“Scarfgate.” “Hijab hunt.” These witty barbs by Josh Freed of the Montreal Gazette, will be remembered long after the twisted rationales issued by the Coalition Avenir Quebec (CAQ) for its “laicity” bill, Bill 21, have faded.
The bill’s preface begins on a noble footing, declaring that state secularism stands upon four principles: one, separation of religion and state; two, religious neutrality of the state; three, equality of all citizens; four, freedom of conscience and religion. Who would argue with any of these tenets? Are Bill 21’s defenders right when they say critics who shout “racism” are simply ignorant of the values underlying the bill?
In widespread newspaper ads, Quebec Premier Francois Legault echoes the preface when he announces, “Religion must not interfere in the affairs of the state. Nor the reverse.” He seems incapable of understanding why the state suppresses religion when it prohibits teachers and others from wearing religious clothing. Legault and his supporters must want us to think only of clear examples – a legislature should not open its sessions with a Christian prayer nor should a state institution explicitly favour or disfavour any religion in hiring or firing, promoting or demoting.
Legault’s CAQ pretends to be blind to the indirect but still pernicious impact of the bill on minority faith communities. It has been 35 years since the Supreme Court invalidated the Canadian Lord’s Day Act in 1985, in Big M Drug Mart Ltd., ruling that the state should not require that a store remain closed on Sunday since this “neutral” prohibition disproportionately penalizes store owners whose faith also requires them to close on Saturday or Friday.
There is a partial explanation for such blindness – Quebec’s history is steeped in devout Catholicism, which emphasizes inner belief, and eschews outward signs of devotion like clothing and head covering. It’s very different for observant Jews, Sikhs and Muslims whose faith often requires full-circle spirituality – kippahs, fringed garments, dastars (turbans) or hijabs. The Big M Sunday closing case discredited this notion that equal treatment passes muster under the Charter when, in the real world, it produces such unequal outcomes.
That is why a bill that in practice penalizes only those whose beliefs require an outward expression tramples on all four principles: separation, neutrality, equality and freedom.
The cracks in Bill 21 are even wider. Incredibly, it has no definition for “religious symbols” or what “wearing” them means. Are head wraps like those worn by actress Lupita Nyong’o and singer Alicia Keys religious symbols? Do fringes on a tallit katan and yin-yang tattoos (rooted in Taoism) have to be hidden from sight? Will a teacher promoted to vice-principal be forced to shed her hijab if all the staff support her? Legault cannot cover these cracks with his smile.
Legault declares that the bill is meant “to put an end to a debate that has gone on far too long… It’s time to set rules, because in Quebec, that’s how we live.” The debate over this brand of state-enforced secularism began because a handful of disputes between Quebecois de souche and Muslims sparked the creation of the Bouchard-Taylor Commission. Their report in 2008 recommended that persons with coercive authority be forbidden from wearing religious symbols at work.
Liberal and Parti Québécois governments introduced bills more draconian than their recommendations. The bills collapsed from criticism and their own rottenness. Years later, Commissioner Charles Taylor denounced the recommendations, explaining that he was wrong to agree to suppress rights to achieve a “compromise.”
Legault and his Minister of Immigration, Diversity and Inclusiveness, Simon Jolin-Barrette, also say the bill embodies “compromise” and “balance.” The former writes that Bill 21 satisfies neither hawks nor doves. That’s a parody of compromise. The latter says, “the bill is not racist; it is balanced between collective rights and individual rights.” But here, “collective rights” refers to the majority who, released from their ancestral faith, seemingly have the right to put observant teachers of other faiths to an untenable choice. Some balance.
Likewise, supporters of the bill point to Quebec’s particular “history”- going from thralldom to the Catholic Church to the Quiet Revolution to the open society of today– as a licence to squeeze the religious symbols of newer groups from the public sphere. This, when Quebec badly needs immigrants to boost business and the birthrate. They also point to francophone parts of Europe as also having secularity impulses and even stricter laws. But their failure to integrate their religious minorities is a lesson for more openness not more restriction.
This is why Legault’s government didn’t rely upon Section 1 of the Canadian Charter of Rights and Freedoms to uphold Bill 21, rather than invoking the pernicious “notwithstanding clause.” Section 1 subjects the Charter “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The CAQ knew it is highly unlikely Bill 21 would satisfy these tests before Quebec courts or the Supreme Court.