Sunday, November 25, 2012 | Categories: Michael's Essays
(Photo Pin / Diamondduste)
Should a practicing Roman Catholic doctor be compelled to perform an abortion?
After all, the procedure is entirely legal. The doctor is salaried and supported by public monies. Why shouldn't she be forced to carry out an abortion, even though it might violate one of the tenets of her religion?
Should a civil servant in a provincial government whose job involves
performing non-religious marriages be forced to do so for same sex
couples even if it offends his or her religious principles?
After all, it is the mandate and duty of a civil servant, paid for by the public, to carry out the political will of the people as expressed in the policies of their elected representatives.
Those are fairly weighty and serious matters that could deeply affect or alter the personal lives of ordinary people.
What if the tensions are of a different order, and on a more mundane plane?
Like the very ordinary business of getting a haircut.
Earlier this month, a young woman who works in downtown Toronto, wanted to get a quick haircut on her lunch hour.
She keeps her hair very short and never goes to a hair salon. She prefers a barber shop.
She walked into a downtown barber and asked for a haircut. A specific, short cut called the businessman.
The barber apologized but said he could not serve her.
He said as a practicing Muslim, it was forbidden by his religion---he could not touch a woman not related to him.
He could cut the hair of his wife or daughter or sister or his mother. But not of an unrelated woman.
In the usual course of things, the matter would have ended there.
Instead, the woman lodged a formal complaint with the Ontario Human Rights Commission. She argued that she was denied equal treatment under the law because of her sex.
This year is the 30th anniversary of the implementation of the Charter of Human Rights and Freedoms.
In those 30 years, our various networks of laws and regulations have focused on the Charter rights of individuals, especially in the area of discrimination.
Human rights tribunals and commissions are in every province and they are busy.
In those 30 years, arguments over what constitutes a human right in need of protection and what is less clear, have created a kind of hierarchy of rights.
For example, does my right to privacy trump freedom of the press? Is my right to be protected from hatred subordinate to freedom of speech?
And what about my freedom to follow the dictates of my religion in my own way? Is that right inviolable?
Two years ago in Saskatchewan, so-called marriage commissioners went to court to protest against the law ordering them to perform non-religious same-sex marriages.
They said that such an order violated their religious rights and were offensive to their conscience.
In 2004, the Supreme Court of Canada had affirmed the validity of same sex marriage. So in Saskatchewan, who was in the right?
The province's highest court ruled in January 2011 that the commissioners had to carry out their public duty to perform same sex marriages. In his ruling, Mr. Justice Robert Richards said that freedom of religion is not absolute.
So where does that leave the Muslim barber? And the outraged young woman?
The case will go to mediation in February.
The tribunal will try to reach a reasonable accommodation.
Which is another phrase for common sense.