Conflicting Rights: A Muslim/Canadian Perspective

A minor story out of Canada, reported by the Religious News Service, may provide a new perspective for reflecting on Church/State clashes, and in particular the HHS contraception mandate.  Here are the basic details:

In June, Faith McGregor requested a man’s haircut at the Terminal Barber Shop in downtown Toronto. Co-owner Omar Mahrouk told her that his Muslim faith prohibits him from touching a woman who is not a member of his family. All the other barbers in the shop said the same thing.

“For me it was just a haircut and started out about me being a woman,” McGregor, 35, told the Toronto Star. “Now we’re talking about religion versus gender versus human rights and businesses in Ontario.”

She has filed a complaint with Ontario’s Human Rights Tribunal of Ontario because the incident made her feel like a “second-class citizen.”

McGregor is not seeking monetary damages, but wants the tribunal to force the shop to offer men’s haircuts to both genders.

This shares some definite parallels with the HHS controversy, including the more extreme position (advocated by some but not all the bishops) that any conscience clause be extended to cover any employer.  Now I also realize that these cases are not perfect parallels, so I am not interested in picking nits.  Rather, I am interested in the broad questions involved here:  who is right?  Should the state force the barbers to cut the hair of both men and women?  Or should their sincere religious beliefs be upheld?    There are other parallels that are worth exploring:  can caterers and photographers refuse to serve gay weddings?  How about the Knights of Columbus (who in many towns rent halls for parties)?

On one level this question was addressed squarely during the Civil Rights era:  public accommodations could not discriminate on the basis of race, and no religious exception was carved out for those conservative Christians who felt that race mixing was contrary to the Bible.   How far should this precedent be extended today?

I have lots of questions, but not a lot of answers.  I am interested in seeing what you have to say.

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  • Chris Sullivan

    Where in Islam is it absolutely compulsory never to touch a woman ?

    At best, such a view would seem to be a culturally conditioned interpretation, rather akin to those conservative white Christians who interpreted scripture in support of their segregationist views.

    If one is going to offer a public service then one has to conform to social norms.

    God Bless

    • Brian Martin

      in Islam, it depends on which school of Islamic law they adhere to. If they belong to one of the groups that believes women’s hair should be covered when in the presence of non-family members, then the belief is that one cannot touch that which one is not supposed to see. In my work with Muslims, mostly refugees from the middle east, it is important that I find out what is considered immodest, some it is unacceptable for me as a male to shake the hand of a female.

  • Why does Ms. MacGregor’s right to a haircut trump the barbershop owner’s right to practice his faith? Are there no other places where she can get her hair cut? I am not trying to advocate separate but equal here, but the fact remains that she is trying to force her views on the barbershop owner in the name of “tolerance” and “equality.” Neither of those values are being honored in this situation.

  • I don’t think the point can be discussed at quite this level of generality: it matters a great deal, for instance, who is making the primary decisions here — is it a deliberative representative body or merely appointed regulators? In any liberal society (liberal in the generic, not partisan sense) like the U.S. or Canada, they simply will not have the same constitutional role and therefore not the same moral authority and responsibilities. In other words, when we’re getting down to details, we can’t treat ‘the state’ as a monolithic block (unless the state is a despotism, which would make the point moot): the structure of the government matters. At the very least, any risk of infringement of basic rights like conscience rights, however justifiable, has to be borne primarily by the primary body of the state concerned with taking care of the common good (at least in that area): if that primary body fails to do so, it has violated its responsibilities to the people, and if any other part of the state does it, it has usurped authority it should not have. In the United States any such action, where the risk is foreseeable, really needs to be directly authorized by Congress or a state legislature; the only possible justification for deliberately taking on such a risk is that it really is strictly required by common good, and in a U.S.-style government, only legislatures are caretakers of the common good in the relevant sense. In parliamentary systems it can be more complicated, depending on the history of government; but similar considerations apply. (Incidentally, although it gets complicated on the margins, I think there is a very good argument that something like this follows from the principle of subsidiarity.)

    If we are actually following the Civil Rights era as precedent, it’s not a pure no-exception precedent; many civil rights laws dating from that era did have minimal exemptions for certain kinds of religious activity (including the 1964 Civil Rights Act), and quite a few of them (again, including the 1964 Civil Rights Act) have later had exemptions added to them, or had their exemptions expanded, as rights-related issues actually came up. And this, I think, is the right way to do it: the whole thing should be put in place by the legitimate authority, after engaging in deliberation that takes into account the risks of right violations, and any unforeseen problems that arise should be handled in the same way. The two extremes to be avoided are that the idea that the state gets to determine what rights it can safeguard or that it can deliberately ignore inconvenient rights issues when they come up, which is equivalent to the elimination of genuine rights altogether, and, on the other side, a sort of political tutiorism, which is that the state somehow has to arrange things so that no hypothetical scenario, no slight possibility, no marginal case, no accident, can ever arise where the law goes wrong on an issue of rights.

    All of this always reminds me of a game I have my Ethics students play when we do rights: they have to come up with a formulations of rights and freedoms in groups and try to get the rest of the class to agree to them. And it quite often happens that we get a religious liberty right that goes something like, “Everyone is free to practice their religion as long as it harms no one and does not violate any other law” (which is precisely one of the rights that ended up on the final list one term). But, of course, a right to practice your religion as long as no one makes it illegal is not a religious liberty right at all. Or else, the formulations will get so baroque that it would be a practical nightmare. No formulation is ever adequate to a genuine human right, and so we can’t go about things on the assumption that if we somehow just define things properly we’ll get all right answers. At the same time, the whole point of a right is that laws have to yield to it, not it to laws. What is actually necessary is a flexible political casuistics avoiding the extremes of laxism and rigorism.

  • Privately owned? Should be able to discriminate against whomever they want if this is truly a Liberal society. On the other hand, if we are going to enforce values like non-racism (which enforcement I am not at all against in itself) then we should have a frank conversation as a society about just which value system we are going to be enforcing, rather than pretending that secular liberalism is just “providing neutral space” or a free market of ideas and values.

  • Nick

    This is not an instance in which one rule covers all cases. In each case, society must weigh the effect of forcing people to conform to a norm against the effect of deviance from that norm. If the norm is cutting all customers’ hair regardless of gender, do we enforce that or not? If the norm is providing employee insurance that covers contraception do we enforce that or not? If the norm is not physically abusing(or worse) wayward daughters, do we enforce that or not? If the norm is Sunday churchgoing do we enforce that or not?

    Some cases are clear cut and some aren’t. It is an error to assume that there is a rule that will apply to all cases. Further, it is important to see that what we are evaluating is a specific question of the rights of groups versus the rights of individuals, rather than a sweeping abstract principle. (someone might try to apply an abstract principle here like “it’s a question of religious rights” but clearly there are some times when those rights must be respected, and some times when those rights must be ignored)

    Personally, I am willing to say that there is limited harm done by respecting a barber’s right to choose his clients based on gender. It would be more harmful to encroach on that man’s religious freedom than it would to have a woman forced to seek an alternate stylist.

    I say photographers can refuse, but halls have to be rented. Employers should have to provide contraception coverage.

    Each of these judgments is based on a personal and non-rigorous sense of how much harm is being done. I would like to develop a more rigorous way to evaluate this, but it is a formidable problem. One guideline might be acts done directly by an human, versus a corporate entity.

  • Brian Martin

    Find a different barber…really. Everybody is a fricking victim, and every slight is seen as the new “civil rights” issue. Maybe I’m having an intolerant day. But the bottom line is
    I don’t get this. If someone doesn’t want my business, I’ll gladly take it elsewhere. by this logic any doctor should be able to be forced to perform abortions. Priests and ministers be forced to perform gay marriages.
    Perhaps I’m being too literal today.

  • Thales

    If I had a barber shop, I wouldn’t refuse her service for being a woman — I’d refuse her service for being a jerk. That’s still allowed, right?

    But more seriously… before you even get to freedom of religion or conscience, in a free and civil society, the default always has to be one in favor of freedom of association and freedom of contract — in short, the freedom to live one’s life freely in the manner one chooses and with the people one chooses. And freedom necessarily means the ability to engage in (justified) discrimination. I should have the freedom to sell only organic products in my natural food store and discriminate against Customer X who demands I sell “Yummy Chemical O’s!” , to let only women use my women’s bathroom and discriminate against men, to give the senior discount to only seniors and discriminate against younger folks, to pay my neighbor in apple bushels if he agrees to it and not be forced to pay my neighbor in cash by a third-party who is not part of the deal, to offer a women’s only gym and discriminate against men, to form a Catholics-only fraternal organization and discriminate against non-Catholics, to start up a children’s soccer league and discriminate against adults who want to play soccer in the league too, to hold a birthday party for my friends and discriminate against people who I don’t want at the party, to host a Vox Nova blog and discriminate by allowing only certain people to be contributors. A free and civil society breaks down without this freedom of association and of contract and this ability to justly discriminate (consider: “You guys are discriminating against me by not allowing me to be a VN contributor! Let me in or I’ll sue and force you to shut this blog down!”)

    On top of this freedom to live in the manner one chooses and with the people one chooses, is the fact that sometimes the manners we choose to live by are so dear to us that our moral and religious beliefs or our conscience would be violated if we were forced to do otherwise. In these instances, extra special care to respect the individual’s freedom must be taken.

    Again, this bias in favor of freedom and the necessary discrimination that comes with it must be the default, even though the freedom can be violated and abused (e.g., not hiring X because he’s ugly, not inviting Y to the party because he’s an awkward dork, not entering into a business deal with Z because he’s Catholic or Jewish, etc.) The perfect use of freedom cannot be legislated and cannot be forced, and if society does try to force it, then all freedom is lost.

    Having said that, there are going to be certain times when civil society must enact laws constraining freedom, in order to support the common good. This is most obvious with exercises of freedom that would directly harm other members of society: for example, society has outlawed the freedom to contract for a hitman, or the freedom to engage in religious honor killings. And then there are exercises of freedom that would indirectly harm society: for example, society has limited the freedom to sell alcohol and tobacco to those who are of a certain age, because of the indirect harm that would result if one was free to sell these products to minors. Finally, there are instances where either certain goods and services are so essential to people or access to these goods and services is so important, or the restriction of access is based on some baseless reason and is so contrary to the common good, that we, as a society, think that the common good is harmed without this access and that the force of law is required in order to limit the freedom of actors who might restrict this access. Examples of this include requiring hospitals to treat anyone who shows up in their emergency room, and requiring public accommodations to accommodate anyone without consideration of race.

    So, again, the default is freedom, and doubly/triply so if the freedom involves one’s deeply held religious beliefs, and restrictions to this freedom should only be enacted into law for some serious reason required by the common good. Is the common good so hurt by a woman not getting a haircut from a barbershop that caters only to men in the first place and when she can easily get her hair cut elsewhere, that our society should force a barber to cut someone’s hair that he doesn’t want to cut *and* in violation of his religious beliefs? No way. And if you disagree, I demand that Vox Nova stop discriminating against me and stop treating me like a second-class citizen and that they give me posting abilities on their blog.

    • Kurt

      So why race but not sex or other factors? The 1964 Civil Rights prohibited race, religion and sex discrimination in public accomodations, without a blanket exemption for those with a religious objection to intergration. Was the Civil Rights Act a flawed law?

      • Thales

        As I’ve said a couple of times already, the default should always in favor of freedom of association, with an infringement of this freedom only if there is some very good reason for it. The Civil Rights Act is an instance of this very good reason.

        • Kurt

          The Civil Rights Act is an instance of this very good reason.

          I would strongly agree. The `64 Civil Rights Act did not tell anyone they had to not discrimination by race, religion or sex in the selection of friends, spouses, or even private club membership. It exempted churches using the same standard as the HHS mandate.

          What it did do is say that in housing, public accomodations such as restaurants, hotels or business services and in employment (in general), one could not discriminate on the basis of race, religion or sex.

          It has since been expanded to protect disabled persons and some states and local governments have also extended protections from discrimination based on sexual orientation. These are basic civil protections.

  • Brian Martin

    David, it seems to me ultimately that although you posed it as a question of “rights” it is ultimately a question of conscience. Most Muslims would say that the state has no right to force them to violate their conscience. Likewise, that should ultimately be the stance of Catholics. We are only asked to “render unto Caesar what is Caesar’s” and that does not include violating our conscience. I may be wrong, but I think Catholics in the United States may someday be faced with the choice of primacy of faith or country.

    • Julia Smucker

      Yes, and maybe this would be good for the Church, to remind us that we are aliens and always have been, that we never can hold national loyalty at the same level as our faith – which brings us right into Aaron Weldon’s guest post.

      • Brian Martin

        and a wonderful post it is!

  • dominic1955

    This is where I stand-it is not like the city of Toronto is saying, “Well, you are an X so therefore, you don’t get everything that regular people get.” Its a private shop run by folks of a certain mindset. I also must wonder, why in the world is a woman who wants a man’s haircut going to go to a shop run by Muslims? Aren’t there probably a number of barber shops or hair salons that would be willing to do practically anything you wanted to your hair if you paid them? Common sense would dictate that maybe the chick with the tatoos and nose piercing might be a better choice for an avant garde hair stylist than some Middle Eastern dude.

    It would be like going to a deli or restaurant owned by an observant Jew or Seventh Day Adventist and demanding a ham sandwich. Either you are rather ignorant (and somewhat offensively so) or you are wanting to stir the pot. Either way, why can’t society expect people to be decent and request services they want from people who have no qualms about providing the desired service?

    In my own town, we had a LGBT “civil rights” ordinance imposed on us. I’m all for people being able to work and live, but that creates a special protected class based on a “lifestyle choice”. Why should a business have to shell out the dough to put in a “gender neutral” bathroom or let an employee be Jim or Jane as they feel in a family business and other such nonsense? We’ve had no problems, this is an instance of creating special “right” for people who want to push to have their behaviors explicitly accepted as normal by society. No one is trying to install telescreens in their residences to punish homosexual behavior and no one is probing people if they are gay to fire them.

    This is imposition of radicalist values on society come hell or high water and it is ridiculous.

    • Jordan

      re: Dominic1955 [November 16, 2012 7:06 pm]: In my own town, we had a LGBT “civil rights” ordinance imposed on us. I’m all for people being able to work and live, but that creates a special protected class based on a “lifestyle choice”. Why should a business have to shell out the dough to put in a “gender neutral” bathroom or let an employee be Jim or Jane as they feel in a family business and other such nonsense?

      Dominic, please be careful when you paint with broad strokes. LGBT anti-discrimination laws do not merely concern the modification of bathrooms for transgendered persons or other major public modifications. Often discrimination against queer people is less obvious. Should a queer employee silently withstand homophobic slurs and remarks from co-workers or superiors, especially when she knows that confronting her persecutors will result in her termination? Is he or she not entitled to a harrassment-free workplace? This right to not be harrassed for one’s sexual orientation is not dissimilar at all to workplace anti-sexual harrassment laws designed to protect women from blackmail, innuendo, or outright sexual advances by coworkers or superiors. Yes, I understand the 1986 CDF “Halloween Letter” about “persons with deep-seated homosexual attractions” permits certain discriminations against LGBT people, particularly in housing. I conscientiously cannot agree with that aspect of the CDF document.

      I cannot understand the way in which you have connected LGBT anti-discrimination laws and the question at hand. The woman who sought a haircut in an all-male Muslim-run barber shop did not experience harrassment of any sort, but merely refusal of services. Yes, LGBT civil protection codes often includes the right of accommodation, but this is often not the main or entire focus of anti-discrimination statues against queer people. Similarly, Ms. McGregor’s experience of the denial of services concerns a concerto of human rights issues and not merely the barber’s choice to not cut her hair.

      In closing, your hostile and subjective feelings about LGBT people have absolutely no bearing on queer people’s right to live harassment-free lives which include the the freedom of housing accommodation, employment, and freedom of expression enjoyed by most North Americans.

      • dominic1955

        Is it legal to slur or harrass anybody at their workplace or elsewhere or create any sort of “hostile work environment”? I think not.

        Secondly, why should anyone even know a person is “queer”? I didn’t go into my last job interview wearing a sign that says, “I am sexually attracted to women” and then act in such a way that it was abundantly clear.

        Back to the hair cut issue, again, if you want to get a ham sandwich, do to the non-Jewish deli. Did I not get the memo that this sort of common sense way of problem solving got invalidated? This is how I remember seeing conflict resolution go a few decades ago. The connection is the practice of forcing people to conform to a decidely minority point of view by way of the law. If that is the way we are going to handle things we just as well start coming up with a snappy symbol and theme song like the rest of Totalitaria.

        In closing, your little passive agressive ending has absolutely no bearing on the right of the rest of us to have to publically put up with the enormities of radical homosexualists and to be forced to accept such enormities and agendas as proper and normal by force of law.

  • Julia Smucker

    Conflicting rights is a fitting description for this situtation. As David indicates, there is a tangle of questions to be sorted out, and as is often the case, it comes down to a question of what takes precedence when values come into conflict.

    If it’s a question of one person’s right to religious observance vs. another person’s right to a particular public service, ultimately I’d say we should be consistent about freedom of consicence trumping consumer choice. McGregor’s insistence on the right to get a haircut wherever she wants strikes me as a kind of individualistic entitlement mentality, or at least a gut reaction, but in any case a lack of any attempt to understand the barbers’ faith perspective when it has inconvenienced her.

    From my admittedly limited understanding of Islam, I believe the rule about touching (followed more strictly by some than others) is intended not to demean women but to show respect and courtesy.

  • brettsalkeld

    There are people dying all over the world due to real human rights infractions. What they must think of some Canadian woman who thinks getting a man’s haircut (and not just any man’s haircut, but one from a Muslim who feels his religion does not permit him to touch women!) is a human right!

    This kind of nonsense will eventually lead (and is already leading) to the uselessness of human rights as a concept. It’s a bloody (literally) shame.

    • Julia Smucker

      Exactly, Brett. You are pointing to the bigger problem here: when our notion of rights and liberties conflates authentic universal human rights (to life’s necessities, grounded in human dignity) with being able to do whatever we want all the time, the former becomes too easily dismissable.

  • To me this is very much context driven, and we don’t know the context. If the barber shop is in a majority Muslim neighborhood and the barbers’ patrons are mostly Muslims living in that neighborhood, then there’s probably a tacit understanding about whose hair you cut and how. I don’t have a problem with that. Alternately, if the shop bills itself as being run by Islamic principles (believe it or not, the hadith–Islamic traditions about the life of Muhammad–actually prescribes certain ways of wearing one’s hair and trimming one’s beard), then again, no problem. If either of these cases is the situation, then, I’m a bit puzzled as to why a non-Muslim woman seeking a non-Islamically approved haircut is there in the first place. The thing about a woman wanting a man’s haircut is odd, too. It’s unclear to me if the issue was that she was a woman as such, or the type of haircut she wanted.

    On the other hand, if the barber shop does not bill itself as following Islamic principles, and is not in a specifically Muslim neighborhood, and is seen serving non-Muslims in general, or at least non-Muslim men–in short, if it’s a neighborhood barbershop like any other which just happens to be run by Muslims, then I don’t think they get a pass. If you have inviolable principles, don’t go into a line of work that will require you to break them. If you’re a pacifist, don’t join the Army; if you’re Orthodox Jewish, don’t go to work for Smithfield Ham; if you’re a Mormon, don’t go to work for Anheuser-Busch. More generally, if you’re providing a service to the public at large, then that means you serve the public at large, no matter their religion, gender, etc.

    My broad view is that if your business is directly church (mosque, synagogue, etc.) run, or if you specifically post that you run the business by Christian (Muslim, Jewish, etc.) principles for a specific clientele, then you get a pass. Short of that, you follow the same rules everyone else does. The alternative is total chaos.

    • Brian Martin

      turmarion…clearly there is a difference between a muslim owning his own business/or working for another muslim, or a Mormon working for Anheuser Busch or for that matter a Catholic working in an abortion clinic

      • That’s true–I acknowledge the fault in the analogy. It would be better to put it like this: certain types of businesses in certain societies have certain requirements. If one has ethical issues with such requirements, one shouldn’t open such a business. For example, if I’m a Christian Scientist and believe medicine is morally wrong, I shouldn’t open a business if I’m required by law to provide healthcare insurance for my employees. If I’m going to open a business (say a hotel) subject to equal-access laws, but I have moral problems with, say, renting a room to a gay couple, or members of a different religion, etc., then I shouldn’t open such a business.

        Of course, what the state requires may be so draconian that no religious believer could open a business without violating his conscience, which would be bad; but on the other hand, almost everything might violate someone’s conscience. That’s the challenge of a pluralistic society: we have to balance everyone’s sincere convictions against having a society that can actually function. There are no easy answers.

  • Joseph

    I had a opposite experience. One of the best phlebotomy I had at my blood bank was a Muslim woman. [Yes I am a guy.] When I asked her about the cross gender touching and she said since it was in the context of the job it was acceptable.

    • Julia Smucker

      Reminds me of this great little Canadian TV show:!little-mosque

      One of the main characters is a very devout Muslim woman who is also a doctor.

  • Thales

    Setting aside the whole religious liberty question, to all the people here who think that a barbershop providing men’s haircuts has to also serve women, do you people have a problem with Curves gym which serves only women and not men? (If that’s different, why?)

    • OK; first, a preface: Throughout most of U. S. history, white Christian men had all the power. There were many gentlemen’s clubs (I don’t mean of the red-light district type–I mean the 19th Century quasi-British type) and other organizations where men made business contacts, etc. In short, it was the archetypal “old boys’ network”. Over time, as women, minorities, and members of other religions, or no religion, began to gain power themselves, getting a place at the table, so to speak, there were calls for integrating such clubs, organizations, etc. Of course, there was resistance; and as always in such circumstances, the argument was made that these were purely social clubs, having nothing at all to do with business, power, etc. The old “separate but equal” canard was one such example. Certainly, such organizations did have a social aspect; but that doesn’t mean they weren’t also methods of holding on to power, ways of keeping women or blacks or Jews or others out of the right schools, clubs, business or professional associations, etc. The women’s movement and the Civil Rights movement gradually changed a lot of this, of course.

      I give this preface because the history should never be forgotten whenever the old argument, “Why is it OK to have an all women/black/Hispanic/minority/etc. organization/club/business but not an all men/white one?” is trotted out. We don’t live in a cultural vacuum.

      Having said this, I’d point out that there are still plenty of organizations that are all-male and uncontroversially so, since not all organizations are bastions of power and privilege. No one has forced the Boy Scouts or the Shriners, for example, to become co-ed. I don’t think any reasonable person says that single-gender organizations are inherently discriminatory or inappropriate. It’s all context-bound.

      OK, specifically now: In our culture, women often have great issues about their body. The media images and pressure to conform to an unrealistic standard of thinness and beauty is complicit in anorexia, bulimia, eating disorders, etc. Also, as anyone knows who has ever frequented gyms (I did so in my younger days), there is a definite “meat market” subculture in many of them, with men hitting up on women, etc. I assume that many women have issues about their bodies that they’d prefer to discuss with other women; that many of them find the gym-rat subculture unappealing; and that many perhaps feel embarrassed about working out publicly when they have conflicted feelings about their bodies. My assumption is that Curves gives such women a “safe environment” in which they can connect with other women with similar issues by whom they can feel supported. Thus, it seems to me that there are perfectly good and reasonable reasons why Curves is single gender.

      Now it would appear to me that, unless it were driven by religious considerations (such as shari`a-sanctioned haircuts) of some sort, there are no obvious reasons why one would have a single-gender barbershop. Actually, as anyone can observe, there actually is a lot of informal gender segregation: “barbershops” of the old-fashioned type tend to have mostly male patrons, while “beauty salons” tend to serve women (though either will accept customers of either gender). In any case, I wouldn’t object to a single-gender barbershop in principle if there were some specific reason given and if this was clearly posted. Everyone knows Curves is a women-only gym chain; but if I went into a gym that was not advertised or posted as single-gender and only then asked to leave because I’m a man, I would be irritated and would probably go to the manager and say, “Look, your policy is fine with me, but you need to publicize it so you don’t have to keep tossing men out!”

      According to the linked article,

      Faith McGregor walked into the Terminal Barber Shop on Bay St. in June to get a haircut — the “businessman,” short on the sides, tapered, trim the top. The shop, like many barbers in Toronto, doesn’t do women’s haircuts. But McGregor, 35, said she wanted a men’s cut.

      On the one hand, it would be interesting to see if women come to other barbershops for men’s cuts, and if the barbers (of other religions) cut their hair accordingly. On the other hand, it seems like the barbershop in question is not in an ethnic neighborhood and does not have any notification that it doesn’t serve women. Once more, more information would be helpful. In any case, the analogy with a Jewish deli that doesn’t serve non-kosher food seems weak: in that case, the deli presumably advertises itself as such, nor is it refusing to serve a class of people (I’d assume goyim are perfectly welcome to purchase their lunch there), but rather a type of service or product.

      I can sympathize with both sides, to some extent. The barber probably assumed that he would have an all-male clientele, and perhaps this had been the case, maybe for years (once again, most women don’t go to “barbershops”). The woman may have been in a hurry, had maybe gone to barbershops before (most barbers might think the request odd, but probably wouldn’t refuse it), and maybe thought, “I’ll just duck in here and get my hair cut instead of waiting for an appointment for a cut at my usual place.” No real villains.

      I would say that it’s a little hard to see how someone with that strict an interpretation of shari`a functions in a Western society. Does he make sure a clerk at a restaurant doesn’t touch him in returning change, for example? I mean, I support the right of any religious group to voluntarily ghettoize itself so that complicated rules that work better in a homogeneous context can be carried out (think Amish in their own towns, or Hasidim in Crown Heights, Brooklyn); but if the Amish decided to live in Crown Heights–or Lower Manhattan, or Chicago, or a Hasid decided to live in Amish country, or in Appalachia, it would be odd for either to complain about how hard it was to live according to his religious beliefs. I don’t see the barber’s situation as being as extreme as that, but it does sound a bit similar.

      • Thales


        So, your answer is that a male barbershop is fine as long as there was adequate posting and notice? Okay. (As an aside, I’m not sure that most people know Curves is only for women — I don’t see signs saying so on the outside of their stores, and I remember only learning that when someone told me..)

        The woman may have been in a hurry, had maybe gone to barbershops before (most barbers might think the request odd, but probably wouldn’t refuse it), and maybe thought, “I’ll just duck in here and get my hair cut instead of waiting for an appointment for a cut at my usual place.” No real villains.

        I guess I’m not following you here – sure, most reasonable people would just duck in, be told “sorry, we don’t offer ham at this deli/ we don’t offer men’s gym memberships”, and then move along even if the person was peeved at the time wasted because of the mistake. But the woman here is filing a HR complaint to force the shop to comply, with all the legal and financial nightmares that goes along with that HR complaint, and abridgement of freedom. That’s a little more villainous.

        Again, I go back to my general rule: the default should always in favor of freedom of association, with an infringement of this freedom only if there is some very good reason for it. (I’m open to the possibility that removing those “bastions of power and privilege” you talk about is one of those reasons, but I don’t see a local men’s barbershop to be such a bastion.) And that’s even before you get to religious considerations, which should add another level of protection.

  • [S]ure, most reasonable people would just duck in, be told “sorry, we don’t offer ham at this deli/ we don’t offer men’s gym memberships”, and then move along even if the person was peeved at the time wasted because of the mistake.

    Well, not quite the same. If I were told, “We don’t offer ham,” I’d think, “Well, darn.” If I were told, “We don’t serve men/Catholics/redheads/etc.”, I think I might take in more personally on a gut, emotional level, even if I acknowledged their right to do so, than I would about not getting what I wanted to eat. I mean, imagine: suppose you walked into a barbershop full of Evangelical books, with contemporary Christian music playing over the sound system, and Jack Chick tracts lying on the table, and the barber, noticing the crucifix you were wearing, looked you in the face and said, “I don’t serve Catholics.” Now, all rationality and the right of the barber to do that aside, how would you feel? I doubt the answer would be “warm and fuzzy”.

    It would be great to be a fly on the wall to see just how politely (or not) both parties acted in this encounter, and also it would be great to know their backgrounds, to know why either or both might have been hyper-sensitive (or not). Having said that, I’d agree that the woman’s response was a bit much. The better way (from her perspective) to have dealt with it would have been the traditional method of not patronizing the shop and badmouthing it to friends, as unsatisfied customers always have; as likewise proponents of the shop could have supported it. We (and apparently also Canada) are way too litigious a society.

    • Thales


      Agreed that you might be peeved at the time you wasted AND at the slight or insult you received. In fact, the slight you receive might be entirely uncharitable, unjustified, and horribly mean (the “don’t serve Catholics” for example, as opposed to the men’s barbershop which I don’t see as a horribly mean slight). This goes back to my original comment: the “bias in favor of freedom and the necessary discrimination that comes with it must be the default, even though the freedom can be violated and abused.” Society can’t force everyone to be kind to one another, and if it tries, society becomes a dictatorship that squashes freedom and the virtue of its citizens.

      The better way (from her perspective) to have dealt with it would have been the traditional method of not patronizing the shop and badmouthing it to friends, as unsatisfied customers always have; as likewise proponents of the shop could have supported it. We (and apparently also Canada) are way too litigious a society.

      This, this, a thousand times this. Litigation can ruin people’s lives and litigation over slights is one of the most evil ways to hurt one’s neighbor in Christ, even if it is legal to do. (And it sounds to me like Canada’s HR commissions are particularly bad, considering how easy it is to start litigation and how detrimental it can be to those unjustly charged.)

  • Jordan

    dominic1955 [November 19, 2012 4:36 pm] [transferred]: The connection is the practice of forcing people to conform to a decidely minority point of view by way of the law. If that is the way we are going to handle things we just as well start coming up with a snappy symbol and theme song like the rest of Totalitaria.

    I agree, Dominic, that one aspect of a cohesive community is the respect of boundaries. Homeownership, for example, is highly protected by law for good reason. A person or persons has purchased a home and a plot for personal protection and privacy. It’s your castle, should you have one — and in an acre-sized kingdom you and I are permitted any of our views.

    This provincialism does not extend beyond the apron of the driveway, however. I realize that many persons adhere to non-negotiable ideological or theological positions which absolutely exclude the recognition of other persons or their lives. Prejudice is. I am often guilty of it myself, as I often know not the negative impact or extreme ignorance of what I say. Yet beware when you percieve your inherent rights to be violated, without recourse. Would you champion the right of the Muslim barber to refuse women customers, but at the same time protect the employer who has refused to promote a well-qualified man because this employee has a lawfully wedded husband? What, in your view, are the similarities and dissimilarities of these two situations?

    Unfortunately, the notion that human communities can construct tacitly-approved rules of engagement is utterly false in postmodern societies. The difficulty of individually-conceived rights-language is that it is necessarily personal, highly subjective, and self-interested. Perhaps you might find it unfortunate that civil society does not exactly match your ahistorical and contrary to reality view of Catholicism. And yet, should you wish to enjoy the fruits of “post-enlightenment” “democracy”, you must realize that non-discrimination laws, not holy writ, represent electoral and judicial consensus over individual opinion.

    Dominic, I suspect that many, many injustices and hypocrises happen about you daily, and you have little knowledge of them. I suggest reading Sinclair Lewis’s Babbitt.

    • Thales

      at the same time protect the employer who has refused to promote a well-qualified man because this employee has a lawfully wedded husband?

      I’m against the right of employers who refuse to promote a well-qualified man because the he has red hair, is a Democrat, or listens to country music, but that doesn’t mean we should have laws trying to force employers to treat people with human decency in these situations and every possibility we can imagine. You’re offering a false choice between (1) having laws that try to stop unjust discrimination, and (2) championing the right of people to engage in unjust discrimination. There’s a third option: not having laws that try to stop unjust discrimination in situation X because of prudential considerations, while recognizing that it’s still wrong for someone to engage in this unjust discrimination.

      The law can’t force all virtue, and sometimes, when it tries to do so, other legitimate freedoms are infringed. True, the law should step in from time to time if there’s a good reason. But making laws has to be done prudentially, with a recognition that there is a delicate balance between using law to protect human rights and human dignity, and that same law possibly unjustly infringing on people’s freedom and conscience.

    • dominic1955

      “Permitted” my foot. Recognized by the our lord the gov’t or not, right is objective. It cannot be conceded that we are beholden to the State. We, socially and politically, just act like every opinion (decent or indecent, logical or asinine) is equal under the law so as to prevent shootouts. Be that as it may, for better or worse, is not ultimately the point.

      Those are awful exclusive words there Jordan. “Non-negotiable” and “absolutely exclude” in reference to people and their lives? I do not know of a single ideological or theological position that “absolutely excludes” the recognition of persons or their lives other than by not adhering to those person’s self-definition. That’s a whole different game and not nearly as rigid or mean as an absolute exclusion.

      The Muslim man runs his shop the way he wants it run. If he just wants to hire fellow Middle Eastern Muslims and just cut hair according to his own notions of Muslim orthodoxy, whether or not they coincide with any “official” group within Islam is not the State’s business. He is not even providing an essential service, he is providing a completely optional service. If his shop makes money because like minded folks from the Muslim community flock to it, good for him. If he fails because he’s one strict Muslim in a see of secularists then that’s his problem. If he doesn’t want to give a woman a man’s haircut, why should he? Again, how big of an ass do I have to be to go to the Jewish deli and demand my ham sandwich, get all huffy when they say no, and then go tattle on them to the Human Rights goosesteppers? Anyone with a shred of decency would have to concede that I was the one with the problem, not the deli owner.

      As to the gay man with the “lawfully” wedded partner, if I put myself in the position of the person doing the hiring, it would all depend on what the job was-and this applies to anyone no matter who they are or how they identify themselves as. If I’m hiring him in a white collar business job, as long as he’s clean cut and professional and doesn’t bring his personal life to his job (which I’d expect from everyone) then what he does on his own time is his deal. If I’m pastor at St. Mary’s and he’s applying for a job there, I don’t want to give any scandal or make it look like the Church supports such an arrangement so I probably wouldn’t hire him. If he came to me and said, “Hey, I know what the Church teaches about this and I understand what the implications could be if I work for you but I really need this job. I’m willing to keep my life personal and uphold what the Church teaches to anyone who would ask…” then that could change things.

      Regardless, the main issue is one against Statism. The State has the duty to protect and promote the true commonweal but it isn’t the source thereof. The State has no business making people conform to a de facto Statist secular “religion”, wherein lies the fall of the American Republic. This state of being was written into the very root of the American experiment. A charade of generic Protestant and Enlightenment Deist-in tension values could not hold up for long. Truth be told, I’m honestly surprised things have lasted as long as they did.

      No, actually I have no interest in “enjoying” “post-enlightenment democracy” other than recognizing the fact that I live in the U.S. in 2012. Would that it was snuffed out in its nest before it ever had a chance to rear its ugly head over the world. However, that was not the way things went so here we are. Regardless, the people of Israel routinely chose idols and unfaithfulness over God’s plan for them. All peoples and not just Israel are a stiff-necked bunch, electoral and judicial concensus are just fancy words for B.S. when they go awry of God’s plan for us. If the Church has to be Athanasius contra mundum again (and again and again ad naseaum…) then so be it.

      Injustices and hypocrisies happen around me all the time? Really? So…what is new? The poor you will always have with you. The world is marred by original sin, life is a valley of tears and there are going to be plenty of times it sucks for all of us at different points. The thing is, I am under no illusions that we can ever build Utopia or even really take a crack at solving these injustices. I’m not God and neither are you, and neither is any possible organization or society or government we can cook up. We sure as hell aren’t going to do it through Statism, as the blood of untold millions cries out to heavens against. We also aren’t going to do it by making a Utopian Church-never was and never will be. What we can do is live in grace and go to the Church as our hospital to bind our wounds and find solace from the fight. We cannot give what we do not have. Secular democracy/liberalism is just another empire/ideology/hellspawn that the Church will eventually arrange the exsequies for.

  • Jordan

    Thales [November 20, 2012 8:22 am]: But making laws has to be done prudentially, with a recognition that there is a delicate balance between using law to protect human rights and human dignity, and that same law possibly unjustly infringing on people’s freedom and conscience.

    I agree with the reality of the seemingly insolvable paradox you propose. I maintain, however, that conscientious objection in a nominally democratic, nominally rule-of-law society requires the resolve to respect the consequences of the commonly formed law. A Muslim barber who refuses women customers certainly has the right to do so in a rule-of-law nation such as Canada which respects the right of consience. He might lose customers for his decision, however. The aforementioned barber does not have a right to customers, but only a right to follow his conscience. Similarly, a Roman Catholic church or affiliated institution has a self-realized moral duty to not promote scandal. However, the Church must bear any civil penalty, tort, taxation, or other privation occasioned by firing a same-sex-married or even openly homosexual employee, an openly cohabitating heterosexual employee, or similar situation.

    Some might dismiss referenda, such as same-sex-marriage ballot propositions, as mobocracy, or the decisions of voters who are reprobate and not remotely attuned to moral law. This might well be the case. And yet, as citizens we have assented to the post-enlightenment popular state. Either we all partake of the benefits and rights of postmodern democracy with responsibility and the knowledge of legal ramifications, or claim that certain persons or organizations are exempt on often subjective merits based on appeals to authorities not relevant to the nominally secular state. Those who argue for the latter position weaken the liberal democracy which so often protects other rights they cherish.

    • Thales

      Either we all partake of the benefits and rights of postmodern democracy with responsibility and the knowledge of legal ramifications, or claim that certain persons or organizations are exempt on often subjective merits based on appeals to authorities not relevant to the nominally secular state. Those who argue for the latter position weaken the liberal democracy which so often protects other rights they cherish.

      I’m not following you at all. I don’t get your point. Yes, of course, because we live in a democratic society, we assent to following the laws that the majority creates and we consent to bearing the consequences of those laws. But that doesn’t mean that laws can’t be unjust by not adequately protecting the freedom of individual citizens or of organizations and therefore should be changed (e.g., slavery is the most obvious example). In fact, the democratic process demands that citizens engage in public debate and that citizens speak out against unjust laws in order to persuade society to change its mind about an unjust law.

      • Jordan

        Thales [November 21, 2012 7:10 am]: In fact, the democratic process demands that citizens engage in public debate and that citizens speak out against unjust laws in order to persuade society to change its mind about an unjust law.

        I certainly agree. You, I, and all Americans not only have the right but should speak when our consciences are challenged. Clearly, the HHS directive challenges the consciences of not a few American Catholics. And yet, the citizenship compact we have entered into (by birth) or assented to (through naturalization) requires that no special exemptions be made for “persons” unless these exemptions are first submitted to vote or tested in the legal system. If from a legal standpoint individual humans, corporations, voluntary organizations, and church institutions are “persons”, then Jordan, or Monsanto, or the Red Cross, or the American hierarchy have no right to carve out de facto or de jure permissions for itself. If “special permissions” are pemitted to any one of these “persons” solely on their unilateral demands, demos is shattered.

        One of the fundamental weaknesses of the American political construct is the lack of a strong national or local referendum structure as is found in European democracies. It would have been better for abortion policy to be submitted to state referenda periodically (every twelve or sixteen years?) rather than to have a nearly perpetual judgment handed down from the SCOTUS. I support an overturn of Roe, but find troubling the reality that there is no just political construct to reflect the will of the electorate when Roe falls.

        Why then, shouldn’t questions of the freedoms of religious organizations and employers with regard to mandates be put to periodic referenda? I respect Dominic’s [ November 20, 2012 2:03 pm] point that not a few persons born into postmodern democracies (or, statist nations) chafe against the disjunct between absolute protections for religious confession and the secular state. Since absolute conscience protections for the Church cannot be assured save in a confessionalist state, those who oppose the HHS mandate and other issues of conscience should not only make clear their general opposition but also work to change political structures so that their concerns might be better addressed (i.e. support the expansion of state or national referenda).

        On the other hand, should the notion that the Church be subordinate to the American republic be ultimately inadequate for the protection of its conscience, then the Church should openly oppose the fundamentals of the American republican system. The political alternative (confessionalism) is highly unpalatable to most Americans. Yet, if this is the only way to preserve the exaltation of the Church, then the Church should state this conviction openly.

    • dominic1955


      That, or we do our damnedest as part of this “post-enlightenment democracy” to make sure such things do not pass into law. At one time, common sense and some deference to Natural Law held sway in this country even with its impediment of being a child of the Aufklarung. Yes, again, if “liberal democracy” necessarily needs to pass laws contrary to Natural Law then this is the infamy that needs crushing, as one of the Father of Liberals was fond to say of the Church.

      What you seem to imply is precisely this Dictatorship of Relativism the Pope spoke of before.

      • Jordan

        re: dominic1955 [November 21, 2012 4:01 pm]:

        We are all caught in a zero-sum game with regard to politics. Either we live in current democratic constructs which permit some degree of moral evil because the electorate approves of it through human weakness, or we work towards confessionalism. Both postmodern democracy and confessionalism can be profoundly evil. Legalized abortion is a profound evil. So is the use of physical intimidation, prison camps, and the negation of freedom of expression in order to buttress a clerical state.

        There is no such beast as a confessionalist-democratic state. In confessionalism, the perceived liberty and exaltation of the institutional-political Church takes every precedent over individual bodily, intellectual, and political autonomy. Under confessionalism, what is theologically or ideologically “orthodox” one day is “heresy” the next day. Postmodern democracy, in the very least, nominally ensures that persons will not be arbitrarily arrested or killed for opposing an “orthodoxy” which can never be defined. Confessional “orthodoxy” is simply the whim and political expediency of dictators.

        Dominic, you might wish to live under such a banner. I do not. You certainly have the right to advocate such a political system. History has demonstrated, however, that confessionalism visits most grave inhumanity upon those who live under its sway. May you live in interesting times.

  • Thales


    I’m honestly not following you. It seems that you’re implying that the Church is required to submit to the HHS mandate because persons and institutions don’t have a right “to carve out de facto or de jure permissions for itself.”

    First, about the HHS mandate specifically, it’s a regulation from the HHS, which means that it is a law being imposed on many employers that has never been put up to a vote. It’s a regulation that can be changed by whoever is in the White House (and probably will be changed next time the GOP occupies it.) On top of that, just last week another federal court found the HHS mandate on Churches to be improper. So I don’t see why you think opposing the HHS mandate is a shattering of the demos. (see your reference to “exemptions are first submitted to vote or tested in the legal system”).

    But set that aside, because I think there is a more fundamental issue here. It seems that you’re saying that persons seeking exemptions from the law undermine the demos. I’m not following your position at all, because, the way I see it, the law is in the business of “granting exemptions”: a law is created which says that employer A is exempted from regulation X because it has only a small number of employees; a law is created that says person B is exempted from paying tax Y because something person B does; etc., etc. When a law is created, it inevitably makes distinctions between one group of persons and another, imposing one obligation on one group and not on another. That’s what the law does, by its very nature, which means that one group is imposed with some legal obligation and the other is “exempted” from this same legal obligation. And if the obligation imposed is unjust, citizens should argue against it, should say that it is bad, and seek to have it changed.

    Maybe here is the hang-up between us: When these citizens argue against an unjust legal obligation, they aren’t arguing “we should get a de factor or de jure exemption solely for us despite the entire legal and democratic order of society”. It seems that you might be thinking that this is what they’re arguing, which implies anarchy and no one being subject to the rule of law. But that’s not what they’re arguing. Instead, they are arguing that “the legal obligation is unjust, and should be changed under the legal and democratic order of society, and we are working to have the legal obligation changed under the legal and democratic order of society, whether it be by petitioning the government to change the regulation or the law that imposes the offensive obligation, or by challenging the obligation in court as being incompatible with some other, more primary, law.” Am I correct in thinking that this is where the disagreement between us is?

    A final observation: I wonder whether there is an even more fundamental difference between how we are thinking about things. I wonder whether you see the demos to be a situation where the government has all the rights, and then grants rights and privileges and obligations on us as equal citizens. But this is backwards. Rights come from persons first, and these are later given up to the government as a requirement in order to have a peaceful society. Consider: Right now, the law protects you from police barging into your house and arresting you without a warrant. There are a number of citizens who don’t have that protection and their house can be barged into without a warrant and they can be taken into custody without a warrant (i.e., citizens who have already been convicted and are on probation and so have given up some of their rights to the government). Are you “exempted” from the right of the government to barge into your house without a warrant, a right that the government has with regard to other people? If the government imposed a law saying that it could barge into anyone’s house without a warrant, and you said that was unjust, would you be seeking an “exemption” that undermines the demos? I think it’s a little weird to talk about it that way. The better way to think about this is that you have a right to be free from unreasonable government search and seizure that comes from your natural rights AND that is protected by a more primary law (the 4th Amendment), and the government doesn’t have a right to impose a law that unjustly infringes on you. I think a similar analogy can be made to the natural rights and the more primary law (the 1st Amendment) which says that the government cannot prohibit the free exercise of religion and so can’t impose a law that unjustly infringes on you.

    • Jordan

      re: Thales [November 22, 2012 7:34 am]: Thank you Thales for your excellent exposition on the rights of citizens in democracies. I agree with your two main points: that laws are subject to exemption and revision by their very nature, and, on an even more basal level, that rights derive from persons, not governments.

      When the USCCB began the “religious freedom” campaign, the conference did not couch the argument in the way in which you have. Rather, I sensed from the Knights of Columbus and EWTN campaigns, as well as pamphleture from the USCCB, that some in the hierarchy, the clergy, and the laity considered “religious freedom” superior to due process and the reciprocal relationship between the law and the citizens it serves. It is entirely reasonable for the institutional Church, incorporated religious organizations (i.e. EWTN), and individual Catholics to work within the legal system to secure exemptions. It is another matter altogether to present the Church as extrinsic to civil law. The American Church is not an estate; we have no Lords Spiritual.

      In closing, you must realize that for a very long time I have become extremely anticlerical. I long maintained that human beings are inherently corrupted by high religious office, as the pull towards self-aggrandizement is overwhelming (e.g. Cardinal Law, Bishop Finn &c). This is why I greatly fear the religious right and staunchly defend the secular state. Yet I now realize Thales, from what you have written, that a secular state cannot be just without respecting religious conscience. A secular state which does not respect religious conscience is no less totalitarian than a confessional state. I may not have much respect for the hierarchy, but their past crimes do not exclude them from equal justice according to the law. They are citizens who are also served by the law; to deny any citizen her rights is to deny myself the same rights.

      I believe in Christ; I do not trust his Church. I strongly suspect I am not the only person in this position. Thank you for this discussion Thales.

      • Thales

        Thanks for the discussion. You made me realize the weaknesses and misunderstanding that comes from using the “exemption” language.

    • Kurt

      It seems that you’re implying that the Church is required to submit to the HHS mandate…

      Just before we get too far, there is no HHS mandate on `the Church`(check the Code of canon Law if you have some doubt as to what the The Church is). Second, there is no direct mandate on organizations distinct from The Church and with independent Boards of Directors but which are Catholic. The HHS mandate is on the insurance companies. I am aware that there still is an objection to mandate but |I think we need to be clear as to what it is.