comparatively recently, Canada identified itself as a Christian country and some of its citizens still cling to that belief.

Canadians are demonstrably more relaxed about religion than Americans—we do not demand that our prime ministers attend church regularly or play golf with evangelical leaders. But religion is subtly interwoven into our government. Our leaders call on God as their witness when they swear their allegiance to the Queen.

Is it time to follow France’s lead and proclaim our country a secular society? Probably not: according the 2011 census, almost a quarter of Canadians identify themselves as religiously unaffiliated—although that is up from a mere four percent in 1971. Meanwhile, by 2010, 27 percent attended a church or equivalent at least once a month. That is a lot lower than the 46 percent who were regular churchgoers in the United States, but still a substantial minority.

So I do not think that Canada is ready to join France as a self-proclaimed secular society. But that does not mean that we cannot have an essentially secular government, one that protects the ­legitimate rights of religions without allowing them to violate the rights of others and that does not favour any one religion over the rest.

We cannot achieve this solely through the traditional Canadian virtues of compromise and courtesy. There is no nice way to make these decisions. There are going to be a lot of unhappy people once we start spelling out our limits on tolerance of religion, dictating the limits of personal conscience in our health care and removing religious faith from publicly funded schools.

But our cuddly self-image will suffer much more if we face the truly tough decisions involved in addressing all the problems associated with disability. It is an area where Canadians and their governments talk a good game. All our jurisdictions are passing new laws to make our buildings and institutions more accessible. Advertising campaigns urge us to remove the stigma from mental illness, to learn to deal intelligently and compassionately with it. Under the law, a disability is no disqualification for education or employment.

But we do not talk much about how to pay for that accommodation. I do not need to cite facts and figures here: the flaws in our system are self-evident even at the level of theory. There are sharp limits on government assistance for the myriad forms of assistance required to accommodate the full range of disabilities.

As a result, to my mind, we have developed a system that runs on hypocrisy. This spring, for instance, Ontario backed away from a change that would have saved it a great deal of money: it had proposed ending its funding of intensive therapy for children with autism after the age of five. Other programs are theoretically available after that, but they are already oversubscribed. In the face of intense protests from parents, the province ponied up an additional $200 million to extend the program. In many other areas, politics and the squeaky wheel dictate policy, rather than medical evidence or need.

In a sense, we are now suffering from the effects of scientific success. For many diseases and disabilities, we enjoy greatly improved diagnostic tools and better treatment. No sane person could want to return to the ignorant and punitive treatment endured by children with learning disabilities when I was at school.

From my own experience, I can look back over a history of triumph for students who overcame depression, eating disorders and other mental illnesses, or graduated in spite of staggering challenges created by serious mobility limitations, other chronic medical conditions and, in one case, complete blindness. A disability should not automatically bar someone from an education or a job.

But that is not the whole story. I can also, again from my own experience, recall students whose mental illness made their own academic success impossible, and whose presence in the classroom drained resources and attention that should have gone to their colleagues. Almost anyone who teaches university in Canada has a collection of grievances on this issue.

We are ducking a huge wave of neglected tasks. To start, we need to sharpen our often overly elastic definitions of disability.

In the fields of learning disabilities and mental illness, the problem is particularly acute. We are lucky in Canada to host many highly effective treatment and lobbying agencies, often combined in a single institution. That is good news if you suffer from a mental or physical illness. But I think it also means that we must approach the facts and figures supplied by these agencies with a fistful of salt. The reasoning of the Learning Disabilities Association of Ontario seems unimpeachable when it deduces that “about 6.87% of students in Ontario publicly funded schools in 2013–14 would have learning disabilities,” but that does not tell us how much help those students would need, or even if we could help all of them.

When it comes to physical disabilities—involving vision, hearing, mobility—advocates have produced sheaves of studies showing that they cost employers very little. You can find dozens of them with a simple Google search. I do not trust those figures either. I think they benefit from those very elastic definitions of disability that I just mentioned. Of course a worker with some hearing loss is no problem at all in many professions. But if someone requires a signer or attendant at all times, the cost can be prohibitive, for a business or, eventually, a government.

And the truth is that we are not going to pay to accommodate fully every disability for every Canadian. So we need to decide how much we are willing to pay to live up to our image of ourselves and to behave justly and compassionately.

It will be a grisly exercise, but we cannot put it off any longer. The baby boomers, that demographic tsunami, are hitting the years when dementia is going to become an epidemic. They are not going to recognize their own growing deficits immediately. They will want to stay in their homes, even if that is no longer safe. They will want to continue driving. So you can see why we need to start hammering out some policies now, even if those policies cannot possibly satisfy everyone. The late psychiatrist Bruno Bettelheim titled one of his books Love Is Not Enough. For Canada, niceness is no longer enough either.