Will Religious Freedom take a Hair Cut?

Jonathan McLeod

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.

Comments

6 Responses to “Will Religious Freedom take a Hair Cut?”

  1. R. Mowat
    November 17th, 2012 @ 10:35 am

    This case comes at an interesting time for me, since there has been a bit of low-level controversy in my neighbourhood over a beauty salon refusing to provide haircuts to men. The same case, in reverse, but (apparently) lacking the religious basis for the exclusion).

    I disagree with Ms. Selick’s analysis. The concept of rights is not inviolable (in the sense that she means it) and the Charter of Rights is very clear on this point (Section 1).

    Imagine Ms. Selick’s argument if the complainant in this case was not a woman, but instead a black man. Does she really believe that Toronto should permit “Whites Only” barbershops? Does she really believe that the elimination of “Whites Only” businesses is essentially “slavery” for small business owners?

    No one has the right to operate a barbershop (or any other business) according to the rules of their religion or any other personal belief. Businesses are governed by an extensive series of regulations and rules intended to make the business suitable for civil society (public health rules, occupational health and safety, labour legislation, etc..). Human rights legislation is just one set of those rules. Business owners are required to not refuse service to someone based upon a protected characteristic under the legislation.

    Mr. Mahrouk and Mr. Saaden as business owners are not exempt from these rules because of their personal beliefs.

    Mr. Mahrouk and Mr. Saaden need to consider the possible ways in which Ms. McGregor (and other women) would be able to access the services provided by their business. This includes considering hiring another barber (perhaps on a casual or part-time basis) who is able to provide haircuts to women. This could possibly include a partnership with another hair salon in the neighbourhood.

    They need to consider these possibilities, tally up the cost, and determine if they are able to remain profitable.

    If there is, in fact, no practical way to restructure their business to make this work, then their response/defense is based upon undue hardship. Not upon their religious beliefs.

    [Reply]

  2. Peter
    November 18th, 2012 @ 7:43 am

    Mr. Mowat, would your analysis of what Mr. Mahrouk and Mr. Saaden “need” to do hold for a small-business esthetician who declined to give a man a body wax or a makeover?

    [Reply]

  3. R. Mowat
    November 18th, 2012 @ 9:27 am

    Yes.

    [Reply]

  4. Peter
    November 19th, 2012 @ 6:18 am

    Then you get a ten for rational consistency and human rights literalism and a zero for understanding the personal and psychological dynamics most people experience about personal grooming. By all means, let’s impose practices hardly anybody wants in the name of freedom and tolerance.

    [Reply]

  5. R. Mowat
    November 19th, 2012 @ 10:15 am

    Well, the Code does provide an exemption for public decency (ie, men can be prevented from using the women’s change room at the pool). Is there a case for that here? Or in the grooming example?

    It *is* just a haircut. Still, why do we think this business should be exempt from the rules? Is there a compelling case for barbershops to be provided with an exemption in the Ontario Human Rights Code?

    But why are we surprised that there is a prima facie human rights case here? It’s an obvious violation of the law.

    I can’t think of another business that is permitted to refuse customers because of the religion of the employees. Can anyone else?

    [Reply]

  6. R. Mowat
    November 19th, 2012 @ 10:31 am

    I also wanted to point out that human rights laws protect Mr. Mahrouk and Mr. Saaden as employees.

    For instance:

    In Moore v. British Columbia (Ministry of Social Services), 1992, a human rights tribunal determined that a financial services worker could not be compelled to assess clients for abortion services if it was contrary to her religious beliefs, notwithstanding that the government had the duty to provide access to abortion services to that client.

    There is an analogy here. As employees, they (probably) can’t be compelled to cut Ms. McGregor’s hair themselves. But as business owners, they are obliged to find a way to provide barbershop services to all sexes.

    [Reply]

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