Protection of religious views and behaviours

[crazy canuck]

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.

As we do in Canada.  Malthus has led you off the path a bit when he suggested the test is whether the religious belief is reasonable.  That is definitely not the test.

[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.

As we do in Canada.  Malthus has led you off the path a bit when he suggested the test is whether the religious belief is reasonable.  That is definitely not the test.

I didn't suggest that. 

I said a Pastafarian's interests in wearing a coleander were not of the same weight and value as a Sikh's interests in wearing a turban, Not that one religious belief is reasonable and the other isn't.

[Martinus]

The entire discussion, imo, illustrates the fallacy of the special accomodations for religions argument. There are several pitfalls.

1. Is the religion "real"? Even if you accept that this is not an insane question (I think it is), then there is no objective test to ascertain that. So what if Pastafarianism is the "mock" religion? It can be real to another person - after all some religions (like Jedi, or, as some claim, Scientology) started as bona fide fiction.

2. If you get past the first hurdle, then you have to decide what is a religion - is Buddhism a religion? What about Confucianism? New Age? Belief in Cosmic Force? If someone believes they have to wear a tin foil hat in a photo to protect themselves against cosmic rays, why is his belief less worthy of protection than someone who believes they have to wear a hijab because some dead guy said so 1500 years ago?

3. So let's assume you accomodate people falling under group 1 and 2 - so, essentially, lunatics. I don't think it is unreasonable to argue that once you have accomodated lunatics, there is really no reason why you should only discriminate against rational people, who may want to wear a hat in the picture for lols or because they look better in a hat.

Ergo: everybody should be allowed to wear a hat. Only an idiot thinks otherwise.

[crazy canuck]

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.

As we do in Canada.  Malthus has led you off the path a bit when he suggested the test is whether the religious belief is reasonable.  That is definitely not the test.

I didn't suggest that. 

I said a Pastafarian's interests in wearing a coleander were not of the same weight and value as a Sikh's interests in wearing a turban, Not that one religious belief is reasonable and the other isn't.

Sure you did.  In your example you preferred one religious belief over another.  That simply does not occur in the legal analysis.  You have conflated and mischaracterized important separate parts of the analysis.

[crazy canuck]

The entire discussion, imo, illustrates the fallacy of the special accomodations for religions argument. There are several pitfalls.

1. Is the religion "real"? Even if you accept that this is not an insane question (I think it is), then there is no objective test to ascertain that. So what if Pastafarianism is the "mock" religion? It can be real to another person - after all some religions (like Jedi, or, as some claim, Scientology) started as bona fide fiction.

2. If you get past the first hurdle, then you have to decide what is a religion - is Buddhism a religion? What about Confucianism? New Age? Belief in Cosmic Force? If someone believes they have to wear a tin foil hat in a photo to protect themselves against cosmic rays, why is his belief less worthy of protection than someone who believes they have to wear a hijab because some dead guy said so 1500 years ago?

3. So let's assume you accomodate people falling under group 1 and 2 - so, essentially, lunatics. I don't think it is unreasonable to argue that once you have accomodated lunatics, there is really no reason why you should only discriminate against rational people, who may want to wear a hat in the picture for lols or because they look better in a hat.

Ergo: everybody should be allowed to wear a hat. Only an idiot thinks otherwise.

In Canada at least we don't engage in your first or second steps.  It is unfortunate Malthus led the discussion down that path.

Your third step doesn't make sense when the first two are stripped away.

[Malthus]

Sure you did.  In your example you preferred one religious belief over another.  That simply does not occur in the legal analysis.  You have conflated and mischaracterized important separate parts of the analysis.

I deliberately ommitted steps of a legal analysis ... the end result of which is, in effect, an interest-balancing exercise. In the interests of not turning a forum discussion with non-lawyers participating into a legal debate concerning the laws of a country they don't belong to. 

Nowhere did I say that I preferred one religion over another. I simply didn't. My focus was solely on the "interest" of Sikhs vs. Pastafarians in wearing a particular hat. I said exactly nothing about the validity or otherwise of any religion, and challenge you to quote me saying anything of the sort.

[Malthus]

In Canada at least we don't engage in your first or second steps.  It is unfortunate Malthus led the discussion down that path.

Okay, I get it - you are trolling me. Well done. 

[Barrister]

The entire discussion, imo, illustrates the fallacy of the special accomodations for religions argument. There are several pitfalls.

1. Is the religion "real"? Even if you accept that this is not an insane question (I think it is), then there is no objective test to ascertain that. So what if Pastafarianism is the "mock" religion? It can be real to another person - after all some religions (like Jedi, or, as some claim, Scientology) started as bona fide fiction.

2. If you get past the first hurdle, then you have to decide what is a religion - is Buddhism a religion? What about Confucianism? New Age? Belief in Cosmic Force? If someone believes they have to wear a tin foil hat in a photo to protect themselves against cosmic rays, why is his belief less worthy of protection than someone who believes they have to wear a hijab because some dead guy said so 1500 years ago?

3. So let's assume you accomodate people falling under group 1 and 2 - so, essentially, lunatics. I don't think it is unreasonable to argue that once you have accomodated lunatics, there is really no reason why you should only discriminate against rational people, who may want to wear a hat in the picture for lols or because they look better in a hat.

Ergo: everybody should be allowed to wear a hat. Only an idiot thinks otherwise.

You don't determine whether a religion is real (since OBVIOUSLY Jesus is the only and only Messiah, and all other religions are patently false).

What you try to determine is whether a purported religious belief is sincerely held or not.

[Martinus]

The entire discussion, imo, illustrates the fallacy of the special accomodations for religions argument. There are several pitfalls.

1. Is the religion "real"? Even if you accept that this is not an insane question (I think it is), then there is no objective test to ascertain that. So what if Pastafarianism is the "mock" religion? It can be real to another person - after all some religions (like Jedi, or, as some claim, Scientology) started as bona fide fiction.

2. If you get past the first hurdle, then you have to decide what is a religion - is Buddhism a religion? What about Confucianism? New Age? Belief in Cosmic Force? If someone believes they have to wear a tin foil hat in a photo to protect themselves against cosmic rays, why is his belief less worthy of protection than someone who believes they have to wear a hijab because some dead guy said so 1500 years ago?

3. So let's assume you accomodate people falling under group 1 and 2 - so, essentially, lunatics. I don't think it is unreasonable to argue that once you have accomodated lunatics, there is really no reason why you should only discriminate against rational people, who may want to wear a hat in the picture for lols or because they look better in a hat.

Ergo: everybody should be allowed to wear a hat. Only an idiot thinks otherwise.

In Canada at least we don't engage in your first or second steps.  It is unfortunate Malthus led the discussion down that path.

Your third step doesn't make sense when the first two are stripped away.

If you don't engage in the second step, how do you determine if the belief in question is religious?

[crazy canuck]

In Canada at least we don't engage in your first or second steps.  It is unfortunate Malthus led the discussion down that path.

Okay, I get it - you are trolling me. Well done. 

Its not a troll.  Go back and read the Kirpan case.  It is not a question of weighing the religious belief at all.  The only questions are whether the belief is sincerely held and whether there is a significant infringement of that belief.   There is no analysis of the importance of the belief.

[crazy canuck]

If you don't engage in the second step, how do you determine if the belief in question is religious?

By the evidence.  The pastafarian was quite open about the fact that is religion was not real and was created to mock religion.  The evidentiary test is very low.

[Martinus]

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

[crazy canuck]

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

?

[Berkut]

The entire discussion, imo, illustrates the fallacy of the special accomodations for religions argument. There are several pitfalls.

1. Is the religion "real"? Even if you accept that this is not an insane question (I think it is), then there is no objective test to ascertain that. So what if Pastafarianism is the "mock" religion? It can be real to another person - after all some religions (like Jedi, or, as some claim, Scientology) started as bona fide fiction.

Just because a test is not strictly objective doesn't mean it has no value. This is a common complaint that is really annoying.

You cannot objectively show that people don't like the taste of rat shit, for example, and yet we can still very reasonably conclude that in fact most people don't care for the taste of rat shit, even if it is not "objective".

The goal is to come to the most reasonable possible outcome - not create a perfectly objective criteria.

2. If you get past the first hurdle, then you have to decide what is a religion - is Buddhism a religion? What about Confucianism? New Age? Belief in Cosmic Force? If someone believes they have to wear a tin foil hat in a photo to protect themselves against cosmic rays, why is his belief less worthy of protection than someone who believes they have to wear a hijab because some dead guy said so 1500 years ago?

We have pretty well understood and defined ideas about what religion is, and this is a "fake" problem. There isn't any great injustice happening because we aren't sure if wearing tinfoil hats is a religion or not.

3. So let's assume you accomodate people falling under group 1 and 2 - so, essentially, lunatics.

Most people who reasonable people would define as lunatics would fail those tests. So the opposite of your conclusion here.

[crazy canuck]

Sure you did.  In your example you preferred one religious belief over another.  That simply does not occur in the legal analysis.  You have conflated and mischaracterized important separate parts of the analysis.

I deliberately ommitted steps of a legal analysis ... the end result of which is, in effect, an interest-balancing exercise.

Your conclusion is wrong.  That is what led Valmy to correctly question your view and most problematically led Marty (who apparently knows nothing about the legal concept of freedom of religion) to come up with his three step analysis.

By the time we get to the Balancing of interests the Court assumes the religious belief is important to the person professing the belief.  The balancing actually has very little to do with the religious belief.  Instead the analysis turns on an analysis of the thing which interferes with the religious belief such as identifying the objective, determining whether the objective is met by the interference (the step the Kirpan case failed to establish) whether there is minimal impairment to obtain the objective, etc.