More on the Kirpan Case: Of "Weapons," Communities, and Religion

Brian Leiter asks some excellent questions on the comment thread to my earlier post on the Supreme Court of Canada's kirpan case.  I encourage interested readers to take a look and respond if they wish.  Rather than hide a very lengthy response in the comments, I'm posting it here, secure and unapologetic in the knowledge that typos doubtless have found their way into the post: 

Thanks, Brian, for weighing in with some interesting questions.  I've leafed through the Canadian Supreme Court majority opinion, and it's not bad as SCC opinions go (I'm not generally too impressed by the Court's work on the whole), but let me offer largely my own quick and dirty version of my best arguments on the questions you raise, with a couple of cites to the Court.

The first question you raise is what work is done by the argument that there are other potentially lethal objects in the school environment besides kirpans.  You suggest that it could lead on either extreme to lifting a ban on dangerous items or banning them all.  Since neither seems likely to be what the Court intended, you suggest that perhaps the Court is saying something along the lines of, "There is an independent value to permitting students whose religious beliefs require them to carry weapons to carry them," one that ought to outweigh general safety rationales given the commitment of the sect to carrying weapons and the fact that all kinds of other harms already lurk in schools.

I'm not sure this is the only avenue into your question, or even the best, but I find myself reacting to this point in your discussion by asking how we should view the kirpan: is it a "knife," a "weapon," or a "religious symbol?"  The school board in this case made fairly clear in its arguments to the Court that "the kirpan is essentially a dagger, a weapon designed to kill, intimidate or threaten others."  [para. 74 of the majority opinion]  Similarly, I think Prof. Hamilton looks at a kirpan and refuses to see anything other than a knife simpliciter. 

The Court, without being blind to the potentially violent use of the kirpan and thus dully saying, "no, it's a religious symbol and that's that," looked at the kirpan in context.  That context certainly includes the religious symbology of the kirpan, its centrality to Sikh beliefs and practices; and it includes Sikh religious teachings (uncontested in this case) that favor pacifism and require that the kirpan "not be used as a weapon to hurt anyone."  [para. 36]  It includes the fact that the record evidence suggested a lengthy practice that other Canadian school systems that allowed Sikh students to wear kirpans had encountered no incidents of violence, and the fact that, unlike in other contexts, such as airplane flights, schools have an ongoing relationship with students and some opportunity to evaluate whether particular students claiming the right to wear the kirpan present particular risks based on their own conduct.  And given that one concern raised here was that someone else might wrest the kirpan away from the Sikh student, it included the context that the plaintiffs had been willing to compromise by wearing the kirpan with the knife sealed in its sheath and sewn up inside his clothing; what they were challenging was an absolute ban.  In these circumstances, the kirpan genuinely begins to look more like a "religious symbol" than a "weapon," and one can fairly ask whether, given that other lethal objects are far more readily available in the school environment, it makes sense to prohibit the kirpan absolutely.

[more after the jump...]         

The school board distinguished the kirpan from other potentially lethal objects by saying that it would be absurd to ban those other objects, such as compasses or baseball bats: "Does this mean that we should stop studying geometry or playing baseball?"  This perhaps leads us into the second part of your question that I've excerpted above: what work is the consideration given by the Court in the quoted excerpt doing?  The Court notes that this seems to mean that in the school board's view, "the activities in which those objects are used [are] important, while accommodating the religious beliefs of the appellant's son is not."  [para. 74] 

And this does seem to me to go to what the Court is saying, as you suggest.  We think of baseball bats and scissors as essential objects in the school system, not weapons as such; even if we think of them as weapons too, we are seeking reasonable safety in the circumstances, not absolute safety in the schools, and the value of these objects to the educational process makes it almost unthinkable that we would ban them altogether, as opposed to allowing them under reasonable conditions.  Given the value of allowing a variety of citizens, of varied cultural backgrounds and with varying religious beliefs and practices, into the public schools, and given the broader context I've recounted above, it seems to me the Court draws the same conclusion about the kirpan; whether or not there is independent value in the kirpan, there is independent value in having Sikh children in our schools, and the costs of allowing the kirpan (regulated in some form or other) into the school environment, where the evidence suggests it presents no real added threat of harm, are easily outweighed by that value.  Given that value, and given the ease with which the board might have accommodated the students, the school board has not met the burden of justifying an absolute ban.

So I think I'm making two points above: first, that like Magritte's pipe, the kirpan shouldn't necessarily be seen as a "weapon"; and that the educational and social value of allowing Sikh students into schools, "weapons" and all, is at least as great as the educational value of allowing scissors.  To be sure, there are limits: schools don't generally teach riflery or maintain gunneries, and they might more reasonably restrict the on-campus attendance of the Church of the Submachine Gun; but the evidence suggests that the kirpan doesn't present that kind of a case.  This is why I have to disagree with Prof. Hamilton's conclusion in her book.  Even if she is right to question whether the courts are equipped to engage in these balancing decisions, the other branches surely are; yet she seems to conclude that ever allowing kirpans in schools defies common sense, no matter who does the deciding.  If there are any benefits to allowing Sikh school children into the schools without demanding the stripping away of their beliefs and practices, and given the slim evidence of harm following from doing so, she must be overstating the case -- or the versions of "harm" and the "public good" that she presents in her book must be positively anemic.   

(I think there is also an air to the school board's submissions to the Court of a majority's unwillingness to wrap its head around a minority culture and its practices.  We do not think of bookbags as weapons, although given their heft these days they could be, because those uses of the bookbag are mostly foreign to our lived practices.  And we do not think of crucifixes on necklaces as choking hazards, although I suppose they are, for similar reasons.  I do not know that the evidence suggested kirpans were any more dangerous than crucifix pendants in the schools, but the presence of the former was not so foreign to the school board's thinking, while their absence might well be unthinkable.  But as the parentheses suggest, perhaps this line of thought is best left for another occasion.)

That still brings me to your final and most difficult question, which is why we value "people's religious beliefs and practices," at least given the fact that in such cases we are willing to give serious weight to their claims as against the inconveniences and even real harms that may result from valuing those beliefs and practices.  You pose the question as one of why we value "religious" beliefs and practices "as against other really important beliefs and practices that aren't religious."  The first thing I want to say here is that it assumes that we value religious beliefs and practices and do not value (or value less) "other" beliefs and practices.  Putting the question in this posture may be a result of a philosophical bent (understandably!), or of a distinctly American vision of constitutional rights, given that the First Amendment explicitly singles out religion but does not single out "other"-rooted practices as such.  But if you're giving a talk in Toronto, you must account for local constitutional texts, and the Charter of Rights speaks in different terms.  Section 2(a) of the Charter speaks of "freedom of conscience and religion," and section 2(a) refers to "freedom of thought, belief, opinion and expression."  So the constitutional matrix may be different for Canadians.  I am somewhat lukewarm about this response, because I doubt the Canadian courts in practice value freedom of conscience as much as they value freedom of religion. 

But we must add an additional constitutional wrinkle: section 27 says that "[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."  And here I think we find some added support for the Court's opinion.  It helps answer the question why we value having Sikh children in the public schools, and why the state should not be adding barriers to their attendance without meeting a high burden of justification.  And it further says something about why the Court rejects the school board's argument (one which I think Prof. Hamilton approves) that "the wearing of kirpans should be prohibited because the kirpan is a symbol of violence and because it sends the wrong message," and relatedly that the presence of the kirpan affects "the other students' perception regarding safety and [the] feelings of unfairness that they might experience." [paras. 71-72]  To the extent that multiculturalism is an explicit and independent constitutional value, the Court is saying that we accept the kirpan despite the risks because we value our nature as a varied, pluralistic society.  If other students carry perceptions of risk or unfairness, the school board should not endorse those feelings, but rather attempt to inculcate an understanding of the value of diversity and respect for other groups and practices.  (The Court does not cite s. 27 in its opinion, but its import is clear in, e.g., paras. 71, 75, and 78.) 

To be sure, this is a textually grounded response to your question, and not a justification of the textual rule represented by s. 27.  But I do think it blunts your question somewhat.  We could say that the Court is not privileging religious beliefs and practices as such; it is privileging the religious beliefs and practices of religious groups and cultures, which are a conspicuous and identifiable part of the multicultural mosaic.  The Sikhs are not some adventitiously concocted church of marijuana or submachine guns; they have a deeply rooted history and are a recognized part of Canada's multicultural landscape.  So we value them as a group, and are willing to accommodate their practices within reason.  Indeed, my bird's-eye view of the Canadian freedom of religion jurisprudence is that the Court is far more likely to value religious beliefs and practices when they are packaged as part of the landscape of pluralism and multiculturalism, and far less likely to value them when they are seen as interfering with Canadian values of pluralism, as in conflicts between religion and equality presented by some evangelical Christian groups or, sometimes, by Muslim groups.

So I think your question is more easily answered in the Canadian context given the presence of multiculturalism as a separate constitutional value.  Yet I find myself still transfixed by the fundamental question you pose: why do we value religion, or at least why do some arguments value religion, as against other non-religious but deeply held beliefs?  Whether or not that question needed to be answered in the kirpan case, the Court hasn't done especially good work in answering it elsewhere.  (Not that it necessarily needed to; it must work with the constitutional text, and that text privileges religion at least as much as conscience.)  Nor, as you suggest, is it clear that anyone has given a convincing answer to this question.  John Garvey once wrote, "One thing that has always bothered me about free exercise jurisprudence is that it rests on values we have seldom tried to state, much less justify."  And Steve Smith has added that "if we cannot articulate a convincing justification for the commitment to religious freedom then we cannot know its purpose, and we are accordingly paralyzed in our efforts to interpret the commitment."

At the risk of embarrassing myself by citing my student work, I took a shot at answering this question as best as I could in a youthful piece, "The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond," 54 U. Toronto Fac. L. Rev. 1 (1996) [Lord -- has it really been ten years!?].  See pages 47-56.  We might advance a number of instrumental justifications for privileging religion generally, whether or not it involves privileging it over other beliefs: that religious groups are valuable intermediary communities, that they are valuable sources of political action and checks on state power; that religious expression is a core aspect of self-expression; and that, all else being equal, we should seek to accommodate those who are subject to special compulsions.  To this old list I might add the idea that we value religion specifically as a historical settlement, as a recognition either of the unique value of the religious groups that litter our landscape in particular nations or of the settlement value of protecting religion rather than fomenting religious strife (I am thinking in part here of the recent TNR article arguing that this is one reason we experience less extremist Muslim violence in the US than other countries have experienced).  Some of these justifications don't really provide reasons why we should value religion over other non-religious beliefs; others might, at least if we take them in a historically rooted way (that is, if, for example, we conclude that historically speaking, religious groups have been more valuable intermediary communities than some other non-religious communities). 

And we might also argue that while we value both religious beliefs and non-religious beliefs, religious groups historically have been far more closely tied to practices than have non-religious groups.  Thus, while we value both groups, non-religious groups are less distinctly tied by obligation to particular practices.  Freedom of speech and association accordingly will usually do enough work in protecting those non-religious individuals or groups.  But we need something more to protect religious groups, whose sense of obligation is more closely tied to particular compelled practices.  We value both religious and non-religious groups, but we can realize the value of non-religious groups without according as much protection to their practices, while if we are to realize the value of religious groups, we do need to give greater protection to their practices.

Although these instrumental justifications might do enough work, I am personally more attracted to somewhat less instrumental justifications.  One argument I have left out so far is somewhere in between; it is an instrumental justification that may be grounded on an unprovable assertion.  That is the argument that religion, to quote my old article, "may enrich liberal democracy by arguing from outside the sphere of common definitions and concepts.  [R]eligion may generate new modes of reasoning and contribute new ideas and methods to the liberal democratic dialogue, which would otherwise run the risk of growing stale and justifying."  Whether this argument serves to justify treating religious and non-religious beliefs differently depends, of course, on the source of those new ideas.  Although I am not especially religious personally -- indeed, may be devoid of religious belief -- I find myself willing to seriously entertain the idea that the cupboard of ideas filled by religion is filled by unseen hands.  At least, for purposes of designing a constitutional order, I find myself willing to entertain the idea.  With Chris Eisgruber, I'll say that "[r]eason must be open to the possibility of its own inadequacy."

Finally, and for similarly questing reasons, I find myself attracted to the idea that we value religion -- and perhaps even that we privilege religion in some sense -- because of its intrinsic value.  I'll quote my younger self:  "An intrinsice worth justification for religion argues that religion is, in some indefinable way, sui generis, not merely a special species of conscientious belief. . . . [A] sympathetic understanding of religion should treat religiously derived morals and theological beliefs as part of a whole, inseparable and mysterious, easily recognized but always eluding definition.  The intrinsic value argument is not subject to proof or justification and it is dependent on the willingness of a skeptical society to respect a leap of faith.  Consequently, it is plainly ill-suited to the culture of the law and liberalism.  All the same, I would argue, as an intuitive proposition it is both clear and compelling.  Evon those who lack religious belief can understand the ineffable and invaluable quality of religious commitment: it is a quest for possibilities that are foreclosed by rational systems of belief, a claim to transcendence in a world whose physical nature apparently speaks of inherent limits."

These are still, I think, the best answers I can supply.  The instrumental justifications may not adequately explain why -- if your proposition is correct -- we value deeply held religious beliefs more than we value deeply held non-religious beliefs, although, if we conclude that religious groups are more closely tied to particular practices than non-religious groups, then there may be some justification for treating the two groups differently for those purposes.  And the non-instrumental justifications are seemingly incapable of confirmation or refutation from the outside.  Yet, even from my position of faithlessness, I find myself believing that our understanding is immeasurably enriched by attempting to look at religious liberty as if religion matters, as if it is true, whether or not we know that it is and whether or not the state is entitled to draw any conclusions at all on the matter.  I find that from this perspective, I understand the commitments of deeply religious individuals and groups as potentially more compelling than the commitments of non-religious individuals, although I readily concede I may be wrong in this. 

If I can tie this too-lengthy response back to both the kirpan case and Prof. Hamilton, I have found that, once having made this leap, I find it impossible ever to be satisfied again by a description of "harm" and the "public good" that Prof. Hamilton describes.  I have also found that, once having made the leap to treating religion as if it is true, I find that the kirpan cases are relatively uninteresting.  Indeed, as I think my response suggests, they can be seen as relatively easy cases even if we don't really think religion is true, as long as we value multiculturalism and as long as the evidence suggests that kirpans present a negligible risk.  The cases that really keep me up at night are cases like the transfusion/medical assistance cases.  While Prof. Hamilton would surely argue that these are the no-brainer cases, it seems to me that if we treat religion as if it is true, these ought to be the most difficult cases, and I sometimes think that the relative lack of effort with which the courts approach these cases helps locate the breaking point at which we will be unwillingness to fully tolerate religious premises in public argument.      

So I wonder if I have answered your most difficult question.  I have answered it to an extent that satisfies me as a working answer on a daily basis; but I acknowledge that the central question is deeply fraught, and if I haven't finally resolved it, at least I'm in numerous and good company.  As the length of my response, however unsatisfactory, indicates, I'm deeply interested in these issues and thank you for presenting them with such grace (and economy -- a quality I obviously lack!).  Have a wonderful time in my hometown.  I gather you're speaking at Osgoode; please pass along my eternal hello and best wishes to Prof. Poonam Puri, if you meet her.