On Burkas, Condemnation Doesn't Have to Include Prohibition

My latest Calgary Herald column looks at the recent debates over banning polygamy and whether to ban the burka/niqab, and concludes that we should do neither:

It may well be the case that clear and definable Canadian values exist, but the existence of such values should not be an excuse to intrude into the private lives of citizens.
It would hardly be objectionable to suggest that polygamy is counter to Canadian values. The same could be said of the wearing of the Islamic burka or the niqab.
However, such observations do not bring us to the conclusion that these practices must then be prohibited. Judging from the national discourse, many Canadians would disagree.
Last month, B.C. Supreme Court Justice Robert Bauman issued a ruling declaring Section 293 of the Criminal Code of Canada - the law banning polygamy - to be constitutional.
Last week, Immigration and Citizenship Minister Jason Kenney sparked a national debate over the Islamic veil after declaring that those taking the citizenship oath would be forced to show their faces while doing so. A refusal to lift the veil would mean that Canadian citizenship could not be obtained.
The decree is quite narrow in that sense - it does not directly affect any other laws or regulations concerning the wearing of the veil. It may be a justified expectation, but at the same time, it may also be a solution in search of a problem.
However, it's a decision that's been applauded by many groups and commentators who hope it is a first step to banning the veil out-right, as has been done in countries such as France.
But for a practice to be criminally prohibited, there must be clear evidence of harm - harm without consent.
Causing harm to our sensibilities or values is an insufficient basis for prohibition. That's what brought us the criminalization of divorce and adultery, for example.
Advocates of a ban on both polygamy and the niqab argue that there is indeed demonstrable harm: to the women themselves.
It's a claim not without basis. Many women who have escaped the polygamous world of the Fundamental Church of Jesus Christ of Latter-Day Saints have told harrowing tales of the oppression and abuse of women.
And certainly it is the case that many Islamic women hiding their faces and identities have been forced to do so by their husbands. Either way, it represents a troubling ideology that ought to concern those who believe in gender equality.
The problem with the harm-to-women argument is two-fold. For one, even if the harm is present in many or most instances, it cannot be presumed to exist in every instance.
In fact, the harm may be specific to religion - it's hard to identify, for example, the victim of a non-religious polyamorous relationship. There may also be non-religious reasons why an individual may want to cover his or her face while in public.
Should we ban the Fundamental Church of Jesus Christ of Latter-Day Saints or fundamentalist Islam? It seems just as logical as a burka or polygamy ban.
The bigger problem with the harm-to-women argument is that we create the paradoxical situation where the victim is also the criminal.
If we are to argue that a woman who becomes the ninth wife of a church elder is a victim, the problem is that by entering into that arrangement she, too, has violated the law.
By banning the burka, we would be targeting those who wear it. There would be no consequences for the husbands who force their wives to wear it or the imams who warn of eternal hellfire for those who shun it.
Even under Kenney's narrow citizenship rules, it cannot escape observation that it would still allow a misogynistic Islamic fundamentalist to give the citizenship oath, while denying his timid, veiled wife.
Our battle against that which offends our values should not rest on whether we can prohibit these practices.
We can respect individual freedom and autonomy while still condemning and ostracizing certain beliefs and ideologies.
We don't criminalize, for example, the tattooing of one's body with swastikas or the formation of white supremacist groups. Yet, you'd be hard-pressed to find ideas more at odds with Canadian values and sensibilities.
The heavy hand of prohibition should always be a last resort. The impulse of "there oughta be a law" too often leads us astray.