This essay first appeared in Free Inquiry.
On June 16, 2019, Quebec passed
Bill 21,
Loi sur la laïcité de l’État or An Act respecting the laicity of the State, into law.
The controversial aspect of the bill bars many public-facing government employees, including judges, government lawyers, police, and teachers, from wearing ostentatious religious symbols. Doctors and nurses, also provincial employees, are not covered by the legislation.
What is Secularism?
Political secularism is concerned with government’s relationship with religion, and how it treats the faith (or lack thereof) of its citizens. Bill 21 fails the secularism test no matter how it is defined.
Freedom
of, and from, religion
Bill 21 infringes on freedom of
religion by forbidding many government employees from wearing
religious paraphernalia while they work. A provincial employee
wearing a religious symbol does not imply that the provincial
government endorses that faith - just as one cannot assume the
editors of Free Inquiry agree with this article because they have
published it. Absent a compelling argument that merely observing
someone wearing a religion symbol is tantamount to religious coercion
– and no such argument has been forthcoming – there is no
countervailing violation of the secular principle of freedom from
religion. Therefore Bill 21 violates secular principles.
Separation of
church and state
How can the government know if a man
wears a bushy beard from aesthetic preference or religious
observance? Is the state equipped to discern whether a woman wears
scarf on her head out of respect for her deity or a personal fashion
sense?
Absent an individual proclaiming that a
symbol is worn due to religious belief, it is impossible for the
state to make any such determination.
When religion controls government, it
is theocratic. When government controls religion, it is
authoritarian. Because Bill 21 puts the state in the role of
determining, on behalf of the individual, whether a symbol is
religious, the law intrinsically entwines church and state. It is
therefore not secular legislation.
Government
neutrality in matters of religion
The Centre for Inquiry Canada defines
secularism as government neutrality in matters of religion. Put
another way, government should neither support nor suppress religious
expression.
As the Supreme
Court of Canada has noted, “state neutrality neither favours
nor hinders any particular religious belief, that is, when it shows
respect for all postures towards religion, including that of
having no religious beliefs whatsoever”.
By barring provincial employees from
wearing the clothing or accessories of their choice, Bill 21
suppresses religious expression. Thus it violates the secular
principle of government neutrality in matters of religion.
Moral considerations
Canada’s constitution is the Charter
of Rights and Freedoms, which defines the rights that Canadians
enjoy. These rights are not absolute. Section 1 states that all
Charter rights are “subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society."
There is another way
governments can exempt themselves from respecting Charter
rights. Section 33 states that federal or
provincial legislatures can declare an Act “shall
operate notwithstanding a provision included in section 2 or sections
7 to 15 of this Charter.”. This is known colloquially as the
“notwithstanding” clause.
Supporters claim the restrictions Bill
21 places on provincial employees are reasonable. Yet if the Quebec
government believed Bill 21’s provisions were defensible, it could
have justified the law under Section 1. Quebec instead chose to
invoke the notwithstanding clause to shield the legislation from
judicial scrutiny.
While invoking the notwithstanding
clause for Bill 21 might be a legally sound strategy, it is
definitely a morally dubious approach.
Practical considerations
Regulations
that precede Bill 21 already forbade
teachers from evangelizing
their faith in the classroom.
In October 2024,
several teachers were found to have created a toxic
work environment at an elementary school in Bedford, Quebec. The
local mosque carried a “strong influence” on several of the
school’s staff members. The science, religion, and sex education
curricula were not being followed. Female students were not permitted
to play soccer.
When
this came to light, there was an investigation, and
11 teachers were suspended.
We can draw three conclusions from this
incident:
A minority of teachers in Quebec
are willing to give priority to their religious and cultural
preferences and enforce them upon students in the classroom.
No religious symbols are required
for malign influences (including religious ones) to enter the
classroom.
There are effective mechanisms in
place to discipline Quebec teachers who behave inappropriately
without Bill 21.
What purpose does Bill 21 serve that is
not already met?
Tactical considerations
"Prohibition
only drives drunkenness behind doors and into dark places, and does
not cure it or even diminish it." ~ Mark Twain
Forbidding a practice does little to
change its prevalence – doing so only drives it underground.
Sometimes, bans backfire, and lead to an increase in
the proscribed activity.
For example: when the United States
Supreme Court overturned Roe v. Wade, abortions
went up.
The purported harms that Bill 21 seeks
to address – those inflicted upon members of the public who
interact with a government lawyer, teacher, or public servant wearing
a yarmulke, crucifix, hijab, or turban – are, at best, speculative.
The harms of its implementation – the financial and social costs of
removing many, especially female
Muslim teachers, from their professions – are far more
concrete.
Demanding government employees conform
to a dress code that has no impact on their ability to perform their
jobs is not the hallmark of a tolerant, secular society.
Conclusion
There is no shortage of secular
violations in Canadian society. The Charter “recognize[s] the
supremacy of God”. The English version of the national
anthem beseeches, “God keep our land glorious and free.” The
French version contains even more overt religious symbolism. Three
levels of government directly and indirectly subsidize
religious institutions by over $5.5 billion every year. Ontario,
Saskatchewan, and Alberta fund a Catholic school system, a benefit no
other denomination enjoys.
Quebec’s Bill 21 violates secular
principles, regardless of which definition of secularism is used. Any
attempt to ban religious imagery requires the state to make a
determination as to what is religious – something it is incompetent
to do. The law serves no clear secular purpose, could have the
opposite of its intended effect, and may cause significant harm while
doing so.
