11/22/2012 05:29 EST | Updated 01/21/2013 05:12 EST

"Conflicting Rights" Implies a Phony Right

A spokesman for the Ontario Human Rights Commission has finally admitted what was obvious to any thinking person from the very inception of the Human Rights Code: namely, that the code would eventually start generating numerous problems over so-called "conflicting rights." The admission can be found in this Toronto Star article: "Woman denied haircut goes to Human Rights Tribunal of Ontario."

It appears that this past June, a woman named Faith McGregor went to a Toronto barbershop that offers only men's haircuts. She asked for a cut but was refused. The two Muslim shop owners, Omar Mahrouk and Karim Saaden, said their religion forbids them from touching a woman who is not a member of their family. Therefore, they refused to serve her even though she wanted a man's-style haircut.

Instead of doing the sensible thing -- i.e., saying to herself, "How annoying!" and looking for another haircutter -- McGregor said to herself, "This makes me feel like a second-class citizen!" and filed a complaint with the Human Rights Tribunal. She doesn't want money, she says. She wants an order forcing that particular barbershop to offer men's haircuts to both men and women. In other words, she wants to force Mahrouk or Saaden to violate the tenets of their religion or else be compelled to hire a non-Muslim employee just for her.

McGregor claims the "right" to be free from gender discrimination. Mahrouk and Saaden claim the "right" to freedom of religion. The Human Rights Commission says these two "rights" conflict -- and they certainly do, framed this way. Only one of these conflicting claims can be granted. Whichever one wins, the other will of necessity be violated.

But the very concept of "right" includes inviolability. A genuine right is something that cannot legitimately be infringed by the mere say-so of some state-appointed tribunal doing a balancing act.

So whenever there appears to be a conflict of "rights," at least one of the claims -- or possibly both -- must be phony.

The only kinds of claims that can genuinely be rights are those that are both universal and reciprocal. Everyone has to have the same right, and everyone's obligation to everyone else must be identical. The right to life, for instance, means that you don't kill me, and I don't kill you.

We both have the same right not to be killed, and the same obligation to refrain from killing the other person. Such rights -- commonly called "negative rights" -- create no conflicts between claimants. They are invariably rights to be left alone, free from coercion.

In this case, it's easy to figure out which claim is the fake. McGregor's claim to freedom from gender discrimination is not reciprocal. If granted, it would impose upon the barbers an affirmative obligation to do something for her, something that they have no desire to do and are not demanding that she do for them.

In effect, it imposes a form of involuntary servitude on the barbers, even if she pays them for the haircut. The price of a haircut is clearly not enough to induce them to violate their religious practices, so she would be forcing them to work against their will.

The barbers have the genuine right in this case. They should be legally permitted to refuse haircuts to whomever they please -- but not because they have freedom of religion. What they genuinely have a right to, and what the tribunal should recognize and enforce, is a right to plain old unadorned freedom.

Freedom means the absence of coercion. It includes freedom of contract. To have a contract, you must have a meeting of minds on all the major terms of the contract, including the identity of the person with whom you are contracting. If you don't want to deal with someone for whatever reason -- be it that they're female, or not a member of your family, or that they're left-handed, or they smell bad -- you should be free to decline. If they have the right to force you to deal with them, then we're back to involuntary servitude.

This is not a novel type of conflict for Ontario's so-called "human rights" apparatus to deal with. A similar conflict arose in 1996 when print-shop owner Scott Brockie, a devout Christian, refused to print stationery for a gay organization. Brockie's claim to freedom of religion under the Charter of Rights and Freedoms cut no ice with Ontario's Divisional Court, which ordered him to pay $5,000 in damages and to do the printing for the gay organization. The court held that it was justifiable to violate Mr. Brockie's Charter right because his freedom of religion "causes harm to others."

It will be interesting to see whether a Muslim's claim for freedom of religion fares any better than a Christian's did. The Canadian Constitution Foundation will be keeping an eye on this case.