Hijab, turban cases highlight contrast between U.S., Canada on religious freedom

Written by William C. Duncan

May 13, 2021

A recent case from Canada highlights the exceptional nature of the United States’ commitment to religious freedom.

Nour Farhat is a Canadian attorney and a Muslim who “wears a hijab, a headscarf worn by many Muslim women who feel it is part of their religion.” When she was studying law, her plan was to become a prosecutor. Similarly, “Amrit Kaur, a Sikh woman from Montreal who wears a turban (dastar)” wanted to teach in Quebec when she was pursuing an education degree. Both women’s plans were derailed, however, by a 2019 law adopted by their Canadian province.

As described by the Canadian Broadcasting Corporation news, the law “bars public school teachers, police officers and government lawyers, among other civil servants, from wearing religious symbols — like hijabs or turbans — while at work.” The Jerusalem Post adds that the law also prohibits yarmulkes and crucifixes.

A number of individuals and organizations in the province challenged the law in court, but a unique provision of the Canadian constitution makes it difficult, perhaps impossible, to overturn. In a ruling in April, a judge on the Quebec Superior Court upheld most of the law. CBC News reported that Judge Marc-Andre Blanchard recognized the law “violates the basic rights of religious minorities in the province.” Provinces, however, are allowed to invoke a “notwithstanding clause” in the Canadian constitution to shield their laws from being found unconstitutional.

When the 2019 law was adopted, Quebec invoked that clause, “meaning the law couldn’t be challenged on the grounds that it violated basic rights” contained in 10 different sections of the Canadian Charter of Rights and Freedoms (a portion of the country’s constitution) which “contain safeguards for free speech, religious freedom and gender equality.”

The court did hold that the law could not apply to English-language schools since they are protected by a different part of the charter.

Contrast this with a 2015 decision of the U.S. Supreme Court involving a private employer’s headscarf policy.

The case was brought on behalf of Samantha Elauf, a Muslim woman who was not hired by a large retail chain because the company felt her religious commitment to wear a headscarf would conflict with its “look policy” on employee appearance.

The Equal Employment Opportunity Commission sued the company and the U.S. Supreme Court ultimately decided 8-1 in favor of the EEOC – and the Muslim woman. The court said that Title VII, the federal anti-discrimination law, requires not just that religious practices not be treated worse than other practices, but rather “gives them favored treatment, affirmatively obligating employers” not to turn away potential employees based on “religious observance and practice.” In fact, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”

This type of commitment to religious freedom by the Supreme Court, and by Congress in passing Title VII, is the reason the United States remains a beacon for respect of religious freedom to the entire world. Without our historical commitment to the principle, religious minorities in particular might have no one to stand up for them when their actions and beliefs are misunderstood or unpopular. This is another reason why ongoing controversies in the U.S. are so important. We can’t turn our back on a crucial commitment that is not always widely shared around the world.

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

The U.S. Supreme Court issued a significant religious freedom decision this morning, with all the justices concluding that the city of Philadelphia violated the constitutional rights of a religious foster care agency, Catholic Social Services, when it “stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”

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