SCC Says: "Kirpan Keepin' On"

Apologies for the title.  Howard has the tip on an interesting freedom of religion case announced today by my countrypersons at the Supreme Court of Canada.  In today's decision in Multani v. Commission scolaire Marguerite-Bourgeoys, the Court holds that a decision of a school board prohibiting a student from wearing a kirpan -- in effect, a ceremonial dagger worn by Sikhs -- violated his freedom of religion under the Canadian Charter of Rights and Freedoms, and that this infringement could not be justified, as some infringements can be, under section 1 of the Charter.  It looks to me as if the Court was unanimous as to the underlying decision that the board erred in banning the kirpan, although there are some interesting arguments as to whether the decision ought to have been made under the Charter or under applicable principles of administrative law.  The Court noted that the student and his parents were willing to comply "with certain conditions to ensure that it was sealed inside his clothing," but rejected the argument that the student could have been made to wear a wooden or plastic kirpan (which the student said would not comply with religious requirements) and fairly flatly rejected an absolute bar on the wearing of kirpans. 

An interesting decision for freedom of religion types.  Note the great contrast between the Court's decision and the discussion of this issue at pages 114-17 in Marci Hamilton's interesting book, God vs. the Gavel.  (That I think the book is interesting doesn't mean I agree with it!)  Hamilton argues that "Sikhs live in the real world where crime and drug trafficking exist," and points to some nice visceral examples involving kirpan-related violence -- although none of them, oddly enough, have anything to do with schools.  She argues that allowing kirpans into schools "suspend[s] common sense," and that "[k]nives are knives" -- including, apparently, both wooden knives and knives riveted to their sheaths or blunted with rounded tips -- "and children are not safe in their presence, no matter who they are."  Hamilton goes on to argue that even if the issue is considered in a legislative/executive rather than a judicial setting, the decision should be the same.  And she thinks Sikhs in this position have but three options: to send their kids to private schools (although "schools are schools" -- wouldn't she think the legislature should ban kirpans in the private context too?) or home-school them; to alter their faith in conformity with the law; or to seek some middle ground, although what she means by this is really a repeat of option number two.

The Canadian Supreme Court did not agree with Prof. Hamilton; neither do I, if I may say so.  Among other things, the Court strongly rejected the argument, which she notes approvingly in her book, that allowing kirpans exposes kids to violence and affects the "perception of the climate of security," pointing out the plethora of potentially lethal objects that are readily available in any school, from baseball bats to scissors, and arguing that "[i]f some students consider it unfair that [the student] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instill in their students this value that is at the very foundation of our democracy." 

I think Hamilton has some valuable things to say about the relative institutional capacity of the courts to make these accommodation decisions, although here too I disagree with her.  But she completely loses me, I must say, by saying that a decision by a political branch to grant an accommodation in kirpan cases involving schools would defy common sense.  Common sense, it seems to me, involves weighing the pros and cons of the accommodation based on the available evidence, which seems to me to require something more than pointing to a case of drug-related violence involving adults and a kirpan, well outside the school context.  And the balancing must involve a weighing of all the harms involved, including the spiritual harms to the believer -- and to the broader community, which loses much if its Sikh students are relegated to home-schooling or forced to alter their beliefs.  Because Hamilton's version of harm is so relentlessly secular, and her description of the public good so narrow, the kirpan cases seem like easy decisions to her.  The decision is (relatively) easy for me as well, but in favor of the Supreme Court's outcome.

Update: My friend Derek at the Becket Fund has asked me to add a link to a press release concerning a kirpan case they've been litigating.  Here it is, buddy.