Hutterites Steamrolled by the State
August 4, 2009
On July 24, in a case brought by the Hutterian Brethen of Wilson Colony, the Supreme Court of Canada ruled that the Alberta government is entitled to require a photo on the Hutterites’ drivers’ licences. “The negative impact on the freedom of religion of Colony members who wish to obtain licences,” the decision summary explains, “does not outweigh the benefits associated with the universal photo requirement.”
The Hutterites—a sect or a religious group as one might want to call them—refuse to have their pictures taken for their drivers licences and for a related digital photo data bank. They believe that photographs are “likelynesses” prohibited by the Second Commandment: “You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth” (Exodus 20:4). Stupid belief? I would think so. But it is their belief, and weighing its importance for them against the beliefs of others about some ID system is comparing oranges and apples. Such comparisons can only be arbitrary and dictatorial.
It can be—and was also—argued that the Hutterites should be subjected to the same laws as everybody else. However, loopholes can be useful in undermining a bad law. Equal oppression for all is not a great ideal.
The main issue remained whether the photograph requirement infringed on the Hutterites’ freedom of religion. The court said yes, and used the so-called “Oakes test” to determine whether this infringement is, according to s. 1 of the Canadian Charter on Rights and Freedoms, “justifiable in a free and democratic society.” The majority ruled that it is. They argued that “maintaining the integrity of the driver’s licensing system” is necessary to protect the drivers’ licenses as “a widely used and respected method of personal identification.” Now, this is precisely the problem.
The government of Alberta argued that a photograph on drivers’ licenses (brought in by a Conservative government) is necessary to fight identity theft. How can it be so? Until relatively recently, there was no government photo ID at all in this country—as late as the 1990s in the case of Québec. Tricks and rules of thumb were developed to evaluate honesty and identify individuals, from their signatures to their body language. And it worked.
With no state ID papers, there was no canned identity to be stolen. Interestingly, the Supreme Court recognizes that “the issue of identity theft is a social problem that has grown exponentially in terms of cost to the community since photo licences were introduced in Alberta in 1974,” and admits that “[a] collateral effect of the licensing system is that the driver’s licenses issued under this system have become generalized identification documents, with the attendant risk that they might be misused for identity theft.”
A drivers’ licensing system calls for adding photographs, which soon morph into a digital photo data base. What’s the next step? Biometric ID papers or RFID implants? Once you get into this logic, the end product will be a parent licensing system, a three-decade-old academic proposal based on the driver licensing model. The reason why no drivers’ licences should carry a picture is that we need to stop this drift—if we are too shy to question the whole system of licensing drivers.
Look at the big picture. The danger of official ID papers is that they allow the state to monitor individuals and, thus, to reduce the cost of enforcing and imposing growing regulation on them. Photographs on drivers’ licenses (and on medicare cards) contributed much to the rise of government ID papers in Canada. When they bore no picture, they were less efficient. Blessed inefficiency!
Since photographs appeared on government ID papers, private parties have jumped on the bandwagon or obediently fallen into the ranks. Just a few days ago, I had to show government photo ID to my branch of the CIBC, where I have been a customer for nearly three decades, in order to renew an ATM card. The CIBC had resisted perhaps better than other banks (the National Bank, for example, caved in much earlier), but it has now fallen too. One sometimes wonders if these tightly regulated bureaucracies are really private businesses anymore.
Strip the Supreme Court majority of its casuistic legal prose and you rapidly unearth its statist and collectivist foundations. It pays its honours to the “administrative state.” “[T]he court’s ultimate perspective is societal,” write the learned judges, using a word which simply means “social” in clean voodoo.
The dissenting minority buys into the same hogwash. True, Justice LeBel criticizes the majority’s theory that driving is merely a privilege granted by the state. Against the public safety justification for photographs, he correctly notes that “[a]bsolute safety is probably impossible in a democratic society.” But such refreshing statements are rare. One dissenting judge writes that “religious freedom has both individual and collective aspects.” In reality, the judges are debating which of their own preferences to use as a criterion for comparing apples and oranges.
The Court finally determined that, on balance, the costs imposed on the Hutterites are lower than the benefits conferred to other people. In this approach lies the essence of state action. The state generally does not adopt policies that produce public goods that benefit everybody; instead, it adopts measures that benefit politically favoured groups at the detriment of politically disfavoured ones. The Court implicitly admits it by saying that “the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs.” If the good were truly “general,” there could be no such conflict. It is because the state promotes particular preferences and values that it fuels mounting conflicts.
Today’s exploited minorities are the Hutterites, the gun owners, the smokers, and a few others. Tomorrow, other minorities will get steamrolled.
Pierre Lemieux is a Research Fellow at The Independent Institute in Oakland, California, and Associate Professor of Economics at the University of Quebec at Outaouais in Canada.