The contentious issue of freedom of religion for Hutterite colonies in Alberta was back in the news last weekend because the Canadian Supreme Court has decided to hear their case.
In 2003, the Province of Alberta decided to abolish its long-standing policy that had permitted religious exemptions to its requirement that every driver’s license must have a photo on it. The basis for the opposition by some religiously conservative individuals, such as the Hutterites, is the second commandment, which expressly forbids people from permitting graven images from being made. While many Hutterites do not mind having their pictures taken, the Wilson Colony, near Lethbridge, Alberta, supported by several others, is strongly opposed.
The Wilson Colony decided to take the issue to court when they were unable to renew their licenses after 2003. In May 2006, a judge on the Court of Queen’s Bench in Lethbridge, found the arguments by the Hutterites to be compelling and he set aside the 2003 provincial ruling. The Province appealed to the Alberta Court of Appeal. In May this year, that court upheld the lower court decision, so the Province decided to appeal to the highest court in Canada, in Ottawa.
The Supreme Court, in announcing last Thursday, November 29, that it would hear the case, gave no public reasons for its decision. The protests of the Hutterite colonies about requirements for photos on driver’s licenses have been in the Canadian news, along with a number of other issues related to freedom of religion that have provoked a lot of popular discussion as well as court cases.
Canadians question how much accommodation should reasonably be made for religious freedom, when those freedoms appear to conflict with the requirements for maintaining public safety. “Reasonable accommodation may be something that the Supreme Court wants to revisit or review or clarify,” said Greg Senda, the lawyer for the Hutterite Colonies that are pursuing the court case. “It has been in the news a tremendous amount recently …. The court may be taking the opportunity, with this particular case, to comment again on the issue.”
Earlier religious rights decisions handled by the Canadian courts included a controversial case pitting the rights of Sikhs to wear their ceremonial daggers, or kirpans, in schools, versus the perception that public safety is enhanced when people are not allowed to bear weapons. In that case, the high court decided in favor of the Sikhs, though it accepted some controls on the sizes and sheathing of the kirpans. Another controversial issue has been whether Muslim women must bare their faces at polling places. Commentators see this Hutterite issue as treading on similar legal grounds as the others, though of course differing in details.
The province argues that having digital photos taken and printed on the licenses must be compulsory, to help fight terrorism, identity theft, and fraud. The photos can’t be optional. Driver’s licenses are a major form of identification, not just a requirement for driving a vehicle on public highways. Photos are essential in Alberta’s efforts to fight forgeries, the province argues.
On the other hand, the farming operations of the Hutterites are crippled when their drivers, prevented by their religious beliefs, cannot legally drive. Senda indicates that it is virtually impossible for the Wilson Colony to successfully farm without licensed drivers. From 2003 to 2006, when the province agreed to re-issue licenses pending the end of all appeals, the number of licensed drivers for the colony had dropped from 37 to 15. Senda said that he will be glad to argue the case once again, this time in Ottawa.
Sam Wurz, the manager of the Three Hills Hutterite Colony, which has joined the Wilson colony in its suit, welcomed the review by the Supreme Court. “There’s a whole minority of groups out there that want religious freedom,” he said. “If we win, it’s going to be good for everybody.” He indicated his colony had spent over $100,000 on the issue so far, and he will be glad to have a final resolution of the matter.
Alberta similarly welcomed the review by the Supreme Court. Ron Stevens, Justice Minister for Alberta, said, “from our perspective, the rules that we have are all about safety and we think that’s an important principle to get clarity on.”
A Canadian professor of law, Gerald Gall at the University of Alberta, explained to the press that the fact that the Supreme Court has decided to hear the case does not mean that they are predisposed in any way about the issue. Rather, it signifies that the court must believe the issue has public significance, or that it deals with an important point of law. He also believes the issue is tied to the broader political discussion in Canada about accommodating religious views that differ from the opinions of the majority.
No date has been set for the hearing of testimony, but observers expect the high court to begin considering the case next fall.