November 16, 2012 | 6 Comments
I have never thought that essential freedoms can conflict. Certainly; they can appear to conflict, but when we strip away all the trappings and bluster, we will generally find one of two things, either the apparent conflict is a superficial conflict associated with the application of our fundamental freedoms, or we’re not actually talking about fundamental freedoms at all. The basis of our liberty exists in the negative rights we cherish - such negative rights as freedom of expression, freedom of religion and freedom of association.
Writing for the Canadian Constitution Foundation, Karen Selick gets it:
The only kinds of claims that can genuinely be rights are those that are both universal and reciprocal. Everyone has to have the same right, and everyone’s obligation to everyone else must be identical. The right to life, for instance, means that you don’t kill me, and I don’t kill you. We both have the same right not to be killed, and the same obligation to refrain from killing the other person. Such rights—commonly called “negative rights”—create no conflicts between claimants. They are invariably rights to be left alone, free from coercion.
What, you may wonder, leads Ms. Selick to write about the inability of elemental freedoms to conflict? A barbershop.
Yes, a barbershop. As Ms. Selick writes:
It appears that this past June, a woman named Faith McGregor went to a Toronto barbershop that offers only men’s haircuts, not women’s. She asked for a cut but was refused. The two Muslim shop owners, Omar Mahrouk and Karim Saaden, said their religion forbids them from touching a woman who is not a member of their family. Therefore, they refused to serve her even though she wanted a man’s-style haircut.
The barbers have the genuine right in this case. They should be legally permitted to refuse haircuts to whomever they please—but not because they have freedom of religion. What they genuinely have a right to, and what the tribunal should recognize and enforce, is a right to plain old unadorned freedom.
It’s true that the barbers have the essential freedom in this case – the negative right, but that is not the end of the story. Our freedoms are regularly infringed upon. In fact, our Charter explicitly states that the government is allowed to infringe on such rights. Freedom of expression is regularly curtailed. So, too, freedom of association. And, certainly, we do not have carte blanche freedom of religion. There is a legitimate clash in this case, even if we don’t consider one’s claim of a right not to be discriminated against legitimate.
The right that Ms. McGregor is asserting is most certainly not a negative right. It’s not really a “right” at all. It would be better described as a protection: a “right” that has been conjured by the government to fight discrimination. Fighting discrimination can be (depending on the context) a justifiable limit on our rights and freedoms. We are long past the days of permitting No Irish Need Apply-type actions.
In this case, the discrimination that the barbers are perpetrating re-inforces a long-established power dynamic that our society has been fighting to overcome for decades, men discriminating against women. When discrimination re-inforces this sort of power dynamic, it is completely reasonable for society to consider addressing it through the use of legislation and/or the courts - even if that legislation is directed at sexist religious behaviour. No one’s rights are 100% inviolable, and it is facile to argue otherwise.
That being said, I tend to come down on the side of Ms. Selick and the barbers in this situation. I don’t think the effects of this discrimination are egregious enough to warrant a legal remedy. I think we are better served if we keep this matter out of courts and tribunals.
As I said the last time we were talking about barbershops, the better way to address such chauvinism is through bad press and boycots.