In perfect time for the Eid, the Swiss voters passed a federal referendum today, which bans the construction of minarets throughout the country. If I understand the process correctly, then according to Swiss law any popular initiative is subject to the inspection of the Federal Council, which examines whether it is in breach of mandatory international law. If it is not, the initiative goes to public vote, and from that point on it cannot be struck down by any national institution based on its merit. The Swiss people, then, are an ultimate sovereign of Switzerland - their will is law, and it is not subjected to any constitutional restrictions.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)
Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.
So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)
Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.
So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.
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