After the emotional humidity of the past few weeks, it's an intellectual relief to go back and re-read the Federal Court ruling that knocked down the Conservative government's ban on niqabs at citizenship ceremonies.

In 31 pages, Justice Keith M. Boswell crisply summarizes the complaint by Zunera Ishaq, the Pakistani-born woman who challenged the prohibition, and the counter-arguments of federal lawyers (who at one point rather haplessly tried to argue the ministerial directive wasn't really a ban, just a suggestion.)

Boswell then ruled that wearing a niqab does not interfere in any substantive way with taking the oath, and that the minister of immigration does not, in any event, have the authority to summarily forbid wearing one.

As you would expect from a judge at Boswell's level, his ruling was antiseptic, almost surgical.

He is uninterested in why Ishaq interprets her religion as an obligation to keep her face covered in public; it is enough that she does, in the same way that ultra-Orthodox Jews feel obliged to wear black hats and side curls, or some Roman Catholics feel compelled to walk around with crosses daubed on their foreheads on Ash Wednesday.

And not once does Boswell even consider Stephen Harper's greatest justification for the niqab ban: that the full veil is antithetical to the Canadian way of life, and that most Canadians oppose it.

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Not that Harper is wrong on that last point. Poll after poll suggests he is absolutely right.

In fact, just before calling the election, Harper used taxpayers' money to test public opinion, and Leger Marketing reported back that more than 80 per cent of Canadians want veils removed during the citizenship ceremony. In Quebec, the number was 93 per cent.

Harper in fact couches his views on the niqab as the views of the nation.

"Most Canadians believe that it is offensive that someone would hide their identify at the very moment where they are committing to join the Canadian family," he declared in February, in a rebuke of Justice Boswell's ruling.

Rule of law

A few weeks later, he said this in the House of Commons: "Why would Canadians, contrary to our own values, embrace a practice … that is not transparent, that is not open and frankly is rooted in a culture that is anti-women?"

But Justice Boswell, and the Federal Court of Appeal judges who upheld his ruling earlier this month, are utterly unconcerned with what most Canadians might think, or want.

They are concerned only with the law, and for that, we should all be grateful.

Justin Trudeau, Gilles Duceppe, Tom Mulcair and Stephen Harper debate the plan to ban Muslims from wearing the facial covering at citizenship ceremonies. 4:09

Not all conservatives are, of course. Those on the far right, particularly Christian conservatives, often argue that courts should not be able to overrule the popular will.

In the U.S., for example, Republican presidential aspirant Mike Huckabee, a former governor of Arkansas, has urged Americans not to "bow and worship at the altar of judicial supremacy."

After a Kentucky county clerk, citing her evangelical beliefs, refused to obey a Supreme Court ruling affirming the right of gay couples to obtain marriage licences, and was jailed for contempt, Huckabee raced to her side, appearing with her on stage, denouncing the five Supreme Court judges who issued the historic ruling.

"They are not the supreme branch and they are most certainly not the Supreme Being that can unwrite the laws of nature and the laws of nature's God," he thundered.

The court's ability to overrule legislators, he said, is "something very dangerous to our way of life and our great republic: judicial tyranny where the people no longer rule, five unelected black-robed lawyers rule."

That of course ignores the principal role of the judiciary: tempering the forces of public opinion with rule of law.

What Huckabee wants is not democracy, but majoritarianism. And while Stephen Harper may not appreciate even an oblique comparison to Huckabee, he is making a pastel version of the same argument.

Emotional appeal

Like Huckabee's, it clearly does have an emotional appeal to its intended audience. In too many instances, the niqab is clearly an instrument of inequality; using it to indoctrinate young girls is, on the face of it, probably a human rights issue.

Presidential candidate Mike Huckabee, left, said he is willing to go to jail for Kentucky country clerk Kim Davis, right, if she is sent back for refusing to marry gay couples, despite the law. (Timothy D. Easley/Associated Press)

But then, indoctrinating children is how religions ensure their continuity. Society has accepted that religious parents have the right to impose religious practices on their children. The children have little say in the matter.

And the decision of a grown woman, like Zunera Ishaq, to cover her face at a public ceremony is, well, the decision of a grown woman.

Sure, Stephen Harper, and a lot of other people, think the niqab is rooted in an anti-woman culture, but where does that argument end once the heavy hand of government becomes involved?

Harper's own immigration minister, Chris Alexander, has already conflated the niqab and the burka, which cover a woman almost entirely, with the hijab, which can simply be a headscarf, and which millions of Muslim women wear.

And if a government can base public policy on a belief that one monotheistic religion has misogynistic doctrine, might not some future government turn its attention to the treatment of women by orthodox streams of the two other monotheistic religions?

A niqab can appear sinister to someone who hasn't lived in the Middle East. It has clearly become a distillation of Canadians' unease about fundamentalist Islam.

But there is no law against wearing it, and any eventual law will need to scale the impassive walls of the Supreme Court and the Charter of Rights.

Former Liberal prime minister Jean Chrétien, in his awkward fashion, nailed it last week.

"It's not am I comfortable or not" with women covering their faces, he said. "Makes no difference at all. It's a question of rights and it will be for the court to decide."

Makes no difference at all. Precisely.



