Accommodate Me!

Are Muslims under attack? Iraq. Afghanistan. Racial profiling. No fly lists. Security certificates. The list seems endless… In the wake of 9/11, the world has struggled with the question of how to accommodate religion –especially Islam – into secular society. Canada is no exception. Two recent examples include the banning of hijabs at soccer and tae kwon do competitions in Quebec, and an Ontario University art degree program’s refusal to exempt Muslim students from the drawing of nude models.

Generally speaking, both examples have at least one thing in common: a negative outcome for Muslims. In both cases, Muslims were denied an accommodation for their religious beliefs. But a critical examination of what accommodation means in each case reveals some very distinct implications for Muslims in Canadian society.

As Canadians, when we feel our rights have been violated, we turn to the Constitution. The Charter of Rights and Freedoms protects liberties familiar to Canadians – freedom of expression, freedom of assembly, freedom of religion, and equality rights among others. But even in a free and democratic society, rights and freedoms are not absolute. In Canada, rights and freedoms may be limited if the restrictions can be justified. While the Charter only applies in particular circumstances, it is a useful guide to assess when a rights violation has occurred.

In the case of hijabs and sports, the justification for the rights violation is not especially compelling. Certain Quebec soccer associations chose to enforce a FIFA regulation prohibiting some forms of headgear. However, FIFA has been encouraging women in Muslim countries to participate in soccer by expressly permitting hijabs to be worn. The sporting bodies in Quebec, citing safety issues, have enforced the headgear rule in a way their governing bodies never have. Safety considerations are important in any sporting activity, particularly for organizers fearful of being sued. However, a player wearing a hijab is no more at risk of injury in soccer or judo than anyone else. Long hair tied in a pony tail might be a bigger risk than a snug fitting hijab of the appropriate style and material –just one more problem that can be solved by a little bit of Lycra.

A person’s right to control his bodily integrity is one of the central features of our law. Any attempt to infringe that right must be met with the highest scrutiny. The justifications provided in the hijab cases do not hold up to that high standard.

The Muslim student refusing to draw nudes in the University art program poses more challenging problems. The program’s upper year classes require students to draw live nude models. The University claims that the drawing of the naked human form is an integral part of the tradition of art instruction. A Muslim student had asked to be exempted from the program based on her Islamic beliefs. The University refused to make any accommodations, threatening to fail any student that did not participate in a required component of the program.

The restriction against nude drawings is rooted in the Islamic principle of Haya, which can be loosely described as the Islamic code of decency. Haya is an integral part of a Muslim’s faith. The Prophet Muhammad (PBUH) said, ”Indeed, Haya and Iman (faith) are companions. When one of them is lifted, the other leaves as well“ (Baihaqi). Since a Muslim would not be permitted to pose for nude drawings based on Haya, drawing them is also unacceptable. Contrast that analysis with a doctor providing medical services to a patient. Since a Muslim is permitted to disrobe for the purpose of receiving medical assistance, a Muslim doctor would be permitted to provide those services.

The University’s position is based on the well–entrenched principle of academic freedom. The function of a University is to provide critical examination of the world around it. Restricting the University from exploring the various facets of society is censorship and stifles thought. University administrators have held firm on this point by also denying Christian students wanting an exemption from required readings that held favourable views of same–sex relationships.

From a fairness perspective, any academic program would have difficulty allowing a student to omit a particular element of the program required of all other students – particularly in the case of nude art, which some consider to be the truest test of an artist’s ability.

Removing nude art from the curriculum is also an untenable option. A University art program in Canada is not teaching Islamic art but rather art in the Western tradition. Many of the greatest works of art in the Western tradition – Michelangelo’s David, the Vitruvian Man or the Venus De Milo – are nudes. Imitating the masters is an important pedagogic tool for instructors.

In the legal arena, where there are two competing interests, courts often weigh their decision on accommodation using the principle of proportionality – usually characterized as a ’cost versus benefit’ analysis of supporting one interest over the other.

In the case of mandatory nude drawings, although there is some incursion into the right to practice Islam, it is important to properly characterize the violation. Unlike the hijab cases, the art requirements do not involve the infringement of bodily integrity. In the Canadian rights paradigm, the infringement of a religious right is generally not considered to be as serious as a violation of bodily integrity and is unlikely to justify the harm caused to academic freedom.

Framing this entire issue for Muslims, is the context provided by contemporary Islamic views on art. People have believed many forms of art to be haram or forbidden, whereas the vast majority of scholars have found that only art created for the purposes of idolatry or worship is actually prohibited.

In many Canadian ’Muslim cultures’, the pursuit of wealth, stability, and attractive marriage partners, has lead people to abandon the paintbrush for stethoscopes, silicon chips, and tee squares. Khaled Abou El Fadl once remarked that there has been no civilization in history that has progressed in the scientific or technological sense without a vibrant art community. Reviving the Islamic spirit, understanding our faith and maintaining a Muslim identity in the modern Canadian context requires an environment which fosters a free exchange of ideas – ideas that question long-held assumptions and stretch the borders of established tradition. One of the most profound ways of accomplishing this function is through art.

As part of the larger Muslim community,  we cannot expect to progress without this free exchange. Progress – the furthering of our understanding of the created world – is not the antithesis of the Islamic faith, it is at the heart of it. Throughout history, we have seen that when a society fails to progress, it is oppressed. Indeed, it is often the oppressed who see a path to salvation in the abandonment of learning, progress and change.

There are obvious tensions between the free exchange of ideas and the requirements of Haya. If we acknowledge the connection between art and progress and recognize the study of art as a worthwhile pursuit, it should theoretically be possible to make a necessity argument to allow a Muslim student to fully participate in a recognized art program, without compromising their Islamic identity. But the mechanics of such an exception are best left to the Sharia experts.

Whether or not you would find the reasoning behind such an exception compelling is a personal choice. While freedom of religion is often thought of as a ’group‘ right, the enforcement of any freedom is based on an individual’s complaint that his freedom has been violated. That individual’s understanding of Islam colours the perspective by which the faith is viewed for the purposes of determining the scope of the right.

But as a group, determining whether to rally behind a cause is difficult because there is no set interpretation of Islam. The tradition of Islamic law has been sensitive to differing interpretations that have varied according to circumstances. Since religion is ultimately a personal endeavour, every Muslim should be on guard when claiming a right ”as a Muslim“ or when someone else claims an Islamic right on your behalf.

It may be reckless to support a Muslim cause simply because it is championed by a Muslim. Children of Islamic Nations (COIN) is a Muslim cause but then again, so is Al–Qaeda. It is easy to choose sides when you are picking between extremes – it is not as easy picking between shades of grey.

In North America, Islam has never loomed larger on the radar screen. While there are an increasing number of important Islamic causes, as a group, our political capital is also limited. Although both the hijab and art cases appear to be similar violations of freedom, a thorough analysis shows that the underlying issues are very different. Before you throw your support behind any cause, you must ask yourself: is this a worthwhile pursuit? Is this the best use of our resources? How will achieving this goal affect the practice of Islam on a broader scale?

It is important to remember that the freedom that allows us to practice Islam freely in Canada is the same freedom that allows people to do a number of other things that may not be Islamic. Supporting a cause that derogates from that overarching freedom for one purpose may have an adverse impact on our freedom to practice Islam. We must be careful what we fight for – we might just get it.

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