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Unreasonably focusing on reasonable accommodation in Canada?

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Tuesday, March 2, 2010

Jean-François Gaudreault-DesBiens, Université de Montréal
Guest Contributor

Here we go again.  As I write this entry, a new controversy has erupted following a Quebec government’s decision to allow private Chassidic schools to hold classes on weekends and even during the summer.  The idea underlying this decision is to permit these schools to teach both their religion-heavy curriculum, which they already do, and the compulsory subjects prescribed by the department of education (French, history, maths, etc.), which they are barely doing currently, thereby potentially contravening provincial law.

The government sees these weekend and summer classes as a way to facilitate the social integration of Chassidic children by ensuring that they, like all other Quebec children, are exposed to some core subjects deemed critically important for their education.  Since this decision was made public, however, proponents of a strong conception of secularism have vigorously attacked it. In essence, they argue that it represents an unacceptable and unreasonable bending of a general rule, i.e. to follow the regular academic calendar, in view of facilitating the life of religious groups already acting in breach of the law.  Unions have jumped in the debate, arguing that the government’s decision will likely provoke a slippery slope of similar claims and, therefore, a patchwork of different, religiously-inspired, academic calendars.

The problem with these critiques is that they lose sight of the fundamental objectives that are sought when we accommodate religious individuals.   From a strictly legal perspective, this doctrine seeks, of course, to ensure respect for freedom of religion and religious equality. 

Inevitably, disputes may arise as to the scope of such rights and the reasonableness of the accommodations requested. At a broader level, however, reasonable accommodation is about the tangible integration of individuals within society with their “difference,” be it related to their gender, race, physical ability, religion, etc.  This broader objective has generally tended to be overlooked in the reasonable accommodation debate that has taken place in Quebec in the past few years. While it is by no means illegitimate to question whether a particular request for accommodation is reasonable or not, public debates about reasonable accommodation should also – and should always – take into consideration the broader objectives sought.

When a Muslim teenager is allowed to wear a hijab while attending school, instead of being prohibited to do so as some would have it, we are actually preventing her from retreating into her community and reducing her identity to its religious dimension.  When we take the means to ensure that Chassidic children will be exposed to the core curriculum available to other children, we are allowing them the possibility to be moderately acculturated to the values and ideas that dominate in society. In both cases, taking into account the individuals’ “difference” is a way to prevent them from further deepening that difference. Reasonable accommodation is not casuistry gone amok; it is merely principled pragmatism.

Now, what are we to do with strong principle-based arguments against the reasonable accommodation of religion? Two such arguments that are often heard in Quebec are the equality between men and women, on the one hand, and the principle of secularism, on the other. For instance, some argue that head covers like the hijab inherently convey the message that women are unequal.  Of course, not all head covers are created equal, and their anti-egalitarian meaning may be clearer in some cases than in others.  Irrespective of what one might think about it, however, it remains quite striking to see how much time is devoted to the head cover issue while so many questions concerning the equality of men and women remain unresolved.  Aren’t women still earning generally less than men for equivalent work?  Aren’t women still more likely to suffer physical and sexual abuse than men?  Aren’t women significantly underrepresented in high political and business positions?  Why then focus on what religious women wear?

The recurrent invocation of the principle of secularism raises different, but equally interesting, questions.  Besides the fact that there is no principle of strong secularism formally enshrined in our constitutional order, besides the fact that the countries enshrining such a principle, like France, often give it a much more nuanced application than what urban legends convey, basic fairness commands that such a principle, if it were applied, would have to be applied equally to all.  For example, you cannot claim to have a secular state while defending at the same time the presence of the crucifix above the speaker’s chair in the National Assembly. Although a crucifix may have a cultural and almost a-religious meaning in a certain setting (for example in a museum), sometimes a crucifix is a crucifix, as the European Court of Human Rights recently noted in a case emanating from Italy.   The bottom line here is simple: secularism is not only “pour les autres.”

Last, but not least, opposing modest forms of religious accommodation such as those mentioned above in the name of the fight against religious extremism seems to be a strange strategy if the refusal of an accommodation means that the claimant will further retreat in his or her community, and will feel further excluded from the mainstream. If religious extremism deserves to be fought because it rejects some of the basic tenets of liberal democracy, i.e. individual freedom and commitment to ideological pluralism, it is hard to see how an ideological fight against the doctrine of reasonable accommodation as a whole can effectively serve this purpose.

When we look at the broader picture, it is hard not to conclude that Quebec’s current obsession with reasonable accommodation is itself rather unreasonable…

Jean-François Gaudreault-DesBiens is Professor of Law and Canada Research Chair in North American and Comparative Juridical and Cultural Identities in the Faculty of Law at the Université de Montréal.

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Equity Matters

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Interculturalism and pluralismEquity Matters