Protection of religious views and behaviours

[Barrister]

Yes.  Absolutely.

There was a story in the Canadian news recently about some idiot who is fighting to be allowed to have his ID picture taken with a pasta colander on his head, because he believes in the Flying Spaghetti Monster.

I have no problem saying this fellow has no real "strongly held belief" in the need for pasta-based headware other than to poke religions in the eye, and that he should noe be allowed to wear one for his driver's license.

BB illustrates the problem perfectly.  While he is opposed to Marti's dumb idea, he opposes it by producing his own dumb idea;  that he gets to decide what "strongly held beliefs" are, in fact, strongly held (and thus protected) and which he rejects and so are unprotected.

If one wants an exemption to the "no hats in pictures" rule on religious grounds, then it should be automatically granted.  Government employees will want to declare their judgements to be definitive, but they lie.  No one can truly judge the sincerity of someone else's beliefs.

It is true - it is far easier to go to an absolute - either say "there are no rules", so that religious (or other) beliefs can never be infringed, or to simply ignore religion as being worthy of accomodation in any case.

Easier, but not better.

I don't know about others, but I like having a regulated, well-ordered society.  I am not a libertarian.

And I think that looking at all of human history, and the number of wars and strife caused by religion, that we have learned the best way to avoid them is to grant religious liberty and respect for all faiths.

So then we're stuck with the more difficult, but not impossible, role of trying to reconcile both the rule of law, and religious freedom.

[crazy canuck]

My argument is that we should not allow a situation where something is forbidden, except when it is allowed on religious grounds (and religious grounds only). Like - you cannot not remove headgear when going through airport security - unless you are a sikh; you cannot slaughter animals in a way that is painful and unnecessary cruel - unless you are jewish or muslim; you cannot have your ID photo taken with a veil on your face - unless you are a muslim; you cannot refuse compulsory military service - unless you do so on religious grounds, etc.

The problem with your argument is that there is a difference between someone who brings a knife to school to use as a weapon and someone who brings a ceremonial knife to school as a religious object signifying peace.  Your argument works for propositions you endorse but not for those you do not support.  In order to respond to my question about a law which requires same sex law you proposed changing the law.  That is exactly what happened because of legal challenges in this country on thebasis that the law interfered with Charter values.  But you don't want those same constitutional challenges to be brought by people who do not share your particular beliefs.

[Malthus]

It is only in scenario 2 that the issue of a "religious exemption" comes into play, and a Sikh is treated differently than (say) a Pastafarian.

Why?

It's how interest-balancing works: the trier of fact has to determine whether the interest of the person wanting the exemption weighs more heavily than the interest of the government in maintaining the integrity of the rule.

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence. 

[Valmy]

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence. 

Sounds like nobody's damn business to me.  Is there a big public concern with Pastafarians nefariously putting colanders on their heads?

[Barrister]

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence. 

Sounds like nobody's damn business to me.  Is there a big public concern with Pastafarians nefariously putting colanders on their heads?

There is a reason for the "no hats in photo ID" rule.  A hat can obscure hair, eyes, shape of the head, and the forehead, all of which have some value in identifying a person.  It's not an overwhelming benefit, so I can see that rule being put aside in some circumstances (e.g. sikh turbans), but it's enough of a benefit that I think it should prevail in other circumstances (e.g. a pastafarian collander).

[crazy canuck]

It is only in scenario 2 that the issue of a "religious exemption" comes into play, and a Sikh is treated differently than (say) a Pastafarian.

Why?

It's how interest-balancing works: the trier of fact has to determine whether the interest of the person wanting the exemption weighs more heavily than the interest of the government in maintaining the integrity of the rule.

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence.

Not quite. you are combining different parts of the legal test.

First, is the question of whether the religious belief is bona fide.  This is a low threshold to cross as it turns of the subjective believes of the person in question. (ie not a reasonable person test).  The SCC expressly rejected the reasonable person test in the Kirpan case.  The defence called evidence that most Sikhs carry wooden not metal Kirpans and so it was argued it was unreasonable for this family to insist on a metal Kirpan.  The Court rejected that argument and focused on whether the belief was held by the person in question and whether it was connected to their religion.  In short a very low standard.

The pastafarian would likely fail at this stage because he acknowledged it was a stunt to mock religious beliefs.  ie he did actually belief in a past god.

Second is whether the restriction on the religious freedom results in a significant depravation.  The Pastafarian would likely fail this test because he did not normally wear a pasta strainer on his head

Third if the first two tests are passed then the analysis is whether the restriction on religious freedom is justified.  That is where the balancing of societal interests occurs.  But, as noted above, I doubt very much the pastafarian gets to this stage.

[Richard Hakluyt]

If the colander ws permanently strapped to the Pastafarian's head would the hair, (a) grow out through the holes or, (b) form a bouffant mass underneath the colander pushing against it, tightening the straps and slowly strangling the Pastafarian  ?

[Malthus]

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence. 

Sounds like nobody's damn business to me.  Is there a big public concern with Pastafarians nefariously putting colanders on their heads?

No ... no concern at all.

The issue, as I said, is whether the Pastafarian's interests in wearing a colleander outweigh the government's interests (whatever they may be, and assuming they have any) in the integrity of the rule against wearing hats.

It is not the case that there is a positive public interest against the wearing of colleanders generally.

The Pastafarian is making it someone's business specifically by challenging the government's rule.  Otherwise it would be, as you say, "nobody's damn business".

[Valmy]

There is a reason for the "no hats in photo ID" rule.  A hat can obscure hair, eyes, shape of the head, and the forehead, all of which have some value in identifying a person.  It's not an overwhelming benefit, so I can see that rule being put aside in some circumstances (e.g. sikh turbans), but it's enough of a benefit that I think it should prevail in other circumstances (e.g. a pastafarian collander).

I don't know how things are over in Canada but we have more funky cults and obscure religions than one can shake a sacred Witch staff at.  It seems unreasonable to start judging the motives and 'realness' of each one.  If one accommodation under certain circumstances would be allowed for some religions, than it must be allowed for all of them.

[Martinus]

Canucks are fascists who decide whose god is "real". Film at 11.

[Malthus]

It is only in scenario 2 that the issue of a "religious exemption" comes into play, and a Sikh is treated differently than (say) a Pastafarian.

Why?

It's how interest-balancing works: the trier of fact has to determine whether the interest of the person wanting the exemption weighs more heavily than the interest of the government in maintaining the integrity of the rule.

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence.

Not quite. you are combining different parts of the legal test.

First, is the question of whether the religious belief is bona fide.  This is a low threshold to cross as it turns of the subjective believes of the person in question. (ie not a reasonable person test).  The SCC expressly rejected the reasonable person test in the Kirpan case.  The defence called evidence that most Sikhs carry wooden not metal Kirpans and so it was argued it was unreasonable for this family to insist on a metal Kirpan.  The Court rejected that argument and focused on whether the belief was held by the person in question and whether it was connected to their religion.  In short a very low standard.

The pastafarian would likely fail at this stage because he acknowledged it was a stunt to mock religious beliefs.  ie he did actually belief in a past god.

Second is whether the restriction on the religious freedom results in a significant depravation.  The Pastafarian would likely fail this test because he did not normally wear a pasta strainer on his head

Third if the first two tests are passed then the analysis is whether the restriction on religious freedom is justified.  That is where the balancing of societal interests occurs.  But, as noted above, I doubt very much the pastafarian gets to this stage.

I'm not stating the actual legal test here - I'm attempting to simplify the argument down to its very basics.

[The Brain]

I would be more worried by a person who is actually deranged and believes in Sky Santa who wants to circumvent security measures than someone who may be doing it for the lols.

[Malthus]

There is a reason for the "no hats in photo ID" rule.  A hat can obscure hair, eyes, shape of the head, and the forehead, all of which have some value in identifying a person.  It's not an overwhelming benefit, so I can see that rule being put aside in some circumstances (e.g. sikh turbans), but it's enough of a benefit that I think it should prevail in other circumstances (e.g. a pastafarian collander).

I don't know how things are over in Canada but we have more funky cults and obscure religions than one can shake a sacred Witch staff at.  It seems unreasonable to start judging the motives and 'realness' of each one.  If one accommodation under certain circumstances would be allowed for some religions, than it must be allowed for all of them.

Here's where the "reasonableness" test comes in handy.

There are tons of situations in which it is factually difficult to determine if something is one category or another (is something "art" or "hardcore kiddie porn?"). The solution is not to either ban everything, or accept everything, but to make nuanced decisions ... or at least, that's a *better* solution, one more workable for society as a whole.

[crazy canuck]

I'm not stating the actual legal test here - I'm attempting to simplify the argument down to its very basics.

Yes but in doing that you have caused Valmy to think that Canadian courts make a judgment about the validity of the religious belief.  That is definitely not what occurs.  Nobody suggests that a person should not believe in a Pasta God.  What our courts require is, as stated by our SCC:

the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned conduct of a third party interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief.

[The Brain]

There is a reason for the "no hats in photo ID" rule.  A hat can obscure hair, eyes, shape of the head, and the forehead, all of which have some value in identifying a person.  It's not an overwhelming benefit, so I can see that rule being put aside in some circumstances (e.g. sikh turbans), but it's enough of a benefit that I think it should prevail in other circumstances (e.g. a pastafarian collander).

I don't know how things are over in Canada but we have more funky cults and obscure religions than one can shake a sacred Witch staff at.  It seems unreasonable to start judging the motives and 'realness' of each one.  If one accommodation under certain circumstances would be allowed for some religions, than it must be allowed for all of them.

Here's where the "reasonableness" test comes in handy.

There are tons of situations in which it is factually difficult to determine if something is one category or another (is something "art" or "hardcore kiddie porn?"). The solution is not to either ban everything, or accept everything, but to make nuanced decisions ... or at least, that's a *better* solution, one more workable for society as a whole.

What's the contradiction between art and hardcore kiddie porn?