Gurbaj Singh Multani, a Sikh student in Québec, was playing during recess when, oops, his kirpan, a ceremonial Sikh dagger, fell out of his clothing. The mother of another student noticed, and minutes later the principal of the school, Danielle Descoteaux, informed Gurbaj that he would not be permitted to attend the school so long as he continued to carry this “weapon” on his person.

The school board agreed with Descoteaux’s initial reaction, stating that the kirpan violated its code of conduct, which prohibits the carrying of weapons. The board’s council of commissioners upheld that decision, but told Gurbaj and his parents that Gurbaj would be permitted to wear a kirpan-shaped pendant or a kirpan that was made of some other material (e.g., plastic or wood), not metal. Gurbaj’s father sued, claiming his son’s rights under the Canadian Charter were violated.

The Supreme Court of Canada unanimously sided with Gurbaj’s father, holding that, “The council of commissioners’ decision prohibiting [Gurbaj] from wearing his kirpan to school infringes his freedom of religion,” as guaranteed by Section 1 of that Charter.

The Court described the importance of this specific right as applied to Gurbaj:

Religious tolerance is a very important value of Canadian society. If some students consider it unfair that [Gurbaj] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy. A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. Accommodating [Gurbaj] and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition… outweigh its salutary effects.

Balancing an individual’s general right of conscience (manifested by religious expression or moral objection, for example) against competing considerations of the general public, such as health or safety, is a difficult and problematic exercise, one which will not result in a satisfactory outcome for all interested stakeholders.

Complicating matters is the fact that, as Dahlia Lithwick noted recently in Slate, “The right of conscience, ultimately, is a subjective one.” And, as the Supreme Court of the United States stated in addressing an individual’s refusal to receive a mandatory vaccination for smallpox:

Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Similarly, some argued that Gurbaj’s kirpan presents a safety threat to others in the school and that his religious beliefs, however sincerely held, do not outweigh this threat:
[Gurbaj’s] presence at the school prompted about 30 parents to yank their children from school in protest, insisting that a kirpan was a dangerous weapon.[link]

On the other hand:

The Kirpan is an ingrained part of the Sikh religion…. The Kirpan has been an integral part of the Sikh religion since it’s early inception and has a very sacred religious symbolism for Sikhs. To suggest that it is a ‘dagger’, or a ‘weapon’ or merely a cultural symbol is both misleading and offensive to Sikhs.[link]

Gurbaj and his family should be thanked for taking this case all the way up to the Supreme Court, and for convincing that Court to hand down a decision that protects the rights of all Canadian Sikh students. Respek.

A point of personal privilege: I would like to thank the ballers at SM, particularly Sajit, for inviting me to contribute to this important substantive forum. I noticed that some of the commenters called for a female or lesbian/gay guest-blogger. I am neither, but I hope that I will able to present a unique perspective to certain issues and enrich the existing intellectual dynamic on this exceptional site. Let’s do this!